CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 janvier 2015

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LATVIA   (Application no. 79040/12)             JUDGMENT       STRASBOURG   13 January 2015     FINAL   01/06/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Rubins v. Latvia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Päivi Hirvelä, President,   Ineta Ziemele,   Ledi Bianku,   Nona Tsotsoria,   Paul Mahoney,   Krzysztof Wojtyczek,   Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 79040/12) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Andris Rubins (“the applicant”), on 7 December 2012. 2.     The applicant was represented by Ms I.   Betkere, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3.     The applicant alleged, in particular, that his dismissal from his university post following a critical email sent to the Rector constituted a violation of his right to freedom of expression guaranteed by Article 10 of the Convention. 4.     On 5 October 2013 the Government were given notice of the complaint concerning Article 10 of the Convention and the remainder of the application was declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1947 and lives in Riga. A.     Events leading to the applicant’s dismissal 6.     The applicant was a professor and the head of the Department of Dermatological and Venereal Diseases of the Faculty of Medicine of Riga Stradiņa University (hereafter “the University”), which is a State university. The applicant had been elected to the position of head of department with effect until 13   April 2013. He was also an elected member of the constituent assembly of the University ( Satversmes sapulce ). 7.     On 22   February 2010 the Council of the Faculty of Medicine decided to merge the Department of Dermatological and Venereal Diseases and the Department of Infectious Diseases. That decision was approved by the Senate of the University ( Senāts ) on the following day. It appears that as a result of the merger the position of head of department occupied by the applicant was abolished. Accordingly, on 24 February 2010 the applicant received a warning ( brīdinājums ) to that effect and was given the opportunity to agree to the changes in his contract with the University. He was also informed that if he refused, his employment relationship with the University would be terminated. 8 .     On 28 February 2010 the applicant sent various emails to the Rector of the University concerning the circumstances of the reorganisation and the abolition of his department. He criticised the decisions taken by the deputy dean, G.B. 9 .     On 3   March 2010 the applicant sent another email to the Rector of the University and to several other recipients, including the members of the Senate. The email criticised the lack of democracy and accountability in the leadership of the organisation, which, according to the applicant, stemmed from the fact that all the members of the Senate were also a part of the executive authority of the University and there was thus an inadequate system of checks and balances. He also drew the recipients’ attention to the alleged mismanagement of the University’s finances. In support of this allegation the applicant relied on the conclusions adopted by the State Audit Office ( Valsts Kontrole) in December 2009. 10 .     The applicant further spoke in unfavourable terms about several representatives of the management of the University, stating, for example, that [Mr ...]. “pretends to be a God-fearing Catholic ... yet, as far as is known, has several children born out of wedlock”, that [Mr ...] “cannot decide a single question by himself, does not keep his word, is lying” and that [Mrs ...] “has called me and asked me to break the law in the interests of her protégés”. 11 .     Finally, the applicant came up with a proposal involving several amendments to the constitution of the University, such as changes in the election of the members of the Senate (an obligation to inform the constituent assembly of the candidate’s CV at least one week before the elections, the setting-up of an independent electoral commission); separation of powers between the University’s governing bodies (Senate members should not be part of the executive body of the University); and the granting of independence to the Senate (changing the remuneration system so that the Rector did not unilaterally fix the remuneration of members of the Senate). He asked the Rector to forward his proposals to the members of the constituent assembly and to send him the email addresses of those members or inform him where to find those contacts. 12.     It appears that on 16 March 2010 the applicant expressed his disagreement with the reorganisation at the meeting of the Senate of the university which upheld the decision. 13 .     