EHRM, 16-02-2021, nr. 23922/19

In determining whether, in the light of the above principles, the dismissal without notice of the applicant was ‘necessary in a democratic society’ in the circumstances of the present case, the Court notes at the outset that the Constitutional Court, in its assessment of the applicant's complaint, had regard to the above-mentioned criteria developed in the Court's case-law (see paragraphs 30---8211---32 above). In reviewing, under Article 10, the domestic court's decision, the Court observes that the Constitutional Court recognised that there was considerable public interest in medical treatment in a public hospital which was in accordance with the state of the art. The Court considers that the information disclosed by the applicant, namely the suspicion that a chief physician currently working at the Liechtenstein National Hospital had repeatedly practised active euthanasia, concerned suspicions of the commission of serious offences, namely the killing of several vulnerable and defenceless patients, in a public hospital, as well as a risk of repetition of such offences. It agrees that this information was as such of considerable public interest.

As regards the authenticity, in the sense of veracity, of the information disclosed by the applicant, the Court cannot but note, however, that the Supreme Court and the Constitutional Court, in particular, found that the suspicions of active euthanasia which the applicant had reported to the Public Prosecutor's Office had been clearly unfounded. The Court observes that the assessment that no active euthanasia had been practised was shared, in particular, by the two external medical experts, N. and L., who had been asked by the Liechtenstein National Hospital and the Public Prosecutor's Office respectively to examine this question on the basis of the medical paper files (see paragraphs 15 and 18 above). While the Court does not overlook that the applicant contested that his suspicions were clearly unfounded, it cannot but note that he did not consult all patients' paper files. Despite the fact that expert L. saw some room for improvement in the documentation in these files, both external experts concluded without any reservations that the patients in question had received necessary and justified palliative treatment. The domestic courts, in finding on the basis of these reports that the information disclosed by the applicant was clearly wrong and thus did not have a sufficient factual basis, therefore relied on an acceptable assessment of the relevant facts.

The Court would stress that information disclosed by whistle-blowers may also be covered by the right to freedom of expression under certain circumstances where the information in question subsequently proved wrong or could not be proven correct. It recalls, in particular, that it cannot reasonably be expected of a person having lodged a criminal complaint in good faith to anticipate whether the investigations will lead to an indictment or will be discontinued (see Heinisch, cited above, § 80). However, in these circumstances the person concerned must have complied with the duty to carefully verify, to the extent permitted by the circumstances, that the information is accurate and reliable (compare Guja, cited above, § 75, and Heinisch, cited above, § 67).

The Court observes that the guiding principles developed by the PACE in its Resolution 1729 (2010) on the protection of ‘whistle-blowers’ reflect the same approach, stating that ‘[a]ny whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case …’ (see point 6.2.4., cited in paragraph 37 above, and compare, mutatis mutandis, Heinisch, ibid., and Bucur and Toma, cited above, § 107). Likewise, the guiding principles in the Appendix to Recommendation CM/Rec(2014)7 on the protection of whistle-blowers provide that ‘[p]rotection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy’ (principle no. 22, cited in paragraph 40 above).

In the present case, the applicant, as stressed also by the Supreme Court and the Constitutional Court (see paragraphs 26 and 31 above), based his allegations of active euthanasia only on the information available in the electronic medical files which, as he had known as a doctor practising in the National Hospital, did not contain complete information on the patients' state of health. Comprehensive information in this respect was only available in the paper medical files which the applicant, however, did not consult. As the Supreme Court and the Constitutional Court determined, had he done so, he would have recognised immediately that his suspicions were clearly unfounded and he had therefore acted irresponsibly (see paragraphs 26 and 31 above). By reason of the duties and responsibilities inherent in the exercise of the freedom of expression (see paragraph 68 above), the safeguard afforded by Article 10 to whistle-blowers is subject to the proviso that they acted in order to disclose information that is accurate and reliable and in accordance with professional ethics (compare, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 87 and 109, 27 June 2017). This applies, in particular, if the person concerned, like the applicant in the present case as deputy chief physician and thus a high-ranking and highly qualified employee, owes a duty of loyalty and discretion to his or her employer.

The Court does not lose sight of the fact that the applicant, in the light of the interpretation he had made of the information in the electronic files, namely that active euthanasia had repeatedly been practised in the hospital and might continue being practised, must have concluded that it was very urgent to act in order to stop that practice. However, given that, as had been found by the domestic courts (see, in particular, paragraph 26 above), the applicant as a deputy chief physician, could have consulted the paper files at any moment, the Court considers that this verification would not have been very time-consuming. Having regard to the gravity of an allegation of active euthanasia the Court therefore agrees with the domestic courts' finding that the applicant was obliged to, but failed to proceed to such a verification (compare also, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others, cited above, § 115). He did not, therefore, carefully verify, to the extent permitted by the circumstances, that the information he disclosed was accurate and reliable.

As for the damage suffered notably by the employer as a result of the disclosure in question, the Court considers that the allegation of active euthanasia having been practised at a State-run hospital was certainly prejudicial to the employing hospital's business reputation and interests and to the public confidence in the provision of medical treatment in accordance with the state of the art in the only public hospital in Liechtenstein. It was further prejudicial to the personal and professional reputation of another staff member of that hospital, namely the chief physician concerned by the allegations. The Court observes in this context that the applicant initially did not voice his allegations in public, but disclosed them by lodging a criminal complaint, in particular, to the Public Prosecutor's Office, which was under a duty of confidentiality (see paragraph 24 above). However, following the ensuing investigations including the seizure of the medical files at the National Hospital, the applicant's allegations became known to a larger public and were — quite predictably, given the gravity of the allegations — repeatedly discussed in the Liechtenstein media which risked increasing their prejudicial effect.

As shown above, there was as such a public interest in the revelation of information on suspicions of repeatedly practised active euthanasia in a public hospital. However, in the present case, in which the well-foundedness of that suspicion had not been sufficiently verified prior to its disclosure, the public interest in receiving such information cannot outweigh the employer's and chief physician's interest in the protection of their reputation.

As for the question whether the information in question was revealed to an external body as a last resort, the Court observes that both the Supreme Court and the Constitutional Court left open the question whether the applicant, prior to raising his suspicions externally, should have attempted to raise them internally (see paragraph 32 above). The Court, having regard to the circumstances of the case, the gravity of the acts at issue and its case-law (compare, in particular, Bucur and Toma, cited above, § 97), finds that the applicant could not be expected to first raise his suspicions with his superior Dr H., who was directly concerned by them. As for the internal reporting channel, the CIRS, the Court notes that it has not been shown that it had been communicated within the hospital that anonymous reports of irregularities via that system were no longer handled by Dr H. alone (see paragraph 11 above). Therefore, the applicant could legitimately proceed on the assumption that redress could not be obtained in this way either.

It remains to be determined whether the applicant should have raised his suspicions either with a member of the hospital's foundation board or with the hospital's director prior to lodging a criminal complaint. The Court notes that, in view of the normal professional relationship between the applicant and these bodies and the availability of medical expertise within the hospital, these instances appear to be effective alternative channels for disclosure, with the potential to remedy any irregularities rapidly. However, the Court does not overlook either that the offences which the applicant suspected his direct superior of were serious and that there was a possibility that he might himself be held liable in case of a failure to report such offences. It further takes note of the fact that the guiding principles in the Appendix to the Committee of Ministers' Recommendation CM/Rec(2014)7 on the protection of whistle-blowers do not establish an order of priority between the different channels of reporting and disclosure, stating that the individual circumstances of each case will determine the most appropriate channel (see principle no. 14, at paragraph 40 above). The Court considers, however, that in the circumstances of the case it can leave open the question whether the applicant was obliged to raise his suspicions with the said internal instances of the hospital.

As to the applicant's motive for reporting his suspicions of active euthanasia, the Court observes that the domestic courts did not find that the applicant had acted out of personal motives (see paragraph 30 above). Having regard to the material before it, the Court does not have reasons to doubt that the applicant, in making the disclosure, acted in the belief that the information was true and that it was in the public interest to disclose it.

Finally, as regards the severity of the sanction imposed on the applicant, the Court observes that the applicant's dismissal without notice constituted the heaviest sanction possible under labour law (compare also Guja, cited above, § 95; Heinisch, cited above, § 91; and Langner, cited above, § 53). This sanction not only had negative repercussions on his professional career, it also led to the applicant and his family having to leave Liechtenstein as he was to lose his residence permit as a foreign national without employment. Having regard also to the media coverage regarding the suspicions of euthanasia in Liechtenstein, the sanction therefore must have had a certain chilling effect on other employees in the hospital and the health sector in general — at least as regards the direct disclosure to external bodies of suspicions of irregularities.