Communicated on 13 October 2016
FIFTH SECTION
Application no. 59402/14
Aušra STRAUME
against Latvia
lodged on 25 August 2014
STATEMENT OF FACTS
1. The applicant, Ms Aušra Straume, is a Lithuanian national who was born in 1978 and lives in Riga. She is represented before the Court by Mr R. Arthur, a lawyer practising in Bristol, the United Kingdom.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s employment and the Trade Union’s letter
3. On 2 September 2005 the applicant was employed by the 100% State-owned joint stock company Latvijas Gaisa Satiksme (hereinafter “LGS”) – which is overseen by the Ministry of Transport – as an air traffic control officer (hereinafter “ATCO”). The applicant’s duties also included acting as an ATCO instructor and as an ATCO assessor. On 3 May 2011 the applicant was shown a revised job description for ATCOs, to which she appended her signature and the note: “I have acquainted myself [with the job description] but do not agree” (Iepzinos, bet nepiekrītu). In particular, the applicant considered that the section concerning work experience was discriminatory towards women who returned to work after maternity or parental leave. No explanation for this remark was required of the applicant at this time.
4. On 27 October 2011 the applicant became both a member and the chairperson of the board of the Latvian Air Traffic Controllers’ Trade Union (hereinafter “the Trade Union”). In this capacity the applicant had the right to act on behalf of the Trade Union individually and to sign documents on its behalf.
5. On 14 February 2012 the board of the Trade Union (hereinafter “the Trade Union board”) decided to write a complaint about issues relating to ACTO’s work to the representative of the LGS’s owner and to the Minister of Transport. The minutes of the board meeting state that the Trade Union board saw such a complain as the only way of putting order into the working procedures of ATCO instructors (instruktoru darba procesa skārtošanai arodbiedrības valde neredz citas iespējas) and that it believed that the board of LGS (hereinafter “the LGS board”) did not have the necessary knowledge and competence required to comprehend and resolve problems relating to the work of ATCO instructors. The minutes added that the complaint should also address other relevant problematic issues. The minutes were signed by all three members of the Trade Union board (including the applicant).
6. On 2 March 2012 the Trade Union wrote the above-mentioned letter. It was signed by the applicant in her capacity as the chairperson of the Trade Union board. The letter addressed the Trade Union’s concerns about the policies being implemented by the LGS board. In particular, the letter set out the history of attempts by the Trade Union to initiate collective bargaining with LGS and complaints addressed by the Trade Union to the LGS board. Further, it set out the breaches of labour laws that were taking place during the training of ATCO trainees, particularly in relation to working hours – namely, certain ATCO trainees were being compelled to undertake training of a duration in excess of their scheduled working hours; however, the recording of their working time was defective, so that the overtime was almost never recorded and hence remained unpaid. The letter submitted that these breaches were causing tiredness, increasing risk and damaging morale. They also decreased the effectiveness of the training process, which could affect flight safety in future.
7. The letter also addressed other problems concerning the organisation of ATCOs’ work and breaches of their “social guarantees”, such as: failure to provide the Trade Union with ATCOs’ working schedules and providing such schedules to the ATCOs themselves only belatedly; payment of lower bonuses to ATCOs than to other staff; failure to pay a bonus for carrying out the duties of an absent colleague; failure to pay an extra monthly allowance to ATCO assessors; ignoring the health risks associated with ATCOs’ work; an authoritarian management style; failure to categorise ATCOs working during night-time as night workers; failure to insure ATCOs against the loss of their ATCO licence; and payment of only 75% of the full standard salary for two years following the acquisition of a permanent ATCO licence.
8. In the letter, the Trade Union also pointed out that LGS’s ATCOs had enormous responsibilities (which they fulfilled with the greatest degree of care) but that they were amongst the lowest paid ATCOs in Europe. They felt that they were not valued, their suggestions and objections were not taken into account and that they were discriminated against. Because of that some very experienced ATCOs had resigned. The Trade Union noted that this trend was likely to continue and might result in an inability to provide safe air traffic control services in future.
9. Further, the Trade Union expressed the view that certain expenditures of LGS’s funds had been unjustified and excessive and that LGS’s administration was withholding financial information that it was supposed reveal to the Trade Union. The letter also noted that many of the points of dispute had remained unresolved because the LGS board had no knowledge of aviation and specifically of air navigation. Accordingly, the Trade Union expressed the opinion that the continuing situation, with regard to which it had unsuccessfully sought to negotiate a solution, had become uncontrollable and posed a serious threat to the quality and safety of the air navigation services provided, as well as to the growth and competitiveness of LGS.
