CASE OF MARUNIĆ v. CROATIA
(Application no. 51706/11)
28 March 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Marunić v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 28 February 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 51706/11) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Mirela Marunić (“the applicant”), on 16 August 2011.
2. The applicant was represented by Ms A. Laškarin of Maćešić & Partners Law Offices, who practises in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant alleged, in particular, that her freedom of expression had been breached by her wrongful dismissal over statements she had made in the media.
4. On 9 November 2015 the complaint concerning freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1964 and lives in Kostrena.
6. Between 1 October 2003 and 1 October 2007 the applicant was the director of a municipal utility company, KD Kostrena (hereinafter “the company”), whose sole shareholder is the Municipality of Kostrena (Općina Kostrena). The company primarily provides public utility services such as parking, waste disposal, funeral services, maintaining green spaces, cemeteries and so forth.
A. Media statements, the applicant’s dismissal and subsequent civil proceedings
7. In an article published in the daily Novi list of 19 September 2007, Mr M.U., who was the mayor of Kostrena Municipality and chairman of the company’s General Meeting (skupština) at the time, criticised the way the applicant performed her job. The relevant part of the article reads as follows:
“ ... M.U. does not hide his dissatisfaction with the work of Mirela Marunić as head of KD Kostrena.
‘I cannot speak for the others, but after everything that has happened, I can say that Mirela Marunić has betrayed the trust of the members of the General Meeting because she disclosed information which should only have been discussed at the General Meeting. Likewise, in the 2005 [annual] report she spoke in positive terms of building a sports hall, and I do not know what happened to make her change her mind.’
In his words, dissatisfaction with the functioning of KD Kostrena goes beyond the current political crisis in Kostrena and the public statements of Mirela Marunić.
‘The fact is that we had even earlier objected to Mirela Marunić’s work because [the company] has been stagnating for some time now and functioning as a means of transferring municipal funds. Our municipal utility company does not carry out the type of business for which it was established. For example, Žurkovo Bay was leased as a parking lot and a dry [dock] marina, and the same applies to the parking lot near Kostrenka. My question is, how does it benefit the concessionaires to have it and in addition pay rent for it? Had it stayed in our hands we would, apart from making a profit, also have had the chance to employ someone’. M.U. does not hide his dissatisfaction.
In a lengthy list of criticisms of the current director of KD Kostrena, M.U. states that he does not like the fact that she has been referred to as a member of his [political] party. He claims that he was the one who had advised her when she was appointed to the position as head of Kostrena’s municipal utility company not to make public statements as a member of [their political party] because someone could misinterpret [the nature of] her work and the way she came to get that position.”
8. In an article published in Novi list eight days later, on 27 September 2009, the applicant replied to the above criticisms. The relevant part of that article reads as follows:
“The mayor of Kostrena, M.U., has publicly criticised the current director of KD Kostrena for having disclosed information which should only have been discussed at the General Meeting and for the company’s poor performance, saying it does not engage in the type of business for which it was established.
‘They betrayed my trust by not believing me. I first informed my [political] party but there was no reaction. In particular, at a meeting held before the September session of the General Meeting [of the company] last year, I warned them of all the irregularities, the financial losses and the ruining of KD Kostrena’s business reputation. Then they asked me not to talk about it in the presence of D.G. [who was the only member of the company’s General Meeting from the ruling political party at the State level],’ says Mirela Marunić, repeating that there are written documents in respect of all the issues she had warned the General Meeting about.
As regards M.U.’s remark that the company has been stagnating under her leadership, she says that Kostrena Municipality, which does not have a development strategy, has itself been stagnating ... The main precondition for that ... would be, in her opinion, the resolution of property issues which remain outstanding in the case of most of the parking lots administered by Kostrena’s municipal utility company. Marunić illustrates this by referring to the Viktor Lenac parking lot where the municipal utility company has been charging for parking on land which was not even owned by Kostrena Municipality.
‘The legal department of Kostrena Municipality still requires [the company] to charge for parking even though [the company] Lenac refused to do so because of unresolved property issues. That case has now gone to court,’ warns Marunić, ‘and a similar situation exists with the parking lot in Žurkovo and [the one] near Kostrenka, which have been leased out.’
‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office. I sincerely hope that the State institutions will do their job in this case, as that will save Kostrena. Kostrena needs professionals, but they are being removed, the proof of which is the proposal to remove T.S. as a member of the General Meeting. I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far.’”
9. By a decision of the company’s General Meeting of 11 October 2007 the applicant was summarily dismissed because of the statements she had made in the media, which were regarded as being damaging to the company’s business reputation. The relevant part of that decision reads as follows:
“On 27 September 2007 the Novi list daily published an article ... stating that the director of KD Kostrena, Mirela Marunić, had given a statement to [a] journalist of Novi list saying that KD Kostrena was acting unlawfully, that it was charging for parking where it was not allowed, that she demanded an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office with a view to looking into KD Kostrena’s operations.
