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PALOMO SANCHEZ AND OTHERS v. SPAIN - 28955/06 [2011] ECHR 1319 (12 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1319.html
Cite as:
[2011] IRLR 934,
[2011] ECHR 1319,
54 EHRR 24,
(2012) 54 EHRR 24
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GRAND
CHAMBER
CASE OF
PALOMO SANCHEZ AND OTHERS v. SPAIN
(Applications
nos. 28955/06, 28957/06, 28959/06 and 28964/06)
JUDGMENT
STRASBOURG
12
September 2011
This
judgment is final but may be subject to editorial revision.
In the case of Palomo Sánchez and Others v. Spain,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas
Bratza,
President,
Peer
Lorenzen,
Françoise
Tulkens,
Elisabeth
Steiner,
David
Thór Björgvinsson,
Danutė
Jočienė,
Ján
Šikuta,
Dragoljub
Popović,
Ineta
Ziemele,
Isabelle
Berro-Lefèvre,
Päivi
Hirvelä,
Luis
López Guerra,
Mirjana
Lazarova Trajkovska,
Ledi
Bianku,
Işıl
Karakaş,
Nebojša
Vučinić,
Kristina
Pardalos,
judges,
and
Vincent Berger,
Jurisconsult,
Having
deliberated in private on 8 December 2010 and on 29 June 2011,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in six applications (nos. 28955/06, 28957/06,
28959/06, 28964/06, 28389/06 and 28961/06) against the Kingdom of
Spain lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by six Spanish nationals, Mr Juan Manuel Palomo
Sánchez, Mr Francisco Antonio Fernández Olmo, Mr
Agustín Alvarez Lecegui, Mr Francisco José María
Blanco Balbas, Mr José Antonio Aguilera Jiménez and Mr
Francisco Beltrán Lafulla (“the applicants”), on
13 July 2006.
The
applicants were represented before the Court by Mr L. García
Quinteiro, a lawyer practising in Barcelona. The Spanish Government
(“the Government”) were represented by their Agent, Mr F.
Irurzun Montoro, State Counsel.
In
their applications, the applicants complained among other things that
they had been dismissed by way of reprisal for belonging to a trade
union and on account of its demands, on the pretext of allegedly
offensive content in the union’s newsletter. They relied on
Articles 10 and 11 of the Convention.
The
applications were allocated to the Court’s Third Section
(Rule 52 § 1 of the Rules of Court). On 11 December
2008 the President of the Section decided to give notice of the
applications to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time, as
then allowed by Article 29 § 3 (now 29 § 1) of the
Convention and Rule 54A.
On
17 November 2009 the Chamber, composed
of Josep Casadevall,
President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Luis López
Guerra and Ann Power,
judges,
and Santiago
Quesada, Section Registrar,
decided, under Rule 42 § 1, to join the proceedings
in the applications registered under numbers 28389/06, 28955/06,
28957/06, 28959/06, 28961/06 and 28964/06. It declared admissible the
applications (nos. 28955/06, 28957/06, 28959/06, 28964/06) lodged by
Mr Juan Manuel Palomo Sánchez, Mr Francisco Antonio Fernández
Olmo, Mr Agustín Alvarez Lecegui and Mr Francisco José
María Blanco Balbas (“the applicants”) and
inadmissible those (nos. 28389/06 and 28961/06) of Mr Aguilera
Jiménez and Mr Beltrán Lafulla. On 8 December 2009 the
Chamber delivered a judgment (Aguilera Jiménez and Others
v. Spain) in which it held, by six votes to one, that there had
been no violation of Article 10 of the Convention and that no
separate question arose under Article 11 of the Convention.
On
7 March 2010, the applicants requested the referral of the cases to
the Grand Chamber under Article 43 of the Convention and Rule 73,
arguing that there had been a violation of Articles 10 and 11. On 10
May 2010 the panel of the Grand Chamber granted that request.
The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24.
The
applicants and the Government filed memorials before the Grand
Chamber.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 8 December 2010 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr F. Irurzun Montoro,
State Counsel, Agent,
(b) for the applicants
Mr L. Garcia Quinteiro,
lawyer, Counsel.
The
Court heard addresses by them.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants live in Barcelona.
They
were employed as deliverymen by the company P., against which they
brought several sets of proceedings in employment tribunals. The
applicants sought to secure recognition by the employer of their
special salaried-worker status, as confirmed by judgments of 2 May
and 30 December 1995 of the High Court of Justice of Catalonia,
in order to be covered by the corresponding social-security regime.
Representatives of a committee of non-salaried delivery staff in the
company P. had testified against them in those proceedings.
On
21 May 2001 the applicants set up the trade union N.A.A. (Nueva
alternativa asamblearia) to defend their interests and those of
the other delivery staff who were under pressure from the company P.
to renounce their claim to salaried status. The applicants joined the
union’s executive committee. On 3 August 2001 the applicants
informed the company P. of the setting-up of a branch of the trade
union inside the company, of its composition, and of their
appointment as members of the executive committee of that workplace
branch. Juan Manuel Palomo Sánchez was the trade-union
representative, Mr Francisco Antonio Fernández Olmo the
treasurer, Mr Agustín Alvarez Lecegui the press and
communications officer and Mr Francisco José María
Blanco Balbas the organisation officer. No changes concerning the
appointment of the union members or their duties have taken place
since the union was formed.
The
trade union N.A.A. published a monthly newsletter. The March 2002
(sic) issue reported on the judgment of 2 April 2002 of
Barcelona Employment Tribunal no. 13, which had partly upheld the
applicants’ claims, ordering the company P. to pay them certain
sums in respect of salaries owed to them.
On
the cover of the newsletter, a cartoon with speech bubbles showed a
caricature of the human resources manager, G., sitting behind a desk
under which a person on all fours could be seen from behind, together
with, to one side, A. and B., also employees of the company P. and
representatives of a committee of its non-salaried delivery workers,
who were watching the scene while waiting to take their turn to
satisfy the manager. Inside the newsletter were two articles which
vehemently denounced the fact that those two individuals had
testified in favour of the company P. in proceedings that the
applicants had brought against their employer. The newsletter was
distributed among the workers and displayed on the notice board of
the trade union N.A.A. that was located on the company’s
premises.
On
3 June 2002 the company notified the applicants of their dismissal on
grounds of serious misconduct, namely for impugning the reputations
of G., A. and B., under Article 54 §§ 1 and 2 (c) of the
Labour Regulations, which provide for the termination of a contract
of employment where an employee is guilty of serious and negligent
failure to perform his or her contractual obligations.
The
applicants challenged that decision before Employment Tribunal no. 17
of Barcelona, which, in a judgment of 8 November 2002, dismissed
their claims and found that the dismissals were justified, in
accordance with Article 54 §§ 1 et 2 (c) of the Labour
Regulations. The tribunal took the view that the company’s
decision to dismiss the applicants had been based on a genuine and
serious cause, namely the publication and display on a notice board
inside the company of a cartoon with speech bubbles and two articles
which were offensive and impugned the dignity of the persons
concerned. The first article, entitled “Whose witnesses?
Theirs, of course”, contained caricatures of A. and B., showing
them gagged by a handkerchief tied behind their heads, and the text
underneath read as follows:
“We knew who they were and how they behaved, but
we didn’t know how far they were prepared to go in order to
hold onto their seats and cushy jobs without doing anything.
As employees of P. we earn our living by selling goods
in the street. A. and B. earn theirs by selling the workers in the
courts. Not content with doing this simply by signing agreements that
go against the collective interest, they’ve now gone a step
further – they rob and steal with total impunity, in broad
daylight, with the confidence of men who feel totally untouchable.
They play at being gods.
... but they, the chairman and secretary of the staff
representatives, agreed, just like guard-dogs, to roll over and
frolic in return for a pat on the back by their master. ...”
The
tribunal noted that the text was a response to what had happened
during proceedings brought by the applicants before Employment
Tribunal no. 13 of Barcelona, in which A. and B. had appeared as
witnesses against the applicants’ interests and in favour of
their employer.
The
article entitled “When you’ve rented out your arse you
can’t shit when you please”, read as follows:
“If you belong to a works council and you have to
sign agreements with your employers that will never be honoured, just
to keep you quiet, and agree to changes that only benefit their
cronies, and to pay-cuts and various work-charts, then you’ve
swapped your dignity for an armchair, [and] you have the dubious
merit of achieving the same level of infamy as politicians and
policemen. You see, you shut up and you shrewdly agree to all sorts
of shenanigans. When you’ve rented out your arse, you can’t
shit when you please. If you’re a despicable ‘professional
trade-unionist’ and you’ve thus sold your soul to the
union, you’ll never have a surge of sincerity, because your
status would be threatened. You say what the union tells you to say,
and as the unions are ‘condoms’ on freedom, your lips are
sealed just like your anal sphincter, because you’ve rented out
your arse and you can’t shit when you please.