On 20   March 2010 the applicant sent an email to the Rector of the University. The subject-line of the email read “Settlement agreement”. The text of the email read as follows: “To the Rector of the University .... Confidential [1] Dear Rector, [2] In view of the situation which has evolved and the advice of my lawyers and supporters, I hereby propose the following settlement agreement. [3] It would entail: [4] Version 1 [5] You (the University) revoke all the orders and decisions of the Senate concerning the abolition/merger of the Department of Dermatological and Venereal Diseases. I for my part withdraw all my appeals, thereby restoring the situation as it was before the decision of the Senate of 23   February   2010. Meanwhile the three lecturers ... (all of them were recognised as plagiarists by a decision of the [Latvian association of doctors]) who expressed their intention to move to the Department of Infectious Diseases, are transferred to that Department. I have no objections if the specialist ... who, it is common knowledge, is the mother of ...’s daughter, is transferred to another post or fired. This month she did not spend a single day at work in the Department of Dermatological and Venereal Diseases (presumably she reports to ... or has been transferred to ... or another department, or maybe [she has] submitted her resignation, I don’t know). [6] Version 2. I, as a head of department elected until 2013, and after having received a certain amount of compensation on which we would agree (for example, LVL   100,000), as provided for by my agreement with the University, agree terms with you, the dispute is terminated and I leave the post. [7] Of course I understand that at the constituent assembly of the University you, as Rector, can secure a decision that is favourable to you. However by this means nothing would come to an end but would only start, as I reserve the right to appeal against all the decision [adopted by] the University in the administrative, district and regional courts, while of course making everything public beforehand and attracting the attention of society. [8] I do not believe that in an election year, taking into consideration the latest news (the conclusion adopted by the State Audit Office on the illegalities at the University, plagiarism on the part of lecturers and professors of the University etc.), you would want to have additional tasks and trouble (nodarbošanos un nepatikšanas) . [9] I am sure that I don’t want this and I wish to be allowed to work in a creative manner with students in my field as before. In addition, I have much work to do organising two large European congresses in 2011 and 2012 in Riga, in both of which my participation as president has been confirmed. [10] Since I have also not received the list of members of the constituent assembly of the University (which was requested from you and the Senate in my letter of 3   March   2010!?, a fact which demonstrates the lack of democracy [at] the University), I will await a reply from you by Monday, 22 March 2010 at 11 a.m. If we are unable to reach agreement by signing a settlement agreement I will make all my current information public in the form of an open letter so that the members of the constituent assembly of the University also have at least one day before the meeting to think about their vote.         Professor A. Rubins P.S. [contains a request concerning one of the applicant’s staff members who was on sick leave but at the same time attended meetings of the Senate]. 14.     On 22   March   2010 the Rector replied to the applicant that he could not agree to any of the proposals. 15.     The following day, 23   March   2010, at the meeting of the constituent assembly of the University, the applicant expressed his disagreement with the reorganisation and asked that the decision concerning the merger of faculties be annulled. His request was not upheld. On the same day the national news agency LETA published the applicant’s views about the alleged shortcomings in the management of the University. The criticisms referred to the conclusions of the State Audit Office. 16.     On 25 and 31 March 2010 the Rector asked an ad hoc investigative committee and the ethics committee to review the applicant’s conduct. 17.     On 6   May 2010 the applicant received a notice of termination of employment ( uzteikums ) from the University, in which he was informed that his employment contract with the University would be terminated ten days after receipt of the notice. The legal basis for the applicant’s dismissal was section   101(1)(1) and (3) of the Labour Law, and the applicant was deemed to have acted in contravention of several provisions of the University’s staff regulations (see Relevant domestic law part, paragraphs 30 and 34 below). The notice stated, inter alia , as follows: “The ground for dismissal is the email you sent to the Rector of [the University] on 20   [March] 2010, in which, while addressing the Rector concerning issues of interest to you, you included inappropriate demands, including elements of blackmail and undisguised threats. As a consequence your actions are considered as very grave infringements of basic ethical principles and standards of behaviour, and as absolutely contrary to good morals. The fact of sending such a letter, and its contents, are clearly contrary to good morals, all the more so taking into account the circumstances in which the letter was sent and your attitude.” 18.     On 17   May 2010 the University dismissed the applicant from his post. Soon afterwards he took up a post in another university in Latvia. B.     Civil proceedings 19.     The applicant submitted a claim to the Riga City Kurzeme District Court, asking the court to invalidate the notice of termination and to order his reinstatement and payment of the unpaid salary and benefits together with compensation for non-pecuniary damage. 20.     