The director Mirela Marunić was at the time of the publication of the article ... employed as [chief executive officer] of KD Kostrena, that is, the officer who heads the company and is responsible for the consequences of her own work. Making such allegations in a daily newspaper, if those allegations are true, testifies to unlawful conduct in her job precisely because it is her duty as the officer in charge [of the company] to monitor and make sure that the utility company operates in accordance with the law. If, on the other hand, those allegations are not true but were nevertheless made in the publication that has the largest circulation in the area [of the country] then those allegations gravely harm the [business] reputation of the company because they suggest that KD Kosterna operates unlawfully.
That kind of conduct, by an employee who was at the time of the publication of the statement in the daily newspaper the director of the utility company, which she headed, who makes such allegations in the media or engages in unlawful conduct, constitutes, in the opinion of the company’s General Meeting, totally inappropriate behaviour which tarnishes the company’s [business] reputation in the eyes of the public. ..
Such conduct ... depicting the utility company in a negative light [constitutes] a particularly serious breach of employment-related duties, and is a particularly important fact which, taking into account all the circumstances and the interests of both contracting parties, makes the continuation of the employment relationship impossible [under section 107 of the Labour Act].”
10. On 22 October 2007 the applicant launched an internal challenge to her dismissal by lodging a request for the protection of her rights (zahtjev za zaštitu prava), a remedy which is guaranteed for every employee by the Labour Act and which employees had to use before bringing a civil action against their employer. The applicant argued, inter alia, as follows:
“I contest entirely the argument that by making statements in the media I acted inappropriately and allegedly attacked the [business] reputation of the company ...
The utility company is a public company which belongs to the [local] community ... It was my duty, as a member of the [company’s] Management, to contact the media and inform the public because it is a public company and not someone’s private property. I particularly emphasise that I have always given accurate information to the public.
It is a well-known fact that the media show a great interest in Kostrena Municipality because of political turbulence among those heading the Municipality. However, my observations were always a defence against the media attacks directed against me by the chairman of the General Meeting.
.. it is totally unclear what unlawful conduct I engaged in??? It is true that I warned about unlawful acts [by the company] but [I did so] directly to the General Meeting and the Supervisory Board. My statements were not directed against the utility company but made solely and exclusively with a view to removing any potential liability from myself. Therefore, the arguments in the dismissal decision are a twisted interpretation of the events.”
11. It appears that the applicant received no reply to her request. On 21 November 2007 she therefore brought a civil action for wrongful dismissal against the company in the Rijeka Municipal Court (Općinski sud u Rijeci). She challenged the decision to dismiss her and sought reinstatement. The relevant part of her statement of claim read as follows:
“The defendant obviously did not properly read the [impugned] article because the plaintiff merely states some facts in it and, as an example, refers to a particular case of unresolved property issues, which is already the subject of judicial proceedings, and calls for an audit and the involvement of [the prosecuting authorities] with a view to protecting her integrity by expressly stating: ‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office.’”
12. By a judgment of 12 June 2008 the Municipal Court ruled in favour of the applicant. The court accepted that her statements in the media had been damaging to the company’s business reputation and as such had constituted a serious breach of employment-related duties within the meaning of section 107 of the Labour Act (see paragraph 23 below), making her summary dismissal justified. However, it ruled in the applicant’s favour because it found that pursuant to her employment contract, her job as director of the company had ended on 1 October 2007, when the company had been required to transfer her to another job. That meant that she could not have been dismissed from her job as director, let alone dismissed with retroactive effect, as the decision to remove her had indicated. Furthermore, since the decision to dismiss her had specifically related only to her job as director, it could not be assumed that it had also entailed the termination of her entire employment relationship with the company, including the job to which she was supposed to have been transferred after 1 October 2007. The court thus found that the dismissal had been wrongful and that the applicant’s employment relationship had not been terminated. It accordingly ordered that she be reinstated and assigned to another job within the company.
13. By a judgment of 14 January 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed an appeal by the company and upheld the judgment of the first-instance court. Its reasons, however, were different.
14. It first noted that, contrary to the opinion of the first-instance court, the decision to dismiss the applicant had been aimed at terminating the applicant’s entire employment relationship with the company, and not only her job as director, and had been capable of having that effect. However, the County Court also disagreed with the view of the Municipal Court that the applicant’s behaviour, namely her statements in the media, had constituted a serious breach of employment-related duties such as to justify summary dismissal. In that respect the County Court held as follows:
“... the defendant company’s [internal regulations] state that the business activities of the company are public [and] that the company informs the public by notifying the media of its organisation, the way and the conditions under which it operates, [and] the manner in which it provides services and runs its business.
It follows that neither the [internal regulations] nor the [applicant’s employment] contract prohibit public statements or criticism of the defendant company’s business activities, which are public.
