April 13, 2015
This guest blog post was written by Elena Sychenko, Ph.D. student at the University of Catania, Law Faculty, Labour Law Department.
The recent case of Rubins v. Latvia has received much attention from lawyers. Commentators assumed that the Court established a protection of employees not covered by whistle-blowing provisions and believed that the Court contributed one more time to the protection of democratic values. However, it will be argued that the Rubins judgment is not in line with famous whistle-blowing cases but provides an example of erroneous adjudication and grants protection to blackmailing.
Circumstances of the Case
The applicant was a professor and Head of the Department of Dermatological and Venereal Diseases of the State University. The position of head of department was abolished as a result of the merging of two Departments of the Faculty. After this decision, the applicant sent an email to the Rector of the University and to several other recipients, including the members of the Senate, criticising the lack of democracy and accountability in the leadership of the organisation, using unfavourable terms when speaking about several managers of the University.
In the letter named “Settlement agreement,” later sent to the Rector of the University, the applicant proposed to withdraw all his appeals if the University revoked all the orders and decisions of the Senate concerning the merger of his Department or paid him a compensation. The Rector refused and the following day, 23 March 2010, the national news agency published the applicant’s views about the alleged shortcomings in the management of the University. Following the investigation of the applicant’s conduct by an ad hoc investigative committee and the ethics committee, the applicant received a notice of termination of employment from the University. The email sent to the Rector was pointed as a ground for dismissal and considered as absolutely contrary to good morals.
Mr. Rubins appealed to the District Court, which held that the unethical email sent to the employer was not a legitimate reason for his dismissal and ordered the applicant’s reinstatement with back-payment of his salary. The Appeal Court quashed the first-instance court’s judgment. It considered that the applicant had invited the Rector to carry out “unlawful actions”, namely to annul a decision of the Senate of the University concerning the merger of two departments. The Appeal Court emphasised that the letter sent to the Rector evidenced the applicant’s wish to act for a selfish cause, namely to retain his position as head of department, contrary to the Senate’s decision on reorganisation, or to receive substantial financial compensation. It also emphasised that the applicant did not attempt to inform the society and competent institutions about the alleged violations in the University before the decision to abolish his post.
The form of the letter, and the motives of the applicants were considered to be in breach of ethical norms by both national courts. The value of the disclosed public information for the democratic society was not assessed. Nor was the infringement of freedom of expression. The facts of the case showed that the employee was dismissed for blackmailing and not for dissemination of information of public concern. The European Court correctly stated that this case was not on whistle-blowing. However, it made a mistake in considering the case in terms of art. 10.
The Court’s Assessment and Comment
The Court remained reluctant to accept the Government’s argument on the inadmissibility of the application. The Government stated that the application concerned the dismissal of an employee for a violation of ethical norms which is not covered by the Convention. Moreover, it emphasised that in his civil claim of 11 May 2010 the applicant had not made any allegations on the violation of his freedom of speech. This argument is particularly valuable since the Grand Chamber judgment in the Azinas v. Cyprus case. In this judgment, the Court rejected as inadmissible the application, adjudicated by the Chamber in favour of the applicant, because of non-exhaustion of domestic remedies as the applicant had not referred to the provisions of the European Convention at the national level.
In the Rubins case the Court largely ignored the arguments of the Government in this respect. It stated that “the crux of the employment dispute was the allegedly unethical manner of expression used by the applicant in communication with his employer” and went on to examine 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. However, it was clear from the citations of national courts that none of them considered the case of dismissal in the light of the infringement of the freedom of expression.
The Court found that the interference served a legitimate aim: to ensure the duty of loyalty towards the employer or a duty of discretion to the point of subjecting the worker to the employer’s interests. In considering the motives of the letter, the Court did not investigate them in full, limiting itself to establishing the circumstances of the reorganisation of the department. The estimation of the severity of the disciplinary sanction was left without balancing it with the employee’s violation of ethical norms. The dismissal of the applicant was held to the harshest sanction available. Taking into account its serious chilling effect on other employees of the University, the Court decided that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society and found a violation of art. 10 ECHR.