10. In conclusion, the Trade Union invited the Minister of Transport to dismiss the members of the LGS board and to replace them with persons familiar with air navigation services and the relevant labour laws.
2. The immediate reaction to the letter
11. On 9 March 2012 nineteen ATCOs wrote a letter to LGS distancing themselves from the Trade Union’s letter of 2 March 2012. According to the applicant, not all of the ATCOs who had signed this letter had been members of the Trade Union. In addition, in the subsequent civil proceedings evidence was given indicating that the ATCOs had been compelled to sign this letter under the threat of suspension.
12. On 15 March 2012 the Civil Aviation Agency – a State agency that executes State policy in the field of aviation security – expressed its concern about the Trade Union’s extreme pronouncements (ekstrēmie paziņojumi) concerning flight security. It advised LGS to assess whether the ATCOs whose statements had “contained threats about lowering the level of flight security” had complied with their terms of employment. It also expressed the opinion that it was unlawful and unacceptable to threaten to lower the level of flight security if additional social guarantees were not granted.
13. On an unknown date seven persons wrote a notification to the Trade Union board stating that on 16 March 2012 the LGS board had invited all ATCOs working that day to attend a meeting. The meeting had concerned the Trade Union’s letter of 2 March 2012 and the reaction of the Civil Aviation Agency. Some of the issues raised in the letter of 2 March 2012 had been discussed at the meeting. The chairperson of the LGS board had emphasised that he had strong political support. At the end of the meeting the chairperson had asked everyone to sign a letter addressed to himself by which all ATCOs would certify that they worked in a manner that was in compliance with internal and international legal instruments.
14. On an unknown date six other persons wrote to the Trade Union board about a meeting organised by the LGS board on 19 March 2012. They noted that, after their shift and without any notice, they had been summoned to the office of the chairperson of the LGS board. The chairperson had expressed the opinion that the statements made in the letter of 2 March 2012 were unfounded. He had submitted that the Trade Union simply wanted him to be dismissed. He had also noted that he had strong political support. The chairperson had announced that the applicant was inadequate (neadekvāta), that it was not possible to communicate with her, and that she was not capable of leading the Trade Union. He had enquired whether anyone present at the meeting did not wish to become the chairperson of the Trade Union. According to the letter, it had appeared that the purpose of the meeting, which had lasted for three hours, had been to exert psychological pressure on its participants and to brainwash them.
15. On an unknown date five other persons wrote a letter to the Trade Union about their meeting with the chairperson of the LGS board on 20 March 2012. They had been invited to this meeting after their shift and had not received any notice of it. They had been presented with a draft Trade Union letter, written in the name of the applicant, stating that there were no threats to flight safety and with another draft letter setting out the duties of ATCOs. The chairperson of the LGS board had requested each of the participants of the meeting to indicate which of the two letters he or she wished to sign. If they refused to sign either of them, they would be regarded as having agreed with the letter of 2 March 2012 and an investigation into them would be carried out “by other parties.” The purpose of the letters had not been made clear. In view of the fact that the participants of the meeting had not agreed with the contents of either of the letters, on the following day they had written a statement indicating that they did not intend to endanger air traffic. At the end of the meeting the chairperson of the LGS board had stated that it was not possible to have a dialogue with the applicant or to agree with her about anything. He had suggested that the chairperson of the Trade Union should be dismissed and replaced with a more “adequate” person.
16. On an unknown date five other persons, including the applicant, wrote a letter to the Trade Union board concerning a meeting that they had had with the LGS board on 22 March 2012. The conversation had concerned the letter of 2 March 2012 and the reaction of the Civil Aviation Agency. The chairperson of the LGS board had invited them to sign one of three previously prepared statements. The applicant had asked whether signing one of them would be interpreted to mean that the ATCO in question met the requirements of his or her post, and the chairperson of the LGS board had responded affirmatively. When asked what would happen if they refused to sign any of those statements, another member of the LGS board had stated that such conduct would trigger further consultations with them and, possibly, their suspension from duty.
3. The internal investigation and other actions
17. On 23 March 2012, referring to the complaint of 2 March 2012, LGS instituted an internal investigation into the applicant’s conduct. The goal of the investigation was to establish whether the applicant, when disseminating information about potential threats to flight safety, had complied with internal and external legal instruments. For the period of the investigation the applicant was suspended from her post. She continued to be paid her average salary, but she was prohibited from entering the premises of LGS.