You can see the injustices meted out on your colleagues,
the totally irrational way of dealing with their problems and the
constant persecution to which they are subjected, but say nothing,
for fear of drawing attention to yourself. Once upon a time, in the
old days, you were a rebel who criticised the system – you
would curse conventionalism and rant against the rules and
regulations. You were caustic, dynamic, cutting, impulsive, jovial.
But a couple of favours received have gradually cooled your fiery
temperament, stoked your self-esteem and put the dampers on your
feelings. From time to time you have a pang of nostalgia and you
would like to fart, but your sphincter is sealed, because you’ve
rented out your arse and can’t shit when you please.
You’re fed up with your work, pissed off, anxious,
stressed and in despair, because of the longer working hours and the
responsibilities, products, promotions and pressures. You could work
anywhere, do anything without having to get up at the time others go
to bed. You could break everything up, tear it to pieces, crush and
demolish it all ... but your hands are tied by credits, IOUs and
debts. You are crushed by your new SUV, your children’s
after-school activities, and the twenty-five year mortgage on your
semi-detached house. And you let yourself be humiliated, you swallow
your pride, you shut up and you accept, because when you’ve
rented out your arse, you can’t shit when you please.”
The
newsletter was distributed to staff and displayed on the trade
union’s notice board on the company’s premises.
The
Employment Tribunal observed at the outset that the cause of the
dismissal was the content of the newsletter and not the applicants’
trade-union membership. It referred in its judgment to the exercise
of the right to freedom of expression in the context of labour
relations and to the fact that it was not unlimited. It found that
the limits to this right had to be interpreted in accordance with the
principle of good faith, which in labour relations had to involve
respect for the interests of the employer and the minimum
requirements of co-existence in a professional environment. The
judgment reiterated the Constitutional Court’s case-law to the
effect that the right to respect for freedom of expression was
subject to limits derived from labour relations, since the contract
of employment created a series of rights and reciprocal obligations
that circumscribed the exercise of the right to respect for freedom
of expression. For that reason, certain manifestations of this right
that might be legitimate in other contexts were not legitimate in the
context of labour relations, even though the requirement to act in
good faith did not always imply a duty of loyalty to the point of
subjecting the worker to the employer’s interests.
As to
the newsletter’s content, the tribunal took the view that the
cartoon and speech bubbles on the cover, together with the articles
inside, were offensive and exceeded the limits of freedom of
expression and information, impugning the honour and dignity of the
human resources manager and of delivery men A. and B., and damaging
the image of the company P. Lastly, it noted that the dismissal could
not be declared null and void, since it was based on serious
misconduct as provided for by law, and found that the applicants’
fundamental rights had not been breached.
The
applicants appealed. In a judgment of 7 May 2003 the High Court
of Justice of Catalonia upheld the judgment under appeal in so far as
it concerned the applicants.
The
court referred, among other things, to the limits imposed by the
principle of good faith between parties to a contract of employment
and to the necessary balance that judicial decisions had to strike
between a worker’s obligations under the contract and his
freedom of expression. The balancing exercise had to enable it to be
determined whether or not the reaction of the company that dismissed
the employee was legitimate. For the court, the publication of the
offending drawing and articles had clearly been harmful to the
dignity of the persons concerned and had overstepped the limits of
admissible criticism, as the exercise of freedom of expression did
not justify the use of insulting, offensive or vexatious expressions
that went beyond the legitimate exercise of the right to criticise
and clearly impugned the respectability of the persons concerned. The
company P. had, moreover, duly shown that the applicants’
dismissal was not a measure of reprisal or punishment, but was based
on a genuine, serious and sufficient cause for deciding to terminate
their contracts of employment.
The
applicants lodged an appeal on points of law, seeking harmonisation
of the relevant case-law. In a decision of 11 March 2004 the Supreme
Court dismissed their appeal on the ground that the decision produced
for purposes of comparison, namely a judgment of the High Court of
Justice of Madrid of 31 July 1992, was not pertinent.
Relying
on Article 24 (right to a fair hearing) of the Constitution, and on
Articles 20 and 28 taken together (freedom of expression and
association), the applicants lodged an amparo appeal with the
Constitutional Court. In a decision of 11 January 2006, served on 13
January 2006, that court found the appeal inadmissible for lack of
constitutional content. The decision reads as follows:
“... Firstly ... there is not enough evidence to
show that the [appellants’] dismissal was an act of reprisal on
the part of the respondent company because of the judicial
proceedings they had brought against it to assert their rights ...
Secondly, as to the [alleged] interference with trade-union freedom
guaranteed by Article 28 of the Constitution (this complaint
incorporating the appellants’ complaint under Article 14 of the
Convention in so far as they alleged discrimination on trade-union
grounds), this is inadmissible as [the appellants] have not provided
sufficient evidence to show that the company’s action was
intended to restrict, hamper or prevent the exercise of their right
to freedom of association, on account of their union membership or
activities in a trade union. In line with what this court has
repeatedly said, such evidence does not consist of a mere allegation
of a constitutional violation but must be sufficient for it to be
inferred that the violation could have been constituted ... which is
not the case here, since the circumstances alleged do not give rise
to any suspicion as to the potential violation in question. In their
allegations, the appellants have simply expressed their disagreement
with the decisions rendered by the courts below, which found in
decisions giving reasons and not being manifestly unreasonable that
they had committed the acts of which the company had accused them in
their letters of dismissal.
Thirdly, there has not been a breach of Article 28 §
1 of the Constitution taken together with Article 20 § 1 (a), in
the form of an infringement of the appellants’ right to freedom
of expression in the context of their union activity, since this
fundamental right does not encompass any right to insult others. As
the Court held recently in judgment no. 39/2005 of 28 February (legal
ground 4), reiterating its case-law, although the Constitution does
not prohibit the use of hurtful, embarrassing or vituperative
expressions in every circumstance, the constitutional protection
afforded by Article 20 § 1 (a) of the Constitution does not,
however, extend to absolutely vexatious expressions which, taking
into account the actual circumstances of the case and regardless of
their veracity or lack of veracity, are offensive or defamatory and
are not pertinent for the purpose of conveying the opinions or
information in question. The application of that jurisprudence to the
present case leads the Court to the conclusion that the appellants’
right to freedom of expression has not been infringed, since they
used that right in an excessive manner by means of value judgments
expressed through cartoons and comments that were offensive and
humiliating for the persons concerned and impugned their honour and
reputation. [Those cartoons and comments] were not necessary for
others to form an opinion about the facts of which the appellants
wished to complain, and were therefore gratuitous and not necessary
for the exercise of freedom of expression in a trade-union context.”
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Constitution read as follows:
Article 20
“1. The following rights shall be recognised and
protected:
(a) the right freely to express and disseminate
thoughts, ideas and opinions orally, in writing or by any other means
of reproduction;
...
(d) the right to receive and communicate true
information by any means of dissemination. ...
2. The exercise of these rights may not be restricted by
any prior censorship.
...
4. These freedoms shall be limited by respect for the
rights secured in this Part, by the provisions of the implementing
Acts and in particular by the right to honour and to a private life
and the right to control use of one’s likeness and to the
protection of youth and children.”
Article 28
“1. Everyone shall have the right to
associate freely ... Freedom of association shall include the right
to form trade unions or to join a trade union of one’s
choosing, and the right for trade unions to establish confederations
and to set up or join international trade union organisations. No one
shall be obliged to join a trade union.
...”
20. The
relevant provisions of the Labour Regulations (approved by Royal
Legislative Decree no. 1/1995 of 24 March 1995) read as follows:
Article 54 – Dismissal on disciplinary grounds
“1. The employer may decide to terminate a
contract of employment by dismissing the employee for serious and
negligent failure to perform his or her obligations.
2. Non-compliance with contractual obligations shall
include:
...
(c) Verbal or physical attacks on the employer or
persons working in the company, or members of their families living
with them.”
Article 55 § 7
“Justified dismissal shall entail the termination
of the contract without any right of compensation ...”
III. RELEVANT INTERNATIONAL INSTRUMENTS AND PRACTICE
A. International Labour Organisation
On
23 June 1971 the General Conference of the International Labour
Organisation (ILO) adopted Recommendation No. 143 concerning
workers’ representatives, of which Point 15 reads as follows:
“(1) Workers’ representatives acting on
behalf of a trade union should be authorised to post trade union
notices on the premises of the undertaking in a place or places
agreed on with the management and to which the workers have easy
access.
(2) The management should permit workers’
representatives acting on behalf of a trade union to distribute news
sheets, pamphlets, publications and other documents of the union
among the workers of the undertaking.
(3) The union notices and documents referred to in this
Paragraph should relate to normal trade union activities and their
posting and distribution should not prejudice the orderly operation
and tidiness of the undertaking.”
