Information Note on the Court’s case-law 248
Gawlik v. Liechtenstein – 23922/19
Judgment 16.2.2021 [Section II]
Freedom of expression
Dismissal of doctor for lodging good faith but unfounded criminal complaint accusing colleague of active euthanasia, without verification to the extent permitted by circumstances: no violation
Facts – The applicant had been employed as deputy chief physician at the Liechtenstein National Hospital. After conducting some research in the hospital’s electronic medical files, he concluded that his direct superior, Dr H, had illegally practised active euthanasia on some patients. The applicant lodged a criminal with the Public Prosecutors’ Office in that regard. After two external medical experts concluded that there had been no active euthanasia, the criminal proceedings against Dr H. were discontinued and the applicant was dismissed from his post without notice. He appealed unsuccessfully against his dismissal.
Law – Article 10:
(a) An interference prescribed by law and pursuing a legitimate aim
The applicant had been dismissed as a physician by the Liechtenstein National Hospital, a public law foundation; his employment relationship had been governed by private law. The dismissal had subsequently been endorsed, in particular, by the Liechtenstein Constitutional Court. In these circumstances, the impugned measure had constituted an interference by a State authority with the applicant’s right to freedom of expression, which had been prescribed by law and pursued a legitimate aim. It had served to protect both the business reputation and interests of the employing National Hospital, including its interest in a professional work relationship based on mutual trust, and the reputation of Dr H, the hospital’s chief physician, who had been concerned by the applicant’s allegations of euthanasia.
(b) Necessity of the interference in a democratic society
The Court had regard to the six criteria established in its case-law for examining the proportionality, and thus necessity, of an interference with an employee’s right to freedom of expression. At the outset, it noted that the Constitutional Court, in its assessment of the applicant’s complaint, had had regard to those criteria:
1. Public interest in the disclosed information: The Court agreed with the Constitutional Court that there had been considerable public interest in medical treatment in a public hospital which was in accordance with the state of the art, and in the information disclosed by the applicant. That information had concerned suspicions of the commission of serious offences, namely the killing of several vulnerable and defenceless patients, in a public hospital, as well as a risk of repetition of such offences.
2. Authenticity/veracity of the information disclosed: However, the domestic courts had found, on the basis of reports by two external medical experts, that the applicant’s reported suspicions had been clearly unfounded. The applicant had not consulted all patients’ paper files, while both external experts had done so and concluded without any reservations that the patients in question had received necessary and justified palliative treatment – in basing its finding on those reports, the domestic courts had relied on an acceptable assessment of the relevant facts.
The Court stressed that information disclosed by whistle-blowers might also be covered by Article 10 under certain circumstances where the information in question was subsequently proved wrong or could not be proven correct. In particular, it could not reasonably be expected of a person having lodged a criminal complaint in good faith to anticipate whether the investigations would lead to an indictment or be discontinued (Heinisch v Germany). However, in those circumstances, the person concerned must have complied with the duty to verify, to the extent permitted by the circumstances, that the information was accurate and reliable. That approach was also reflected in relevant documents of the Council of Europe.
In the present case, the applicant had based his allegations of active euthanasia only on the information available in the electronic medical files which, as he had known as a doctor practising in the hospital, had not contained complete information on the patients’ state of health. The applicant had not consulted the paper medical files, which had contained comprehensive information in that regard. The domestic courts had determined that, had he done so, he would have recognised immediately that his suspicions had been clearly unfounded and he had therefore acted irresponsibly. By reason of the duties and responsibilities inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to whistle-blowers was subject to the proviso that they acted in order to disclose information that was accurate and reliable and in accordance with professional ethics. That applied, in particular, if the person concerned, like the applicant as deputy chief physician and thus a high-ranking and highly qualified employee, owed a duty of loyalty and discretion to their employer. The Court did not lose sight of the fact that the applicant, in light of the interpretation he had made of the information in the electronic files, must have concluded that it was very urgent to act in order to stop the suspected practice. However, since, as a deputy chief physician, he could have consulted the paper files at any moment, that verification would not have been very time-consuming. Having regard to the gravity of an allegation of active euthanasia, the Court agreed with the domestic courts’ findings that the applicant had been obliged, but failed, to proceed to such a verification. He had not, therefore, carefully verified, to the extent permitted by the circumstances, that the disclosed information had been accurate and reliable.
3. Detriment to the employer: The allegation of active euthanasia having been practised at a State-run hospital had certainly been prejudicial to the employing hospital’s business reputation and interests and to the public confidence in the provision of state-of-the-art medical treatment in the only public hospital in Liechtenstein. It had further been prejudicial to the personal and professional reputation of another hospital staff member, namely Dr H. While the applicant initially had not voiced his allegations in public, but disclosed them by lodging a criminal complaint, following the ensuing investigations, the allegations had become known to a larger public and had been repeatedly discussed in national media which had risked increasing their prejudicial effect. In the present case, in which the well-foundedness of that suspicion had not been sufficiently verified prior to disclosure, the public interest in receiving such information could not outweigh the employer’s and Dr H’s interest in the protection of their reputation.
4. Existence of alternative channels for making the disclosure: The applicant could not have been expected to first raise his suspicion with his superior, Dr H, who had been directly concerned by them. As for the internal reporting channel, it had not been shown that anonymous reports of irregularities via that system were no longer handled by Dr H. alone. The applicant therefore could legitimately proceed on the assumption that redress could not be obtained in that way either. The Court left open the question of whether the applicant had been obliged to raise his suspicions either with a member of the hospital’s foundation board or with the hospital’s director, prior to lodging an criminal complaint. While those appeared to be effective alternative channels for disclosure, with the potential to remedy any irregularities rapidly, the offences of which the applicant suspected his direct superior had been serious and there had been a possibility that he might himself be held liable in case of a failure to report such offences.
5. Applicant’s motives for the disclosure: The domestic courts had not found that the applicant had acted out of personal motives. The Court had no reason to doubt that the applicant had acted in the belief that the information had been true and that it had been in the public interest to disclose it.
6. Severity of the sanction: The applicant’s dismissal without notice had constituted the heaviest sanction possible under labour law. It had had negative repercussions on his professional career and led to the applicant and his family having to leave Liechtenstein, due to the loss of his residence permit as a foreign national without employment. Having regard also to the media coverage, the sanction must have therefore had a certain chilling effect on other employees in the hospital and the health sector in general – at least regarding direct disclosure to external bodies of suspicions and irregularities.
Overall, and as determined by the domestic courts, the interference with the applicant’s right to freedom of expression, in particular his right to impart information, had been proportionate to the legitimate aim pursued and thus necessary in a democratic society.
Conclusion: no violation (unanimously).
(See also Guja v. Moldova [GC], 14277/04, 12 February 2008, Legal Summary; Heinisch v Germany, 28274/08, 21 July 2011, Legal Summary; Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], 17224/11, 27 June 2017, Legal Summary)