18. On an unknown date sixteen persons wrote to the Trade Union board about the meeting with the LGS board that had taken place on 23 March 2012. The authors stated that the participants in the meeting had requested an explanation for the applicant’s suspension, to which the chairperson of the LGS board had responded that it was just a formality and that the applicant would merely need to provide certain clarifications concerning the letter of 2 March 2012. When asked why only one person was being held responsible for the Trade Union’s letter, the chairperson had replied that only the applicant had signed it. During the meeting the chairperson of the LGS board had repeatedly expressed his doubts about the applicant’s “adequacy” and had stated that it was not possible to agree on anything with her. He had stated that if the members of the Trade Union were to decide that she was the person who should represent the Trade Union, he would not hamper her activities; however, he considered it senseless, as it was not possible to have any kind of dialogue with her. He had also submitted that the applicant’s goals did not correspond with those of the members of the Trade Union. When asked what would happen to those ATCOs who had not signed any of the statements yet, the chairperson had responded that he had gathered sufficient number of signatures but that he would think about it. At the end of the meeting he had emphasised that all the issues should be resolved within LGS and that the letters, such as the one dated 2 March 2012, only harmed the Trade Union members. He had recommended thinking twice before trying to obtain any help from outside.
19. On 30 March 2012 the Civil Aviation Agency requested an evaluation of the applicant’s neuro-psychological condition and on 14 April 2012 an evaluation of her mental health. Both examinations confirmed that the applicant was healthy.
20. On 28 April 2012 LGS filed a complaint with the Security Police – the State’s counter-intelligence and internal security service – concerning alleged threats to flight safety. On 18 June 2012, after having interviewed the applicant, the Security Police responded, telling LGS that the conflict in question was an employment dispute and that there were no grounds for assessing whether a criminal offence had been committed.
21. On several occasions over the course of the internal investigation the applicant was required to give explanations concerning the letter of 2 March 2012. On 3 May 2012 she was also asked to provide an explanation for the note she had written on her job description one year earlier. The applicant submits that after she had explained that she considered some of the provisions to be discriminatory the job description had been revised and that on 29 June 2012 she had signed the revised version.
22. On 11 May 2012 the internal investigation was completed with the suggestion that the employment relationship with the applicant be terminated. On 14 May 2012 the LGS board decided to terminate the applicant’s employment contract. On the following day it decided that the applicant’s salary would not be paid for the period of her suspension. On 21 May 2012 LGS requested permission from the Trade Union to dismiss the applicant; its request received a negative response.
23. In June 2012 the Latvian Federation of Aviation Trade Unions organised friendly settlement talks. LGS’s condition for its agreeing to a friendly settlement was that either the Trade Union or the applicant should write a letter to the Ministry of Transport stating that the threats outlined in the letter of 2 March 2012 no longer existed. This condition was confirmed in writing by the chairperson of the LGS board on 18 July 2012. The Latvian Federation of Aviation Trade Unions did not regard this condition acceptable, as it considered that the problems highlighted in the letter ought to be resolved. Neither was the applicant prepared to accept this condition.
24. On 26 June 2012, following the expiry of the legal maximum three‑month period of her suspension, LGS reinstated the applicant in her position. By the same decision the applicant was required to “stand idle” (that is to say to attend the workplace every day but not to carry out her direct employment duties). During the period in which she was to stand idle the applicant was to receive the average salary and was required to report every morning at 8.30 to receive instructions as to the tasks (unconnected with the work of an ATCO) to be performed that day.
25. From 14 December 2012 the applicant again was not allowed to enter the premises of LGS without being ordered or permitted to do so by her employer.
26. From 11 March 2013 the payment of the applicant’s salary was terminated.
4. Support to the applicant
27. On 27 March 2012 fifty-one ATCOs wrote a letter to the chairperson of the LGS board expressing their support for the applicant. They requested that the applicant be reinstated in her post and expressed the opinion that it was unacceptable to confuse the applicant’s Trade Union activities with her direct duties at work.
28. On 24 May 2012 the European Transport Workers’ Federation wrote a letter to the Prime Minister expressing the opinion that the actions of LGS had contradicted EU Directive 2003/42/EC on occurrence reporting in civil aviation, as well as the Law on Trade Unions and the Labour Law. It requested the Prime Minister to stop the disciplinary investigation against the applicant and to revoke her suspension.
29. On 15 June 2012 forty-seven ATCOs wrote a letter to the Prime Minister in which they confirmed the persistence of the problems highlighted in the Trade Union’s letter of 2 March 2012. They also expressed their discontent with the manner in which the LGS board was dealing with these issues and voiced their indignation about the repercussions directed against the applicant. In their opinion, the LGS board was trying to cause friction between the two trade unions created to represent ATCOs. In conclusion, the authors of the letter expressed their lack of confidence in the LGS board.
30. On 17 January 2013 the International Federation of Air Traffic Controllers’ Associations wrote a letter to the Prime Minister, the Minister of Transport, the Civil Aviation Agency, and the chairperson of the LGS board expressing serious concerns about compliance with the principles of “just culture” in the light of treatment of individual ATCOs who had raised safety concerns.
31. The applicant submits that on 1 February 2013 she was re-elected as chairperson of the Trade Union board.
32. On 11 April 2013 the European Transport Workers’ Federation wrote a letter to the chairperson of the LGS board expressing the view that the treatment of the applicant, as well as that of the other employees who had been intimidated into signing various statements, had been contrary to trade union freedoms, rights and autonomy. Not only had it been contrary to Latvian law, it had also contravened ILO Convention No. 135. The letter emphasised the importance of social dialogue and expressed their support for the applicant. On 22 April 2013 the Latvian Federation of Aviation Trade Unions, in a letter to the chairperson of the LGS board, expressed similar concerns.
33. According to the applicant’s submissions, which are confirmed by testimony given by other witnesses in the subsequent civil proceedings, the chairperson of the LGS board had interrogated those of the applicant’s colleagues who had congratulated her on birthday or had otherwise demonstrated a favourable attitude towards her (for example, by giving her a lift by car or by being photographed together with her).
5. First-instance proceedings
34. On 23 April 2012 the applicant lodged a civil claim challenging her suspension and requesting her reinstatement. In a subsequent addition to her claim the applicant also argued that her being required to stand idle had been illegal; that she had faced repercussions for having exercised her rights; that she had been discriminated against; that personal data concerning her salary and social guarantees had been illegally passed on to a third party (the Civil Aviation Agency); that she had been subjected to bullying by superiors (bossings); that the statements of her employer had offended her honour and dignity; and that the work of the Trade Union had been hampered.
35. On 15 June 2012 LGS lodged a counterclaim requesting the termination of the applicant’s employment contract.
36. At the first hearing before the Riga City Kurzeme District Court LGS’s representative requested that the case be examined in closed proceedings. The applicant’s representative objected, as the case did not deal with classified information. The court decided to examine the case in closed proceedings, indicating that this would make for a more efficient and successful administration of justice.
37. On 11 March 2013 the Riga City Kurzeme District Court dismissed all of the applicant’s claims and upheld LGS’s counterclaim.
38. The court found that the applicant’s suspension had been lawful and that an employee could be required to stand idle not only when he or she could not be provided with work but also in other circumstances. The applicant, with her statements about risks to flight safety, had created an emergency situation requiring extraordinary measures. The court emphasised that a professionally substantiated opinion should be differentiated from an ideological conviction and that it was inappropriate to invoke human rights in this instance. Despite the fact that the level of flight safety had been evaluated by the competent bodies, the applicant had strongly maintained her beliefs. The court noted that it was under the impression that the applicant was expressing her conviction merely for the sake of it (pārliecibas paušana pārliecības dēļ).
39. Concerning the allegation of discrimination, the court noted that only the applicant had been in circumstances meriting suspension from duties. With regards to the claim that LGS’s statements had offended the applicant’s honour and dignity, the court ruled that the statements of the chairperson of the LGS board had reflected his own opinion and hence could not be regarded as being either truthful or untruthful. Accordingly, the allegation of discrimination could in itself be regarded as constituting a breach of freedom of expression. In relation to the allegation that the work of the Trade Union had been hampered, the court noted that that the claim had been brought only in the name of the applicant. The court also dismissed the remainder of the applicant’s claims.
40. With regard to LGS’s counterclaim requesting the termination of the applicant’s employment contract, the court observed that this was based on section 101(1)(2) of the Labour Law setting out an employer’s right to terminate employment if the employee in question, when performing work, had acted unlawfully and had lost the employer’s trust. The court considered that under this provision it had to be established that: 1) the employee had acted unlawfully; 2) the unlawful action had been carried out during the performance of employment duties; 3) the employment contract was of a kind where trust between employer and employee was important; and 4) the unlawful action had been of a kind that justified the loss of the employer’s trust.