At
its 54th session, in June 1970, the International Labour
Conference adopted a Resolution concerning trade union rights and
their relation to civil liberties. The Conference explicitly listed
the fundamental rights essential for the exercise of freedom of
association, in particular: (a) the right to freedom and
security of person and freedom from arbitrary arrest and detention;
(b) freedom of opinion and expression and in particular freedom to
hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers;
(c) freedom of assembly; (d) the right to a fair trial by an
independent and impartial tribunal; and (e) the right to protection
of the property of trade unions.
In 1994 the ILO published a report entitled “Freedom
of association and collective bargaining: Trade union rights and
civil liberties”. The relevant passages of that report read as
follows:
“Part I. Freedom of association and protection
of the right to organize
Chapter II. Trade union rights and civil liberties
Introduction
...
24. The Declaration of Philadelphia ... officially
acknowledged the relationship between civil liberties and trade union
rights by proclaiming in article I(b) that freedom of expression and
of association are essential to sustained progress and referring in
article II(a) to the fundamental rights which are an inseparable part
of human dignity. Since then, this relationship has been repeatedly
affirmed and highlighted, both by the ILO’s supervisory bodies
and in the Conventions, Recommendations and resolutions adopted by
the International Labour Conference.
...
27. The information available, in particular on the
nature of the complaints submitted to the Committee on Freedom of
Association, shows that the main difficulties encountered by trade
union organizations and their leaders and members relate to basic
rights, in particular to the right to security of the person, freedom
of assembly, freedom of opinion and expression, as well as the right
to protection of trade union property and premises.
...
Freedom of opinion and expression
38. Another essential aspect of trade union rights is
the right to express opinions through the press or otherwise. The
full exercise of trade union rights calls for a free flow of
information, opinions and ideas, and workers, employers and their
organizations should enjoy freedom of opinion and expression at their
meetings, in their publications, and in the course of their other
activities. In cases in which the issue of a trade union publication
is subject to the granting of a licence, mandatory licensing should
not be subject to the mere discretion of licensing authorities, nor
should it be used as a means of imposing prior restraint on the
subject-matter of publications; in addition any application for such
a licence should be dealt with promptly. ... Measures of
administrative control - for example, the withdrawal of a licence
granted to a trade union newspaper, the control of printing plants
and equipment, or the control of paper supply - should be subject to
prompt and independent judicial review.
39. An important aspect of freedom of expression is the
freedom of speech of delegates of workers’ and employers’
organizations meetings, conferences and reunions, and in particular
to the International Labour Conference.
...
43. The Committee considers that the guarantees set out
in the international labour Conventions, in particular those relating
to freedom of association, can only be effective if the civil and
political rights enshrined in the Universal Declaration of Human
Rights and other international instruments, notably the International
Covenant on Civil and Political Rights, are genuinely recognized and
protected. These intangible and universal principles, the importance
of which the Committee wishes to emphasize particularly on the
occasion of the 75th anniversary of the creation of the ILO and the
50th anniversary of the Declaration of Philadelphia, should
constitute the common ideal to which all peoples and all nations
aspire.”
The fifth edition (revised) of the Digest of decisions
and principles of the Committee on Freedom of Association of the
Governing Body of the International Labour Office, published in 2006,
contains a summary of the principles formulated by that Committee in
the context of individual or collective complaints concerning alleged
violations of trade union rights. The general principles concerning
freedom of opinion and expression include the following:
“154. The full exercise of trade union rights
calls for a free flow of information, opinions and ideas, and to this
end workers, employers and their organizations should enjoy freedom
of opinion and expression at their meetings, in their publications
and in the course of other trade union activities. Nevertheless, in
expressing their opinions, trade union organizations should respect
the limits of propriety and refrain from the use of insulting
language. (See the 1996 Digest, para. 152; 304th Report, Case No.
1850, para. 210; 306th Report, Case No. 1885, para. 140; 309th
Report, Case No. 1945, para. 67; 324th Report, Case No. 2014, para.
925; and 336th Report, Case No. 2340, para. 652.)
155. The right to express opinions through the press or
otherwise is an essential aspect of trade union rights. (See the 1996
Digest, para. 153; 299th Report, Case No. 1640/1646, para. 150;
302nd Report, Case No. 1817, para. 324; 324th Report, Case No. 2065,
para. 131; 327th Report, Case No. 2147, para. 865; 328th Report, Case
No. 1961, para. 42; 332nd Report, Case No. 2090, para. 354; and
333rd Report, Case No. 2272, para. 539.)
156. The right to express opinions without previous
authorization through the press is one of the essential elements of
the rights of occupational organizations. (See the 1996 Digest, para.
154.)
157. The freedom of expression which should be enjoyed
by trade unions and their leaders should also be guaranteed when they
wish to criticize the government’s economic and social policy.
(See the 1996 Digest, para. 155.)
...
163. The prohibition of the placing of posters stating
the point of view of a central trade union organization is an
unacceptable restriction on trade union activities. (See the 1996
Digest, para. 467.)
...
166. The publication and distribution of news and
information of general or special interest to trade unions and their
members constitutes a legitimate trade union activity and the
application of measures designed to control publication and means of
information may involve serious interference by administrative
authorities with this activity. In such cases, the exercise of
administrative authority should be subject to judicial review at the
earliest possible moment. (See the 1996 Digest, para. 161; 320th
Report, Case No. 2031, para. 172; and 327th Report, Case No. 1787,
para. 341.)
...
168. While the imposition of general censorship is
primarily a matter that relates to civil liberties rather than to
trade union rights, the censorship of the press during an industrial
dispute may have a direct effect on the conduct of the dispute and
may prejudice the parties by not allowing the true facts surrounding
the dispute to become known. (See the 1996 Digest, para. 163.)
169. When issuing their publications, trade union
organizations should have regard, in the interests of the development
of the trade union movement, to the principles enunciated by the
International Labour Conference at its 35th Session (1952) for the
protection of the freedom and independence of the trade union
movement and the safeguarding of its fundamental task, which is to
ensure the social and economic well-being of all workers. (See the
1996 Digest, para. 165.)
170. In a case in which a trade union newspaper, in its
allusions and accusations against the government, seemed to have
exceeded the admissible limits of controversy, the Committee pointed
out that trade union publications should refrain from extravagance of
language. The primary role of publications of this type should be to
deal with matters essentially relating to the defence and furtherance
of the interests of the unions’ members in particular and with
labour questions in general. The Committee, nevertheless, recognized
that it is difficult to draw a clear distinction between what is
political and what is strictly trade union in character. It pointed
out that these two notions overlap, and it is inevitable and
sometimes normal for trade union publications to take a stand on
questions having political aspects, as well as on strictly economic
or social questions. (See the 1996 Digest, para. 166.)”
B. Inter-American Court of Human Rights
The
American Convention has a special additional protocol concerning
economic, social and cultural rights, the “Protocol of San
Salvador”. Adopted and opened for signature on 17 November
1988, it entered into force on 16 November 1999. Article 8
of that Protocol, entitled “Trade Union Rights” reads as
follows:
“1. The States Parties shall ensure:
a. The right of workers to organize trade unions and to
join the union of their choice for the purpose of protecting and
promoting their interests. As an extension of that right, the States
Parties shall permit trade unions to establish national federations
or confederations, or to affiliate with those that already exist, as
well as to form international trade union organizations and to
affiliate with that of their choice. The States Parties shall also
permit trade unions, federations and confederations to function
freely;
b. The right to strike.
2. The exercise of the rights set forth above may be
subject only to restrictions established by law, provided that such
restrictions are characteristic of a democratic society and necessary
for safeguarding public order or for protecting public health or
morals or the rights and freedoms of others. Members of the armed
forces and the police and of other essential public services shall be
subject to limitations and restrictions established by law.
3. No one may be compelled to belong to a trade union.”
In
its Advisory Opinion OC-5/85, the Inter-American Court emphasised the
fundamental nature of freedom of expression for the existence of a
democratic society, stressing among other things that freedom of
expression was a sine qua non for the
development of trade unions. It found as follows (paragraph 70
of the Opinion):
“Freedom of expression is a cornerstone upon which
the very existence of a democratic society rests. It is indispensable
for the formation of public opinion. It is also a conditio sine
qua non for the development of political parties, trade unions,
scientific and cultural societies and, in general, those who wish to
influence the public. It represents, in short, the means that enable
the community, when exercising its options, to be sufficiently
informed. Consequently, it can be said that a society that is not
well informed is not a society that is truly free.”