In a judgment of 11   March 2011 the Kurzeme District Court allowed the applicant’s claim in part. It held that the fact that the applicant’s employer had been offended by his email was not a legitimate reason for his dismissal, since section   101 of the Labour Law did not include such a ground. The court considered that the allegation that the applicant’s email had contained elements of blackmail and threats was merely speculation on his employer’s behalf. It was additionally found that the applicant had not been given an adequate opportunity to respond to the allegations contained in the termination notice before that notice was sent to him. Accordingly the court annulled the termination notice and ordered the applicant’s reinstatement with back-payment of his salary. The applicant’s claim for compensation in respect of non-pecuniary damage was rejected as unsubstantiated. 21 .     Both the applicant and the University appealed. During the court hearing the applicant mentioned that he had requested that several illegalities be examined at the meeting of the constituent assembly of 23   March 2010. Counsel for the defendant stated that both the ad hoc investigative committees set up by the Rector had found that the content of the letter was to be perceived as blackmail and threats. He contended that the request to receive a certain amount in compensation and the deadline by which the reply had to be received all proved the breach of ethical norms. The defendant further alleged that several “defamatory facts about the University” had been published on 23   March by LETA, and considered that the above activities therefore confirmed the threats made in the applicant’s email. 22 .     On 18   January 2012 the Riga Regional Court quashed the first-instance court’s judgment and dismissed the applicant’s claim in full. The appeal court considered that in his email of 20   March 2010 the applicant had invited the Rector to carry out “unlawful actions”, namely to annul a decision of the Senate of the University (concerning the merger of two departments within the Faculty of Medicine). Such action was deemed to be “unlawful” because annulling decisions of the Senate of the University exceeded the Rector’s authority. The court also considered that the applicant had requested “unreasonably high compensation” for the termination of his employment. These two considerations led the appeal court to conclude that the applicant had failed to observe basic ethical principles such as honesty, collegiality and responsibility. 23 .     The conclusions of the appeal court echoed those reached by the University’s ethics committee and by two ad hoc investigative committees set up on 25   March and 6   April 2010. In particular, the court observed in point 10.1 that the committee had concluded that the infringements committed by the applicant were demonstrated by the fact that he had sent the email and had carried out “other activities after the Senate’s decision of 23   February 2010 ... including making unfounded statements, for example, about the abolition of the department, the circumstances of the reorganisation that had been directed against the applicant, and threats made by G.B. against the applicant. The email of 28 February 2010 ... comprises statements, for example, about ... private life and religious convictions”. 24 .     The court further noted that it was apparent from the materials in the case file that on 23   March   2010 the national news agency LETA had published the applicant’s views about events in the University, in which he had criticised the leadership of the University, stating that a group of twelve to fifteen persons had usurped all power and set up an authoritarian or even dictatorial regime. The court also referred to the content of the email the applicant had sent on 3   March   2010 (see paragraph   9 above) and came to the conclusion that he had contravened the obligation to treat the staff of the University with respect. 25 .     The court turned next to the question of “good morals” and, after finding that this term had no precise legal definition, proceeded to conclude that it consisted of three “basic ethical principles”: “the principle of integrity and righteousness”, “the principle of responsibility” and “the principle of loyalty”. It found that the applicant had acted in breach of these principles and that there was: “[11.2] ...no reason to conclude that the applicant had only intended to inform [the Rector] about [his plan] to exercise his democratic rights, [that is], to submit complaints to the courts and to publish information in the media, while respecting the interests of society. The content of the letter [of 20   March 2010] attests to [the applicant’s] wish to act for a selfish cause, namely to retain his position as a head of department, contrary to the Senate’s decision on reorganisation, or to receive substantial financial compensation, regardless of [the need to use] the budget of [the University] in an economical and reasonable way in compliance with the goals of the [University]. [The appeal court] finds that there is no evidence that prior to the letter of 20   March 2010 [the University] had obstructed the applicant’s democratic rights to inform society and the competent institutions about the alleged violations in the [University]. Taking into account the aforementioned finding, [that is], that the [applicant’s] aim in writing the letter of 20   March 2010 was selfish, the [appeal court] finds that the [applicant] sought to achieve a result beneficial to himself by trying to persuade [the Rector] to take unlawful steps. In view of the aforementioned considerations, this should be considered a threat.” 