Article 38 of the Croatian Constitution guarantees freedom of thought and [freedom of] expression, particularly emphasising freedom of speech and [the freedom] to speak publicly.
As established ... by the first-instance court, the plaintiff’s public statements had been made in reaction to the statements of M.U. published a few days earlier in Novi list on 19 September 2007, where he had criticised the plaintiff’s work and stated that she had betrayed the trust of the members of the General Meeting by disclosing information that should only have been discussed at the General Meeting, [had said] that the [company] was stagnating, that it did not operate the type of business for which it had been established [and so on] ...
Therefore, in this court’s view, the plaintiff’s actions should be interpreted as [the exercise of] her right to speak publicly and the right to freedom of thought, which are rights guaranteed by the Croatian Constitution.
Therefore, in the view of this court, the plaintiff’s conduct does not constitute a serious breach of employment-related duties as envisaged in section  of the Labour Act as grounds for summary dismissal.
Specifically, in the opinion of this court, the plaintiff’s statements are to be seen as [a way of] informing the public of irregularities in the activities of the defendant company as a public institution; [the statements] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment-related duties. The first-instance court therefore correctly applied the substantive law when finding the dismissal wrongful.”
15. The company then lodged an appeal on points of law (revizija) against the judgment of the County Court.
16. By a judgment of 6 October 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the County Court judgment and dismissed the applicant’s action. The relevant part of that judgment reads as follows:
“The findings of the lower courts cannot be accepted. In this particular case, the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation or be trusted in the business world. Therefore, the behaviour of the plaintiff, in stating on 27 September 2007 in the Novi list daily ... that the defendant company, which she heads, had acted illegally, namely by charging for parking when it was not allowed [to do so], asking that the [company] be audited, and also seeking the intervention of [the prosecuting authorities] with a view to verifying the activities of the defendant company, has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract, within the meaning of section  of the Labour Act. Having regard to the given circumstances, it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case, the depiction by the employee of the employer’s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract.
The plaintiff’s reliance on her duty to speak publicly is unfounded. In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant State authorities and lodging a complaint with them, which would have resulted in that information being available to the press and other media, and which could not have served as a reason for her dismissal.”
17. The applicant then lodged a constitutional complaint, alleging, inter alia, a violation of her freedom of expression. In so doing she explicitly relied on Article 38 of the Croatian Constitution and Article 10 of the Convention.
18. On 17 February 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 14 March 2011. The relevant part of that decision reads as follows:
“The Constitutional Court observes that the complainant justifies her conduct towards the employer (namely, her media statements), on account of which the employer summarily dismissed her, by arguing that she had merely been calling for the supervision of her actions in the company by the relevant authorities. That argument is incorrect [having regard to her statements in] the article published in Novi list of 27 September 2009 ...
The Constitutional Court notes that the right ‘of a citizen’ to publicly express his or her personal opinions cannot justify a breach of employment-related rights and obligations stemming from an employment contract and the relevant legislation.”
B. Other relevant facts
19. Meanwhile, on 21 June 2002 KD Kostrena had brought a civil action in the Rijeka Municipal Court against the water and sewage utility company (Komunalno društvo Vodovod i kanalizacija d.o.o.) of Rijeka seeking to be declared the owner of the Viktor Lenac parking lot in Kostrena. By a judgment of 3 March 2008 the court dismissed KD Kostrena’s action. The final outcome of those proceedings is unknown. However, an extract from the land register concerning the two plots of land that were the subject of the proceedings suggests that the water and sewage company transferred ownership of the plots to shipbuilding company Viktor Lenac on 13 February 2014.
20. On 12 February 2007 the water and sewage company brought a civil action against KD Kostrena in the same court seeking repayment of the parking fees the defendant company had collected from the Viktor Lenac parking lot. The plaintiff company claimed that KD Kostrena had been charging for parking on land owned by the plaintiff. The final outcome of those proceedings is unknown.
21. In June 2013 the applicant won municipal elections and was elected mayor of Kostrena, replacing M.U. She still holds that position at the time of the Court’s judgment.
II. RELEVANT DOMESTIC LAW
A. The Constitution
22. The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments) provides as follows:
“(1) Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health.
(2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.
“(1) Freedom of thought and expression shall be guaranteed.
(2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions.
(3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information.
(4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.”
B. Labour Act
23. The relevant provisions of the Labour Act of 1995 (Zakon o radu, Official Gazette no. 38/95 with subsequent amendments), which was in force between 1 January 1996 and 1 January 2010, provided as follows at the material time:
Section 107(1) and (2)
“(1) An employer or an employee has a justified reason to give notice terminating ... an employment contract, without an obligation to comply with the prescribed or agreed notice period (‘summary notice’) if, because of a particularly serious breach of an employment-related duty or because of some other particularly important fact, taking into account all the circumstances and the interests of both contracting parties, continuation of the employment relationship is not possible.
