SECOND SECTION
DECISION
Application no. 59764/13
Violeta AŽUKAITIENĖ
against Lithuania
The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:
Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 4 September 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows
THE FACTS
1. The applicant, Ms Violeta Ažukaitienė, is a Lithuanian national, who was born in 1958 and lives in London. She was represented before the Court by Ms I. Abramavičiūtė, a lawyer practising in Vilnius.
2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms L. Urbaitė.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.The applicant’s work for the Directorate General of State Forests and her dismissal
4. As of 2002 the applicant worked as the head of the internal audit service for the Directorate General of State Forests (hereinafter “the DGSF”), an institution subordinate to the Ministry of the Environment.
5. On 17 December 2007, the director of the DGSF imposed on the applicant a disciplinary penalty – a warning – for a number of disciplinary violations, such as a failure to provide certain documents to the director and breaches of certain internal administration rules.
6. On 4 January 2008 the director of the DGSF asked the applicant in writing to provide him with a copy of the 2005-07 strategic activity plan of the DGSF’s internal audit service. The applicant refused. She was given a second disciplinary warning on 7 January 2008. On 10 January she was again asked to provide the strategic activity plan, whereupon she provided the requested document.
7. As it transpires from the documents submitted by the parties and their observations, on 11 January 2008 the DGSF took the applicant’s work computer from her office at that institution in order to verify whether the document provided by the applicant had not been tampered with by her.
Having examined the work computer, which also included the examination of the applicant’s communications from her work email address, over the first six months of 2007, an internal investigation commission set up within the DGSF (“the DGSF commission”) and consisting of six persons, concluded on 23 January 2008 that “the applicant had mostly used her work email address for personal purposes (a list of four pages of emails sent is included)”, and that she had also sent certain audit-related files to third parties at public, unsecured email server (viešai prieinamas pašto serveris).
8. On 26 February 2008 the director of the DGSF imposed a third disciplinary penalty – dismissal from work – on the applicant (see also paragraphs 11-14 below). Private use of her work email address was among the grounds used to justify the imposition of that disciplinary penalty.
9. In the meantime, on 19 December 2007 and then on 4 and 27 February 2008, the applicant lodged complaints with the Ministry of the Environment, alleging mismanagement at the DGSF and harassment of her personally. In her complaint dated 4 February 2008 she mentioned, among other things, that her work computer had been taken away, and that it had contained private information such as “banking data, passwords and other personal data”, without giving any further details. In a third complaint, lodged with the Ministry on 18 February 2008, the applicant again claimed to have been harassed at the DGSF, but she made no reference to her computer having been taken or to any private information having been intercepted.
10. The Ministry of the Environment formed a commission (“the Ministry commission”) to look into the applicant’s allegations of mismanagement and harassment at the DGSF. On 18 January 2008 that commission dismissed as unfounded the applicant’s complaint of 19 December 2007, noting that the applicant had failed to provide documents supporting her allegations. Responding to the applicant’s second complaint filed on 4 February 2008, on 15 February 2008 the Ministry asked the DGSF to provide all the necessary information. Subsequently, on 13 March 2008, the Ministry dismissed the applicant’s complaints of 4 and 18 February 2008, holding that those complaints had raised no new issues.
2. Administrative court proceedings for reinstatement
11. In January 2008 the applicant brought court proceedings challenging the disciplinary penalties imposed on her and her eventual dismissal. She was represented by a lawyer. In March 2008 the applicant submitted to the court a ten-page-long specified claim (patikslintas ieškinys) challenging application of various audit and labour law related legal norms. The specified claim had no mention of alleged breach of the applicant’s privacy.
12. By a decision of 9 July 2008 the Vilnius Regional Administrative Court rejected her complaint. When examining the list of disciplinary violations set out in the DGSF director’s orders, the court found that about ten of the disciplinary violations referred to therein had been correctly established by the director. Those violations included submitting to the director a copy of the 2005-07 strategic activity plan which had been arbitrarily altered by the applicant, refusing to provide vital information to her superior, failing to take the necessary measures to secure audit documents, and revealing confidential information to third parties without the director’s authorisation. All that showed that the director of the DGSF had had grounds to hold that there had been a loss of trust in the applicant, both in her role as a specialist and as the head of the audit department. It had therefore been justified to dismiss her from her job.
13. Notwithstanding the above, the first-instance court lifted the disciplinary penalty imposed on the applicant for having used her work email address and work computer for personal purposes, on the grounds that imposition of penalty for actions performed over the first six months of 2007 was time-barred (see paragraphs 7 and 8 above).
