Dismissal of a hospital doctor, because he unsubstantiatedly sued the hospital and did not follow the internal procedure. Obligation to cross-check complaints. No violation of te right to freedom of expression
JUDGMENT
Gawlik v. Liechtenstein 16.02.2021 (αριθ. προσφ. 23922/19)
SUMMARY
Complaints about euthanasia by a doctor and freedom of expression. A lawsuit against a hospital without a cross of complaints and without following the internal complaint procedure. Dismissal of the plaintiff without warning.
The case concerned a doctor who raised suspicions that euthanasia had been taking place in his
hospital. In doing so, he went outside the hospital complaints structure and lodged a criminal
complaint. The affair attracted significant media attention.
Court found in particular that although the applicant had not acted with improper motives, he
had been negligent in not verifying information. His dismissal had thus been justified given the effect
on the hospital’s and another staff member’s reputations. The Court concluded that the interference
with the applicant’s rights had been proportionate.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Lothar Gawlik, is a German national who was born in 1967 and lives in Kassel
(Germany).
The applicant, a general and internal medicine specialist, was from 1 June 2013 the deputy chief
physician of the department for internal medicine at the Liechtenstein National Hospital. He came
across information showing that four patients had died there following the administration by a Dr H.
of morphine. He concluded that the deaths had been euthanasia.
The applicant on 11 September 2014 complained to the prosecutor’s office (he did not go through
the hospital’s complaints system first). The police took several investigative steps. Much media
attention followed.
An internal report was drawn up, endorsing the treatment given by H., later endorsed by an external
report. The applicant was suspended on 26 September 2014. On 17 October 2014 he was dismissed
without notice, with failure to go through the hospital’s internal complaints system cited.
In 2014 a criminal investigation into H. was opened and then discontinued. In 2016, criminal
proceedings against the applicant were also discontinued.
The applicant took an action against the hospital, seeking 600,000 Swiss francs (CHF) in damages.
In 2017 that action was dismissed, the court holding that the hospital could no longer be expected to
employ the applicant in good faith. That judgment was overturned on appeal, with CHF 125,000
being awarded to the applicant. However, the Supreme Court quashed the appellate judgment in
2018.
The applicant lodged a constitutional complaint, citing Article 10 (freedom of expression) of the
European Convention on Human Rights among other provisions. The Constitutional Court ruled that
the right to freedom of expression applied in the relationship between the applicant and the
Liechtenstein National Hospital. Although the Constitutional Court accepted that the applicant regarded himself as a whistle-blower, it considered that he had not tested his suspicions before going public. The court dismissed the complaint.
Relying on Article 10 (freedom of expression) of the European Convention, the applicant complained
that his dismissal without notice from his post for lodging a criminal complaint had breached his
rights.
THE DECISION OF THE COURT…
The Court reiterated that an interference with freedom of expression must be, among other things,
“necessary in a democratic society”, and proportionate to the legitimate aim pursued.
The Court agreed with the domestic courts that the applicant should have verified the information
better, considering the seriousness of the allegations, by cross-referencing with paper medical files.
The Court did not rule on whether the applicant had been obliged to raise his suspicions inhouse
first, but it did determine that the information he had disclosed was of considerable public interest.
The Court took note of the severity of dismissing the applicant, considering that it must have had a
chilling effect.
The Court noted that the applicant had not acted with improper motives. Nevertheless, the
applicant’s dismissal had been justified, especially given the effect on the hospital’s and another
staff member’s reputations. The Court concluded that the interference with the applicant’s rights
had been proportionate.
There had accordingly been no violation of Article 10 of the Convention.