IV. ELEMENTS OF COMPARATIVE LAW
Comparative
law research has shown that the disciplinary powers of employers in
the member States of the Council of Europe are very diverse. There is
a convergence of legal systems among the thirty-five countries
examined: they all provide for and organise employees’ freedom
of expression and trade-union freedom, usually by means of norms of
constitutional value, or where that is not the case, by legislative
regulations. Employees serving as representatives benefit from
special protection to help them discharge their duties. The
regulations in all countries, in order to reconcile the exercise of
this right with the essential rights and freedoms of others, fix
rules providing for penalties in cases of abuse of the right to
freedom of expression. The powers vested in employers allow, if
necessary, for the exercise of disciplinary action against an
employee or staff member whose conduct can be characterised as
improper exercise of his freedom of expression. The case-law in such
matters is consistent and shows that there is a systematic
examination of proportionality between the dismissal and the conduct
on which it is based.
The
domestic-law instruments provide for the punishment of any conduct by
an employee that is capable of infringing the rights and freedoms of
others.
The
relevant rules may, firstly, be laid down by a Criminal Code, or by
provisions concerning the possibility of bringing an action to
establish liability. In most cases, criminal notions such as
defamation, damage to honour or reputation or insults will enable the
person claiming to be a victim of such infringement to bring
proceedings to establish the liability of the person who made the
comments at issue.
Rules
in Labour Codes or norms applicable to public servants will also
govern the exercise of freedom of expression of staff members, and if
necessary provide for the punishment of any abuse. Similar
limitations may be imposed on public officials, whether or not they
have “civil servant” status.
Disciplinary
authority is one of the essential prerogatives of the employer,
whether private or public. In this connection employers have a broad
discretion to impose the sanction that they consider the best adapted
to the accusations against the employee; the scale of possible
sanctions encompasses the power to dismiss a person who has seriously
compromised the interests of the company or the public service. In
parallel, this power of dismissal is accompanied by a prohibition on
dismissing employees on grounds relating to trade union activity. A
measure of dismissal may be based on misconduct or on a legitimate
ground. In the first case it relates to a given – identified –
form of conduct. In the second, the conduct is considered in general
terms.
The
proportionality of a measure of dismissal in relation to the conduct
of the employee concerned underlies all the legislation analysed.
The
applicable law in the States examined shows that any abuse of the
freedom of expression afforded to employees or public servants is
always regarded as a reprehensible fact capable of justifying
disciplinary measures that could go as far as dismissal. For that
purpose, factual elements of an objective nature are taken into
account, such as: (i) the seriousness of the misconduct; (ii) the
characterisation of the comments, the extent of their publication,
and also certain subjective elements. The latter include the personal
situation of the employee, any abuse of freedom of expression and the
question whether the conduct falls outside “normal” trade
union activity.
In
all the countries studied, the general rules are clear and allow the
employee’s right to freedom of expression to be balanced
against the rights and prerogatives of the employer. Their
implementation is more problematic, since a restriction on a
fundamental right can only be accepted if, having regard to the
measure decided, it is proportionate to the aim pursued. Only through
a case-by-case approach is it possible to grasp the substance of the
jurisprudential solution adopted in each type of situation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION, READ
IN THE LIGHT OF ARTICLE 11
The
applicants, who are members of the executive committee of the trade
union N.A.A., complained that they had been dismissed on account of
the content of the union’s newsletter of March 2002. They
claimed that the company P. had not verified their individual level
of participation and personal responsibility. They alleged that they
had been dismissed by way of reprisal for the union’s demands
and that the allegedly offensive content of the newsletter had served
as a pretext. They took the view that the cartoons and two articles
in question had not overstepped the limits of admissible criticism
under Article 10 of the Convention, because the impugned expressions
had been used in a jocular spirit and not with any intent to insult.
The
applicants relied on Articles 10 and 11 of the Convention, which read
as follows:
Article 10
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
protection of health or morals, for the protection of the reputation
or rights of others ...”
Article 11
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society ... for the protection of
health or morals or for the protection of the rights and freedoms of
others ...”
A. The Chamber judgment
In
its judgment of 8 December 2009, after reiterating that freedom of
expression constituted one of the essential foundations of a
democratic society, the Chamber indicated that such freedom was
subject to exceptions, which had to be construed strictly; and the
necessity of any exception had to be justified by a pressing social
need. In the present case, the interference had been “prescribed
by law” and pursued a legitimate aim, namely the protection of
the reputation or rights of others. In order to ascertain whether
that interference had been necessary in a democratic society, the
Court had to refer to the particular context of the dispute, in which
proceedings had been brought by the applicants against their employer
in the employment courts. Whilst taking the view that if a trade
union was unable to express its ideas freely it would become
meaningless and pointless, the Chamber noted in the present case that
the Spanish courts had balanced the conflicting interests, in the
light of domestic law, and had concluded that the applicants had
transgressed the permissible limits of the right to criticise. The
decisions given by the domestic courts could not therefore be
regarded as unreasonable or arbitrary. Accordingly, the Chamber found
that there had been no violation of Article 10 of the Convention. In
addition, it took the view that no separate question arose under
Article 11 of the Convention.
B. The parties’ submissions
1. The applicants
The
applicants pointed out that their employer, the company P., had
refused to recognise them as salaried workers and to calculate the
corresponding social-security contributions, even though that status
had been acknowledged by the courts. They took the view that the
Chamber had failed to take sufficiently into consideration their
trade union’s long and complex dispute with their employer and
with an association of non-salaried deliverymen created and supported
by the company, to which the two witnesses mentioned in the union
newsletter belonged.
The
applicants submitted that from April 2001, after the workers
belonging to the union N.A.A. had refused to waive the rights
recognised by the courts, the company P. had decided to punish them
by way of a substantial pay cut. They thus took the view that the
trade-union newsletter that gave rise to the present case had to be
seen in its context, namely one of harassment and systematic pressure
by the employer and the association of non-salaried workers that it
had created, in order to prevent the proliferation of workers’
demands and to persuade them to waive their judicially recognised
rights. The applicants alleged that P.’s head of human
resources had tried to buy the services of certain trade-union
members in order to persuade other deliverymen to refrain from
asserting their rights. The human resources manager had allegedly
offered them cash in return for those services, and the association
of non-salaried deliverymen, to which witnesses A. and B. belonged,
had thus become the employer’s accomplice. The final result was
not only the dismissal without compensation of the applicants, the
only salaried deliverymen who had not waived their rights, but also
the disbanding of the trade union. The applicants took the view that
there had therefore been a violation of the freedoms enshrined in
Articles 10 and 11 of the Convention.
The
applicants argued that the cartoon on the cover of the trade-union
newsletter, like the two impugned articles, was intended to be
critical and to provide information about the salary demands before
the employment tribunal and about the conduct of the members of the
association of non-salaried deliverymen. The use of a satirical
drawing and expressions, which might have been regarded as crude or
shocking, had in no way referred to the personal or private sphere of
the persons in question, but to their role in the dispute at issue.
There had been no personal attack in the burlesque and clearly
ironical tone employed, inspired as it was by an animus jocandi,
not an animus iniurandi.
The
applicants pointed out that the articles and drawings were not signed
and concerned a debate in exclusively employment and trade-union
matters, conducted via the union’s medium of communication. It
was thus arbitrary to consider that its members had all been
personally responsible for this publication, resulting in either
disciplinary liability of a collective nature or a patently illegal
action, requiring the dissolution of the trade union within the
company by dismissing its founder members in breach of Article 11
of the Convention.
The
applicants noted, lastly, that even if it were argued that the
criticisms in the union newsletter had impugned the fundamental right
of others to their honour and reputation, the imposition of a penalty
such as dismissal went beyond the legitimate protection of that right
and was disproportionate to the aim pursued.
2. The Government
(a) Facts
The
Government pointed out, in response to the applicants’ claims
in their request for referral to the Grand Chamber, that the “union
trusties” criticised in the newsletter were not workers whom
the employer had “released from the obligation to work”
in exchange for “conduct favourable to the company” and
stressed that they were not financed by the employer and that the
granting of time off without loss of wages for representatives to
discharge their union duties was a statutory requirement (under
Article 68 of the Labour Regulations).
(b) Complaint under Article 10 of the Convention
The
Government accepted that interference with freedom of expression
could also occur in the context of a relationship under private law;
however, in that case there was no direct interference by the State
with the applicants’ freedom of expression but, potentially, a
failure to discharge its positive obligations to protect that
freedom.
The
Government pointed out that the possibility of terminating a contract
of employment in the event of attacks on the employer or workers was
prescribed by law and pursued a legitimate aim: the protection of the
reputation of others. The Spanish courts had considered that the
applicants had gone beyond the limits inherent in the exercise of
their freedom of expression, to the extent of damaging the reputation
of the employer and of other workers. The comments had not been
published in the media but in the confined environment of a company,
and concerned individuals working there, namely the human resources
manager and work colleagues, that is to say persons with no public
duties. The extent of acceptable criticism when directed against a
private individual was narrower than that directed against
authorities or public institutions (contrast Dink v. Turkey,
nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 133,
ECHR 2010 ...).
