CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 novembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sFF5E8D99 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:left; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 9 November 2015   SECOND SECTION Application no. 51706/11 Mirela MARUNIĆ against Croatia lodged on 16 August 2011 STATEMENT OF FACTS The applicant, Ms Mirela Marunić, is a Croatian national, who was born in 1964 and lives in Kostrena. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In the period between 1 October 2003 and 1 October 2007 the applicant was the director of a municipal utility company, KD Kostrena (hereinafter “the company”), whose sole shareholder is the Municipality of Kostrena ( Općina Kostrena ). In an article published in the daily Novi list of 19 September 2007, Mr   M.U., who was the mayor of Kostrena Municipality and chairman of the company’s General Meeting ( skupština ) at the time, criticised the way the applicant performed her job. The relevant part of the article reads as follows: “... M.U. does not hide his dissatisfaction with the work of Mirela Marunić as head of KD Kostrena. ‘ I cannot speak for the others, but after everything that has happened, I can say that Mirela Marunić has betrayed the trust of the members of the General Meeting because she disclosed information which should only have been discussed at the General Meeting. Likewise, in the 2005 [annual] report she spoke in positive terms of building a sports hall, and I do not know what happened to make her change her mind .’ In his words, dissatisfaction with the functioning of KD Kostrena goes beyond the current political crisis in Kostrena and the public statements of Mirela Marunić. ‘ The fact is that we had even earlier objected to Mirela Marunić’s work because [the company] has been stagnating for some time now and functioning as a means of transferring municipal funds. Our municipal utility company does not carry out the type of business for which it was established. For example, Žurkovo Bay was leased as a parking lot and a dry [dock] marina, and the same applies to the parking lot near Kostrenka. My question is, how does it benefit the concessionaires to have it and in addition pay rent for it? Had it stayed in our hands we would, apart from making a profit, have also had the chance to employ someone ’. M.U. does not hide his dissatisfaction. In a lengthy list of criticisms of the current director of KD Kostrena, M.U. states that he does not like the fact that she has been referred to as a member of his [political] party. He claims that he was the one who had advised her when she was appointed to the position as head of Kostrena’s municipal utility company not to make public statements as a member of [their political party] because someone could misinterpret [the nature of] her work and the way she came to get that position.” In an article published in Novi list eight days later, on 27 September 2009, the applicant replied to the above criticisms. The relevant part of that article reads as follows: “The mayor of Kostrena, M.U., has publicly criticised the current director of KD Kostrena for having disclosed information which should only have been discussed at the General Meeting and for the company’s poor performance, saying it does not engage in the type of business for which it was established. ‘ They betrayed my trust by not believing me. I first informed my [political] party but there was no reaction. In particular, at a meeting held before the September session of the General Meeting [of the company] last year, I warned them of all the irregularities, the financial losses and the ruining of KD Kostrena’s business reputation. Then they asked me not to talk about it in the presence of D.G. [who was the only member of the company’s General Meeting from the ruling political party at the State level],’ says Mirela Marunić, repeating that there are written documents in respect of all the issues she had warned the General Meeting about. As regards M.U.’s remark that the company has been stagnating under her leadership, she says that Kostrena Municipality, which does not have a development strategy, has itself been stagnating ... The main precondition for that ... would be, in her opinion, the resolution of property issues which remain outstanding in the case of most of the parking lots administered by Kostrena’s municipal utility company. Marunić illustrates this by referring to the Viktor Lenac parking lot where the municipal utility company has been charging for parking on land which was not even owned by Kostrena Municipality. ‘The legal department of Kostrena Municipality still requires [the company] to charge for parking even though [the company] Lenac refused to do so because of unresolved property issues. That case has now gone to court, ’ warns Marunić, ‘ and a similar situation exists with the parking lot in Žurkovo and [the one] near Kostrenka, which have been leased out. ’ ‘ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of [the prosecuting authorities]. I sincerely hope that the State institutions will do their job in this case, as that will save Kostrena. Kostrena needs professionals, but they are being removed, the proof of which is the proposal to remove T.S. as a member of the General Meeting. I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far .’” By a decision of the company’s General Meeting of 11   October 2007 the applicant was summarily dismissed from her job as director of the company because of the statements she had made in the media, which were regarded as being damaging to the company’s business reputation.   On 21 November 2007 the applicant brought a civil action for wrongful dismissal against the company in the Rijeka Municipal Court ( Općinski sud u Rijeci ). She challenged the decision to dismiss her and sought reinstatement. By a judgment of 12 June 2008 the Municipal Court ruled in favour of the applicant. The court accepted that her statements in the media had been damaging to the business reputation of the company and as such had constituted a serious breach of employment-related duties within the meaning of section 107 of the Labour Act, making her summary dismissal justified. However, it ruled in the applicant’s favour because it found that pursuant to her employment contract, her job as director of the company had ended on 1   October 2007, when the company had been required to transfer her to another job. That meant that she could not have been dismissed from her job as director, let alone dismissed with retroactive effect, as the decision to remove her had indicated. Furthermore, since the decision to dismiss her had specifically related only to her job as director, it could not be assumed that it had also entailed the termination of her entire employment relationship with the company, including the job to which she was supposed to have been transferred after 1   October 2007. The court thus found that the dismissal had been wrongful and that the applicant’s employment relationship had not been terminated. It accordingly ordered that she be reinstated and assigned to another job within the company. By a judgment of 14 January 2009 the Rijeka County Court ( Županijski sud u Rijeci ) dismissed an appeal by the company and upheld the judgment of the first ‑ instance court. Its reasons, however, were different. It first noted that, contrary to the opinion of the first-instance court, the decision to dismiss the applicant had been aimed at terminating the applicant’s entire employment relationship with the company, and not only her job as director, and