(2) An employment contract may only be terminated on summary notice within fifteen days of the date when the person concerned found out about the fact which is the basis for the summary notice.”
Unjustified reasons for dismissal
(2) Where an employee lodges an appeal or brings an action or takes part in proceedings against the employer for breach of statute, other legislation, a collective agreement or an internal regulation, and addresses the competent executive authorities, this shall not constitute a justified reason for dismissal.
(3) Where an employee addresses a bona fide complaint to the person in charge [of the relevant department] or files one with the competent State authorities on grounds of a reasonable suspicion of corruption, this shall not constitute a justified reason for dismissal.”
C. Civil Procedure Act
24. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which has been in force since 1 July 1977, read as follows:
5.a. Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or the additional protocols thereto, ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated at first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision [in question].
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on reopening of proceedings.
(3) In the reopened proceedings the courts are required to observe the legal views expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
25. The applicant complained that her dismissal on account of her media statements had been in breach of her freedom of expression and thus contrary to Article 10 of the Convention, which reads as follows:
“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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
26. The Government contested that argument.
27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The submissions of the parties
(a) The applicant
28. Firstly, the applicant explained the background to the conflict between her and M.U. which had prompted their statements in the media. She submitted that on 27 April 2000 the Municipality of Kostrena had taken a decision authorising the company to collect parking fees in all the parking lots located on the territory of the Municipality. However, it had soon become apparent that the land on which certain of the parking lots (Žurkovo and Viktor Lenac) had been built or planned was not owned by the Municipality but by third parties. The applicant, as the director of the company, had therefore notified the Municipality that the collection of parking fees and the carrying out of some other projects (such as the construction of a dry dock marina) on such land could not commence until the property issues had been resolved, that is until the Municipality had become the owner of the land.
29. The Municipality had promised to resolve the property issues but they had still not been dealt with to the present day. Since M.U., the municipal mayor at the time, had advised her that the Municipality would be registered as the owner of the land forming the Viktor Lenac parking lot in a matter of days, the applicant had agreed to start collecting parking fees from that lot. However, that had resulted in two civil proceedings (for repayment of parking fees and for a declaration of ownership) with the owner of the parking lot (see paragraphs 19-20 above), both of which the company had lost. The applicant had stopped charging parking fees for that land as soon as the company had been sued to repay the fees it had collected.
30. When therefore at the end of 2005 M.U. had started to put pressure on the applicant to collect parking fees at Žurkovo Bay, the applicant had refused because that car park had also been located on land owned by third parties and not by the Municipality (the applicant supplied an extract from the land register to that effect). In reaction to her refusal, M.U. had criticised her in the media (see paragraph 7 above) by saying that she had not been doing her job properly because:
- the company was not carrying out the activities for which it had been established;
- it had been stagnating under her leadership;
- she had not been collecting parking fees from the two parking lots which had (a long time beforehand) been leased out to third parties;
- and that by all those actions she had caused a loss of income and decreased the possibilities for the employment of local people.
31. The applicant submitted that Kostrena was a small community where she, as a public figure, had been known to all its inhabitants. She had therefore had to defend herself against M.U.’s public criticism and explain that the company had in fact been stagnating because of the unresolved property issues (see paragraphs 27-28 above) and not because of her alleged incompetence. She had also stated that if anyone considered that she had not been doing her job properly, the authorities could come to the company and check her work, a statement which had been her defence to M.U.’s false and groundless accusations. The applicant emphasised that her statements could not be taken in isolation from those of M.U.
32. The applicant also argued that she had made the impugned statements in good faith, only with a view to denying the false accusations against her, and that by doing so she had exercised her right of reply (correction) guaranteed by Article 38 § 4 of the Constitution (see paragraph 22 above). She added that she had not had any other means of replying to M.U.’s groundless criticism. In particular, even though she had lodged two criminal complaints against M.U. on different grounds, there had been no grounds to do so in respect of charging for parking at the Žurkovo Bay parking lot because she had resisted the pressure he had put on her to apply those charges (see paragraph 30 above). Likewise, there had been no grounds for lodging a criminal complaint about charging for parking at the Viktor Lenac lot because the applicant had stopped levying those charges as soon as her company had been sued by the company which owned it (see paragraph 29 above).
33. The applicant argued that the true reason for her dismissal had been that she had disobeyed the mayor, who had realised that as long as she was director of the municipal utility company the Municipality would not earn the income he had expected from the unlawful projects he had intended to carry out through the company. He had therefore used the applicant’s statements to the media and his position as chairman of the General Meeting to remove her from her post as director.