That context had aggravated the damage caused by the
newsletter to the reputations of the persons concerned, since all its
potential addressees knew the individuals who were criticised or
caricatured.
The
applicants had expressed themselves via a written medium (not in the
context of a verbal and spontaneous exchange of opinions) with a
general circulation inside the company, using the union newsletter
and notice-board. It was therefore a well thought-out act on the part
of the applicants, who had been fully aware of the consequences of
their actions and the manner in which the reputation of others could
be harmed.
As
regards the content of the applicants’ comments, the Government
argued that there had been no opinion or analysis dealing with
matters of general interest (contrast Fuentes Bobo v. Spain,
no. 39293/98, 29 February 2000) but, as in the case of De
Diego Nafría v. Spain (no. 46833/99,
14 March 2002), the comments had been made in the context of a
strictly professional dispute with the company for which the
applicants worked. Moreover, they had not contributed to a debate on
union policy or matters affecting all the workers in the company, but
had been expressed in reaction to those who had testified against the
applicants in judicial proceedings in which they had legitimately
asserted their individual rights.
The
Spanish courts had taken the view that any legitimate criticism the
document may have contained had been expressed through coarse
insults, pejoratively suggesting that the persons concerned had given
“sexual favours” in return for another type of favour,
and describing them as “thieves”. In Lindon,
Otchakovsky-Laurens and July v. France ([GC], nos. 21279/02
and 36448/02, ECHR 2007 XI), the Court had found that
freedom of expression did not protect similar comments concerning a
public figure in politics; this was all the more true where the
comments concerned private individuals.
As
regards the caricatures, the present case was materially different
from that of Vereinigung Bildender Künstler v. Austria
(no. 68354/01, ECHR 2007 II). Here there was no formation of a
democratic public opinion expressed through art, but remarks in the
context of employer-employee relations.
The
Government took the view, relying on Constantinescu v. Romania
(no. 28871/95, §§ 72-75, ECHR 2000 VIII), that the
existence of damage to the reputation of others, in the exercise by
the applicants of their freedom of expression, could not be regarded
as justified by their union activity. The restrictions on freedom of
expression under Article 10 § 2 were also
applicable to union representatives.
The
Government observed that the nature and severity of the punishment
was also to be taken into account in assessing the proportionality of
the interference under Article 10 of the Convention. In the Diego
Nafria judgment, cited above, the Court had considered that, even
though a dismissal had serious consequences for the employment
relationship of a worker who had overstepped the acceptable limits of
criticism, in assessing the proportionality of the interference it
was necessary to take into account all the circumstances of the
particular case. In the present case, the Spanish courts had assessed
direct damage caused to the reputation of the persons mentioned in
the union newsletter, through coarse and insulting comments and
images. Even if the applicants’ opinions could be regarded as
legitimate, they had been expressed in a gratuitously offensive
manner, being in written form and deliberate.
The
Government therefore concluded that the interference in question had
been justified by the pursuit of a legitimate aim that was
proportionate to that aim.
(c) Complaint under Article 11 of the Convention
In
the Government’s submission, this complaint lacked separate
substance and had to be examined jointly with the Article 10
complaint. In reality, the applicants seemed to be arguing that the
expressions which had led to the termination of their contracts of
employment had to be assessed in the context of their union
activities. The right to form or join a trade union had not, however,
been affected by the employer’s decision, confirmed by the
courts; what had to be examined in this case was the extent of or
limits to union representatives’ freedom of expression.
The
freedom recognised in Article 11 of the Convention imposed positive
obligations of protection on the State, including those relating to
the possibility of expressing personal opinions. However, a breach of
those positive obligations would exist only where freedom of
association was affected (see, in particular, Gustafsson v.
Sweden, 25 April 1996, § 52, Reports of Judgments and
Decisions 1996 II). The applicants had not proved that the
purpose of the dismissal decision had been to take reprisals against
a particular trade union as opposed to others. The offending
newsletter had simply criticised the testimony of certain union
representatives in disputes that had affected the applicants
individually, and had compared that testimony to sexual favours or
theft. There had thus been no violation of the right to freedom of
association but there was an issue concerning the extent of and
limits to union representatives’ freedom of expression that had
to be examined only under Article 10 of the Convention.
C. The Court’s assessment
1. Provision applicable to the present case
The
Court notes from the outset that the facts of the present case are
such that the question of freedom of expression is closely related to
that of freedom of association in a trade-union context. It
reiterates in this connection that the protection of personal
opinions, as secured by Article 10, is one of the objectives of
freedom of assembly and association as enshrined in Article 11 (see
Ezelin v. France, 26 April 1991, § 37, Series A no.
202, and Barraco v. France, no. 31684/05, § 27, ECHR
2009 ...). The parties have, moreover, submitted arguments in
respect of both of those provisions.
It
should be noted, however, that the applicants’ complaint mainly
concerns their dismissal for having, as members of the executive
committee of a trade union, published and displayed the articles and
cartoons in question. In addition, the domestic courts did not find
it established that the applicants had been dismissed as a result of
belonging to that trade union. The courts referred to the exercise of
the right to freedom of expression in the context of labour relations
and noted that this right was not unlimited, on account of the
specific features of labour relations that had to be taken into
consideration. Furthermore, the High Court of Justice of Catalonia
found that the dismissal of two other salaried deliverymen had been
in breach of Article 54 §§ 1 and 2 (c) of the Labour
Regulations, because they had been on sick leave at the time of the
publication and distribution of the newsletter in question. This
meant that they could not be regarded as having participated in the
publication and distribution of the newsletter, or therefore, as
being jointly liable for the damage caused thereby to the dignity of
the persons concerned. The Employment Tribunal incidentally took note
of the fact that they were still members of the trade union in
question (see paragraph 15 above). This confirms that the applicants’
trade union membership did not play a decisive role in their
dismissal.
The
Court therefore finds it more appropriate to examine the facts under
Article 10, which will nevertheless be interpreted in the light of
Article 11 (see Women On Waves and Others v. Portugal, no.
31276/05, § 28, ECHR 2009 ... (extracts)).
2. Compliance with Article 10 of the Convention, read
in the light of Article 11
(a) General principles in matters of freedom of
expression
Freedom
of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress
and for each individual’s self-fulfilment. Subject to paragraph
2 of Article 10, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness without which there is no “democratic
society”. As set forth in Article 10, this freedom is subject
to exceptions, which must, however, be construed strictly, and the
need for any restrictions must be established convincingly (see,
among other authorities, Lindon, Otchakovsky-Laurens and July,
cited above). Moreover, Article 10 protects not only the substance of
the ideas and information expressed but also the form in which they
are conveyed (see De Haes and Gijsels v. Belgium, 24 February
1997, § 48, Reports 1997 I).
Account must nevertheless be taken of the need to
strike the right balance between the various interests involved.
Because of their direct, continuous contact with the realities of the
country, a State’s courts are in a better position than an
international court to determine how, at a given time, the right
balance can be struck. For this reason, in matters under Article 10
of the Convention, the Contracting States have a certain margin of
appreciation in assessing the necessity and scope of any interference
in the freedom of expression protected by that Article (see Tammer
v. Estonia, no. 41205/98, § 60, ECHR 2001 I, and
Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §
68, ECHR 2004 XI), in particular when a balance has to be struck
between conflicting private interests.
However,
that margin goes hand in hand with European supervision, embracing
both the legislation and the decisions applying it, even those given
by an independent court (see, mutatis mutandis, Peck v. the
United Kingdom, no. 44647/98, § 77, ECHR 2003 I,
and Karhuvaara and Iltalehti v. Finland, no. 53678/00, §
38, ECHR 2004 X). The Court’s task in exercising its
supervisory function is not to take the place of the national
authorities but rather to review, in the light of the case as a
whole, whether the decisions they have taken pursuant to their power
of appreciation can be reconciled with the Convention provisions
relied upon (see Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, § 60, ECHR 1999 III; Petrenco v. Moldova,
no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla
Polanco v. Spain, no. 34147/06, § 41,
21 September 2010; and Petrov v.
Bulgaria (dec.), no. 27103/04, 2
November 2010).
The
Court takes the view that the members of a trade union must be able
to express to their employer their demands by which they seek to
improve the situation of workers in their company. In this respect,
the Court notes that the Inter-American Court of Human Rights, in its
Advisory Opinion OC-5/85193, emphasised that freedom of expression
was “a conditio sine qua non for the development of ...
trade unions” (see paragraph 26 above; see also paragraph 24
and in particular point 155 cited therein). A trade union that does
not have the possibility of expressing its ideas freely in this
connection would indeed be deprived of an essential means of action.