14. By a ruling of 23 October 2008 the Supreme Administrative Court partly amended the lower court’s decision, finding that the disciplinary violations committed by the applicant had not been so severe that they had justified dismissal, changing the applicable penalty to a strict reprimand and thus ordering her reinstatement to her post. The appellate court also underlined that, since it had been only the applicant who had appealed against the first-instance court’s decision, it would not refer to or evaluate those actions of the applicant which the lower court had not considered to be a disciplinary breach, such as the use of her work email address for private purposes.
3. Administrative court proceedings against the actions of the Ministry of the Environment
15. The applicant returned to her previous post at the DGSF in October 2008, but in December 2008 she put in a voluntary request to resign, which was granted.
16. At some point the applicant moved to live in the United Kingdom.
17. In 2012 the applicant started court proceedings for damages against the Ministry of the Environment. She argued that she had suffered damage because in 2008 the Ministry had not properly examined her complaints of harassment at the DGSF, which had eventually caused her to leave Lithuania. She claimed that it had been very hard to find a job, and that she had been suffering from depression. The applicant claimed unpaid salary for the period from 1 January 2009, the day when she left the DGSF.
18. By a decision of 8 October 2012 the Vilnius Regional Administrative Court dismissed the applicant’s claim. It established that after she had been reinstated in her job, she had voluntarily left that post. Even though she had stated that upon her return she had realised that she could no longer work at that institution as a result of the previous conflict, she had in fact resigned of her own accord, and had never contested that resignation in court.
19. As to the actions of the Ministry of the Environment, the court noted that the applicant had not lodged a court appeal against the Ministry’s first response, when the Ministry had not found any breaches of law in the applicant’s case (see paragraph 10 above). Her repeated complaints arose from the same circumstances. Accordingly, the Ministry had been correct to dismiss her complaints as repetitive and unfounded. The applicant’s complaints of the Ministry’s failure to act were only abstract and could not be used as a basis to hold that institution liable.
20. The applicant lodged an appeal against that decision. Most of her twenty-five-page-long appeal she devoted to matters of internal audit and administrative procedures. She also briefly mentioned that by its dismissal of her complaints on 13 March 2008 the Ministry had validated the intrusion into the applicant’s privacy, since “her personal data (letters, bank accounts) had been looked at by her colleagues” when her work computer had been taken.
21. By a ruling of 11 April 2013 the Supreme Administrative Court dismissed the appeal. It noted that in 2008 the Ministry had responded to the applicant’s complaints only after having formed a commission to evaluate them. The mere fact that those responses had not been to the applicant’s liking was insufficient to hold the Ministry at fault. Lastly, there was no proof that the applicant had not left her job with the DGSF voluntarily.Relevant domestic law and practice
22. The DGSF’s Rules on Internal Order (Vidaus tvarkos taisyklės), approved in 2006, stated that electronic communications, software and office equipment were only to be used by DGSF staff for work-related purposes. The maintenance and repair of computers was to be carried out by DGSF specialists. Violation of those rules could result in disciplinary liability. The applicant had signed paperwork confirming that she had been familiarised with those rules.
23. In their observations the Government referred to a number of decisions made by the domestic courts where those courts had acknowledged that although employees had a right to privacy in relation to their communications, that right also entailed certain obligations. When examining complaints made of a violation of the employees’ private lives after their employer had checked their computers, the domestic courts had followed the Court’s case-law and had had regard to certain criteria, including whether the work computer had been provided only for work purposes, whether the employee had been familiarised with the rules on the use of work tools (such as computers, Internet sites, and so on), and whether the actions of the employee whose computer had been checked had amounted to gross misconduct (šiurkštus darbo drausmės pažeidimas) such as the disclosure of commercially-sensitive information or other confidential data.
24. The Lithuanian domestic courts thus recognised the right of the employer to check how employees use work computers given to them solely for work purposes. For instance, in civil case no. 2A-1245/2011 of 26 September 2011 the claimant complained about the actions of her employer – in the context of the disciplinary violation process – in checking the private information held on her work computer. The Court of Appeal, however, established that the claimant, when using the work computer, had sent to information to third parties which had been commercially-sensitive for her employer and in such a way had committed a serious disciplinary violation. The domestic court added that the computer had been given to the claimant solely as a tool to be used for work purposes, and therefore the employer had been entitled to check the computer. The domestic court also noted that the computer had been checked by the competent employee who was in charge of the maintenance of the computers and that the information checked had not been of a private nature, but had related to the company’s commercially-sensitive information.