34. The applicant also pointed out that even though the main aim of her statements had been to deny M.U.’s accusations rather than to point to irregularities in the running of the company, the information she had given in reply had been of public interest. Furthermore, that information had been accurate, fair and authentic. In particular, her statement that collecting parking fees was unlawful before the issue of ownership had been resolved had been a true fact. The applicant could not see how disclosing that information to the public, which had not been a business secret, with a view to denying publicly made false accusations against her, could have harmed the company’s business reputation, or why disclosing such information constituted an important fact that had rendered the continuation of her employment impossible.
(b) The Government
35. The Government admitted that the applicant’s dismissal on account of her statements to the media had amounted to an interference with her freedom of expression. However, they argued that the interference had been in accordance with the law, had pursued a legitimate aim, and had been necessary in a democratic society.
36. The Government noted that the applicant had been summarily dismissed because of statements she had made in the media which had suggested that the company she had headed had been charging for parking illegally, and because she had publicly urged the prosecuting authorities to examine the legality of the company’s operations. The Supreme Court had considered the applicant’s dismissal lawful because those statements had tarnished the business reputation of KD Kostrena, the company of which she had been the director, which had been a particularly important fact in terms of section 107 of the Labour Act (see paragraph 23 above) and which had meant that her employment at the company could not continue.
37. In view of that, the Government argued that the decision to dismiss the applicant had been lawful because it had been based on section 107 of the Labour Act (see paragraph 23 above), and had sought to protect the reputation and the rights of others, namely the business reputation of KD Kostrena. That interference had also been “necessary in a democratic society”, having regard to the criteria established in the Court’s case-law (the Government cited Heinisch v. Germany, no. 28274/08, ECHR 2011 (extracts), and Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010), that is:
- the motive behind the applicant’s statements;
- the authenticity of the information disclosed;
- the availability of other effective, but more discreet, means of remedying the alleged wrongdoing;
- the damage suffered by the company;
- the public interest involved in the information that was disclosed.
38. As regards the applicant’s motive, the Government argued that there was no dispute about the fact that she had made the impugned statements in reaction to the previous media statements by M.U., who had been the municipal mayor and the chairman of the company’s General Meeting. He had publicly criticised the quality of her performance as the director of the company by stressing that the company had stagnated under her leadership, an opinion which he had illustrated by mentioning some of her business decisions which he had considered unsound (see paragraph 7 above). In other words, when making the impugned statements and revealing the alleged unlawful activities of the company she had headed, the applicant had been motivated exclusively by a wish to protect her public image rather than by a genuine concern for the company’s business interests or the interests of those who used its services. For that reason the present case should not be regarded as a so-called whistle-blower case, nor should her detailed explanation for the origin of her conflict with M.U. (see paragraphs 28-30 above) be of any relevance. In that connection the Government referred to the Court’s case-law (see Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008) under which acts motivated by a personal grievance or personal antagonism did not justify a particularly strong level of protection under Article 10 of the Convention.
39. As regards the authenticity of the information she had disclosed, the Government submitted that not a single State authority (the State Attorney’s Office, domestic courts or the State Audit Office) had ever established any instance of unlawfulness in relation to KD Kostrena’s charging for parking, let alone that it had constituted a criminal offence, as insinuated by the applicant in her statements to the press. In particular, the two sets of civil proceedings referred to by the applicant (see paragraphs 19-20 and 29 above) were still ongoing. The Government also noted that the applicant had offered no evidence of such alleged unlawfulness before the courts that had decided on the lawfulness of her dismissal. In the Government’s view those allegations thus remained nothing but arbitrary and unproven assertions detrimental to the business reputation of the municipal utility company. That view was further reinforced by the fact that in her observations to the Court the applicant had not even attempted to explain why she had believed that the prosecuting authorities should have intervened over the allegedly unlawful charging for parking. On the contrary, she had submitted that there had been no grounds to lodge a criminal complaint in that regard (see paragraph 32 above). That suggested that the applicant had been aware that no crime had been committed but had nevertheless called for the intervention of the prosecuting authorities. That further meant that she had deliberately misled the public to believe that the company she had headed had been involved in criminal activities.
40. As regards the availability of other effective, but more discreet, means of remedying the alleged wrongdoing, the Government, referring to the applicant’s motives set out above (see paragraph 38), argued that the proper channel for defending her rights and reputation had been to bring a civil action against M.U. rather than publicly insinuating that criminal activities were being carried by the company and drawing it, through no fault of its own, into the public debate she had had with him. In that way the applicant would have protected her public image (as well as the public interest, if any, see paragraph 34 above and paragraph 42 below) without any risk to her employment (see section 108 of the Labour Act, cited in paragraph 23 above).