Consequently, for the purpose of guaranteeing the meaningful and
effective nature of trade union rights, the national authorities must
ensure that disproportionate penalties do not dissuade trade union
representatives from seeking to express and defend their members’
interests. Trade-union expression may take the form of news sheets,
pamphlets, publications and other documents of the trade union whose
distribution by workers’ representatives acting on behalf of a
trade union must therefore be authorised by the management, as stated
by the General Conference of the International Labour Organisation in
its Recommendation No. 143 of 23 June 1971 (see paragraph
21 above).
In
the present case, the Spanish courts were required to balance the
applicants’ right to freedom of expression, as guaranteed by
Article 10 of the Convention, against the right to honour and dignity
of Mr G., Mr A. and Mr B. (see paragraphs 15-18 above) in the context
of an employment relationship. Article 10 of the Convention does not
guarantee an unlimited freedom of expression and the protection of
the reputation or rights of others, in the present case the
reputation of the persons targeted in the drawings and texts at
issue, constitutes a legitimate aim permitting a restriction of that
freedom of expression. If the reasoning of the domestic courts’
decisions concerning the limits of freedom of expression in cases
involving a person’s reputation is sufficient and consistent
with the criteria established by the Court’s case-law, the
Court would require strong reasons to substitute its view for that of
the domestic courts (see MGN Limited v. the United Kingdom,
no. 39401/04, §§ 150 and 155, 18 January
2011).
(b) Positive obligations of the respondent State
under Article 10 of the Convention, read in the light of Article 11
The
Court observes that, under Article 1 of the Convention, the
Contracting Parties “shall secure to everyone within their
jurisdiction the rights and freedoms defined in ... [the]
Convention”. As the Court found in the case of Marckx v.
Belgium (13 June 1979, § 31, Series A no. 31; see also
Young, James and Webster v. the United Kingdom,
13 August 1981, § 49, Series A no. 44), in addition to the
primarily negative undertaking of a State to abstain from
interference in the rights guaranteed by the Convention, “there
may be positive obligations inherent” in those rights.
This
is also the case for freedom of expression, of which the genuine and
effective exercise does not depend merely on the State’s duty
not to interfere, but may require positive measures of protection,
even in the sphere of relations between individuals. In certain cases
the State has a positive obligation to protect the right to freedom
of expression, even against interference by private persons (see
Fuentes Bobo, cited above, § 38; Özgür
Gündem v. Turkey, no. 23144/93, §§ 42-46, ECHR
2000 III; and Dink, cited above, § 106).
In
the present case, the measure complained of by the applicants, namely
their dismissal, was not taken by a State authority but by a private
company. Following the publication of the trade-union newsletter of
March 2002 and the expressions contained therein, the disciplinary
measure of dismissal for serious misconduct was taken against the
applicants by their employer (see paragraph 14 above) and confirmed
by the domestic courts. The applicants’ dismissal was not the
result of direct intervention by the national authorities. The
responsibility of the authorities would nevertheless be engaged if
the facts complained of stemmed from a failure on their part to
secure to the applicants the enjoyment of the right enshrined in
Article 10 of the Convention (see, mutatis mutandis,
Gustafsson, cited above, § 45).
In
those circumstances, the Court finds that it is appropriate to
examine the present applications in terms of the positive obligations
of the respondent State under Article 10, in the light of Article 11.
The Court will therefore ascertain whether, in the present case, the
Spanish judicial authorities, in dismissing the applicants’
claims, adequately secured their right to freedom of expression in
the context of labour relations.
Whilst
the boundary between the State’s positive and negative
obligations under the Convention does not lend itself to precise
definition, the applicable principles are, nonetheless, similar. In
both contexts regard must be had in particular to the fair balance
that has to be struck between the competing interests of the
individual and of the community as a whole, subject in any event to
the margin of appreciation enjoyed by the State (see Karhuvaara
and Iltalehti, cited above, § 42).
(c) Application of those principles to the present
case
As
the Court noted above (see paragraph 61 above), the principal
question in the present case is whether the respondent State was
required to guarantee respect for the applicants’ freedom of
expression by annulling their dismissal. The Court’s task is
therefore to determine whether, in the light of the case as a whole,
the sanction imposed on the applicants was proportionate to the
legitimate aim pursued and whether the reasons given by the national
authorities to justify it were “relevant and sufficient”
(see Fuentes Bobo, cited above, § 44).
(i) Whether the applicants’ comments could be
regarded as harmful to the reputation of others
The
Court observes that the domestic courts examined whether the
fundamental rights relied upon by the applicants had been breached;
if there had been a breach, their dismissals would have been declared
null and void. The courts observed that there had been no
interference with the right to trade-union freedom, since the
dismissals had been the result of the actual content of the offending
newsletter and not the applicants’ membership of the union
N.A.A.
Moreover,
the domestic courts referred to the exercise of the right to freedom
of expression in the context of labour relations and noted that this
right was not unlimited; the specific features of labour relations
had to be taken into account. Barcelona Employment Tribunal no. 17
thus found that the cartoon and speech bubbles on the cover of the
union newsletter, together with the articles inside it, were
offensive and impugned the respectability of the persons concerned,
as they overstepped the limits of freedom of expression and
information, damaging the honour and dignity of the human resources
manager and two workers, and tarnishing the image of the company P.
(see paragraph 15 above).
To
arrive at that conclusion, Barcelona Employment Tribunal no. 17
carried out a detailed analysis of the facts in dispute and, in
particular, the context in which the applicants had published the
newsletter. The Court does not see any reason to call into question
the findings thus made by the domestic courts to the effect that the
drawing and two articles in question were offensive and capable of
harming the reputation of others.
In
this connection it should be noted that the applicants expressed
themselves through a cartoon showing the human resources manager, G.,
sitting behind a desk under which a person on all fours could be seen
from behind, together with A. and B., workers’ representatives,
who were watching the scene while waiting to take their turn to
satisfy the manager. The accompanying speech bubbles were
sufficiently explicit. As to the two articles (see paragraph 15
above), they contained explicit accusations of “infamy”
against A. and B., denouncing them for “selling” the
other workers and for forfeiting their dignity in order to keep their
posts. The accusations were expressed in vexatious and injurious
terms for the persons concerned. The Court reiterates that a clear
distinction must be made between criticism and insult and that the
latter may, in principle, justify sanctions (see, mutatis
mutandis, Skałka v. Poland, no. 43425/98, §
34, 27 May 2003). The Court further refers to the general
principles concerning freedom of opinion and expression in the fifth
edition (revised) of the Digest of decisions and principles of the
Committee on Freedom of Association of the Governing Body of the
International Labour Office, and in particular point 154 according to
which “in expressing their opinions, trade union organizations
should respect the limits of propriety and refrain from the use of
insulting language” (see paragraph 24 above).
In
the light of the foregoing, the Court takes the view that the grounds
given by the domestic courts were consistent with the legitimate aim
of protecting the reputation of the individuals targeted by the
cartoon and texts in question, and that the courts’ conclusion
that the applicants had overstepped the limits of admissible
criticism in labour relations cannot be regarded as unfounded or
devoid of a reasonable basis in fact.
(ii) Whether the sanction of dismissal was
proportionate to the degree of seriousness of the impugned remarks
It
remains to be ascertained whether the sanction imposed on the
applicants by their employer, namely their dismissal, was
proportionate in relation to the circumstances of the case.
In
addressing this question, the Court will take particular account of
the wording used in the cartoon and articles in question and of the
professional context in which they appeared.
The
Court first notes that the impugned remarks were expressed in a
particular context. Proceedings had been brought in the employment
tribunals by the applicants, members of a trade union, against their
employer. In those proceedings the non-salaried deliverymen, A. and
B., had testified in favour of the company P. and therefore against
the applicants (see paragraph 11 above). The cartoon and articles
were thus published in the newsletter of the trade-union workplace
branch to which the applicants belonged, in the context of a dispute
between the applicants and the company P. Nevertheless, they did
contain criticism and accusations, not directly against the company
but against the two non-salaried deliverymen and the human resources
manager. The Court reiterates in this connection that the extent of
acceptable criticism is narrower as regards private individuals than
as regards politicians or civil servants acting in the exercise of
their duties (contrast Lingens v. Austria, 8 July 1986, §
42, Series A no. 103, and Nikula v. Finland, no. 31611/96,
§ 48, ECHR 2002 II).
The
Court does not share the Government’s view that the content of
the impugned articles did not concern any matter of general interest
(see paragraph 44 above). The publication at issue took place in the
context of a labour dispute inside the company to which the
applicants had presented certain demands. The primary role of
publications of this type “should be to deal with matters
essentially relating to the defence and furtherance of the interests
of the unions’ members in particular and with labour questions
in general” (see paragraph 24 above, in particular point 170 of
the International Labour Office Digest cited). The debate was
therefore not a purely private one; it was at least a matter of
general interest for the workers of the company P. (see, mutatis
mutandis, Fressoz and Roire v. France [GC], no. 29183/95,
§ 50, ECHR 1999 I, and Boldea v. Romania,
no. 19997/02, § 57, ECHR 2007 II).