26 .     Turning to the applicant’s claim for compensation in respect of non-pecuniary damage, the appeal court cited section   9(1) of the Labour Law (see the Relevant domestic law part, paragraph 29 below) and disagreed that the applicant’s dismissal had created “unjustified consequences” ( nepamatotas sekas ) or caused non-pecuniary damage simply because the applicant had expressed legitimate concerns about the reorganisation of the University and about the way its financial resources were used. The court’s reasoning in that regard read as follows: “[The appeal court], on the basis of experience and logic, finds that a calm and positive atmosphere and a respectful attitude among colleagues best contribute to achieving constructive dialogue. Having analysed the above-mentioned evidence, the [appeal court] considers that nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and the staff regulations”. 27 .     The applicant submitted an appeal on points of law, disputing, inter alia , the appeal court’s findings to the effect that, by sending one confidential letter to one recipient (namely the Rector of the University), in which he had raised points concerning the unjustified use of funds from the State budget, he had committed an infringement of work-related rules and ethics of such gravity as to justify his dismissal. The applicant also invoked in this connection that he had an obligation to inform the society about the unjustified use of funds, therefore the appellate court had erred in finding that the impugned email was unethical. The applicant’s appeal on points of law was rejected by the Senate of the Supreme Court in a preparatory meeting on 26   September 2012. C.     Criminal proceedings 28.     On 27   September 2010 the Rector of the University sought to institute criminal proceedings against the applicant for extortion. The criminal proceedings were instituted on 30   January 2012 on the basis of section 183 of the Criminal Law (extortion) and the applicant was ordered not to leave his permanent residence for more than twenty-four hours without the permission of the competent investigative authority. The criminal proceedings were discontinued on 9   February 2012 for lack of corpus delicti . The decision to discontinue the criminal proceedings stated, inter alia , that according to the linguistic expert’s conclusions the impugned email contained clearly expressed demands to pay a certain amount of money as well as undisguised threats to disclose disreputable information about [the Rector] prior to the meeting of the Senate. It also noted that the email demonstrated the applicant’s wish to act selfishly, either in order to maintain his post or to receive a significant amount in compensation for the termination of his employment contract. However, as the Rector’s attitude demonstrated that the threats were not perceived as real, the court ruled that the criminal proceedings should be terminated and that the Rector had the right to institute defamation proceedings. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW Relevant domestic law and practice 1.     Labour Law 29 .     Section 9 of the Labour Law (a whistle-blowers’ protection clause) provides that an employee may not be punished or otherwise directly or indirectly subjected to unfavourable treatment, in the context of employment relations, for exercising his rights in a permissible manner [ pieļaujamā veidā ] or informing the competent authorities or officials about suspicions of criminal or administrative offences in his place of employment. If, in the event of a dispute, an employee reports such circumstances which could serve as a basis for unfavourable treatment by his or her employer, it is the employer’s duty to prove that the employee has not been punished or otherwise unfavourably affected, either directly or indirectly, for having exercised his or her rights in the context of employment relations in a permissible manner. 30 .     Section   101(1)(1) and (3) of the Labour Law authorises employers to dismiss an employee only on the basis of circumstances related to the employee’s conduct or his or her abilities, or in connection with the performance of economic, organisational, technological or similar functions within the company if (1) “the employee, in the absence of extenuating circumstances, has committed significant infringements of his or her employment contract or terms of employment” and (3) “the employee has fulfilled his or her duties in a manner that disregards good morals [ labi tikumi ] and such actions are not compatible with his or her continued employment.” 31.     The same section further provides that if an employer intends to issue a notice of termination of an employment contract on the basis of, inter alia , the first paragraph, sub-paragraphs 1 and 3 of this section, the employer has a duty to request written explanations from the employee. When deciding on the possible termination of the employment contract the employer has a duty to evaluate the severity of the violation at issue and the circumstances in which it was committed, as well as the personal characteristics of the employee and his or her previous work record. 