41. As regards the damage suffered by the company, the Government noted, firstly, that the Court had itself held that even State-owned companies could have an interest in their own commercial viability (see Heinisch, cited above, § 89). Therefore, even though KD Kostrena primarily provided public utility services (see paragraph 6 above) that did not mean that it had no commercial interests to protect, which could be jeopardised by tarnishing its business reputation. That was especially so because, apart from public utility services, the company also provided some commercial services (such as leasing sports facilities) and as such competed on the open market. Tarnishing its business reputation could therefore lead to difficulties in charging for the public utility services and to reduced interest in its commercial services. The Government stressed that the applicant’s statements insinuating that the company had been engaged in criminal activities had been particularly harmful for its business reputation and, consequently, for its commercial interests because she had been the company’s director and as such, in the eyes of the average reader, a trustworthy source of information.
42. Lastly, as regards the public interest involved, the Government did not deny that the public had an interest in knowing if public utility companies engaged in criminal activities. However, they reiterated their view that the applicant had not acted bona fide (see paragraphs 38-39 above). Moreover, the Government found it difficult to imagine what public interest would have been served by the applicant’s obviously false insinuations about the company carrying out criminal activities, where even the applicant herself had known that no crime had been committed (see paragraph 39 above).
43. In conclusion, the Government submitted that the applicant, by making the above-mentioned unproven allegations in the media which had been harmful for the business reputation of the company she had headed, had breached her duty of loyalty towards the company as her employer. Her only motivation for doing so had been to protect her own interests in the public debate with the mayor of the municipality, which had been the company’s sole shareholder. In his media statements M.U. had criticised the applicant only for unsound business decisions rather than for any unlawfulness in doing business, meaning she had not needed to defend herself. The applicant had indisputably had the right to publicly deny media allegations which harmed her reputation, or institute the relevant proceedings, or do both of those things. However, in response to M.U.’s criticism the applicant had picked as her “weapon of choice” in the public debate the alleged unlawful charging for parking, which she had also mentioned as being of interest to the prosecuting authorities. That was how she had involved the company of which she had been the director in her media debate with the mayor, causing harm to its business reputation. That was also why she had been dismissed from her job, a measure which, albeit severe, had not been disproportionate in the circumstances and which had therefore been “necessary in a democratic society”, it being understood that no employer should tolerate being slandered in public by its employees.
44. For those reasons, the Government asked the Court to find no violation of Article 10 of the Convention.
2. The Court’s assessment
(a) Whether there was an interference
45. The Government conceded that the applicant’s dismissal on account of her statements to the press had constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention (see paragraph 35 above). The Court, having regard to its case-law (see, for example, Heinisch, cited above, §§ 44-45; Balenović, cited above; and Wojtas-Kaleta v. Poland, no. 20436/02, § 42, 16 July 2009), sees no reason to hold otherwise.
(b) Lawfulness and legitimate aim
46. The Court further notes that the Supreme Court in its judgment of 6 October 2009 (see paragraph 16 above) considered the applicant’s dismissal lawful because, by her statements in the press, she had harmed the reputation of KD Kostrena, the company of which she had been the director. As held by the Supreme Court, those statements had constituted an important fact making the continuation of her employment impossible and had therefore been grounds for summary dismissal under section 107(1) of the Labour Act (see paragraphs 16 and 23 above).
47. That being so, the Court therefore accepts that the interference was prescribed by law and that it pursued the legitimate aim of protecting the reputation or rights of others, namely the business reputation and interests of KD Kostrena (see, mutatis mutandis, Balenović, cited above).
48. Having established that the interference with the applicant’s freedom of expression in the present case was lawful and pursued a legitimate aim, the only question for the Court to determine is whether that interference was “necessary in a democratic society”.
(c) “Necessary in a democratic society”
49. The general principles in the Court’s case-law on the requirement of necessity in a democratic society in the context of Article 10 of the Convention are summarised in Perinçek v. Switzerland ([GC], no. 27510/08, § 196, ECHR 2015 (extracts)) and Europapress Holding d.o.o. v. Croatia (no. 25333/06, § 54, 22 October 2009).
50. The applicant argued (see paragraphs 31-32 above) that she had made the impugned media statements in the exercise of her constitutionally guaranteed right of reply. She added that she had acted primarily with a view to responding to what she had seen as groundless criticism of her in the same newspaper by another officer of the same company, namely the chairman of its General Meeting, who had also been the municipal mayor. In that connection the Court reiterates that the right of rectification or of reply, as an important element of freedom of expression, falls within the scope of Article 10 of the Convention (see Kaperzyński v. Poland, no. 43206/07, § 66, 3 April 2012, and Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX). This flows from the need not only to be able to contest untruthful information, but also to ensure a plurality of opinions, especially in matters of general interest (ibid.). At the same time, the restrictions and limitations of the second paragraph of Article 10 are equally pertinent to the exercise of that right (see Melnychuk, cited above).
51. The Government argued (see paragraph 37 above) that those restrictions and limitations, especially the requirement that they must be “necessary in a democratic society”, should in the present case be viewed in the light of the criteria developed by the Court in its case-law concerning freedom of expression in the workplace (see, among many other authorities, Guja, cited above, §§ 69-96; Heinisch, cited above, §§ 62-92; Balenović, cited above; Wojtas-Kaleta, cited above, §§ 41-53; and Fuentes Bobo v. Spain, no. 39293/98, §§ 43-50 , 29 February 2000), namely having regard to:
- the motive behind the actions of the employee;
- the authenticity of the information disclosed;
- the availability of other effective, but more discreet, means of remedying the wrongdoing which the reporting employee intended to uncover;
- the damage suffered by the employer;
- the public interest involved in the disclosed information.
52. The Court, however, considers that the present case is different from those cases in one crucial respect. In particular, the Court cannot disregard the fact that the applicant made the impugned statements only after she had herself been criticised in the media by the chairman of the company’s General Meeting. It is true that “a duty of loyalty, reserve and discretion” normally prevents employees from publicly criticising the work of their employers (see, for example, Wojtas-Kaleta, cited above, § 43, 16 July 2009, and Guja, cited above, § 70). However, in the present case it was another officer of the company, namely the chairman of the company’s General Meeting, who had been the first to resort to the media and had publicly criticised the applicant’s work. The Court considers that in such specific circumstances it could not have been expected of the applicant that she should remain silent and not defend her reputation in the same way. To do so would overstretch her duty of loyalty, contrary to Article 10 of the Convention which, inter alia, requires that an employee’s freedom of expression is secured against unreasonable demands of loyalty by his or her employer (see Predota v. Austria (dec.), no. 28962/95, 18 January 2000, and Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports (DR) 62, pp. 151 and 161).
53. This means in addition that several of the criteria relied on by the Government concerning freedom of expression in the workplace (see paragraphs 37 and 51 above) are either inapplicable or of limited relevance to the present case.
54. In particular, since the right of reply is the right to defend oneself against public criticism in the same forum where the criticism was published (see, implicitly, Kaperzyński, cited above, loc. cit.) the Court finds irrelevant the Government’s arguments that the applicant had other effective, but more discreet, means of protecting her reputation, and that she was motivated exclusively by the wish to protect her public image rather than to inform the public of matters of general concern (see paragraphs 38 and 40 above).
55. Furthermore, as regards the damage suffered by the company (see paragraph 41 above), the Court accepts that the applicant’s statements could have been harmful for the business reputation of the company.
56. In that connection the Court also notes that in circumstances such as those in the present case it has to take into account the role played by M.U., who made the statements critical of the applicant and who was an officer of the company whose business reputation was allegedly hurt by her reply. For example, in the case of Nilsen and Johnsen v. Norway ([GC], no. 23118/93, ECHR 1999-VIII) the applicants had been punished for statements they had made as representatives of police associations in response to certain reports publicising allegations of police misconduct. The Court, in finding a violation of Article 10 of the Convention, took into account, inter alia, the harsh criticism initially voiced by the plaintiff, holding that the applicants had therefore not been entirely unjustified in claiming that they had been entitled to “hit back in the same way” (ibid., § 52).
57. As regards the public interest involved in the disclosed information, the Court reiterates first of all that the right of reply not only protects the reputation of the person exercising it, but also ensures a plurality of opinions, especially in matters of general interest (see paragraph 50 above and the cases cited therein). The Court further considers that the operation of a municipal public utility company is a matter of general interest for the local community. The Court therefore agrees with the applicant that even though the main aim of her statements had been to deny M.U.’s accusations rather than to point to irregularities, the information she gave in reply was of public interest (see paragraph 34 above).
58. However, even in a debate on matters of serious public concern, there may be limits to the right to freedom of expression. Therefore, in exercising her right of reply the applicant had to act within the bounds set for the protection of the reputation and the rights of others (see paragraph 47 above). What is in issue is whether the applicant exceeded the limits of permissible criticism (see, mutatis mutandis, Nilsen and Johnsen, cited above, § 47).
59. This issue is closely linked with another criterion, relied on by the Government, concerning the authenticity of the information disclosed. The Government seemed to argue (see paragraph 39 above) that by urging the prosecuting authorities to check her work the applicant had gone too far in defending her reputation as that invitation had implied that the company she headed was engaged in unlawful and criminal activities.
60. As regards the alleged unlawful collection of parking fees, the Court notes that the applicant did not expressly state in the impugned article that the company had been collecting parking fees “unlawfully” or “illegally”. Rather, she stated that the company had been charging for parking on land which was not owned by Kostrena Municipality (see paragraph 8 above). The Government did not seem to call into question the fact that the company had indeed been collecting fees from the parking lots at issue. Likewise, apart from submitting that the relevant proceedings were ongoing (see paragraph 39 above), the Government did not challenge the fact that those parking lots had been located on someone else’s land. That being so, and having regard to the information in the land register (see paragraphs 19 and 30 above), the Court considers that the applicant’s statement concerning the collection of parking fees did not contain factual inaccuracies.
