Information Note on the Court’s case-law 246
December 2020
Mile Novaković v. Croatia - 73544/14
Judgment 17.12.2020 [Section I]
Article 8
Article 8-1
Respect for private life
Unjustified dismissal of Serbian ethnic origin teacher for failing to use standard Croatian in class, considered unable to adapt due to pre-retirement age: violation
Facts – The applicant, a former teacher of Serbian ethnic origin, was dismissed from his post at a secondary school in Eastern Slavonia (Croatia), for failing to use the standard Croatian language when teaching. He was 55 at the time and had given 29 years of service. He appealed unsuccessfully against the dismissal. Upon his death, his heirs continued the application before the Court on his behalf.
Law – Article 8:
(a) Applicability of Article 8
The direct reason for the applicant’s dismissal had been that he had used the Serbian language in his daily work as a teacher, as well as his alleged inability to adapt his language of instruction to the requirements of his post due to his age. The language used by an individual necessarily formed part of that person’s ethnic identity, which constitutes an essential aspect of an individual’s private life. Moreover, a person’s age formed part of a person’s physical identity. Both had been underpinning reasons for the impugned measures. Article 8 was therefore applicable to the facts of the present case under the Court’s reasons-based approach (Denisov v. Ukraine).
(b) Whether there was a justified interference with Article 8
The applicant’s dismissal from work amounted to an interference with his right to respect for private life. It had been in accordance with the law and pursued the legitimate aim of the “protection of the rights of others”, namely, the right of the pupils attending the school to an education in the Croatian language. The question was whether the interference had been “necessary in a democratic society”.
Domestic law allowed for education in languages of national minorities, in accordance with the relevant international-law standards, which obliged the respondent State to promote, among other things, the preservation of languages of national minorities. In that connection, the expected language of instruction at the school at the material time had not been a clear-cut issue. The domestic courts had had difficulties in establishing in which language the applicant had been expected to teach. While under domestic law, as a general rule, all schools had to provide classes in the Croatian language, in view of the specificity of the peaceful reintegration process in the region, certain schools in Eastern Slavonia at that time had been providing classes in minority languages, including Serbian. At the school in question, an oral directive stating that all classes should be taught exclusively in the Croatian language had been given only a month before the relevant inspection, which had triggered the applicant’s dismissal.
The inspection had been performed only with regard to teachers of Serbian ethnic origin, following an anonymous complaint by pupils of Croatian origin. No teachers of Croatian origin had been subjected to an inspection in order to establish whether their use of language during their classes had been appropriate, or whether they had complied with other statutory regulations in the performance of their teaching duties. While the pupils’ complaint had been lodged only against teachers of Serbian origin, in the specific post-war context of the region at the material time, singling out a certain group of persons on the basis of language, which was closely related to their ethnic origin, could justifiably raise an issue of compatibility with the prohibition of discrimination guaranteed by both the Convention and the Constitution of the Republic of Croatia.
While not undermining the importance of the government’s pursued aim (protecting the right of pupils to receive an education in the Croatian language), and its importance in the specific context of the region at that time, no alternatives to dismissal which would have allowed the applicant to align his teaching with the legislation in force had ever been contemplated.
First, the domestic legal provisions regulating education inspections provided for the possibility of an order for the teacher to correct the irregularities in their work within a certain period of time. Nothing in the inspector’s decision in the applicant’s case justified why she had chosen instead to apply the stricter measure of prohibiting him from performing his work altogether, which had interfered with his rights in a significant manner.
Second, under domestic labour law, in cases of dismissal for personal reasons, an employer was obliged to provide the employee with additional education or training for another post, unless it could be proved that such education or retraining would be futile. It was striking that the possibility of offering additional education or training had been simply rejected by the school purely on grounds of the applicant’s age and years of service. Moreover, neither the school nor domestic courts had provided a detailed and convincing explanation as to why the applicant’s age would have been an insurmountable impediment to him adjusting his teaching plan so that he could teach in the standard Croatian language, even though the burden of proof had been on the employer.
When relying on reasons such as age or inability of retraining of an employee, in order to avoid any appearance of arbitrariness, the employer and competent national authorities had to provide adequate and convincing reasons for any such conclusion. However, the domestic authorities had failed to do so, in the context of a newly adopted standard at the school. Given the undeniable proximity of the two languages concerned, and the fact that the applicant had lived and worked in Croatia for most of his professional life, it was difficult to understand why the option of providing him with additional training in the standard Croatian language had not been further explored.
Bearing in mind in particular the specific post-war context of the Eastern Slavonia region at the material time, the foregoing was sufficient to conclude that the applicant’s dismissal from work had not corresponded to a pressing social need, nor had it been proportionate to the aim pursued.
Conclusion: violation (six votes to one).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
(See also Travaš v. Croatia, 75581/13, 4 October 2016, Information Note 200; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Information Note 221)
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This summary by the Registry does not bind the Court.
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