That
being said, the existence of such a matter cannot justify the use of
offensive cartoons or expressions, even in the context of labour
relations (see paragraph 24 above, point 154 of the Digest cited).
Moreover, the remarks did not constitute an instantaneous and
ill-considered reaction, in the context of a rapid and spontaneous
oral exchange, as is the case with verbal exaggeration. On the
contrary, they were written assertions, published in a quite lucid
manner and displayed publicly on the premises of the company P.
(compare De Diego Nafria, cited above, § 41).
The
domestic courts took all these factors into account in dealing with
the action brought by the applicants. They carried out an in-depth
examination of the circumstances of the case and a detailed balancing
of the competing interests at stake, taking into account the limits
of the right to freedom of expression and the reciprocal rights and
obligations specific to employment contracts and the professional
environment. They endorsed the penalties imposed by the employer,
finding that they were not disproportionate to the legitimate aim
pursued, namely the protection of the reputation of Mr G., Mr A. and
Mr B. in such a context. They further found that the conduct in
question had not directly fallen within the applicants’ trade
union activity but had, on the contrary, offended against the
principle of good faith in labour relations and had fallen short of
the minimum requirements for coexistence in a professional
environment (see paragraph 15 above). Lastly, the courts made
extensive reference in the present case to the Constitutional Court’s
case-law concerning the right to freedom of expression in labour
relations and establishing that it was not unlimited. In the Court’s
opinion, the conclusions reached by the domestic courts cannot be
regarded as unreasonable. In this connection, it notes that, in
addition to being insulting, the cartoon and texts in issue were
intended more as an attack on colleagues for testifying before the
courts than as a means of promoting trade union action vis-à-vis
the employer.
Moreover,
an examination of the comparative-law material available to the Court
reveals that employers generally enjoy broad discretion in
determining the sanction that is best adapted to accusations against
an employee; the scale of possible sanctions encompasses the power to
dismiss a person who has seriously compromised the interests of the
company. In the countries examined, the domestic legislation seeks to
reconcile the employee’s right to freedom of expression with
the employer’s rights and prerogatives, requiring in particular
that a dismissal measure be proportionate to the conduct of the
employee against whom it is taken (see paragraphs 27 and 30-31
above). The homogeneity of European legal systems in this area is a
relevant factor in balancing the various rights and interests at
stake in the present case.
The
Court observes that, in order to be fruitful, labour relations must
be based on mutual trust. As the Employment Tribunal rightly found,
even if the requirement to act in good faith in the context of an
employment contract does not imply an absolute duty of loyalty
towards the employer or a duty of discretion to the point of
subjecting the worker to the employer’s interests, certain
manifestations of the right to freedom of expression that may be
legitimate in other contexts are not legitimate in that of labour
relations (see, mutatis mutandis, Vogt v. Germany, 26
September 1995, §§ 51 and 59, Series A no. 323).
Moreover, an attack on the respectability of individuals by using
grossly insulting or offensive expressions in the professional
environment is, on account of its disruptive effects, a particularly
serious form of misconduct capable of justifying severe sanctions.
This
leads the Court to find that, in the particular circumstances of the
present case, the measure of dismissal taken against the applicants
was not a manifestly disproportionate or excessive sanction capable
of requiring the State to afford redress by annulling it or by
replacing it with a more lenient measure.
(iii) Conclusion
In
those circumstances, the Court finds that the respondent State has
not failed to fulfil its obligations in respect of the applicants
under Article 10 of the Convention, read in the light of Article
11.
Accordingly,
there has been no violation of Article 10, read in the light of
Article 11.
FOR THESE REASONS, THE COURT
Holds,
by twelve votes to five, that there has been no violation of
Article 10 of the Convention, read in the light of Article 11.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 12 September 2011.
Vincent Berger Nicolas Bratza
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Tulkens, David Thór
Björgvinsson, Jočienė, Popović and Vučinić
is annexed to this judgment.
N.B.
V.B.
JOINT DISSENTING OPINION OF JUDGES TULKENS, DAVÍD
THÓR BJÖRGVINSSON, JOČIENĖ, POPOVIĆ AND
VUČINIĆ
(Translation)
We
do not share the majority’s decision to the effect that there
has not been, in the present case, a violation of Article 10 of the
Convention, read in the light of Article 11. Through the specific
circumstances of this case, some major questions of principle are
raised in terms of the substance and extent of freedom of expression
in the context of labour relations and the freedom of expression of
trade unions.
We
will first briefly summarise the facts, as they are important for an
understanding of the scope and significance of the issues.
The
applicants were employed as delivery workers for an industrial bakery
company. They had brought proceedings against that company before
employment tribunals seeking recognition of their status as salaried
workers (rather than self-employed or non-salaried delivery workers),
in order to be covered by the corresponding social-security regime.
Representatives of a committee of non-salaried delivery workers in
the company had testified against the applicants in those
proceedings. In 2001 the applicants set up the trade union N.A.A.
(Nueva alternativa asamblearia) to defend their interests and
those of the other delivery staff who were under pressure from the
company to renounce their claim to salaried status, which had been
acknowledged by the employment tribunals. The applicants were not
trade-union representatives, in view of the fact that at the time of
the dismissals there had not been any elections in the company since
1991, but they were on the executive board of the trade union N.A.A.
and the first applicant was a trade-union officer.
The
May 2002 issue of the trade union’s newsletter reported on
a judgment given in April 2002 by Barcelona Employment Tribunal no.
13, which had upheld the applicants’ claims, ordering the
company to pay them certain sums in respect of salaries owed to them.
The cover of the newsletter showed a satirical caricature of the
company’s human resources manager receiving sexual
gratification in return for favours granted to certain workers. The
newsletter contained two articles that virulently criticised two
individuals who worked for the same company but represented a
committee of non-salaried workers, accusing them of “selling
the other workers and forfeiting their dignity in order to keep their
posts”.
On 3
June 2002 the applicants were summarily dismissed on grounds of
serious misconduct, namely for impugning the reputations of the
individuals in question, under Article 54 § 1 of the Labour
Regulations, which provided for the termination of a contract of
employment where an employee was guilty of serious and negligent
failure to perform his or her contractual obligations. Under
Article 54 § 2 (c) serious misconduct was
constituted by “[v]erbal or physical attacks on the employer or
persons working in the company, or members of their families living
with them”. Their trade union N.A.A. was also disbanded.
The
Court rightly observes from the outset that “the facts of the
present case are such that the question of freedom of expression is
closely related to that of freedom of association in a trade-union
context” (paragraph 52 of the judgment, first sub-paragraph).
However, it subsequently follows a different course and brushes
aside, somewhat artificially, the trade union dimension of the
case. It endorses the position of the domestic courts, which “did
not find it established that the applicants had been dismissed as a
result of belonging to that trade union” and confirms, albeit
with a slight nuance, “that the applicants’ trade union
membership did not play a decisive role in their dismissal”
(ibid., second sub-paragraph).
The
Court thus chooses to examine the case mainly from the angle of
Article 10 of the Convention, even though it explains that this
provision will be interpreted in the light of Article 11.
However, the approach thus announced proves in practice to be
illusory, or even theoretical. Both in assessing the facts and in
balancing the interests at stake, the majority give scant
consideration to the fact that the applicants were members of a trade
union, or that they were expressing professional and
employment-related claims. In addition, the dispute in question lay
at the very heart of a debate concerning trade union freedom, since
the dispute was not only between a trade union and an employer, but
also between two trade unions.
The
right to trade union freedom cannot be dissociated from the right to
freedom of expression and information. Moreover, in turn, trade union
freedom of expression is unanimously regarded as an essential and
indispensible aspect of the right of association, it being a
prerequisite to the fulfilment of the goals of associations and trade
unions, as is quite clear from the documents of the International
Labour Organisation and the case-law of the Inter-American
Court of Human Rights cited by the Grand
Chamber
as relevant material (paragraphs 21 et seq. of
the judgment). As M. O’Boyle has commented, “freedom
of speech can be seen as the oxygen which gives associative rights
their vitality”.
We share the view that “since trade unions play an important
role, in that they express and defend ideas of public interest in
professional and employment-related matters, their freedom to put
forward opinions warrants a high degree of protection”.
Whilst
it is not submitted that the cause of the dismissals lay in the
applicants’ trade union membership, there is no doubt that the
cartoon and impugned articles in the union newsletter had a trade
union connotation and thus had to be assessed in the light of the
ongoing industrial dispute in the company and the context in which
they had been published.
