CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE

I agree with the finding that there has been a violation of Article 6 of the European Convention on Human Rights (the Convention). Nonetheless, I feel bound to append this concurring opinion in order to explain, and expand on, the reasons why I consider that the respondent State did not comply with the Convention. In view of the facts of the case and the applicable legal framework, the fundamental question that must be formulated is the following: is it legitimate to interpret Article 6 of the Convention in the light of Article 24 of the revised European Social Charter in a human rights case against a State that is not bound by the latter provision? In other words, can the Court, in interpreting Article 6 of the Convention, apply the standard laid down in Article 4 of ILO Convention No. 158 to a country which has not ratified this latter Convention? These questions require a thorough answer which must take into consideration the protection of social rights by the Convention and the contemporary interconnection between international human-rights law and international labour law [2] .

Termination of employment in international labour law

ILO Convention No. 158 and Recommendation No. 166 concerning termination of employment provide for the following basic guarantees: valid reason for dismissal and the enunciation of non-valid reasons for dismissal, an opportunity for workers to be aware of and respond to allegations, the right of appeal, the sharing of the burden of proof and the right to compensation. Pursuant to Articles 4-6 of ILO Convention No. 158, a worker ’ s employment is not to be terminated unless there is a valid reason for such termination, connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. The following, inter alia , do not constitute valid reasons for termination: (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers ’ representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave. Temporary absence from work because of illness or injury does not constitute a valid reason for termination. Thirty-five countries have ratified this Convention worldwide, but Hungary is not one of them.

The ILO Committee of Experts on the Application of Conventions and Recommendations has stated that the need to base termination of employment on a valid reason is the cornerstone of the above-mentioned ILO Convention ’ s provisions, since it “removes the possibility for the employer to unilaterally end an employment relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof” [3] . In the light of Article 4 of the ILO Convention, termination of employment “does not merely require the employer to provide justification for the dismissal of a worker, but requires, above all, that, in accordance with the ‘ fundamental principle of justification ’ , a worker ’ s employment is not to be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking” [4] . The same Committee of Experts has acknowledged, in broad terms, that: “Because the [ILO] Convention supports productive and sustainable enterprises, it recognizes that economic downturns can constitute a valid reason for termination of employment. The Committee stresses that social dialogue is the core procedural response to collective dismissals - consultations with workers or their representatives to search for means to avoid or minimize the social and economic impact of terminations of employment for workers.” [5] Thus, the scope of Article 4 is arguably broad enough to accommodate reasons related to non-disciplinary conduct by a worker and to an enterprise ’ s strategic needs.

Articles 8-10 of the ILO Convention deal with the appeal procedure. These provisions do not merely provide workers with a right to appeal, but they also ensure that workers do not have to bear alone the burden of proving that the termination was not justified. Moreover, it is stipulated that the adjudicatory body, in addition to having power to declare a dismissal invalid, must have competence to award the full spectrum of remedies, including reinstatement, adequate compensation or “such other relief as may be deemed appropriate”.

Article 2, paragraph 2, of the ILO Convention sets out the exclusions which may be made in view of the nature of the contract of employment. It provides that a “Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period [6] .”

Termination of employment in international human-rights law

In its General Comment No. 18 on the Right to Work, the UN Committee on Economic, Social and Cultural Rights noted that violations of the right to work can occur through acts of omission s , for example when States parties do not regulate the activities of individuals or groups to prevent them from impeding the right of others to work. Thus, the Committee on Economic, Social and Cultural Rights considered that “violations of the obligations to protect follow from the failure of States parties to take all necessary measures to safeguard persons within their jurisdictions from infringements of the right to work by third parties. They include omissions such as ... the failure to protect workers against unlawful dismissal” [7] . Hungary is bound by Article 6 of the International Covenant on Economic, Social and Cultural Rights and in particular by the prohibition of unlawful dismissal derived from it. Dismissal which is not grounded on valid reasons that are specifically provided for by law is unquestionably unlawful.

Termination of employment in European Human-Rights Law

Termination of employment concerns a civil right under the protection of Article 6 of the Convention [8] . In Vilho Eskelinen and Others , the Court extended this protection, in principle, to all civil servants, the exception being those cases where national law does not confer a right of access to the court to a category of civil servants and such exclusion of the Convention protection is justified [9] . While the Court gave a list of non-exhaustive examples of “ordinary labour disputes” to which Article 6 should in principle apply, it did not exclude other labour-related proceedings from applicability of that article. Later, the Court held that the approach developed in the case of Vilho Eskelinen and Others also applied to access to a public office [10] and termination of public office [11] , assessing issues such as the unfairness of proceedings concerning removal from office [12] , or the excessive overall length of the dismissal proceedings [13] . This broad protection afforded to employees by Article 6 was complemented by other Articles. Termination of employment has also been assessed from the perspective of other Convention rights and freedoms, such as the freedom to hold religious beliefs [14] and freedom of expression [15] .

