CEDH · CASELAW;CLIN;ENG — 28 mars 2017

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Croatia - 51706/11 Judgment 28.3.2017 [Section II] Article 10 Article 10-1 Freedom of expression Summary dismissal of company director for publicly responding to criticism by her chairman in the press: violation Facts – The applicant was the director of a municipal company providing public utility services. She was summarily dismissed from her post after making statements to the media defending herself a week after the company chairman had publicly criticised her work in a press article. The decision to dismiss her was taken on the grounds that she had made allegations to the press (concerning the unlawful collection of parking fees from land not owned by the municipality) that were damaging to the company’s reputation. The applicant’s claims in respect of unfair dismissal were dismissed by the Supreme Court on the grounds that she had portrayed the company in an extremely negative light and should have raised any concerns she had about the company’s practices with the appropriate authorities rather than airing them in the media. In the Convention proceedings, the applicant complained of a breach of her right to freedom of expression. Law – Article   10: The applicant’s dismissal on account of her statements to the press had interfered with her right to freedom of expression. The interference was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others. As to whether it had been necessary in a democratic society, while a duty of loyalty, reserve and discretion normally prevented employees from publicly criticising the work of their employers, crucially in the applicant’s case it was another officer of the company who was the first to resort to the media and to publicly criticise the applicant’s work. In such specific circumstances the applicant could not have been expected to remain silent and not to defend her reputation in the same way. It would be to overstretch her duty of loyalty to require otherwise. Accordingly, several of the criteria that normally applied to cases concerning freedom of expression in the workplace (see, for example, Guja v.   Moldova [GC], 14277/04, 12   February 2008, Information Note   105 ; Wojtas-Kaleta v.   Poland , 20436/02, 16   July 2009, Information Note   121 ; and Heinisch v.   Germany , 28274/08, 21   July 2011, Information Note   143 ) were either inapplicable or of limited relevance to the applicant’s case. In particular, the Government’s arguments that the applicant had other effective, but more discreet, means of protecting her reputation, and had been motivated exclusively by the wish to protect her public image rather than to inform the public of matters of general concern were thus irrelevant. On the facts, the applicant’s statements in reply to those of the chairman were not disproportionate and had not exceeded the limits of permissible criticism. In that connection, the Court noted that (i)   the operation of a municipal public utility company was a matter of general interest for the local community; (ii)   the applicant’s statement implying that the company had been unlawfully charging for parking was to be seen not as a statement of fact but as a value judgment which had a sufficient factual basis because it could reasonably be argued that collecting parking fees on someone else’s land was unlawful; (iii)   her statement was directly relevant to the aim of defending her professional reputation against what she saw as groundless criticism; and (iv)   her call for an audit and an investigation by the prosecuting authorities did not insinuate that the company had been engaged in criminal activities, but was intended to dispel any uncertainty about the way she had been running the company. In these circumstances, the interference with the applicant’s freedom of expression in the form of her summary dismissal had not been necessary in a democratic society to protect the reputation and rights of the company. Conclusion : violation (unanimously). Article 41: EUR 1,500 in respect of non-pecuniary damage; no award in respect of pecuniary damage as domestic law permitted a reopening of the proceedings in the light of the finding of a violation.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes