April 14, 2015
By Dirk Voorhoof, Ghent University
I disagree with the analysis of and the comments on the Rubins v. Latvia judgment by Elena Sychenko, posted on 13 April 2015 on Strasbourg Observers, finding that the judgment is an example of an erroneous adjudication and is granting protection to blackmailing. I consider the judgment a well balanced and transparently motivated example of scrutinizing by the ECtHR of a disproportionate interference with the right to freedom of expression of an employee, in this case of a university professor expressing sharp criticism on the employer’s policy and management.
First of all this case is not about blackmailing, which is a criminal offence. The reason of the dismissal of the applicant professor is a mail to the rector of the university proposing a “settlement agreement”. One might find such a proposal unethical, but it was certainly not of a criminal kind. Furthermore the applicant professor’s request was made in order to settle the dispute with the University in accordance with his employment contract, which stated that all disputes were to be settled by mutual agreement. Both the national courts and the ECtHR estimated that the crux of the employment dispute was the manner of expression used by the applicant in communication with his employer. Hence at the origin of this case lays an “allegedly unethical manner of expression”, not an act of criminal blackmail. The judgment in the case of Rubins does not mean that Article 10 ECHR protects an act of blackmail, it simply means that “an allegedly unethical manner of expression” does not exclude the applicant from the protection of Article 10 ECHR. The alternative is, as the Latvian government argued, that the applicant professor could not at all rely on Article 10 ECHR in this case, giving the “allegedly unethical manner of expression” the same consequence as the one following from Article 17 ECHR. This was indeed the 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. The ECtHR correctly considered that the professor’s application is to be clearly distinguished from the cases in which Article 17 ECHR has been applied, only indeed in a very restrictive way applying the so called “abuse clause”. The argument that “it would have been more appropriate to consider the case in the light of the applicant’s misuse of freedom of expression”, as Elena Sychenko argues, opens the door for a very broad interpretation to exclude or substantially reduce the protection by Article 10 ECHR on the basis of the very speculative and unclear notion of “misuse of freedom of expression”. Misuse then being determined by the employer and the national authorities in this case.
Second it is not correct to state that “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 appeal court (Riga Regional Court, 18 January 2012) explicitly referred to the applicant’s claim on freedom of expression, where it reached the conclusion “that nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and the staff regulations” (§ 26). It is neither correct to state that the European Court “refrained from investigating the nature of the dispute”, between the professor and the university as an employer, as in the §§ 80-88 the judgment deals extensively with these aspects.
Third, I also disagree with considering the reasoning of the Court with regard the legitimate character of the professors’ dismissal as “further missteps” by the European Court. Indeed the Court takes into account all relevant criteria which are also reflected in other jurisprudence of the ECtHR dealing with cases of dismissal of employees or civil servants, as a reaction to lack of loyalty, reserve or discretion towards their employer. The Court indeed takes into account the nature of the applicant’s labour dispute and the overall background against which the impugned email was written. It also looks at such factors as the public interest of the impugned remarks, their form and consequences, and the severity of the measure. The Court also explicitly includes the motives of the applicant’s statements in its assessment. Such a multi-factor assessment (§§ 82-92) is by far to be preferred over considering the case “in the light of the applicant’s misuse of freedom of expression”, as Elena Sychenko suggests. In contrast also with what Elena Sychenko writes, the Court did focus on the form and the motives of the applicant (§§ 86-89), and did not limit itself to the evaluation of the content of the disclosed information.
Finally, in the last sentence of her comment, Elena Sychenko expresses a kind of warning that with the judgment in Rubin v. Latvia the protection of the employees’ freedom of expression “might mean the toleration of abuses of freedom of expression”. I read in the Rubin v. Latvia judgment that the European Court of Human Right is not willing to accept disproportionate interferences with an employee’s right to freedom of expression criticising his employer. It also shows that the European Convention is to be interpreted in the sense that it does not tolerate abuse of power by the employer, curtailing the right of freedom of expression of an employee in an unjustified way. The Court made clear that the employee’s dismissal in this case “was liable to have a serious chilling effect on other employees of the University and to discourage them from raising criticism” and that such a severe sanction, with such consequences, in the light of the case of as a whole, is difficult to justify in a democratic society. To my esteem, there is nothing erroneous in such an adjudication by the European Court.
See also Dirk Voorhoof and Patrick Humblet, “Human Rights and the Employment Relation. The Right to Freedom of Expression at Work”, Proceedings of the International Conference on the European Convention on Human Rights and the Employment Relation, Actes du Colloque “La convention européenne des droits de l’homme et la relation de travail”, CNRS and Strasbourg University, 30-31 January 2014, 33 p. (e-publi), http://europa-cnrs.unistra.fr/fileadmin/upload/DUN/europe_en_mutation/Documents/e-publi/E-publi_CEDH_et_la_relation_au_travail_-_D_Voorhoof_P_Humblet_v0-1.pdf and http://europa-cnrs.unistra.fr/publications/les-e-publi/e-publi-des-unites/