61. However, having regard to the applicant’s observations (see paragraph 34 above), where she expressly stated that collecting parking fees had been unlawful, the Court is ready to accept that that was the message she had intended to convey by stating in the impugned article that the company had been charging for parking on land not owned by the municipality. Even though both parties seem to agree that that was a statement of fact (see paragraphs 34 and 39 above), the Court disagrees because the use of the adjective “unlawful” suggests that the applicant was merely drawing an inference from the facts discussed above (see the preceding paragraph). The Court reiterates that drawing inferences from existing facts is generally intended to convey opinions, and is thus more akin to value judgments (see Stojanović v. Croatia, no. 23160/09, § 69, 19 September 2013). Therefore, the applicant’s statement implying that the company had been unlawfully charging for parking is to be seen as a value judgment which had a sufficient factual basis because it could reasonably be argued that collecting parking fees on someone else’s land was unlawful.
62. Lastly, the Court considers that that statement was directly relevant to the aim she had intended to achieve by her public declaration, namely to defend her professional reputation against what she saw as groundless criticism by M.U. In particular, the applicant tried to explain that the company had not been stagnating because of her unsound business decisions but because of unresolved property issues the municipality should have dealt with. More specifically, she had wanted to explain how those unresolved issues had prevented her from raising income for the company by charging for parking at the parking lots in question.
63. As regards the Government’s argument that the applicant had insinuated that the company had been engaged in criminal activities, the Court finds it useful to repeat her exact words, as reported in the article of 27 September 2009. The applicant stated, in particular (see paragraph 8 above): “Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of [the prosecuting authorities].” That sentence, taken together with the general defensive tone of her other statements in the same article, cannot, in the Court’s view, leave an impression in the mind of the average reader that the company was involved in criminal activities. That statement holds true if for no other reason than that the applicant, being the company’s director, would otherwise have effectively implicated herself in such activities. On the contrary, reading the impugned article, and that sentence in particular, leaves the impression that the applicant was so firmly persuaded that there was nothing wrong in the way she had been running the company that she was even ready to submit to an audit and an investigation by the prosecuting authorities with a view to definitively dispelling any uncertainty in that respect. Therefore, contrary to the Supreme Court’s view, which was reiterated by the Government (see paragraphs 16 and 42-43 above), the Court does not find that the applicant insinuated that what, in her view, had amounted to unlawful charging for parking by the company had also constituted a criminal offence.
64. For those reasons (see paragraphs 50-63 above), the Court considers that the applicant’s statements in reply to those of M.U. were not disproportionate and did not exceed the limits of permissible criticism. Accordingly, the Court finds that the interference with the applicant’s freedom of expression in the form of her summary dismissal was not “necessary in a democratic society” for the protection of the business reputation and the rights of the company she headed.
65. This finding obviates the need to further examine the nature and severity of the sanction imposed, namely the applicant’s dismissal, as factors to be taken into account when assessing the proportionality of the interference (see, for example, Europapress Holding d.o.o., cited above, loc. cit.).
66. There has accordingly been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
67. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
68. The applicant claimed a total of 104,789.31 euros (EUR) in respect of pecuniary damage. Of that, EUR 97,590 constituted loss of earnings for the salary she would have received as KD Kostrena’s director had she not been dismissed. The remaining EUR 7,199.31 is the increased interest and costs for a loan she had to renegotiate because she had been dismissed.
69. The applicant also claimed EUR 57,320 in respect of non-pecuniary damage.
70. The Government contested these claims.
71. As regards the applicant’s claim for pecuniary damage, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow - or allows only partial - reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court notes that under section 428a of the Civil Procedure Act (see paragraph 24 above) an applicant may seek the reopening of the civil proceedings in respect of which the Court has found a violation of the Convention. Given the nature of the applicant’s complaint under Article 10 of the Convention and the reasons for which it has found a violation of that Article, the Court considers that in the present case the most appropriate way to repair the consequences of that violation would be to reopen the proceedings complained of. As domestic law allows such reparation to be made, the Court considers that there is no call to award the applicant any sum in respect of pecuniary damage. It therefore rejects that claim.
72. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards her EUR 1,500 under that head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
73. The applicant also claimed EUR 9,805 for the costs and expenses incurred before the domestic courts.
74. The Government contested that claim.
75. The Court notes that the applicant did not submit any claim for costs and expenses incurred in the proceedings before it. The Court therefore considers that there is no call to award her any sum on that account.
76. The applicant’s claim for costs and expenses incurred in the domestic proceedings must likewise be rejected, given that she will be able to claim those costs in the proceedings following her petition for reopening (see paragraph 71 above, and Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013).
C. Default interest
77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Croatian kunas at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Işıl
Deputy Registrar President