2.     Relevant provisions regulating the functioning of the University 32 .     Point 3.2 of the constituent document of the University ( Rīgas Stradiņa universitātes Satversme ) provides that the Rector or the Senate may convene the constituent assembly of the University. The Rector, the Senate or the student self-government body may convene an extraordinary meeting of the constituent assembly. Pursuant to point 3.8 the Rector has a right of suspensive veto ( atliekošā veto tiesības ) over decisions adopted by the Senate. 33 .     Point 5.1 of the statue of the Senate ( Senāta nolikums ) provides that Senate meetings are convened, inter alia , at the initiative of the Rector. 34 .     The relevant provisions of the staff regulations in force at the University at the material time read as follows: 6.1.2. – employees must carry out their tasks conscientiously and honestly; 6.1.7. – employees must treat other members of the University staff with respect; 6.2.1. – employees have a responsibility to carry out work of good quality in accordance with their contract and job description, the constitution of the University, decisions of the Senate, internal regulations and orders and the external legislation of the Republic of Latvia. 3.     Practice on the interpretation of certain provisions of the Labour Law 35 .     According to the view of the Senate of the Supreme Court, published in a compilation of case-law on employment disputes, the final assessment of whether an infringement [of an employment contract or staff regulation] is grave lies with the domestic courts. Furthermore, the term “good morals” (section 101, paragraph 1, sub-paragraph 3 of the Labour Law) is applicable not only to work carried out within the specified working hours but may also refer to employment-related functions performed outside regular working hours. Since the legislature failed to define the term “good morals”, this term has been acknowledged to be a general clause the content of which has to be defined by the courts’ case-law. According to present-day case-law and legal science, the term “good morals”, in addition to its social character, also has a legal dimension, that is, it encompasses not only generally accepted moral standards but also ethical principles and values enshrined, inter alia , in the Constitution. Thus, according to the Senate, the reference to the term “good morals” is a general clause the content of which has to be determined by those who apply the law. THE LAW I.     ADMISSIBILITY OF THE APPLICATION 36.     The Government advanced two sets of preliminary objections. Firstly, they contended that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention. Secondly, the Government put forward two grounds on the basis of which, in their view, the present application fell outside the Court’s jurisdiction ratione materiae . A.     Incompatibility ratione personae 1.     The parties’ submissions 37 .     The Government were firmly of the opinion that in the instant case the applicant could not arguably claim that he had suffered interference with his right to freedom of speech, as he had never been prevented from or punished for exercising that freedom. In this regard the Government referred to the judgment of the Riga Regional Court of 18   January   2012 in which it was acknowledged that the applicant’s employer had never prevented the applicant from exercising his democratic right to inform society and the competent authorities about the alleged shortcomings at the University. 38.     The applicant contested that argument. He pointed out that his employer had subjected him to unfavourable treatment both before and after he had had the information published by the local news agency. The establishment of the ad hoc investigative committees and the Rector’s demands for the applicant to provide explanations for his email of 20   March   2010 had both contributed to the existence of an infringement. 2.     The Court’s assessment 39.     Since the arguments outlined above are pertinent and closely related to the analysis of the complaint under Article   10, the Court considers that the objection is closely linked to the merits of the applicant’s complaint. It will therefore deal with the objection in its examination of the merits below (see paragraphs73-74 below). B.     Incompatibility ratione materiae 1.     The parties’ submissions 40 .     The Government alleged that the applicant’s complaint did not fall under Article 10 of the Convention as it essentially concerned an employment dispute as to whether the applicant’s dismissal had been lawful under domestic law; it therefore concerned a labour dispute of a private-law nature. They noted that the reasons for the applicant’s dismissal had been gross infringements of the staff regulation and of ethical and behavioural norms which affected the University. Moreover, the Government emphasised that in his civil claim of 11   May   2010 the applicant had not made any allegations that the University had acted in violation of his freedom of speech. 41 .     