Pursuant to Article 24 of the Revised European Social Charter, all workers have the right not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; the Parties undertake to ensure the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief and the right to appeal to an impartial body when they consider that their employment has been terminated without a valid reason. This provision has been accepted by 24 Member States of the Council of Europe, but not by Hungary . Article 30 of the Charter of Fundamental Rights of the European Union reinforced this consensus, by drawing on the above-mentioned provision, as the respective “Explanations” show [16] .

Taking into account the significant European consensus on protection in cases of termination of employment, there is a positive obligation for the Contracting Parties to the Convention to implement the principle of justification for termination of employment , i.e. a legal system of justified termination of employment. The Court has already established that a social right can legitimately be derived from a Convention provision, even when such a right is foreseen in the European Social Charter and the Contracting Party is not bound by the relevant provision of the Charter [17] . This jurisprudence is also valid in the case of the right of all workers not to have their employment terminated without valid reasons for such termination and the concomitant right to appeal the decision of termination of employment to an impartial body.

In European human-rights law, the right to protection in cases of termination of employment applies to all categories of employees, including civil servants and public officials . The Contracting Parties may, within their margin of appreciation, consider that workers engaged under a contract of employment for a specified period of time or a specified task, workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration, and workers engaged on a casual basis for a short period do not benefit from this guarantee.

In any event, no termination of employment is acceptable under European human-rights law based on discriminatory reasons, such as union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; seeking office as, or acting or having acted in the capacity of, a workers ’ representative; the filing of a complaint or participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; absence from work during maternity, paternity or parental leave [18] .

In sum, the right to protection in the event of termination of employment has a minimum content in European human rights law, consisting of four core requirements: a formal written notice of termination of employment given to the employee, a pre-termination opportunity to respond given to the employee, a valid reason for termination, and an appeal to an independent body . The right of appeal against any termination of employment to an independent body requires that this body has the powers to verify the factual and legal aspects of the appealed decision and to remedy it, if it is found illegal [19] .

The application of the European standard to the present case

Given that Article 24 of the Revised European Social Charter and Article 30 of the European Union Charter of Fundamental Rights are invoked by the Chamber to shed light on its interpretation of Article 6 of the Convention, and both those Articles are inspired by Article 4 of ILO Convention No. 158 on termination of employment, the question of the legitimacy of this interpretation may be raised, bearing in mind that Hungary is not a party to ILO Convention No. 158, nor has it accepted Article 24 of the Revised European Social Char ter.

In view of the aforementioned European standard based on the principle of justification of termination of employment, the answer must be in the affirmative. This answer is strengthened by the circumstance that Hungary is bound by Article 30 of the EU Charter of Fundamental Rights, which enshrines the said principle, and Article 6 of the International Covenant on Economic, Social and Cultural Rights, which includes such a principle by virtue to General Comment No. 18 on the Right to Work. It is not acceptable for one and the same State to advocate a double standard on termination of employment in respect of different international organisations, claiming to be held to a lower standard vis-à-vis the Council of Europe when it is already subject to a more demanding standard vis-à-vis the United Nations and the European Union .

The respondent Government themselves demonstrated that the applicant enjoyed a limited right of access to a court under national law “in cases of discriminatory dismissal or in breach of the special protection afforded by law on objective grounds (see Article 90 of the Labour Code)”. This is sufficient to consider Article 6 of the Convention applicable to the instant case, making redundant and even contradictory the Government ’ s additional allegation that the exclusion of Article 6 rights for the civil servant was justified “because of the public-law nature of the dispute and because the subject matter of the dispute calls into question the special bond between the State and its employee” (page 9 of the Government ’ s observations).

Given that the first Vilho Eskelinen criterion is satisfied, Article 6 is fully applicable to the case and the applicant benefits from its protection, since she was a civil servant working in the environmental inspectorate, not engaged under a contract of employment for a specified period of time or a specified task, nor serving a period of probation or a qualifying period of employment, nor engaged on a casual basis for a short period. Thus, the termination of her employment breached her rights to know the reasons for her dismissal and to have her dismissal fully assessed by an independent body, as provided for by Article 6 of the Convention.

[1] This provision has not been accepted by Hungary.

[2] I have expressed my thoughts on these two important topics in a partly concurring and partly dissenting opinion joined to the Grand Chamber case Konstantin Markin v. Russia [GC] , no. 3 0078/06 , ECHR 2012 (extracts) .

[3] CEACR, General Survey – Protection against unjustified dismissal (1995), para. 76.

[4] CEACR direct request – Luxembourg (2007). See report of the ILC at its 67th Session in which it was stated “Thus, today the justification principle has become the centrepiece of the law governing termination of employment by the employer…”, ILC, 67th Session, 1981, Report VIII(1), p. 7.

[5] CEACR - General observation concerning Convention No. 158 (CEACR, 79th Session, November-December 2008).

[6] The Tripartite Committee established to consider a representation brought under Article 24 of the ILO Constitution by the Confederation Générale du Travail-Force Ouvrière with regard to the French Ordinance no. 2005-893, concluded that two years was not a reasonable period of time for the purposes of Article 2, paragraph 2 of ILO Convention no. 158 (Governing Body doc. GB.300/20/6), thus contradicting the decision of the Conseil d’Etat of 19 October 2005. The Committee also found that the Ordinance departed from the basic requirements of Article 4 of the relevant ILO Convention, insofar as workers whose employment was terminated for reasons of performance or conduct did not need to be provided an opportunity, prior to or at the time of termination, to defend themselves against the allegations made, as required by Article 7 of the [ILO] Convention, and the requirement under Article 4, read with Article 7, of the [ILO] Convention that the employee must be given a valid reason, prior to or at the time of termination, at least in cases relating to conduct or performance, needed similarly to be complied with only where the termination is of a disciplinary nature. Subsequently, the French legislation on “contracts for new employment” was changed. The French Court of Cassation, in its judgment of 1 July 2008, confirmed the Committee’s opinion.

[7] General Comment No. 18 on the Right to Work, UN Committee on Economic, Social and Cultural Rights (E/C.12/GC/18), adopted on 24 November 2005, at paragraph 35. See also paragraph 11 of the general comment in which explicit reference is made to Article 4 of Convention No. 158.

[8] The Court’s case-law on this topic started with disciplinary proceedings in which the right to continue to practise a profession was at stake, giving rise to disputes over civil rights within the meaning of Article 6 (see, among other authorities, the following judgments: König v. Germany , 28 June 1978, Series A no. 27, and Le Compte, Van Leuven and De Meyere v. Belgium , 23 June 1981, Series A no. 43).

[9] Vilho Eskelinen and Others v. Finland (GC) , no. 63235/00, §§ 62-63, ECHR 2007-II.

[10] Majski v. Croatia (No. 2), no.16924/08, 19 July 2011, Kübler v. Germany , no. 32715/06, 13 January 2011, and, implicitly, Josephides v. Cyprus , no.33761/02, 6 December 2007, and Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010.

[11] Sabeh el Leil v. France , (GC) no. 34869/05, 29 June 2011, and Cudak v. Lithuania (GC) , no. 15869/02, 23 March 2010.

[12] Hrdalo v. Croatia , no. 23272/07, 27 September 2011, and Lesjak v. Croatia , no. 25904/06, 18 February 2010.

[13] Mishgjoni v. Albania , no.18381/05, 7 December 2010, and Golenja v. Slovenia , no. 76378/01, 30 March 2006.

[14] Ivanova v. Bulgaria , no.52435/99, 12 April 2007, on the applicant’s dismissal from her job as swimming - pool manager at the River Shipbuilding and Navigation School because of her religious beliefs.

[15] Heinisch v. Germany , no. 28274/08, 21 October 2010, on the applicant’s dismissal, without notice, from her job as a geriatric nurse for a limited liability company specialising in health care of the elderly which is majority-owned by the Land of Berlin, on the ground that she had lodged a criminal complaint against her employer , and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement.

[16] See Explanations Relating to the Charter of Fundamental Rights (2007/C 303/02). See also Directive 2001/23/EC on the safeguarding of employees ’ rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC.

[17] Demir and Baykara v. Turkey (GC) , no. 34503/97, §§ 153-154, ECHR 2008.

[18] Specifically re ferring to A rticle 5-c of ILO Convention N o. 158, see Heinisch , quoted above, § 39, which found that the applicant’s dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention .

[19] This right to protection of workers is an obligation of result which the state is bound to achieve within a reasonable period of time through adequate legislative, judicial and administrative instruments, including the approval of a suitable legislative framework, an efficient judicial structure and supervisory administrative machinery. This right may be restricted or even annulled in exceptional circumstances, as long as retrogressive measures pursue general welfare aims and are implemented progressively and proportionately.