CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 9 avril 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sC986E16F { font-family:Arial; color:#ffffff } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s20FC8552 { font-family:Arial; font-size:11.5pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .sA4B8EC36 { width:154.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 70643/17 Gyuláné ZSOMBOK against Hungary   The European Court of Human Rights (First Section), sitting on 9 April 2024 as a Committee composed of:   Gilberto Felici , President ,   Péter Paczolay,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   70643/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 September 2017 by a Hungarian national, Ms Gyuláné Zsombok (“the applicant”), who was born in 1959, lives in Bucsa and was represented by Mr D.A. Karsai, a lawyer practising in Budapest; the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s dismissal from the civil service on account of her posts on social media. 2.     Between 2007 and 2014 the applicant was employed as civil servant at the Local Self-Government of Bucsa; her last position was head of the financial department. 3.     The applicant submitted her candidature in municipal elections for the mayor’s office in 2014 and started her election campaign on 23 August 2014. She presented her campaign programme in letters addressed to the local electorate. Besides, she published on her Facebook page a number of posts critical to the then mayor and public notary. Her posts concerned the financial management of the municipality, the lease of municipal land and alleged irregularities in the appointment of the public notary. Some of her Facebook entries related to private individuals, including family members of the mayor and a general practitioner. The posts were accessible to all. 4.     The municipal elections took place on 6 October 2014; the applicant was not elected. 5.     On 14 October 2014 the mayor sent paper copies of the applicant’s publications to the public notary for further inquiry. Having reviewed the documents, the public notary informed the applicant on the same day that he intended to terminate her service. On 29 October 2014 the applicant was dismissed with immediate effect and without severance pay on the grounds that her conduct had been inconsistent with the dignity of public service. 6.     The applicant challenged the termination of her service before the Gyula Administrative and Labour Court arguing that her posts were published in the context of her electoral campaign, the family members of the mayor were also public figures and she had tried to address the irregularities at her workplace first, before informing the public. She also maintained that her dismissal had been unlawful since the public notary had not respected the fifteen-day statutory time-limit following the alleged wrongdoing to inform her about his intention to terminate her employment 7.     By a judgment of 20 January 2015, the court found for the respondent. The court noted that the applicant’s publications, Facebook posts and letters between 5 August and 22 September 2014 alleged a number of wrongdoings within the municipal administration, including abuse of authority by relatives of the mayor, unfair appointments to municipal posts and an entry about the general practitioner which were capable to tarnish the reputation of those concerned and aimed at instigating suspicion and tensions concerning the management of the municipality during the campaign period. The applicant’s freedom of expression during the campaign period had been limited by her obligations as a civil servant. 8 .     The Gyula High Court overturned the judgment, found that the applicant’s dismissal had been unlawful for the failure to respect the deadline open for dismissal and remitted the remainder of the case to the first instance. Following a petition for review by the respondent the Kúria overturned the second-instance judgment and remitted the case to the Gyula High Court. The Kúria explained that the fifteen-day time-limit started to run on the day when the employer had been made aware of all circumstances potentially justifying dismissal. Even if the public notary had previously received some information concerning the applicant’s conduct, only when she had been in possession of all relevant documents could she properly assess the alleged wrongdoing. 9.     In the resumed proceedings the Gyula High Court dismissed the applicant’s labour action. The court agreed with the applicant that she had a right to exercise her freedom of expression, which entailed enhanced protection during the campaign period. Nonetheless, she was still bound by the obligations stemming from her status as a civil servant. Although the applicant’s employer relied on her statements in general as a reason for her dismissal, the court held that three of the applicant’s Facebook posts were incompatible with her position as a civil servant and infringed the reputation of her employer. Namely, on 17 July 2014 she posted during working hours using her work computer that “I am not interested whose boneless body part is in close connection with the body parts used for sitting of those who would drown me in a spoonful of water, if they could do so with impunity” and that “what I cannot tolerate is a lice walking on two legs, a kind of animal that makes my stomach turn, whether they hold an orange or a carnation in their hands, an example of which is the above mentioned ‘educator’”. The court noted that these posts were published outside the campaign period. The third comment of 29 August 2014 stated about the general practitioner that he was a moral ramshackle who would die alone as not even a dog could tolerate him. The court had regard to the fact that the general practitioner had not participated in the election campaign as a public figure. 10.     The applicant’s constitutional complaint was dismissed on 11   April 2017. The Constitutional Court found that the applicant’s status as a civil servant constituted a restriction on her right to free speech. When discussing matters of public interest, civil servants were bound by the statutory duties of civil service and the restriction of the applicant’s freedom of expression had been proportionate. 11.     The applicant complained that her dismissal from civil service for the publication of the impugned statements on her Facebook page   amounted to a breach of her right to freedom of expression, as protected by Article 10 of the Convention. THE COURT’S ASSESSMENT 12.     The parties agreed that the applicant’s dismissal, as upheld by the domestic courts, constituted an interference with her right to freedom of expression and the Court sees no reason to hold otherwise. 13.     The applicant argued that her dismissal was in breach of domestic law, as it had not been communicated to her within the statutory time-limit. The Court notes that the domestic courts assessed the applicant’s argument about the non-respect of the statutory time-limit and rejected it (see paragraph   8 above). It reiterates that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and insofar as they may have infringed rights and freedoms protected by the Convention (see,   mutatis mutandis, García Ruiz v. Spain   [GC], no.   30544/96 , § 28, ECHR   1999 ‑ I). It   considers that the finding of the national courts as to the fact that the public notary became fully aware of the applicant’s conduct on 14 October 2014 and therefore the dismissal on 29   October 2014 had been within the prescribed time-limit, is not arbitrary in any respect. 14.     The applicant also disputed that the restriction of her freedom of expression served a legitimate aim, since neither the confidence in public service and public servants nor the general interest of her employer had been offset by her statements. The Government argued that the right to freedom of expression could be restricted if the content and style of the statements were defamatory and could jeopardise the public trust in public administration. The Court notes that the interference was aimed at the protection of the reputation of others, more specifically of the general practitioner targeted by the posts. The Court also accepts that the impugned measures were aimed at protecting the rights and freedoms of the applicant’s employer, and therefore served the legitimate aim of protecting the rights and freedoms of others. 15.     The issue is, therefore, whether the interference was “necessary in a democratic society”. 16.     The Court reiterates that Article 10 applies also to the workplace, and civil servants, such as the applicant, enjoy the right to freedom of expression. At the same time, the Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion (see Kudeshkina v. Russia , no.   29492/05, § 85, 26 February 2009, with the references cited therein). 17.     In addition, although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10.     It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2. In carrying out this review, the Court will bear in mind that whenever civil servants’ right to freedom of expression is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (see Vogt v. Germany , 26   September 1995, § 53, Series A no. 323). 18.     The Court considers that, in the light of the above principles, it must in its examination take account of the circumstances and the overall background against which the applicant’s statements were made. It must look at the impugned interference in the light of the case as a whole, attaching particular importance to the office held by the applicant, the form and content of her statements and, in particular, the context in which they were made (see   Baka v. Hungary [GC], no. 20261/12, § 162, 23 June 2016). 19.     The Court notes in this respect the applicant’s argument submitted before the domestic courts, and reiterated before the Court, that her Facebook posts and other publications were to be assessed in the general context of the municipal elections, bearing in mind her position as a candidate. She put forward that section 85 (4) b) of the Public Servant Act explicitly guaranteed for public servants the right to public appearance during their candidature. The Government was of the view that public officials, as representatives of the State and serving the public interest, were bound by special duties. Their right to freedom of expression could be restricted to protect constitutional values , even if they participated in a debate of public interest. 20.     The Court does not call into question that certain statements of the applicant were expressed in the context of the municipal elections, prompted by presumed wrongdoing of certain officials and as such constituted political speech on matters of public interest. However, the statements at stake in the present case had no such implications. 21.     The Court observes in this respect that the judgment of the Gyula High Court concerned three Facebook posts by the applicant, which were found to be in breach of her duties as a civil servant, justifying her dismissal. Two of those posts were published outside the campaign period and were related to unnamed, nonetheless identifiable, private individuals. The third one, while published during the campaign period, concerned a local general practitioner, apparently not involved in the elections. 22.     In addition, although the domestic courts did not distinguish between facts and value judgments, the Court cannot but note that the posts constituted pure value judgments, which appear to be unrelated to the elections. Thus, it does not find it necessary to enquire into the kind of issues which have been pertinent to its case-law on election-related forms of expression (compare and contrast, Kudeshkina , cited above, § 95). 23.     At the same time, the Court is mindful that even outside the context of elections, States must allow a certain space in domestic public debate even in difficult times for the participation of civil servants, in particular where their experience and expertise may be conducive to an informed debate on issues of public interest and importance (see Karapetyan and Others v.   Armenia , no. 59001/08, § 58, 17 November 2016). 24.     In the Court’s view, however, the situation of the applicant in the present case is different. It does not appear that the publications intended to criticise or evaluate the individuals concerned in the exercise of their public functions or their activities as public figures, but rather attacked them on their character, without any factual background. The personalised nature of the applicant’s statements and the fact that they were strongly charged with her value judgments undermine any seriousness of the irregularities that she claimed to denounce in relation to the management of municipal affairs in her other posts. 25.     Thus, the Court cannot agree with the applicant’s suggestion that her publications in question concerned matters of public interest, namely the misappropriation of municipal funds, and therefore had prompted enhanced protection. It also reiterates in this regard that an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see   Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008). 26.     Moreover, there appears no reason to call into question the findings of the domestic courts to the effect that the statements were capable of destructing the authority of the applicant’s post and public confidence in the municipal administration. Although the applicant had not used vulgar terms, the statements were sufficiently explicit and expressed in a vexatious manner and injurious to the persons concerned. Bearing in mind the duty of loyalty and discretion owed by civil servants, the Court considers that the opinions expressed by the applicant were excessive in view of her status as a civil servant. 27.     As to the question whether the sanction of dismissal was proportionate to the degree of seriousness of the impugned remarks, the Court finds that 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 (see Palomo Sánchez and Others v. Spain [GC], nos.   28955/06 and 3 others, § 76, ECHR 2011). The Court also notes that the High Court had regard to the fact that two of the comments were made during working hours, using the work computer. Having regard to all of the above, the Court concludes that, in the particular circumstances of the present case, the measure of dismissal taken against the applicant was not a manifestly disproportionate or excessive sanction. 28.     In the light of the foregoing, the Court considers that the complaints under Article 10 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 16 May 2024.     Liv Tigerstedt   Gilberto Felici   Deputy Registrar   President