Alternatively, the Government contended that the present application was incompatible with the provisions of the Convention in that freedom of expression had been invoked in disregard of Article   17 of the Convention. In particular, the Government argued that the approach adopted in the Court’s case-law concerning Holocaust denial and related issues should not be interpreted in too formalist and restrictive a manner. In support of this argument the Government contended that the impugned email addressed to the applicant’s employer had contained blackmail and undisguised threats and that such statements were not covered by the protection afforded under Article 10 of the Convention. 42.     The applicant contested the Government’s objections and argued firstly that his dismissal had come after he had drawn his employer’s attention to shortcomings in the University’s management. Secondly, the applicant contended that the information to which he referred in the impugned email and which was later published was true and was of public interest. 2.     The Court’s assessment 43.     At the outset the Court will address the Government’s argument that Article 10 is not applicable because the complaint essentially concerned an employment dispute. 44.     In this connection the Court first observes that it is not disputed between the parties that the University was a public-law body (see Lombardi Vallauri v. Italy , no. 39128/05, §   38, 20   October   2009). Even assuming that in its employment relationships the University acted in the area of private law, the Court has previously held that in the sphere of private-law relationships the responsibility of the authorities would nevertheless be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10 of the Convention (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §   60, ECHR   2011). 45 .     Turning to the question of whether such conditions existed in the present case, the Court observes that the applicant’s dismissal was mainly based on an email of 20   March   2010 in which he proposed two ways of settling his dispute with the University and asked the Rector to agree to one of the options before the meeting of the constituent assembly took place (see paragraph 13 above). The applicant also referred to several existing problems at the University (point   8 of the email) and informed the Rector of his intention to inform the members of the assembly about the problems if no agreement was reached (point   10 of the email). The applicant’s employer considered that the above email amounted to serious misconduct, a finding that was upheld by the domestic courts. The Court considers that, even before entering into an analysis as to whether there was interference with the applicant’s rights under Article   10, it is apparent from the facts of the case and the review of the domestic courts (see paragraphs 22-26 above) that the crux of the employment dispute was the allegedly unethical manner of expression used by the applicant in communication with his employer. 46.     Moreover, the applicant in substance brought the issue concerning the infringement of his freedom of expression before the domestic courts (see paragraph 27 above), and the domestic courts addressed it (see paragraph 26 above). In any event the Government did not raise any objections claiming non-exhaustion. 47.     Having regard to the central issue in the dispute the Court accepts that Article 10 is applicable to the facts of the case (compare and contrast Nenkova-Lalova v. Bulgaria , no.   35745/05, §   53, 11 December 2012; see also and Lombardi Vallauri, cited above, §   30). 48.     Turning to the next preliminary objection raised by the Government, namely that the impugned email contained remarks not covered by the protection of the Convention in the light of Article 17 thereof, the Court considers that the present application is to be clearly distinguished from the cases relied on by the Government in which the expression of negation or revision of certain facts was removed from the protection of Article 10. In the present case, the Court is unable to conclude from the text of the impugned email that it contained anything aimed at weakening or destroying the ideals and values of a democratic society (see, for example, Ždanoka v. Latvia [GC], no. 58278/00, §   99, ECHR 2006 ‑ IV). 49.     The Court therefore dismisses the Government’s preliminary objection that the present application falls outside the Court’s jurisdiction ratione materiae. C.     Conclusion 50.     The application cannot therefore be declared inadmissible as being incompatible ratione materiae . The Court further considers that the application raises issues of law and fact which require examination of the merits. 51.     It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacles to its admissibility exist, the Court, having joined to the merits the objection raised in connection with incompatibility ratione personae , declares it admissible. II     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 52.     The applicant complained that his dismissal violated Article   10 of the Convention, since he had been punished for expressing a legitimate opinion about problems prevailing in the University and for attempting to resolve his employment situation. Article 10 of the Convention reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     The parties’ submissions 1.     The applicant (a)     The interference 53.     