41. LGS contended that the applicant had acted unlawfully in two respects: firstly, she had carried out her employment duties without having accepted the description of her job and, secondly, she had disseminated untruthful information about her employer.
42. The court established that on 3 May 2011 the applicant had signed the revised job description but had appended a note: “I have acquainted myself [with the job description] but do not agree.” The court considered that by making this remark the applicant had confirmed that she would not take any responsibility for the safety of air traffic or for the results of her work. The applicant had thereby created conditions in which she could evade responsibility for any problematic incidents that she might cause in air traffic. According to the court, given these circumstances the applicant had been prohibited from carrying out her functions under section 34(1)(2) of the Law on Aviation. In particular, the situation had fallen under the “other circumstances” listed in that provision. According to that provision, in order to guarantee the security of aircraft flight or of civil aviation, a civil aviation specialist was prohibited from performing his or her functions if he or she was sick, tired or could not perform his or her functions because of other circumstances. Moreover, by failing to agree with the job description the applicant had expressed her intention not to comply with the normative acts regulating air traffic. Accordingly, in her function as an ATCO the applicant had been unpredictable and it had been impossible to foresee whether or not she might significantly endanger flight safety. This alone had been sufficient for an employer to lose its trust in the employee.
43. Further, with regard to the claim that the applicant had disseminated untruthful information, the court first assessed whether the applicant had written the letter of 2 March 2012 in her capacity as chairperson of the Trade Union. The court found that it could not conclude that the opinions expressed in that letter could have been based on a decision taken at a meeting of the Trade Union’s members, or could have reflected the opinion of the majority of its members, or that the other members of the Trade Union board could have authorised the applicant to sign letters in the name of the Trade Union. The court noted that, under the statutes of the Trade Union, only a general meeting of its members could approve documents, decisions and instructions. It also, referring to three other Trade Union letters – including the letter of 15 June 2012 by forty-seven Trade Union members reiterating the opinions outlined in the complaint of 2 March 2012 (see paragraph 29 above) – concluded that Trade Union letters were usually signed by at least two board members or by a large number of its members. The court also concluded – referring to the letter of 9 March 2012 in which some ATCOs had distanced themselves from the complaint of 2 March 2012 (see paragraph 11 above) – that this complaint had not reflected the views of the Trade Union members. In light of the above, the court concluded that the applicant had been merely expressing her personal opinions when writing the letter of 2 March 2012.
44. As to whether the disseminated information had been untruthful, the court considered that the letter of 2 March 2012 had included threats to flight safety. In assessing the truthfulness of this allegation the court referred to the letter of 15 March 2012 from the Civil Aviation Agency (see paragraph 12 above) and to opinions expressed by the head of the Quality Assurance Department of LGS and by the head of the Training Division of LGS, as well as to other witnesses attesting to general flight safety. The court also referred to the aforementioned letter of 9 March 2012 from nineteen ATCOs and to the other letters addressed to the LGS board certifying that the persons who had signed those letters were ensuring flight safety (see paragraphs 13, 15 and 16 above). On this basis the court concluded that the applicant’s allegations had not been confirmed.
45. The court further noted that it had to take into account the fact that the applicant was an ATCO who was making serious threats with regard to her performance of her direct employment duties. Moreover, the applicant had not reported the existence of any threats, in accordance with the procedure prescribed by law. The court concluded that the applicant had disseminated an “untruthful opinion” for the purpose of creating a scandal, thereby harming her employer’s interests and damaging its reputation. The applicant had been loyal towards her profession but not the enterprise for which she had worked, thereby losing the trust of its management. Moreover, the applicant had not been reacting to reality but only to her interpretation thereof. In the court’s view, the applicant’s purpose had been to destabilise LGS. The court conceded that freedom of expression was possible in hierarchical structures but that an employee was nonetheless obliged to comply with the reasonable requirements of management. Writing the complaint to the Ministry of Transport, without first discussing these issues with her employer, indicated that the applicant had been merely interested in discrediting LGS.
46. The court accepted that, in these circumstances, the applicant’s employer could have lost its trust in her. It also agreed with the defendant that the applicant had used her rights in a manner that was unacceptable and contrary to good morals (pretēji labiem tikumiem). She had knowingly disseminated to third parties untruthful information about threats to flight safety with the goal of obtaining socio-economic benefits for herself.