had been capable of having that effect. However, the County Court also disagreed with the view of the Municipal Court that the applicant’s behaviour, namely her statements in the media, had constituted a serious breach of employment-related duties such as to justify summary dismissal. In that respect the County Court held as follows: “... the defendant company’s [internal regulations] state that the business activities of the company are public [and] that the company informs the public by notifying the media of its organisation, the way and the conditions under which it operates, [and] the manner in which it provides services and runs its business. It follows that neither the [internal regulations] nor the [applicant’s employment] contract prohibit public statements or criticism of the defendant company’s business activities, which are public. Article 38 of the Croatian Constitution guarantees freedom of thought and [freedom of] expression, particularly emphasising freedom of speech and [the freedom] to speak publicly. As established ... by the first-instance court, the plaintiff’s public statements had been made in reaction to the statements of M.U. published a few days earlier in Novi list on 19 September 2007, where he had criticised the plaintiff’s work and stated that she had betrayed the trust of the members of the General Meeting by disclosing information that should only have been discussed at the General Meeting, [had said] that the [company] was stagnating, that it did not operate the type of business for which it had been established [and so on] ... ... Therefore, in this court’s view, the plaintiff’s actions should be interpreted as [the exercise of] her right to speak publicly and the right to freedom of thought, which are rights guaranteed by the Croatian Constitution. Therefore, in the view of this court, the plaintiff’s conduct does not constitute a serious breach of employment-related duties as envisaged in section [107] of the Labour Act as grounds for summary dismissal. Specifically, in the opinion of this court, the plaintiff’s statements are to be seen as [a way of] informing the public of irregularities in the activities of the defendant company as a public institution; [the statements] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment-related duties. The first-instance court therefore correctly applied the substantive law when finding the dismissal wrongful.” The company then lodged an appeal on points of law ( revizija ) against the judgment of the County Court. By a judgment of 6 October 2009 the Supreme Court ( Vrhovni sud Republike Hrvatske ) reversed the County Court judgment and dismissed the applicant’s action. The relevant part of that judgment reads as follows: “The findings of the lower courts cannot be accepted. In this particular case, the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation or be trusted in the business world. Therefore, the behaviour of the plaintiff, in stating on 27   September 2007 in the Novi list daily ... that the defendant company, which she heads, had acted illegally, namely by charging for parking when it was not allowed [to do so], asking that the [company] be audited, and also seeking the intervention of [the prosecuting authorities] with a view to verifying the activities of the defendant company, has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract, within the meaning of section [107] of the Labour Act. Having regard to the given circumstances, it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case, the depiction by the employee of the employer’s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract. The plaintiff’s reliance on her duty to speak publicly is unfounded. In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant State authorities and lodging a complaint with them, which would have resulted in that information being available to the press and other media, and which could not have served as a reason for her dismissal.” The applicant then lodged a constitutional complaint, alleging, inter alia , a violation of her freedom of expression. In so doing she explicitly relied on Article 38 of the Croatian Constitution and Article 10 of the Convention. On 17 February 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant’s constitutional complaint and served its decision on her representative on 14 March 2011. The relevant part of that decision reads as follows: “The Constitutional Court observes that the complainant justifies her conduct towards the employer (namely, her media statements), on account of which the employer summarily dismissed her, by arguing that she had been merely calling for the supervision of her actions in the company by the relevant authorities. That argument is incorrect [having regard to her statements in] the article published in Novi list of 27   September 2009 ... The Constitutional Court notes that the right ‘of a citizen’ to publicly express his or her personal opinions cannot justify a breach of employment-related rights and obligations stemming from an employment contract and the relevant legislation.” B.     Relevant domestic law 1.     The Constitution 1.     The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990 with subsequent amendments) provides as follows: Article 16 “(1) Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health. (2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case. ... Article 38 “(1) Freedom of thought and expression shall be guaranteed.   (2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions. (3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information. (4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.” 2.     Labour Act of 1995 The relevant provisions of the Labour Act of 1995 ( Zakon o radu , Official Gazette no. 38/95 with subsequent amendments), which was in force between 1 January 1996 and 1 January 2010, provided as follows at the material time: Summary notice Section 107(1) and (2) “(1) An employer or an employee has a justified reason to give notice terminating ... an employment contract, without an obligation to comply with the prescribed or agreed notice period (‘summary notice’) if, because of a particularly serious breach of an employment-related duty or because of some other particularly important fact, taking into account all the circumstances and the interests of both contracting parties, continuation of the employment relationship is not possible. (2) An employment contract may only be terminated on summary notice within fifteen days of the date when the person concerned found out about the fact which is the basis for the summary notice.” Unjustified reasons for dismissal Section 108 “(1) ... (2) Where an employee lodges an appeal or brings an action or takes part in proceedings against the employer for breach of statute, other legislation, a collective agreement or an internal regulation, and addresses the competent executive authorities, this shall not constitute a justified reason for dismissal. (3) Where an employee addresses a bona fide complaint to the person in charge [of the relevant department] or files one with the competent State authorities on grounds of a reasonable suspicion of corruption, this shall not constitute a justified reason for dismissal.” COMPLAINT The applicant complains under Article 10 of the Convention that her dismissal on account of her media statements was in breach of her freedom of expression.     QUESTION TO THE PARTIES Was the applicant’s dismissal on account of her statements in the media in violation of her freedom of expression and thus contrary to Article 10 of the Convention?