The applicant drew attention to the chronology of the events and contended that the impugned email of 20   March   2010 had merely been used as a pretext to dismiss him and that the real reason for his dismissal was his persistent criticism of the University. He dismissed the Government’s argument that he had not been prevented from exercising his right to freedom of expression and considered that his dismissal constituted interference with his rights protected under Article 10 of the Convention. (b)     Whether the interference was prescribed by law and pursued a legitimate aim 54.     The applicant further contested the assertion that the interference was prescribed by law and pursued a legitimate aim. Firstly, he contended that the legal basis on which the interference was grounded fell short of the requisite quality in that the court had assessed facts that were not included in the notice of termination ( uzteikums ). In particular, he drew the Court’s attention to the fact that even though the notice of termination referred solely to his email sent on 20   March   2010, the Riga Regional Court had reached its conclusions by relying on other events which had taken place before and after the impugned email. He also noted that it was only after the LETA news agency had published his views that his employer had found the email to be threatening and contrary to good morals. 55.     Secondly, the applicant disputed that the interference had pursued a legitimate aim and alleged that, as the University was a State-owned establishment, the public had a right to find out how their tax money was spent. He claimed that other colleagues had also opposed the lack of transparency in the restructuring of the University and that those who did not oppose it were afraid of losing their jobs. (c)     Whether the interference was necessary 56.     The applicant further emphasised that nothing in the impugned email could be interpreted as unethical and at odds with good morals, as he had merely indicated his intention to publish true information, namely the conclusions adopted by the State Audit Office concerning the mismanagement of public finances at the University, and it was his duty to inform society thereof. He contended that the authorities had failed to prove that the content of the email overstepped the bounds of remarks that “shock, offend and disturb”. 57.     The applicant also contended that the domestic courts had failed to strike a fair balance and had erred in finding that the impugned email contained unlawful requests. Firstly, he alleged that although the two requests included in the email had been addressed to the Rector, the applicant had nevertheless referred to “the University” in brackets, thus making clear that the Rector was a senior official of the University who, in accordance with the Constitution of the University, had the right of veto over Senate decisions. Secondly, he argued that his request to settle the dispute with the University had been based on his employment contract, which stated that all disputes were to be settled by mutual agreement. In this connection the applicant raised objections against the expert’s findings in the course of the criminal proceedings, alleging that the findings had never been sent to him and could not be used as evidence in the civil proceedings. 58.     Finally, the applicant considered that the sanction – his dismissal – was not proportionate and that it had a dissuasive effect. This conclusion could not be altered by the fact invoked by the Government that the applicant had taken up a post in another major Latvian university soon afterwards. 2.     The Government (a)     The interference 59.     The Government maintained their argument stated above (see paragraph 40) that the present case essentially concerned a labour dispute governed by the provisions of private law. They reiterated that the applicant had been dismissed after having addressed an email to the Rector of the University which contained illegal requests as well as threats and blackmail. They considered that a distinction should be drawn between the expression of criticism that might disturb or offend other persons, on the one hand, and incitement to perform unlawful activities that infringed individuals’ honour and dignity on the other. The latter was at issue in the present case, as the applicant’s behaviour constituted a particularly grave infringement of the principles of ethics and breached the University’s staff regulations and the provisions of the Labour Law. Therefore the content of the email written by the applicant – an incitement to perform illegal activities – did not enjoy the protection afforded by Article 10 of the Convention. Moreover, the Government asserted that the applicant had failed to substantiate which prior public remarks had formed the alleged basis for his dismissal, and pointed out that the Rector had not made any statements to the effect that the applicant should be dismissed from the University because of his criticism towards it. 60.     Accordingly, the Government contended that there had been no interference with the applicant’s rights under Article 10. Nevertheless, should the Court consider that there had been interference with the applicant’s rights protected by Article 10, the Government alleged that it had been prescribed by law, had pursued a legitimate aim and had been necessary. (b)     Whether the interference was prescribed by law and pursued a legitimate aim 61.     