6. The appeal proceedings
47. On 8 April 2013 the applicant lodged an appeal. She, inter alia, noted that LGS had interfered with the work of the Trade Union and that the reason for her dismissal had been her activities related to the Trade Union. The conclusion that she had not been authorised to sign the letter from the Trade Union had been unfounded as she had had the right to represent the Trade Union individually. The condition (requiring her to withdraw the letter) insisted on by LGS during the friendly settlement negotiations had been unlawful. In essence, she had been required to renounce her opinions, which had coincided with those expressed in the letter. Many of the incompatibilities that had been pointed out in the letter of 2 March 2012 had since been eliminated, proving that the statements contained therein had been well-founded.
48. During the appeal proceedings LGS’s representative again requested that the case be examined in closed proceedings. Despite the applicant’s representative’s objections, the court granted the request, citing section 11(3)(1) of the Civil Procedure Law, which allowed a court to hold a closed hearing if it was necessary for the protection of a State secret or a commercial secret.
49. The applicant submits that during the appeal hearing a picket organised by the Latvian Federation of Aviation Trade Unions was held outside the court. Many members of the Latvian Free Trade Union Confederation and of the Lithuanian trade union Solidarumas took part in it.
50. On 20 June 2013 the Riga Regional Court dismissed all the applicant’s complaints and granted LGS’s counterclaim requesting the termination of the applicant’s employment contract (see paragraph 35). The appeal court, in essence, reiterated the reasoning of the first-instance court, in addition to the following reasoning.
51. With regard to the applicant’s complaint concerning the lawfulness of her suspension, the court noted that there was no doubt that the applicant had signed the letter of 2 March 2012 herself. Hence, her objection that a trade union activity had been deemed to constitute a personal action was unfounded. The appeal court stated that it would have been unacceptable to prevent LGS from suspending the applicant merely on the grounds that the letter stated that it had been written in the name of the Trade Union.
52. In relation to the discrimination complaint, the court dismissed the argument that the applicant had been in a situation comparable with that of the other members of the Trade Union board. Not only had the applicant been the only person to sign the letter but the letter had also reflected her opinions, which she had maintained all through the proceedings.
53. When assessing LGS’s counterclaim, the appeal court, on the same grounds as the first-instance court, concluded that the letter of 2 March 2012 had been written by the applicant acting in a personal capacity. The appeal court noted that, when writing the letter of 2 March 2012, the applicant had been merely acting in her own interests but had sought to conceal this by acting in her capacity as chairperson of the Trade Union board.
54. With regard to the claim that the applicant had knowingly disseminated untruthful information, the appeal court noted that it was not important that the nineteen ATCOs who had signed the letter of 9 March 2012 had not been members of the Trade Union. This letter had confirmed that ATCOs’ professional training and experience ensured the necessary level of flight safety. On the basis of the same evidence as that submitted before the first-instance court, the appeal court concluded that none of the factors cited by the applicant as endangering flight safety had actually existed. The appeal court confirmed the first-instance court’s conclusion that the applicant had disseminated an “untruthful opinion” and that her goal had been to destabilise LGS and to gain socio-economic benefits.
7. Appeal on points of law
55. On 5 August 2013 the applicant filed an appeal on points of law. She argued that holding a closed hearing had been unjustified, as the case had concerned neither a State secret nor a commercial secret.
56. Further, the applicant submitted that the court’s conclusion that the letter of 2 March 2012 could not be considered as constituting a letter from the Trade Union had been unfounded. In coming to this conclusion the court had ignored the statutes of the Trade Union, which had given her the right to sign letters on its behalf, as well as letter from the Enterprise Register of the Republic of Latvia (Latvijas Republikas Uzņēmumu reģistrs) attesting to that fact. Moreover, when invoking the letter of 9 March 2012, signed by nineteen ATCOs, in concluding that the letter of 2 March 2012 did not reflect the opinion of the Trade Union’s members, the court had ignored the fact that not all of those persons had been members of the Trade Union. Likewise, the court had disregarded the testimony that this letter had been signed under the threat of suspension.
