Croatia: Balancing Freedom Of Expression With Loyalty To Employer

Co-authored by Dora Gaži Kovačević of Wolf Theiss

The European Court of Human Rights (ECHR) has ruled in favor of a Croatian employee who was dismissed after criticizing her employer in a press article. In a fact-specific ruling, the ECHR held that the dismissal infringed the employee's freedom of expression guaranteed under the European Convention for the Protection of Human Rights.

Background

Mirela Marunić was the director of KD Kostrena, a municipal utility company whose sole shareholder was the Municipality of Kostrena. In an article published in local papers in 2007, the Mayor of the Kostrena Municipality and chairman of the company's general assembly criticized Marunić's performance. In an article in response to the mayor's criticism, published in the same papers eight days later, Marunić replied to the allegations and raised irregularities in the way business decisions were being made. She also urged the State Audit Office, State Attorney's Office, and other relevant authorities to inspect her work. Shortly after her article was published, Marunić was summarily dismissed for making statements that were damaging to the company's business reputation. The company argued that a continuation of the employment relationship was no longer possible.

Marunić brought a successful claim for wrongful dismissal, arguing that her right to speak publicly and right to freedom of thought were guaranteed under the Croatian Constitution. As such, her actions did not constitute a statutory reason for summary dismissal. However, on appeal, the Supreme Court of Croatia reversed the judgment and dismissed Marunić's claim. The Supreme Court of Croatia accepted the company's argument that the circumstances meant that her continued employment would have been impossible.

A separate appeal to the Constitutional Court of Croatia also found in favor of the company. The Constitutional Court of Croatia held that the right of a citizen to publicly express his or her personal opinions came second to the requirement to follow employment-related rights and duties.

Despite these setbacks, Marunić, in August 2012, filed an application with the ECHR complaining that her dismissal on account of her media statements had been in breach of her freedom of expression and contrary to Article 10 of the European Convention for the Protection of Human Rights.

It took until 2017 for the ECHR to reach its decision—finding in favor of Marunić's application. In its judgment, the ECHR particularly emphasized that the right to rectification or reply is an important element of freedom of expression. Although, as identified in previous case law of the ECHR, "a duty to loyalty, reserve and discretion" normally prevents employees from publicly criticizing the work of their employers, in the present case it was decisive that another officer of the company had been the first to report to the media and had publicly criticized Marunić's work. The ECHR considered that Marunić could not have been expected to remain silent and not defend her reputation in the same way. Marunić's statements in response to the criticism of her work were not disproportionate and did not exceed the limits of permissible criticism. Consequently, the ECHR held that the interference with Marunić's freedom of expression in the form of her summary dismissal was not "necessary in a democratic society" (as set out in Article 10 of the Convention) for the protection of the business reputation and the rights of the company she headed.

Comment

This decision does not give employees in countries that are signatories to the ECHR a free hand to publically criticize their employers and cite "freedom of expression" to avoid sanction. An employee who makes a "preemptive strike" against his or her employer is unlikely to be able to successfully claim that his or her freedom of expression was violated to defend a breach-of-loyalty dismissal. The key issue in this case was that the employer—through the actions of its chairman—had made the first move, publically criticizing Marunić. She was entitled to respond. Marunić can now be expected to return to the Croatian courts that will be obliged to follow the ECHR ruling.

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