25. In another case, no. 2A-3217-781/2012, decided by the Vilnius Regional Court on 28 December 2012, a situation was examined in which the claimant had been dismissed from her job as her employer had established that she had been using her computer for personal purposes and accordingly had not been working during her work hours. The court found that the employer had not had the right to review her computer history not having previously informed the claimant, in order to establish the purposes for which the work computer had been used and to determine what the claimant had been doing at work. In this regard the court noted that the employer, in providing the computer and mobile telephone for work purposes, had not set any rules restricting the use of work tools, such as a prohibition on using Skype for personal purposes. Likewise, the employer had not given the employee notice that her communications or Internet browsing history could be monitored. In fact, the employer had secretly copied the data about the claimant’s Skype and Internet usage from her computer. The court thus concluded that the claimant’s privacy had been violated, and awarded her compensation in respect of non-pecuniary damage.
COMPLAINTS
26. The applicant complained that her work computer had been taken away despite it containing information of a private nature, which she complained was in breach of Article 8 of the Convention.
She also argued that the domestic courts had failed to properly examine her complaints of a breach of her privacy, which she contended was in breach of her right of access to court, as guaranteed by Article 6 § 1.
THE LAWComplaint under Article 8 of the Convention
27. The applicant complained that on 11 January 2007 her work computer had been taken from her which had contained information of a private nature. She relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”The parties’ submissions
(a) The Government
28. The Government firstly submitted that the applicant had failed to properly exhaust domestic remedies, because she, despite having had a lawyer during the first set of court proceedings, had not formulated a clear claim before the domestic courts and had not asked them to declare the DGSF responsible for a breach of her privacy. The Government pointed out that within the second set of court proceedings the applicant had complained of the actions of the Ministry of the Environment, and not of those of the DGSF. The domestic courts had thus not had the opportunity to assess the alleged violation of the applicant’s right to a private life, on account of the fact that her work computer had been seized, notwithstanding the existence of clear domestic case-law on the subject (see paragraphs 23-25 above). The Government further underlined that the subject matter and the grounds of complaints as formulated by claimants determined the limits of administrative proceedings.
29. In the alternative, the Government submitted that the applicant’s complaint of a breach of her privacy had been unfounded. First and foremost, she had not provided, either to the domestic courts or to this Court, any specific details regarding the content of the personal data allegedly seized by her employer, even though she had been explicitly asked to do so by the Court. Secondly, as the head of the DGSF’s internal audit service, with more than six years of work experience with the DGSF, she must have been perfectly aware that it was not only unethical, but also against the law to use her work computer for personal gain. Thirdly, even if her work computer had been taken, that had been on the serious grounds that she was suspected of having acted contrary to the legitimate interests of her employer, and those grounds later resulted in her receiving a disciplinary penalty. Fourthly, the DGSF commission had reviewed only her work email account. No other data, including any private data held on that computer, had been examined.
(b) The applicant
30. The applicant argued that she had complained about the seizure of her work computer by DGSF officials both to the Ministry of the Environment (on 4 February 2008) and to the Lithuanian courts. Even so, those courts had left her complaint unanswered.
31. She also pointed out that her work email account had been checked and reviewed by six members of the DGSF commission, who had therefore seen her private correspondence (see paragraph 7 above) even if there had been no mention of the content of those emails in the administrative courts’ decisions. The applicant also asserted that she had been dismissed from her post for the use of her work computer for personal purposes.
32. As to the content of the information stored on her work computer, she wished to draw the Court’s attention to the fact that her work computer had contained information about internal audits which she had collected. The applicant stated to the Court that that information had also contained “lists of telephone numbers of her friends, as well as her email and Internet usage, communications with her relatives”. She considered that that was sufficient to consider that the degree of intrusion had amounted to an interference under Article 8 of the Convention. She also thought that she should have had a reasonable expectation of privacy regarding her personal communications, including such aspects as “Skype, personal email [and her] bank account”.The Court’s assessment
(a) General principles
33. The general principles as to the right to privacy and as to the monitoring of an employee’s communications over the Internet have been summarised in Bărbulescu v. Romania ([GC], no. 61496/08, §§ 69-81, 5 September 2017 (extracts)).
(b) Application of the general principles to the present case
34. At the outset, the Court cannot but observe that neither before the domestic courts, nor before this Court – although she was specifically asked to do so – did the applicant ever provide much detail or evidence to substantiate her allegations regarding the content of the personal information which was allegedly on her work computer when it was seized by the DGSF. Her submissions were rather general (see paragraphs 20 and 32 above). Accordingly, the Court is not entirely persuaded that the disclosure of such information to other DGSF employees caused the applicant serious prejudice and therefore reached the high degree of seriousness required by Article 8 of the Convention (see, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, § 127, 25 September 2018). Be that as it may, the Court does not consider it necessary to examine the Government’s objection concerning the admissibility of this complaint on grounds of alleged non-exhaustion of the domestic remedies, as it finds this complaint in any case inadmissible, for the reasons set out below.
