Background

In January the Fourth Section ECtHR handed down judgment in Rubins v Latvia [2015] ECHR 2. The applicant, Head of the Department of Dermatological and Venereal Diseases at Riga Stradiņa University, was dismissed because of a series of e-mails he had sent to the Rector of the University about the proposed merger of his own Department with the Department of Infectious Diseases. The Court held by five votes to two that his dismissal had violated his rights under Article 10 ECHR (freedom of expression). Professor Rubins e-mailed the Rector on 20 March 2010 stating that either the University should revoke all the orders and decisions of the Senate concerning the abolition/merger of the two Departments and he would withdraw all his appeals or “having received a certain amount of compensation on which we would agree” he would leave his post:

“Of course I understand that at the constituent assembly of the University you, as Rector, can secure a decision that is favourable to you. However by this means nothing would come to an end but would only start, as I reserve the right to appeal against all the decision [adopted by] the University in the administrative, district and regional courts, while of course making everything public beforehand and attracting the attention of society. I do not believe that in an election year, taking into consideration the latest news (the conclusion adopted by the State Audit Office on the illegalities at the University, plagiarism on the part of lecturers and professors of the University etc.), you would want to have additional tasks and trouble” [13: emphasis added].

The outcome was that he was dismissed. He was subsequently charged with blackmail but that charge was dropped. The University had told Professor Rubins that

“The ground for dismissal is the e-mail you sent to the Rector on 20 [March] 2010, in which, while addressing the Rector concerning issues of interest to you, you included inappropriate demands, including elements of blackmail and undisguised threats. As a consequence your actions are considered as very grave infringements of basic ethical principles and standards of behaviour, and as absolutely contrary to good morals. The fact of sending such a letter, and its contents, are clearly contrary to good morals, all the more so taking into account the circumstances in which the letter was sent and your attitude” [17].

Professor Rubins contended that the domestic proceedings had breached Article 10: his dismissal had come after he had drawn his employer’s attention to shortcomings in the University’s management and the information that was later published was true and of public interest [42]. The Latvian Government argued that it was not an Article 10 issue at all: it was an employment dispute about the lawfulness or otherwise of Professor Rubins’ dismissal and was therefore a private law matter [40 & 41].

The judgments

The majority held that the dismissal had engaged Professor Rubins’ Article 10 rights, concluding that “the applicant’s prior activities in expressing criticism played some role in deciding whether [his] dismissal had been lawful” [69]. The dismissal had been “prescribed by law” [73]. As to whether or not it was “necessary in a democratic society”, however:

• the University was a state-financed institution, the issues invoked by the applicant were of some public interest and the truthfulness of the information was not challenged by the parties: nevertheless, the domestic court had taken no account of either the public interest or the applicant’s veracity [85];
• neither in the impugned e-mail nor in the subsequent publication did he divulge any private information “damaging to the honour and dignity of his colleagues or of his employer in general” [91]; and
• dismissal was the harshest sanction available and, though he took up a post in another university soon afterwards, it “was liable to have a serious chilling effect on other employees of the University and to discourage them from raising criticism” [92].

The Court concluded that the reasons relied on by the domestic courts, although relevant, were not sufficient to show that the interference with the applicant’s right to freedom of expression was proportionate to the legitimate aim pursued and, accordingly, was “necessary in a democratic society”. There had therefore been a violation of Article 10 [93].

The minority (Mahoney and Wojtyczek JJ) took an entirely different view:

“… the facts of the present case present the characteristics of a classic employment dispute and, in so far as any issue of freedom of expression arose, it was adequately dealt with by the national courts for the purposes of Article 10 of the Convention. As far as we are concerned, the applicant has not produced to this Court any grounds for arriving at a conclusion other than the one arrived at by the national courts” [1].

Professor Rubin had not been dismissed for expressing his opinions, whether in the e-mail of 20 March 201 or before that, but for perceived professional and ethical misconduct [8]. The appeal court had balanced his freedom of expression against the other conflicting interests in issue, expressly recognising his “democratic rights to inform society and the competent institutions about the alleged violations in the [University]” while noting that “nothing prevented [him] from expressing his opinion in a manner compatible with ethics and staff regulations” [14]. In assessing proportionality one had to take into consideration the legitimate interests of the employer as well as the rights of the employee. The employer

“… is, in principle, entitled to take measures to ensure the smooth running of the enterprise, including for the benefit of the employees taken as a whole, and … to choose its employees, to propose changes to the terms of their employment contract or to terminate the employment, provided that it respects the applicable national law, notably labour law and contract law. Furthermore, if the employer is a public university, the analysis should also take into account its position in the domestic law and especially the degree of autonomy it enjoys. Academic autonomy serves democracy in general and freedom of expression in particular. An academic institution is, in principle, entitled to exercise fully its freedom of taking employment decisions, within the limits of its autonomy as laid down in domestic law” [15].

They concluded that the majority had misconceived the nature of the dispute; moreover

“[t]he 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” [16].

Comment

Anyone who persisted this far may be forgiven for wondering what all this has to do with “law & religion” – to which my answer 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 even protect blackmailers – which I very much doubt (as does Dirk Voorhoof, of Ghent University, in a subsequent post); but it was her piece that alerted me to the judgment in the first place.

What if, for example, an employee of the Roman Catholic Church wrote a long opinion piece for publication supporting the ordination of women – given that the Pope has declared the issue off-limits in terms of doctrine and sacramental theology – or abortion on demand? Or if an employee of the Muslim Council of Great Britain or the Office of the Chief Rabbi came out strongly in favour of eating pork or against non-therapeutic male circumcision?

Both examples are gross caricatures – but gross caricatures intended to point up the fact that there must be opinions that are so fundamentally contrary to the doctrines or practices of a particular religious group that an employee cannot reasonably expect to hold one of them and keep the job. Back to the specific situation rule, aka “like it or leg it”.

Perhaps more important, the possibility that the ECtHR might drift into adjudicating on the merits of labour disputes is distinctly worrying. UK employment law is already complex and uncertain enough: a further appellate jurisdiction will add yet another layer of complexity and uncertainty. It is to be hoped that the Government of Latvia will appeal and that the Grand Chamber will take a more sensible view.