DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the view that Article 8 has been violated in the instant case. In my view, the case raises important issues under Article 1 of Protocol No. 12 (relied on by the applicant) and should have been examined under this provision, whereas the threshold for the applicability of Article 8 has not been met.

2. In the brilliant and powerful dissenting opinion appended to the judgment in the case of Erményi v. Hungary (no. 22254/14, 22 November 2016), Judge Kūris argued eloquently:

“The perspective of examining privacy in terms of the right and value protected by Article 8 must be returned to its natural angle. To present it graphically, 8 should indeed be seen as

8

and not – as increasingly tends to be the case – like the sign of infinity:

∞.”

Under the approach prevailing at that time, Article 8 had indeed become a very broad right to happiness, giving rise to associations with the 1776 United States Declaration of Independence (the Preamble) and the 1776 Virginia Declaration of Rights (section 1). Article 8 had also become - and still remains - the default provision used by the Court in order to fill lacunae in the Convention protection by way of judge-made law, quickly expanding well beyond the limits laid down by the wording of this provision as read in the light of the applicable rules of treaty interpretation.

Addressing Judge Kūris’s concerns, the Court in its Grand Chamber judgment in the case of Denisov v. Ukraine ([GC], no. 76639/11, 25 September 2018), decided to overrule – tacitly but unequivocally – some of its earlier judgments under Article 8 (for example, Özpınar v. Turkey , no. 20999/04, 19 October 2010, Fernández Martínez v. Spain [GC], no. 56030/07, ECHR 2014 (extracts)) and, in particular, to abandon the principles applied in Oleksandr Volkov v. Ukraine (no. 21722/11, ECHR 2013), instead adopting a new approach, one that was much more restrictive and better reasoned. This new jurisprudential line was expressed in the following terms:

“102. In the cases falling into the above-mentioned category [i.e. employment-related scenarios], the Court applies the concept of “private life” on the basis of two different approaches: (α) identification of the “private life” issue as the reason for the dispute (reason-based approach) and (β) deriving the “private life” issue from the consequences of the impugned measure (consequence-based approach).

(α) Reason-based approach

103. Complaints concerning the exercise of professional functions have been found to fall within the ambit of “private life” when factors relating to private life were regarded as qualifying criteria for the function in question and when the impugned measure was based on reasons encroaching upon the individual’s freedom of choice in the sphere of private life.”

It is important to note that the Court, while formulating the reason-based test, used a logical conjunction: (i) factors relating to private life were regarded as qualifying criteria for the function in question, and (ii) the impugned measure was based on reasons encroaching upon the individual’s freedom of choice in the sphere of private life.

Furthermore, in a certain sense any qualifying criterion for any function relates in some (more or less remote) way to private life. However, such a broadly construed criterion would be purposeless and inoperative. Therefore, the Denisov test should be understood as referring to factors directly relating to sphere of personal autonomy covered by the notion of private life (see, for example, Yılmaz v. Turkey , no. 36607/06, § 37-41, 4 June 2019).

3. I note that the majority restate in paragraph 42 the usual formula used in Article 8 cases: “The concept of “private life” is a broad term not susceptible to exhaustive definition.” I can only reiterate here my methodological and logical reservations concerning this statement, formulated in paragraph 2 of my separate opinion appended to the judgment in the case of R.B. v. Hungary (no. 64602/12, 12 April 2016).

4. In the instant case, the qualifying criteria for the function of teacher are: (i) knowledge of the official national language of the respondent State; and (ii) its use at school for the purpose of education. These factors do not relate to private life. In particular, the ability to speak a certain language as a criterion for a certain position is not a factor relating to private life.

Moreover, the language of education belongs to the public sphere. The imposition of a certain national language for teaching in school classes, unlike the choice of the language spoken at home or in private conversation at the workplace, is not a matter of the teacher’s freedom of choice, and nor does it belong to the sphere of his private life. The impugned measures were not based on reasons encroaching upon the individual’s freedom of choice in the sphere of private life. Moreover, the impugned measures were not based on reasons encroaching upon the applicant’s right to speak his mother tongue in everyday life.

In my view, the approach adopted in the instant case clearly departs from the principles established in the case of Denisov v. Ukraine . The general principles restated in the instant case in paragraphs 42-44 have not been correctly applied in the subsequent paragraphs of the reasoning.

5. In paragraph 48 the majority highlights the following argument: “The Court considers that the language used by an individual necessarily forms part of that person’s ethnic identity (see in this sense paragraph 28 above), which has already been found to constitute an essential aspect of an individual’s private life (see Ciubotaru v. Moldova , no. 27138/04, § 53, 27 April 2010).”

It is true that the language preferred by an individual in everyday life necessarily forms part of that person’s ethnic identity, but the requirement to speak the State’s official language while performing certain tasks in public-service employment cannot be considered as a factor relating (in the meaning of the Denisov test) to one’s identity, nor can it be seen as an interference with this identity.

6. In the same paragraph the majority refers to the applicant’s “alleged inability to adapt his language of instruction to the requirements of his post due to his age” and states the following:

“Moreover, a person’s age obviously forms part of a person’s physical identity (see J.B. and Others , cited above, § 131).”

This view, taken from J.B. and Others v. Hungary , was extracted from its context. It is worth quoting in extenso the relevant paragraph:

“131. The direct reason behind the applicants’ dismissal was that they had reached the lowered mandatory retirement age applicable to them. Although a person’s age is obviously an aspect of his or her physical identity, it is at the same time an objective fact not capable of being influenced by freedom of choice in the sphere of private life. No other factors relating to the applicants’ private life, in particular no factors connected directly to their conduct, were contemplated as qualifying criteria for being affected by the impugned measures. In such circumstances, the Court considers it appropriate to follow a consequence-based approach and to examine whether the impugned measures had sufficiently serious negative consequences for the applicants’ private life, in particular as regards their “inner circle”, their opportunities to establish and develop relationships with others and their reputation” ( J.B. and Others v. Hungary (dec.), nos. 45434/12 and 2 others, 27 November 2018).

The Court unequivocally refused here to apply the reason-based approach to measures that were based upon an age criterion. The same paragraph corresponds to the circumstances of the instant case. It rebuts the view – expressed in paragraph 49 of the instant judgment – that the impugned measure was sufficiently linked to the applicant’s private life.

7. I note further that the Framework Convention for the Protection of National Minorities, to which Croatia is a Party, guarantees the following rights in Article 14 § 2:

“In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.”

The right to receive education in one’s own language is the right which pertains to the students and their parents. From this students’ right it is impossible to derive a teacher’s right to choose the language in which he provides education. The State must organise the entire educational system –in compliance with its international obligations – and decide which languages will be used in which schools.

8. In paragraph 63 the majority highlight the following point:

“As the applicant pointed out, no teachers of Croatian origin were subjected to an inspection in order to establish whether their use of language during their classes was appropriate, or indeed whether they complied with other statutory regulations in the performance of their teaching duties.”

The question arises in this context whether there really could have been any reasonable doubts – and as result any reasonable grounds to verify –whether the teachers of Croatian origin were actually using the Croatian language.

9. In spite of the above reservation, I consider that the applicant has nonetheless corroborated the allegation that he was discriminated against. However, the alleged discrimination did not occur in the sphere of private life covered by Article 8. On the contrary, it occurred in the sphere of public life, which remains out of the scope of applicability of Article 8. The grievance raised by the applicant under Article 1 of Protocol No. 12 is, in my view, admissible. The application should therefore have been examined under this last provision.

10. To sum up, using Judge Kūris’s metaphor: 8 tends again to come askew and transforms into ∞.