35. The Court observes that the applicant, as the head of the DGSF’s internal audit service, must have been clearly aware of the fact that she should not have been using her work computer, and specifically her work email account, for personal purposes (see paragraph 22 above). It also notes that the applicant did not assert that her employer, the DGSF, had been continuously monitoring its employees’ work computers or that both the flow and the content of the applicant’s communications had been recorded and stored (contrast Bărbulescu, cited above, § 75). In fact, the applicant’s work computer was taken only after she was suspected of having unilaterally altered audit-related documents, for the purpose of verifying their authenticity (see paragraphs 6 and 7 above). The Court cannot consider that to have been an arbitrary ground, particularly in the light of the domestic courts’ decisions, which found that the applicant had not been performing her professional duties adequately and with the necessary diligence and that she had committed a number of disciplinary violations, including submitting to the director a copy of the 2005-07 strategic activity plan which had been arbitrarily altered by the applicant (see paragraph 12 above; and in this context see also Libert v. France, no. 588/13, § 46, 22 February 2018).
36. It is true that, as it transpires from the documents produced by the parties, some of the applicant’s personal data might have been disclosed to those of her colleagues who were involved in one way or another in her dismissal procedure (see Bărbulescu, cited above, § 26). Even so, the DGSF commission merely examined the correspondence contained in the applicant’s work email account, without referring to any other information of a private nature on her work computer (see paragraph 7 above, and compare Libert, cited above, § 48). The courts, when examining the applicant’s claim for reinstatement, made no reference to any of her communications of a private nature, even those possibly sent from her work email account or to it.
37. The Court further observes that within that first set of court proceedings the main complaints of the applicant – that she had been subjected to disciplinary penalties without reason and that she had been unjustifiably dismissed – were given due attention. It cannot but note that the first-instance court lifted the disciplinary penalty imposed on the applicant for having used her work computer for purposes not related to work. That court found, however, that it was justified to impose disciplinary sanction on the applicant for other types of behaviour which had shown a lack of professionalism. The appellate court, for its part, was bound by the scope of the complaint lodged with it by the applicant and that complaint does not appear to have included a claim about the unlawful use of information of a private nature (see paragraphs 12-14 above). The facts of the instant case are thus different from those examined by the Court in Bărbulescu (cited above, § 23), where the applicant had been dismissed by his employer for having used the company’s Internet access for personal purposes during working hours in breach of internal regulations.
38. As to the second set of court proceedings, and as correctly pointed out by the Government, they concerned only the administrative actions taken by the Ministry of the Environment when handling the applicant’s complaint of alleged harassment at work, and did not comprise a specific claim for damages against the DGSF for an alleged breach of her privacy. The courts did examine the applicant’s complaint of alleged persecution, as directed against the Ministry, and dismissed it for plausible reasons (see paragraphs 17-21 above). The Court notes in this context that the courts are not obliged to give a detailed answer to every argument. The question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 § 1 of the Convention, can only be determined in the light of the circumstances of the case (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 37, 20 March 2009, with further references). Given that that complaint, inasmuch as it concerns alleged breach of privacy, was not formulated in a sufficiently clear and precise manner before those courts, the Court cannot find that they failed in their duty to state reasons for their decisions.
39. Accordingly, on the basis of the evidence presented before the Court, it finds that applicant has failed to substantiate her complaint that the seizure of her work computer and the examination of her work email account had amounted to a breach of her right to respect for her private life.
40. The complaint is therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaint under Article 6 of the Convention
41. The applicant further argued that the domestic courts had not given due consideration to her complaint of a breach of her right to privacy. She relied on Article 6 § 1 of the Convention, which, inasmuch as relevant, reads as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”
42. The Government submitted that the applicant’s complaints had been “heard” by the domestic courts in so far as they had been formulated. They also noted that within the first set of administrative court proceedings the applicant had been represented by a lawyer, which meant all the more that the applicant should have articulated all her complaints clearly.
43. The applicant contended that she had provided the Court with sufficient proof that her submissions about the seizure of her work computer and her personal data had been raised before the Ministry of the Environment and also before the domestic courts, including within the court proceedings for State liability that she had initiated in 2011.
44. Having regard to the facts of the case, the parties’ arguments and its findings as regards the complaints under Article 8 of the Convention, the Court considers that the Article 6 complaint is absorbed by the preceding complaint about alleged breach of the applicant’s privacy, which it has already dismissed as being manifestly ill-founded (see paragraphs 39 and 40 above). It is not necessary, therefore, to determine this complaint separately.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 November 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy