JOINT DISSENTING OPINION OF JUDGES TULKENS, DAVÍD THÓR BJÖRGVINSSON, JOČIENĖ, POPOVIĆ AND VUČINIĆ

(Translation)

1. 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.

2. 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 men 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 as 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 men in the company had testified against the applicants in those proceedings. In 2001 the applicants set up the trade union Nueva Alternativa Asamblearia (NAA) 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 committee of the trade union NAA and the first applicant was a trade-union officer.

The March 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 NAA was also disbanded.

3. 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” (see paragraph 52 of the judgment). 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.).

4. 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 [1] . 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.

5. 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 indispensable 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 Organization and the case-law of the Inter-American Court of Human Rights cited by the Grand Chamber as relevant material (see paragraphs 21 et seq. of the judgment). As Mr O’Boyle has commented, “freedom of speech can be seen as the oxygen which gives associative rights their vitality” [2] . 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” [3] .

6. While 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.

7. 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” [4] , 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 AizsardzÄ«bas Klubs v. Latvia judgment of 27 May 2004 (no. 57829/00), 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 (no. 12697/03, ECHR 2006 ‑ XIII).

8. 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.

9. 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.

10. 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 [5] .

11. As regards the cartoon on the newsletter’s cover, it is a caricature , which, while 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 [6] . 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 [7] .

12. 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 , no. 28070/06, § 64, 9 April 2009). 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 [8] .

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.

13. 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.

14. 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 (cited above), 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 [9] . 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.

15. 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 [10] .

16. 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 a 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.

17. 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 [11] . 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 ).

18. 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.” [12]

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.

19. 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.

[1] . There is no doubt that the two freedoms guaranteed respectively by Articles 10 and 11 of the Convention are closely linked. It would seem, however, that the Court still lacks consistency in the way it deals with cases in which both provisions are invoked. It can be seen from its case-law that the Court has examined most of these cases from the angle of Article 11, a provision characterised as lex specialis in relation to Article 10, the lex generalis ; it has nevertheless also examined cases similar to the present one from the angle of Article 10 alone.

[2] . M. O’Boyle, “Right to Speak and Associate under Strasbourg Case-Law with Reference to Eastern and Central Europe”, Conn. J. Int’l L. , vol. 8, 1993, p. 282.

[3] . J.-P. Marguénaud and J. Mouly, “La liberté d’expression syndicale, parent pauvre de la démocratie”, Rec. Dalloz , 2010, p. 1456. See also D. Voorhoof and J. Englebert, “La liberté d’expression syndicale mise à mal par la Cour européenne des droits de l’homme”, Rev. trim. dr. h. , no. 83, 2010, p. 743.

[4] . See the judgment in National Union of Belgian Police v. Belgium , 27 October 1975, § 39, Series A no. 19.

[5] . See the judgment in Women On Waves and Others v. Portugal , no. 31276/05, § 42, 3 February 2009.

[6] . See the following judgments: Sokołowski v. Poland , no. 75955/01, 29 March 2005; Ukrainian Media Group v. Ukraine , no. 72713/01, 29 March 2005; Wirtschafts-Trend Zeitschriften-Verlags m.b.H. (no. 3) v. Austria , nos. 66298/01 and 15653/02, 13 December 2005; Alınak v. Turkey , no. 34520/97, 4 May 2006; Klein v. Slovakia , no. 72208/01, 31 October 2006; Nikowitz and Verlagsgruppe News GmbH v. Austria , no. 5266/03, 22 February 2007; a/s Diena and Ozoliņš v. Latvia , no. 16657/03, 12 July 2007; Cihan Öztürk v. Turkey , no. 17095/03, 9 June 2009; Bodrožić and Vujin v. Serbia , no. 38435/05, 23 June 2009; Kuliś and Różycki v. Poland , no. 27209/03, 6 October 2009; and Alves Da Silva v. Portugal , no. 41665/07, 20 October 2009. See also Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria , 19 December 1994, Series A no. 302.

[7] . J.-P. Marguénaud and J. Mouly, op. cit.

[8] . See Fuentes Bobo v. Spain , no. 39293/98, § 48, 29 February 2000.

[9] . Ibid., § 46.

[10] . Ibid., §§ 49-50.

[11] . On the patently dissuasive effect that the fear of sanctions entails for the exercise by journalists of their freedom of expression, see, mutatis mutandis , Wille v. Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999-VII; Nikula v. Finland , no. 31611/96, § 54, ECHR 2002-II; Goodwin v. the United Kingdom , 27 March 1996, § 39, Reports of Judgments and Decisions 1996-II; and Elçi and Others v. Turkey , nos. 23145/93 and 25091/94, § 714, 13 November 2003.

[12] . I. Glasser, “You Can Be Fired for Your Politics”, Civil Liberties , no. 327, April 1979, p. 8.