Admittedly, there has not yet been any specific
Convention case-law associating trade union freedom, in terms of “a
right, in order to protect [its members’] interests, that the
trade union should be heard”,
with freedom of expression. We believe, however, that the case-law
applicable to freedom of expression in a media context may be
applied, mutatis mutandis and with all the necessary
precautions, to cases like the present one. A function similar to the
“watchdog” role of the press is performed by a trade
union, which acts on behalf of the company’s workers to protect
their occupational and employment-related interests. In the Vides
Aizsardzības Klubs v. Latvia judgment of 27 May 2004, the
Court extended to environmental protection groups the privileged
status afforded to the press. This was also the case for associations
in the Mamère v. France judgment of 7 November
2006.
That
being said, it is obvious that freedom of expression in general, like
that of trade unions in particular, is not unlimited and is subject
to the same limitations and restrictions as are necessary in a
democratic society.
In
the light of Article 10 of the Convention, the case must be examined
in terms of the positive obligations that may have to be fulfilled by
the respondent State in order to secure to the applicants the
enjoyment of their right to freedom of expression, as the measure
disputed by the applicants, namely their dismissal, was not taken by
a governmental authority but by a private company. The question is
whether the disciplinary sanction imposed on the applicants, namely
dismissal for serious misconduct, leading to the immediate and final
loss of their jobs, met a “compelling social need” and
was proportionate to the legitimate aim pursued and whether the
reasons given by the domestic authorities to justify it were
“relevant and sufficient”. We do not believe so, although
we acknowledge, as the legitimate aim, the need to protect the
reputation or rights of others.
In
balancing the right to freedom of expression with the right to honour
and reputation of the individuals concerned, the Court uses, in their
entirety and almost word for word, the findings of the domestic
courts, which, without taking Article 10 of the Convention into
account, took the view that the cartoon and articles in question were
offensive and impugned the respectability of the individuals and
company concerned (see paragraph 65 of the judgment). At no point
does the Court examine in concreto whether the cartoon and
articles overstepped the bounds of remarks that “shock, offend
and disturb” and that are protected by Article 10 of the
Convention as an expression of pluralism, tolerance and
broadmindedness, without which there is no democratic society. It is
precisely when ideas shock and offend that freedom of expression is
most precious.
As
regards the cartoon on the newsletter’s cover, it is a
caricature, which, whilst being vulgar and tasteless in
nature, should be taken for what it is – a satirical
representation. In other cases the Court has recognised the satirical
nature of an expression, publication or caricature.
In refusing to take that nature into account in the present case, the
judgment gives the curious impression of placing trade union freedom
of expression at a lower level than that of artistic freedom and of
treating it more restrictively.
Moreover,
as to the content of the impugned texts, which are
unquestionably crude and vulgar, it must be assessed in relation to
the ongoing industrial dispute in the company.
The harsh criticism did not relate to the intimacy of the
individuals or to other rights pertaining to their private lives. It
was directed exclusively at the role of certain colleagues in the
industrial dispute and their professional attitude in the legal
debate over the recognition of rights afforded by law to workers. It
was in fact mainly for the promotion and protection of those rights
that the trade union had been created. In this connection, we do not
find that the criticism was such as to cause prejudice “to
personal enjoyment of the right to respect for private life”
(see A. v. Norway, 9 April 2009, § 64). It is also
noteworthy that there is no information in the file to suggest that
the individuals concerned by the applicants’ offending remarks
brought any legal proceedings for libel or insults against the
applicants, unlike the situation in Fuentes Bobo v. Spain.
The
newsletter’s cover thus referred to the fact that certain
representatives of the association had testified in favour of the
company and that, in exchange, they had received favours. The
impugned article entitled “Whose witnesses? Theirs, of course”
addressed the same question, admittedly in ironic and excessive
terms, alleging that the witnesses had failed in their duty to defend
the interests of persons such as the members of the professional
association of which they themselves were representatives.
In
paragraph 74 of the judgment, to support its assessment, the Court
notes that “in addition to being insulting, the cartoon and
texts in issue were intended more as an attack on colleagues for
testifying before the courts than as a means of promoting trade union
action vis-à-vis the employer”. Once again, the
Court dissociates the impugned texts from their context, as the trade
union action had precisely been triggered by the testimony in court
of members of the other committee (see paragraph 2 above). Moreover,
such an assertion – and it is questionable whether this
actually falls within the Court’s remit – amounts to
speculation and reveals a certain ignorance, or even suspicion, of
trade union action.
Like
the Chamber, the Grand Chamber stresses the fact that the offending
caricatures and articles “did not constitute an instantaneous
and ill-considered reaction, in the context of a rapid and
spontaneous oral exchange, as is the case with verbal exaggeration.
On the contrary, they were written assertions, published in a quite
lucid manner and displayed publicly on the premises of the company
P.” (see paragraph 73 of the judgment). This assessment then in
fact allows the Court to distinguish the present case from its
judgment in Fuentes Bobo v. Spain (29 February 2000), which
concerned verbal remarks made during live radio broadcasts, without
any possibility for the applicants to reformulate, rectify or even
withdraw them before they were made public.
The somewhat artificial nature of this distinction, precisely in the
context of labour relations, may give reason to fear that the present
judgment constitutes a step backwards in relation to the Fuentes
Bobo judgment, concerning the dismissal of a journalist on
account of harsh criticism during a radio programme, where the Court
found that there had been a violation of Article 10 of the Convention
in the context of an industrial dispute.
As
to the seriousness of the sanction, the applicants received
the maximum penalty provided for by the Labour Regulations, namely
the final termination of their contracts of employment, without a
notice period or any warning or compensation. This is undoubtedly the
harshest possible sanction that can be imposed on workers, whereas
other more lenient and more appropriate disciplinary sanctions could
or should have been envisaged, as the Court recognised in the Fuentes
Bobo judgment.
It
should also be noted that the applicants were dismissed for serious
and negligent failure to perform their contractual obligations, even
though “offences” committed in written form are not
expressly mentioned in Article 54 § 2 of the Labour Regulations,
which refers only to “[v]erbal or physical attacks on the
employer or persons working in the company ...” among the
situations that may constitute non-performance of contract. In any
event, the sanction imposed depended on the conduct in question being
characterised by the employer as “serious” and then on
the employer’s wish to terminate the applicants’
contracts, since Article 54 § 1 of the Labour Regulations did
not render dismissal mandatory for that kind of situation but only
provided for it as a possibility.
The imposition of such a harsh sanction on trade union
members, who were acting in their own names but also to defend the
interests of other workers, is likely to have, generally speaking, a
“chilling effect” on the conduct of trade unionists and
to encroach directly upon the raison d’être of a
trade union.
In this connection it is noteworthy that the mere threat of
dismissal, involving loss of livelihood, has been described in the
Court’s case-law as a very serious form of compulsion striking
at the very substance of the freedom of association guaranteed by
Article 11 (see Young, James and Webster v. the
United Kingdom, 13 August 1981, § 55, Series A no. 44).
Lastly,
the majority boldly assert that certain manifestations of the right
to freedom of expression that may be legitimate in other contexts are
not legitimate in that of labour relations. They continue as follows:
“Moreover, an attack on the respectability of individuals by
using grossly insulting or offensive expressions in the professional
environment is, on account of its disruptive effects, a particularly
serious form of misconduct capable of justifying severe sanctions.
This leads the Court to find that, in the particular circumstances of
the present case, the measure of dismissal taken against the
applicants was not a manifestly disproportionate or excessive
sanction capable of requiring the State to afford redress by
annulling it or by replacing it with a more lenient measure”
(see paragraphs 76 and 77 of the judgment). We are puzzled by such an
assertion.
Firstly,
the argument of possible disruption in the workplace is one that has
been traditionally used in order to justify greater protection
of freedom of expression and not less protection. “Many
people, ... economically dependent as they are upon their
employer, hesitate to speak out not because they are afraid of
getting arrested, but because they are afraid of being fired. And
they are right.”.
Furthermore,
the Court once again overlooks the social dimension of the situation
in adopting this singular position, which appears to us to be
detached from the reality of the case. The applicants’ summary
and final dismissal for serious misconduct quite simply deprived them
of their livelihood. In terms of proportionality, is it really
reasonable today, with the widespread employment crisis affecting
numerous countries and in terms of social peace, to compare the
potentially disruptive effects of the impugned texts in the workplace
with a measure of final dismissal, and thus increased job insecurity
for the workers? We do not think so.
In
conclusion, in view of the foregoing, the interrelationship between
freedom of expression and freedom of association, the employment and
professional context in which the facts occurred, the seriousness of
the sanction, and its dissuasive effect and disproportionate nature,
we believe that the interference in question did not meet a
“compelling social need”, that it cannot be regarded as
“necessary in a democratic society” and that it appears
manifestly disproportionate to the aims pursued. There has therefore
been a violation of Article 10 of the Convention, read in the light
of Article 11.