The Court briefly mentioned the Nenkova-Lalova v. Bulgaria case, where it acknowledged that in order to determine whether the applicant’s rights under Article 10 have been infringed, the Court must first ascertain whether the disciplinary dismissal amounted to an interference with the exercise of the freedom of expression, or whether it lay within the sphere of the right to employment, a right not secured in the Convention or its Protocols.
The same test applied in the Rubins case would have led the Court to uphold the arguments of the Government and the position of the Court of appeal and to declare the application inadmissible. In the present case, however, the European Court refrained from investigating the nature of the dispute and, without sufficient and clear explanation, concluded that the applicant’s dismissal did amount to interference with the right under art. 10 ECHR.
This conclusion is the cornerstone of further missteps by the Court in estimating the necessity of the interference and its proportionality with the legitimate aim pursued. In my opinion, even assuming that the dismissal amounted to interference with freedom of expression, the Court could have proceeded in a different way. It would have been more appropriate to consider the case in the light of the applicant’s misuse of freedom of expression, as the unethical form of the letter was mentioned by the Court as relevant in the context of the case. This approach, borrowed from the Palomo Sanchez case, might have been very productive in the Rubins case, as it could have drawn due attention to the motives of the applicant and his previous conduct. However, the Court chose another way. Criticising the national courts for considering the unethical letter “in isolation,” the Court paid too much attention to the information the applicant was going to disclose. Stating that the reasons provided by the national courts were not sufficient, the Court refrained from analysing them in-depth and, particularly important, did not consider in substance the violation of the employee’s duties.
Dissenting Judges Mahoney and Wojtyczek noted that the Court came to the wrong conclusion as the nature of the dispute was misconceived. They argued that the approach proposed by the majority brings with it the risk of transforming the European Court of Human Rights into a higher-instance labour court adjudicating on the merits of labour disputes. There is another more tangible risk: covering blackmailing with the protection under art. 10. The Court, perhaps due to its tradition of protecting the important issues of democracy which should be made public, was misled following the arguments of the applicant on the value of the information he had disclosed to the society. This shows that the Court should not limit itself to the evaluation of the content of disclosed information but should also focus on its form and the motives of the applicant. Otherwise, the protection of the employees’ freedom of expression might mean the toleration of abuses of this freedom.
 Makbool Javaid, Dismissal case brings freedom of expression into employment arena
 Gemma Smith, Dismissal was in breach of the right to freedom of expression (available at: http://www.bonddickinson.com/insight/publications/dismissal-was-breach-right-freedom-expression)
 ECtHR, Matúz v. Hungary (73571/10) 21 October 2014; Heinisch v. Germany (28274/08) 21 July 2011; Kudeshkina v. Russia (29492/05) 26 February 2009; Guja v. Moldova (14277/04) 12 February 2008.
 Rubins v. Latvia, para. 87.
 The Court’s reference to the decision of the Court of Appeal does not substantially answer the arguments of the Government. Ibid. para. 46.
 Ibid. para. 45.
 Ibid. para. 88.
 Ibid. para. 70.
 Ibid. paras. 80-81.
 ECtHR, Rubins v. Latvia, Dissenting Opinion of Judges Mahoney and Wojtyczek, para. 16.
 See ECtHR, Kudeshkina v. Russia; Wille v. Liechtenstein; Baka v. Hungary and Guja v. Moldova.
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[…] would be “Possibly quite a lot”. Elena Sychenko, of the University of Catania, has posted an interesting analysis on Strasbourg Observers suggesting that, potentially, the judgment could […]
Professor Voorhoof in his response has correctly and convincingly pointed out the substantive shortcomings of Ms. Sychenko’s analysis. This belated comment pertains to several misunderstandings of the case’s procedural history in the ECHR, which might benefit of a correction.
1. The author’s reference to Azinas is misguides because the government did not argue non-exhaustion, as specifically indicated in para. 46 of the judgment. If the government does not argue non-exhaustion, it has been long-standing practice of the Court not to raise this ground of inadmissibility ex officio.
2. Even if the author’s understanding of the Nenkova-Lalova judgment were correct and even if the Rubins case had dealt with employment in a broadcasting company (which is relevant because of Article 10 issues being involved on both sides, as specifically pointed out in the Nenkova-Lalova judgment), following the reasoning of the said judgment would not have led to the case being declared inadmissible but would have lead to, well, more or less to exactly the same kind of analysis as was already done in Rubins.