EHRM, 13-01-2015, nr. 79040/12

29. Section 9 of the Labour Law (a whistle-blowers' protection clause) provides that an employee may not be punished or otherwise directly or indirectly subjected to unfavourable treatment, in the context of employment relations, for exercising his rights in a permissible manner [pieļaujamā veidā] or informing the competent authorities or officials about suspicions of criminal or administrative offences in his place of employment. If, in the event of a dispute, an employee reports such circumstances which could serve as a basis for unfavourable treatment by his or her employer, it is the employer's duty to prove that the employee has not been punished or otherwise unfavourably affected, either directly or indirectly, for having exercised his or her rights in the context of employment relations in a permissible manner.

Section 101(1)(1) and (3) of the Labour Law authorises employers to dismiss an employee only on the basis of circumstances related to the employee's conduct or his or her abilities, or in connection with the performance of economic, organisational, technological or similar functions within the company if (1) ‘the employee, in the absence of extenuating circumstances, has committed significant infringements of his or her employment contract or terms of employment’ and (3) ‘the employee has fulfilled his or her duties in a manner that disregards good morals [labi tikumi] and such actions are not compatible with his or her continued employment.’

The same section further provides that if an employer intends to issue a notice of termination of an employment contract on the basis of, inter alia, the first paragraph, sub-paragraphs 1 and 3 of this section, the employer has a duty to request written explanations from the employee. When deciding on the possible termination of the employment contract the employer has a duty to evaluate the severity of the violation at issue and the circumstances in which it was committed, as well as the personal characteristics of the employee and his or her previous work record.

Point 3.2 of the constituent document of the University (Rīgas Stradiņa universitātes Satversme) provides that the Rector or the Senate may convene the constituent assembly of the University. The Rector, the Senate or the student self-government body may convene an extraordinary meeting of the constituent assembly. Pursuant to point 3.8 the Rector has a right of suspensive veto (atliekošā veto tiesības) over decisions adopted by the Senate.

Point 5.1 of the statue of the Senate (Senāta nolikums) provides that Senate meetings are convened, inter alia, at the initiative of the Rector.

The relevant provisions of the staff regulations in force at the University at the material time read as follows:

employees must carry out their tasks conscientiously and honestly;

employees must treat other members of the University staff with respect;

employees have a responsibility to carry out work of good quality in accordance with their contract and job description, the constitution of the University, decisions of the Senate, internal regulations and orders and the external legislation of the Republic of Latvia.

According to the view of the Senate of the Supreme Court, published in a compilation of case-law on employment disputes, the final assessment of whether an infringement [of an employment contract or staff regulation] is grave lies with the domestic courts. Furthermore, the term ‘good morals’ (section 101, paragraph 1, sub-paragraph 3 of the Labour Law) is applicable not only to work carried out within the specified working hours but may also refer to employment-related functions performed outside regular working hours. Since the legislature failed to define the term ‘good morals’, this term has been acknowledged to be a general clause the content of which has to be defined by the courts' case-law. According to present-day case-law and legal science, the term ‘good morals’, in addition to its social character, also has a legal dimension, that is, it encompasses not only generally accepted moral standards but also ethical principles and values enshrined, inter alia, in the Constitution. Thus, according to the Senate, the reference to the term ‘good morals’ is a general clause the content of which has to be determined by those who apply the law.

The Government were firmly of the opinion that in the instant case the applicant could not arguably claim that he had suffered interference with his right to freedom of speech, as he had never been prevented from or punished for exercising that freedom. In this regard the Government referred to the judgment of the Riga Regional Court of 18 January 2012 in which it was acknowledged that the applicant's employer had never prevented the applicant from exercising his democratic right to inform society and the competent authorities about the alleged shortcomings at the University.

The applicant contested that argument. He pointed out that his employer had subjected him to unfavourable treatment both before and after he had had the information published by the local news agency. The establishment of the ad hoc investigative committees and the Rector's demands for the applicant to provide explanations for his email of 20 March 2010 had both contributed to the existence of an infringement.

Since the arguments outlined above are pertinent and closely related to the analysis of the complaint under Article 10, the Court considers that the objection is closely linked to the merits of the applicant's complaint. It will therefore deal with the objection in its examination of the merits below (see paragraphs73–74 below).

The Government alleged that the applicant's complaint did not fall under Article 10 of the Convention as it essentially concerned an employment dispute as to whether the applicant's dismissal had been lawful under domestic law; it therefore concerned a labour dispute of a private-law nature. They noted that the reasons for the applicant's dismissal had been gross infringements of the staff regulation and of ethical and behavioural norms which affected the University. Moreover, the Government emphasised that in his civil claim of 11 May 2010 the applicant had not made any allegations that the University had acted in violation of his freedom of speech.

Alternatively, the Government contended that the present application was incompatible with the provisions of the Convention in that freedom of expression had been invoked in disregard of Article 17 of the Convention. In particular, the Government argued that the approach adopted in the Court's case-law concerning Holocaust denial and related issues should not be interpreted in too formalist and restrictive a manner. In support of this argument the Government contended that the impugned email addressed to the applicant's employer had contained blackmail and undisguised threats and that such statements were not covered by the protection afforded under Article 10 of the Convention.

The applicant contested the Government's objections and argued firstly that his dismissal had come after he had drawn his employer's attention to shortcomings in the University's management. Secondly, the applicant contended that the information to which he referred in the impugned email and which was later published was true and was of public interest.

At the outset the Court will address the Government's argument that Article 10 is not applicable because the complaint essentially concerned an employment dispute.