The Government contended that the alleged interference – the applicant’s dismissal – was based on section 101(1) and (3), which allowed the termination of employment relationships in the event of grave and unjustified breaches of an employment contract or staff regulations or if the employee, when performing his or her duties at work, acted contrary to good morals. Similarly, the Government argued that the interference had pursued the legitimate aim of protecting the reputation or rights of others within the meaning of Article 10. (c)     Whether the interference was necessary 62.     Relying on the Court’s case-law the Government observed that the Court must examine the question of necessity essentially from the standpoint of the relevance and sufficiency of the reasons provided by the domestic courts. In doing so the Court might be required to take into account whether the domestic courts had struck the requisite balance between, on the one hand, freedom of expression and, on the other hand, the right of others to respect for their private life, and that a distinction must be made between criticism and insult. 63.     The Government referred to the protection afforded to employees under section 9 of the Labour Law and subscribed to the principle that the applicant, as a professor, was entitled to express his criticism and present his opinion to the university’s management. At the same time employees were expected to act in good faith and had a duty of loyalty and discretion towards their employers (see Heinisch v. Germany , no. 28274/08, § 64, ECHR 2011 (extracts)), and national authorities could be justified in insisting that employment relations should be based on mutual trust (see Nenkova-Lalova v. Bulgaria , no. 35745/05, §   60, 11 December 2012). In applying the above principles to the present case the Government emphasised that the impugned email had contained personal threats directed against the Rector and that the applicant had been well aware of the unlawfulness of the proposals made in the email. Moreover, according to the Government, the contested email did not fall within the scope of a public debate, as the applicant had been guided by a personal desire not to lose his job. The Government stressed that the domestic court and the prosecutor’s office had come to the same conclusion, namely that the email demonstrated bad faith on the part of the applicant. 64.     The Government also considered the sanction imposed on the applicant to have been proportionate and pointed out that after his dismissal the applicant had not been prevented from pursuing his professional activities both in a professional organisation and in another major university. Moreover, in 2012 the criminal proceedings initiated against the applicant had been terminated. 65.     The Government also produced a letter in which the University provided replies to the Government’s questions. It stated, inter alia , that the University had assessed the question whether a less restrictive measure could be applied to the applicant and had also examined the employee’s right to freedom of expression, as attested to by the analysis of the impugned email carried out by the ethics committee and the ad hoc investigative committee. 66.     Finally, reiterating the arguments employed by the Riga Regional Court (see paragraph 25 above), and referring to the principle of subsidiarity reiterated in the Palomo Sánchez judgment, the Government maintained that the domestic court had thoroughly analysed the evidence brought before it, thus rendering the sanction proportionate to the legitimate aim of protecting the reputation and dignity of those against whom the email was directed. B.     The Court’s assessment 1.     Whether there was “interference” with the applicant’s rights under Article   10 67 .     According to the Court’s case-law, in order to determine whether an applicant’s right protected under Article   10 of the Convention has been infringed it must first be ascertained whether the disputed measure amounted to interference with the exercise of freedom of expression, in the form, for example, of a “formality, condition, restriction or penalty” (see Glasenapp v. Germany , 28 August 1986, §   50, Series A no. 104, Kosiek v.   Germany , 28 August 1986, §   36, Series A no. 105). 68.     It is clear from the parties’ submissions that the existence of the interference is in dispute between the parties, as they are not in agreement as to whether the dismissal was based solely on the impugned email sent by the applicant to the Rector of the University on 20   March   2010, or rather on the persistent criticism expressed by the applicant prior to sending the impugned email. 69.     In this connection the Court observes that in reaching their conclusion about the lawfulness of the applicant’s dismissal the domestic courts relied on evidence which contained references to other activities carried out by the applicant prior to his sending the impugned email (see paragraph 23 above). This would imply that the applicant’s prior activities in expressing criticism played some role in deciding whether the applicant’s dismissal had been lawful. 70.     But even assuming that the dismissal was based solely on the impugned email, the Court refers back to its reasoning in relation to the nature of the dispute in question and the applicability of Article 10 (see paragraph 45 above), and considers t