57. With regard to her suspension the applicant argued, inter alia, that the court’s conclusion that she had been justly suspended on the basis of her opinion about threats to flight safety – even if it could be deemed to have constituted her own opinion – had contravened Article 100 of the Latvian Constitution (Satversme) guaranteeing freedom of expression. The applicant had been professionally qualified to express an opinion about flight safety and such an opinion could not be regarded as either accurate or inaccurate. Furthermore, these opinions had not concerned requests for socio-economic benefits but rather structural problems within LGS. The applicant argued that her having to stand idle had contravened Article 100 of the Constitution.
58. The applicant’s disagreement with the section on experience in the old job description could not have endangered flight safety (which would have required her to invoke section 34(1)(2) of the Law on Aviation and to stop performing her duties). The court’s conclusion that the applicant had made threats had also been completely unfounded. With regard to the allegedly knowing dissemination of untruthful information, the applicant emphasised that the court had relied on statements by persons who had had not been qualified to assess flight safety. Moreover, the court had disregarded evidence that the problems described in the letter of 2 March 2012 had indeed existed. Only after this complaint had been made had LGS issued guidelines regarding (i) the procedure under which employees could carry out additional work and be employed by a different employer and (ii) the auditing of air traffic control service procedures, thereby clarifying the work of ATCO instructors. The applicant had also provided evidence proving that several ATCO instructors had worked for some months without taking any holiday and that the overtime work of ATCOs had not been recorded. The court had not indicated why this evidence had been disregarded. Furthermore, it had not been illegal to inform the supervising institution – the Ministry of Transport – of the aforementioned facts.
59. The applicant also argued that by concluding that she had expressed an “untrue opinion” the court had breached Article 100 of the Constitution. The court had not explained why her opinion could be regarded as erroneous, whereas it had ruled that the defendant’s opinion could not even be subjected to scrutiny, as that would have violated its freedom of expression.
60. On 28 February 2014, having examined the case in written proceedings, the Supreme Court dismissed the applicant’s appeal on points of law and upheld the judgment of the Riga Regional Court. It noted that the crux of the dispute was whether (i) the applicant had acted unlawfully by disseminating information to the effect that the situation in LGS was out of control and that there were threats to flight safety, and (ii) the note the applicant had appended to the job description could have prompted the applicant’s employer to lose its trust in her. The Supreme Court concluded that the appeal court had comprehensively examined the circumstances of the case and that the arguments expressed in the appeal on points of law had been directed at a re-examination of the factual circumstances and evidence, which did not fall within the competence of the court of cassation. In addition, with regard to the applicant’s argument that her statements had not contained any threats, the Supreme Court stated that the making of a threat could not be understood merely as her having threatened not to fulfil duties with regard to flight safety but also as having made statements that the institution carrying out such tasks was not capable of functioning and, hence, that the Latvian air space was not safe.
8. Other documents concerning the dispute
61. Following an internal audit undertaken at LGS between September and October 2011 the final report of 10 January 2012 identified nine areas of non-compliance with regulations in the field of air traffic control, including in relation to training of ATCOs. In addition, one of the main conclusions was that the internal bodies of LGS had had differences of opinion regarding their respective competences and the applicable legal instruments. Moreover, the internal mechanism for resolving such differences was not functioning.
62. On 10 April 2012 the Trade Union wrote a letter to the Civil Aviation Agency in which it elaborated upon the flight safety issues outlined in the complaint of 2 March 2012. This letter was signed by the applicant and countersigned by another member of the Trade Union board. Between 8 and 14 June 2012 the Civil Aviation Agency carried out an inspection at LGS in order to verify the allegations made in this letter. In particular, the purpose was to verify that the working hours of ATCO instructors had been properly recorded and the organisation of the training of new ATCOs properly conducted. The report of 21 June 2012 revealed no discrepancies. According to the applicant, the issues relating to air traffic safety were not assessed in the report.
63. On 13 June 2012, the Latvian Centre for Human Rights – a Latvia‑based non-governmental organisation – issued a statement indicating that LGS had dealt with the situation inappropriately and that the sanctions it had imposed on the applicant had contravened the Labour Law.
64. On 20 June 2013 the State Data Inspectorate completed its examination of the applicant’s complaint about the passing of information regarding her salary and social guarantees to the Civil Aviation Agency. The State Data Inspectorate dismissed LGS’s argument that the letter of 2 March 2012 should be regarded solely as constituting the applicant’s opinion. Moreover, according to the information provided by the Enterprise Register, the applicant had had the right to represent the Trade Union individually. Accordingly, there had been no legal grounds for processing the applicant’s data. It also noted that LGS’s goal – namely, to assess whether there were any circumstances threatening flight safety – could have been achieved without processing this data or by processing some more general data about the remuneration and social guarantees of ATCOs (that is without identifying specific persons). Hence, the State Data Inspectorate concluded that LGS had committed the administrative offence of illegally processing the data of a physical person. It regarded the offence as minor and reprimanded LGS.