In this connection the Court first observes that it is not disputed between the parties that the University was a public-law body (see Lombardi Vallauri v. Italy, no. 39128/05, § 38, 20 October 2009). Even assuming that in its employment relationships the University acted in the area of private law, the Court has previously held that in the sphere of private-law relationships the responsibility of the authorities would nevertheless be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 60, ECHR 2011).

Turning to the question of whether such conditions existed in the present case, the Court observes that the applicant's dismissal was mainly based on an email of 20 March 2010 in which he proposed two ways of settling his dispute with the University and asked the Rector to agree to one of the options before the meeting of the constituent assembly took place (see paragraph 13 above). The applicant also referred to several existing problems at the University (point 8 of the email) and informed the Rector of his intention to inform the members of the assembly about the problems if no agreement was reached (point 10 of the email). The applicant's employer considered that the above email amounted to serious misconduct, a finding that was upheld by the domestic courts. The Court considers that, even before entering into an analysis as to whether there was interference with the applicant's rights under Article 10, it is apparent from the facts of the case and the review of the domestic courts (see paragraphs 22–26 above) that the crux of the employment dispute was the allegedly unethical manner of expression used by the applicant in communication with his employer.

Moreover, the applicant in substance brought the issue concerning the infringement of his freedom of expression before the domestic courts (see paragraph 27 above), and the domestic courts addressed it (see paragraph 26 above). In any event the Government did not raise any objections claiming non-exhaustion.

Having regard to the central issue in the dispute the Court accepts that Article 10 is applicable to the facts of the case (compare and contrast Nenkova-Lalova v. Bulgaria, no. 35745/05, § 53, 11 December 2012; see also and Lombardi Vallauri, cited above, § 30).

Turning to the next preliminary objection raised by the Government, namely that the impugned email contained remarks not covered by the protection of the Convention in the light of Article 17 thereof, the Court considers that the present application is to be clearly distinguished from the cases relied on by the Government in which the expression of negation or revision of certain facts was removed from the protection of Article 10. In the present case, the Court is unable to conclude from the text of the impugned email that it contained anything aimed at weakening or destroying the ideals and values of a democratic society (see, for example, Ždanoka v. Latvia [GC], no. 58278/00, § 99, ECHR 2006-IV).

The Court therefore dismisses the Government's preliminary objection that the present application falls outside the Court's jurisdiction ratione materiae.

According to the Court's case-law, in order to determine whether an applicant's right protected under Article 10 of the Convention has been infringed it must first be ascertained whether the disputed measure amounted to interference with the exercise of freedom of expression, in the form, for example, of a ‘formality, condition, restriction or penalty’ (see Glasenapp v. Germany, 28 August 1986, § 50, Series A no. 104, Kosiek v. Germany, 28 August 1986, § 36, Series A no. 105).

It is clear from the parties' submissions that the existence of the interference is in dispute between the parties, as they are not in agreement as to whether the dismissal was based solely on the impugned email sent by the applicant to the Rector of the University on 20 March 2010, or rather on the persistent criticism expressed by the applicant prior to sending the impugned email.

In this connection the Court observes that in reaching their conclusion about the lawfulness of the applicant's dismissal the domestic courts relied on evidence which contained references to other activities carried out by the applicant prior to his sending the impugned email (see paragraph 23 above). This would imply that the applicant's prior activities in expressing criticism played some role in deciding whether the applicant's dismissal had been lawful.

But even assuming that the dismissal was based solely on the impugned email, the Court refers back to its reasoning in relation to the nature of the dispute in question and the applicability of Article 10 (see paragraph 45 above), and considers that the applicant's dismissal did amount to interference within the meaning of that provision. Such interference will constitute a breach of Article 10 unless it is ‘prescribed by law’, pursues a legitimate aim under paragraph 2 of that Article and is ‘necessary in a democratic society’ for the achievement of such an aim. These issues will be discussed below.

The Court further dismisses the Government's preliminary objection that the applicant cannot claim to be a victim of the alleged violation of Article 10 (see paragraph 37 above).

The Court observes that the applicant also disputed the lawfulness of the impugned measure and its aim. In particular he contested the quality of section 101 of the Labour Law.

The Court notes that the applicant's dismissal was based on section 101 of the Labour Law (see ‘Relevant domestic law’, paragraph 30 above). It was alleged that in carrying out his duties he had acted contrary to ‘good morals’ [labi tikumi] and that such actions were incompatible with his continued employment. The notice of dismissal also referred to three paragraphs of the University staff regulations (see paragraphs 32–34 above). In applying the above legislation to the facts of the case the domestic courts analysed whether the content of the impugned email was compatible with several ethical principles; this, according to domestic practice, was sufficiently foreseeable (see paragraph 35 above). Although the applicant contested the quality of the above provisions and their application by the domestic courts, the measure was based on sufficiently clear provisions of domestic law according to which employees owed to their employer a duty of loyalty, reserve and discretion (see Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008). The Court reiterates in this connection that even if the requirement to act in good faith in the context of an employment contract does not imply an absolute duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer's interests, certain manifestations of the right to freedom of expression that may be legitimate in other contexts are not legitimate in that of labour relations (see Palomo Sánchez and Others, cited above, § 76). Thus the Court is ready to accept that the interference had a basis in domestic law which served a legitimate aim.

Mindful of the Court's supervisory role, according to which it is not for the Court to take the place of the competent national authorities but rather to review the decisions taken by the latter pursuant to their power of appreciation, the Court will next ascertain whether the national authorities adequately secured the applicant's right to freedom of expression in assessing the necessity of the interference in the context of labour relations (ibid.,§ 61).