Case Summary and Outcome

The European Court of Human Rights (ECtHR) found that the dismissal without notice of a doctor who disclosed unverified suspicions of euthanasia to external bodies did not violate Article 10 of the European Convention on Human Rights (ECHR). The applicant, a doctor at the Liechtenstein National Hospital, discovered patient files that seemingly indicated that his superior had practised active euthanasia. He lodged a criminal complaint on these suspicions. Reports by the hospital board and external experts concluded that the applicant’s suspicions were unfounded, and he had failed to verify his suspicions with further documentation available. Thereafter, the applicant was dismissed without notice from the hospital. He launched proceedings against this decision, but his case was ultimately quashed by the Constitutional Court. The ECtHR agreed that such an interference did not violate the applicant’s freedom of expression under Article 10 of ECHR. Using a six-factor balancing test, the Court concluded that, while the applicant did not act with improper motives, he did not carefully verify the veracity of the disclosed information. Based on the prejudicial effect the disclosure had on the reputation of the hospital and the accused physician, the domestic courts had fairly balanced such rights against the applicant’s right to freedom of expression and the interference was considered proportionate.

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Facts

The applicant in this case was Mr Lothar Gawlik, a German national. Mr Gawlik was a doctor specializing in general and internal medicine. Since 2013, he was employed as a deputy chief physician of the department for internal medicine at the Liechtenstein National Hospital, a registered public law foundation. He worked under a contract of indefinite duration which could be terminated with six months’ notice. Dr H was his direct superior and chief physician of the department.

On September 9, 2014, the applicant did some research in the electronic medical files of the hospital and uncovered that four patients had died following the administration of morphine. The applicant concluded from the files that Dr H, who had treated the patients, had practised active euthanasia. Thereafter, the applicant met with the President of the Control Committee of the Liechtenstein Parliament on a separate matter and mentioned his suspicions that Dr H had practised active euthanasia.

On the President’s advice, the applicant lodged a criminal complaint against Dr H with the Public Prosecutor’s Office. The Public Prosecutor’s Office instituted proceedings against Dr H on suspicion of killing on request and participation in another person’s suicide. The police seized the relevant paper medical files and questioned Dr H.

On September 19, 2014, the applicant updated the Public Prosecutor’s Office that he suspected there were six additional patients involved based on further research he conducted. The applicant sought to “avert damage to patients” [para. 10] by speaking out. The Liechtenstein National Hospital had a body to which irregularities could be reported anonymously via an online form, but the applicant did not contact this body.

On September 19, 22, and 24, 2014, the vice-president of the hospital’s foundation board drew up three reports on the treatment of the ten patients. In the reports, he concluded that all the patients had been in a palliative situation and that there was no mistake regarding the morphine administered. It was determined that, if the applicant had read the paper files which contained the complete information of the patients, not just the electronic ones, he would have realized that his suspicions were unfounded. A Swiss external medical expert in palliative medicine was commissioned by the Hospital and reached the same general conclusion as that the vice-president, issuing a report on October 15, 2014.

On September 26, 2014, the applicant was suspended from office. The applicant made a written statement setting out his position to the National Hospital upon its request. He specified that his research stemmed from a doctor’s indication that there was an unusual rise in deaths of patients in the hospital. He believed the ten patients had not be treated lege artis. Notifying the Public Prosecutor’s Office was a means to protect patients and to comply with what was right ethically and legally. He did not contact an internal body because of the issue’s urgency nor did he expect it to be properly investigated within the hospital.

On October 17, 2014, the director of the National Hospital dismissed the applicant without notice. The relationship of trust with the applicant had be deemed “destroyed irretrievably” [para. 16]. The director argued that the applicant failed to raise the allegations with the hospital’s internal bodies and was obliged to inform Dr H, the director of the hospital, or a member of the foundation board of his allegations. The Liechtenstein media had repeatedly reported on the suspicions of active euthanasia at the hospital and the criminal investigations against Dr H. Nevertheless, the allegations were unfounded.

The applicant launched proceedings before the Regional Court on November 28, 2014. His action was against the Liechtenstein National Hospital for compensation for the loss of salary and further pecuniary and non-pecuniary damage. He argued that his dismissal without notice was unlawful and that his actions were justified by his “concrete suspicions” and “the gravity of the offence concerned” [para. 21]. The Regional Court dismissed the applicant’s action, finding that his employment could no longer continue in good faith and the dismissal justified under the Civil Code.

On January 10, 2018, the Court of Appeal allowed an appeal by the applicant and quashed the Regional Court’s judgment. It found the dismissal unjustified, stating that the applicant’s disclosure was covered by the right of freedom of expression. Likewise, contacting external bodies that were under a duty of confidentiality had not been disproportionate.

However, on May 4, 2018, the Supreme Court quashed the Court of Appeal’s judgment, outlining that the dismissal had been lawful because he failed to verify his allegations before disclosing them to third parties – a serious breach of trust.

On June 4, 2018, the applicant lodged a complaint with the Constitutional Court against the decision of the Supreme Court. He contended that his dismissal breached his right to freedom of expression under the Constitution and Article 10 of the ECHR. The Constitutional Court dismissed the complaint on the merits. It observed the criteria developed in Heinisch v. Germany ECtHR [2011] 28274/08 and found that the right to freedom of expression had not been violated. Given the gravity of the allegations and the consequences for all those concerned, the applicant had an obligation to verify his beliefs, especially since he had known that the electronic files were incomplete. Given such irresponsibility, the applicant’s right to freedom of expression had not been breached. It was left open whether the applicant should have first raised his concerns internally.

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Decision Overview

The ECtHR, observing that the applicant’s dismissal without notice constituted an interference with freedom of expression, sought to determine whether the interference was a breach of the applicant’s right to freedom of expression under Article 10 of the ECHR. Specifically, it sought to determine if the interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society for the achievement of such an aim.

The Court observed that the applicant’s dismissal was based on the Civil Code which authorized the termination of employment contracts without notice for significant reasons. The interference was thereby prescribed by law and uncontested by the parties. It was also uncontested by the parties that interference pursued the legitimate aim of protecting the reputation and rights of others, including the hospital and its chief physician.

Regarding the interference’s necessity in a democratic society, the applicant submitted that the dismissal was disproportionate and unjustified. The information he obtained and disclosed had been of public interest, and he sufficiently verified it and disclosed it in good faith. He argued that it was not evident that his suspicions were unfounded based on the paper version of the files. The public interest in a democratic society to be notified of potential irregularities in a public hospital’s treatment went beyond the business interests of that hospital. The internal channels for disclosure had not been effective, especially since some involved notifying Dr H himself. Thus, the only way to ensure effective investigations was to resort to external bodies which had been under a duty of confidentiality. He acted urgently to avoid potential criminal liability that he would have been exposed in his capacity.

Furthermore, the applicant contended that the dismissal without notice was the harshest sanction under labor law and forced him to leave Liechtenstein with his family because he had lost his resident permit as a result. He had difficulties finding new employment thereafter and there had been a chilling effect on other hospital employees who were discouraged from disclosing irregularities they experienced.

The Government outlined that the interference had been justified and necessary to protect the reputation and the rights of the hospital and the accused chief physician. While there was a public interest in the hospital’s treatment of patients, the applicant’s allegations had been “frivolous and unfounded” [para. 58]. The interest in having the information revealed did not outweigh that of the hospital and the chief physician to protect their business and reputations. It reiterated the findings of the domestic courts that the applicant failed to verify the information’s accuracy and reliability, knowing that the electronic files were incomplete. Likewise, failing to contact an internal body demonstrated that he did not act in good faith. There was nothing to indicate that the hospital would not have investigated the allegations appropriately, as evident by their investigations following the disclosure. Lastly, the dismissal did not have a chilling effect on other employees; the hospital’s immediate investigations actually encouraged employees to firstly contact internal bodies regarding suspicions of irregularities.

The Court’s goal was to decide if the interference was proportionate to the legitimate aim pursued and whether the national authorities’ justifications were relevant and sufficient. Based on Heinisch, Guja v. Moldova [GC] ECtHR [2008] 14277/04, Bucur and Toma v. Romania ECtHR [2013] 40238/02, and Matúz v. Hungary ECtHR [2014] 73571/10, the Court presented six factors relevant to the case: (1) the public interest involved in disclosing the information; (2) the authenticity of the information disclosed; (3) any damage suffered by the employer as a result of the disclosure compared to the public interest in disclosing the information; (4) whether the information was publicly disclosed as a last resort following disclosure firstly to a superior or competent body; (5) the motive behind the disclosure; and (6) the severity of the sanction imposed on the employee and its consequences.

The Court evaluated each factor accordingly. First, the Court agreed that the disclosed information was of considerable public interest. Second, regarding its authenticity, the Court noted that the applicant’s suspicions were clearly unfounded and observed the supporting assessments by medical experts. Given that the applicant did not consult all patients’ paper files, the domestic courts were deemed to have relied on an acceptable assessment of the relevant facts.

The Court emphasized that information disclosed by whistle-blowers could be covered by freedom of expression in certain circumstances where the information was proven incorrect. However, this was possible if the person concerned complied with “the duty to carefully verify, to the extent permitted by the circumstances, that the information [was] accurate and reliable” [para. 75]. The applicant had based his allegations only on the electronic files while knowing, as a doctor at the hospital, that those files did not contain the full picture on the patients’ health. If he had consulted the paper files, “he would have recognized immediately that his suspicions were clearly unfounded” [para. 77]. Thus, the safeguard provided by Article 10 for whistle-blowers could not be applied because the applicant’s “irresponsibly” [para. 77]. Particularly as deputy chief physician, he had a duty of loyalty and discretion to his employer to disclose accurate and reliable information that was in accordance with professional ethics.

As deputy chief physician, the applicant could have consulted the paper files at any time, and it would not have been time-consuming. Given the gravity of the allegation itself, the Court agreed with the domestic courts that the applicant was obliged to carefully verify the veracity of the information and failed to.

Third, regarding the harm suffered by the disclosure, the Court considered the allegation prejudicial to the hospital’s reputation and the personal and professional reputation of the chief physician. Given that the suspicion was not sufficiently verified prior to its disclosure, the public interest in receiving that information could not outweigh the hospital’s and chief physician’s interest in protecting their reputation.

Fourth, in respect of whether the information was disclosed to an external body as a last resort, the Court observed that this was not resolved by the domestic courts. It found that the applicant could not have been expected to raise his suspicions with Dr H, who was concerned by them. It also found that updates to the internal complaints mechanism’s anonymous reporting process were not communicated within the hospital. Therefore, the applicant legitimately proceeded on the assumption that there was no redress with this route. Likewise, while the hospital’s foundation board or director seemed like effective alternative channels, it was understandable that the applicant acted on the possibility that he could be held liable if he failed to report the offence. Based on this uncertainty, the Court decided to leave open the question of whether the applicant was obliged to raise his suspicions with the hospital’s internal channels.

Fifth, regarding motive, the Court agreed with the domestic courts that there was no reason to doubt that the applicant acted in a sincere belief that the information was accurate and in the public interest.

Sixth, in terms of the severity of the sanction, the Court observed that the imposed sanction was the heaviest possible and had negative consequences on the applicant’s professional career and his residence in Liechtenstein. Given the media coverage regarding suspicions of euthanasia in Liechtenstein, the sanction was deemed to have a certain chilling effect on other employees in the hospital and health sector more generally.

Based on the Court’s considerations, it concluded that the applicant did not act with improper motives. However, he raised his suspicions without carefully verifying whether the information was accurate and reliable. Moreover, the domestic courts had cited relevant and sufficient reasons for deciding that the dismissal without notice was justified, having regard to the prejudicial effect that the disclosure had. They had struck a fair balance between protecting the hospital’s and chief physician’s reputation and rights and protecting the applicant’s right to freedom of expression.

The Court concluded that the interference with the applicant’s right to freedom of expression, in particular his right to impart information, was proportionate to the legitimate aim pursued and thus necessary in a democratic society. There was no violation of Article 10 of the ECHR.

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