65. On 14 March 2014 the International Transport Workers’ Federation and the European Transport Workers’ Federation wrote a joint letter to the President of Latvia expressing grave concern about the ruling of the first‑instance court and, notably, its anti-union bias. It emphasised that the complaint of 2 March 2012 had been sent by the applicant as the leader, and on behalf, of the Trade Union and that it had raised problematic issues within LGS relating to “social dialogue” and that the main issues highlighted had concerned training, rest times and fatigue. The letter expressed the opinion that the verdict went against the universally recognised principles of freedom of association and the legal protection of trade union representatives. It also contradicted ILO Conventions No.87, 98, and 135 and EU Directive 2003/42/EC on occurrence reporting in civil aviation.
66. On 27 June 2014 the State Labour Inspectorate concluded that LGS had committed an administrative offence, given that the overtime work of ATCOs had exceeded the limits set in the Labour Law; the working hours of the employees had not been properly recorded; and overtime work had been carried out without a written agreement, contrary to the requirements of the Labour Law. Since the State Labour Inspectorate considered that the said administrative offence had been committed because of negligence and had not been grave, it only gave LGS a warning.
B. Relevant domestic law
67. Under Article 100 of the Constitution, everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express one’s views. Censorship is prohibited.
68. Section 101(1) of the Labour Law authorises an employer to dismiss an employee 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. This provision sets out an exhaustive list of such circumstances. Thus, under section 101(1)(2), an employer can dismiss an employee if he or she, when carrying out his or her work, has acted unlawfully and has thereby lost the employer’s trust. Section 101(2) of the Labour Law further states that if an employer considers terminating an employee’s employment contract on the aforementioned ground, he or she is first obliged to demand written explanations for such unlawful actions from that employee. When deciding whether to give notice, the employer has to consider the gravity of the offence and the circumstances in which it was committed, as well as the personal characteristics and previous work of the employee.
69. Section 34(1)(2) of the Law on Aviation, as worded at the relevant time, provided that a civil aviation specialist was prohibited from performing his or her functions if he or she was sick, tired or could not perform his or her functions because of other circumstances, in order to guarantee the security of aircraft flight or of civil aviation.
70. Section 11(3)(1) of the Civil Procedure Law states that, on the basis of a reasoned request made by a party to a case or at the discretion of the court in question, a hearing or a part thereof may be closed if this is necessary to protect a State secret or a commercial secret.
COMPLAINTS
Invoking Articles 6, 8, 10, 11 and 14 of the Convention the applicant complains of the negative consequences for her of the letter she wrote in her capacity as chairperson of the board of the Trade Union.
Under Article 6 the applicant also complains that the hearings were held in closed sessions and that the judgments were not available to public.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s freedom of expression, in particular her right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary within the meaning of Article 10 § 2?
In particular, to what extent are the duties and responsibilities inherent in the applicant’s status as chairperson of the board of a trade union relevant to her claim and to the State’s margin of appreciation in this field?
Were the contents of the letter of 2 March 2012 characterised by the domestic courts as statements of fact or as value judgments, and was this characterisation justified?
2. Has there been an interference with the applicant’s freedom of association, in particular her rights as a member of a trade union and the chairperson of that trade union’s board, within the meaning of Article 11 § 1 of the Convention (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 140-146, ECHR 2008)?
If so, was that interference prescribed by law and necessary within the meaning of Article 11 § 2?
3. Provided the complaint falls within the scope of both Articles 10 and 11 of the Convention, should it be assessed under the right to freedom of expression, the right to freedom of association or under both of these rights (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 52, ECHR 2011).
4. Did the applicant have a fair and public hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
In particular, has there been a public hearing in the present case, as required by Article 6 § 1 of the Convention?
Was the exclusion of the public in the present case “strictly necessary” for one of the purposes authorised by Article 6 § 1 of the Convention (see Nikolova and Vandova v. Bulgaria, no. 20688/04, §§ 67-77, 17 December 2013)?
Were the judgments in the present case pronounced publicly, as required by Article 6 § 1 of the Convention (see Nikolova and Vandova v. Bulgaria, no. 20688/04, §§ 81-86, 17 December 2013)?
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