Ratified treaties¹

Dismissal/ Action before the Constitutional Court for violation of freedom of expression/ Reference to international law to strengthen a decision based on domestic law

A driver of the Ministry of the Interior had been dismissed by his administration for professional inadequacy. After a series of adjudications, the complainant instituted proceedings before the Constitutional Court of Croatia, affirming that his employment contract had been terminated because he had expressed his personal opinions in the course of his duties. He argued furthermore that since the courts had not taken account of the essential facts of the case (and in particular the real reasons for the dismissal) they had not given him the opportunity to avail himself of an effective legal remedy.

To found his action, the claimant referred to a violation of the Constitution, of the International Covenant on Civil and Political Rights, and of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Constitutional Court of Croatia analyzed the relevant provisions of the Constitution in order to determine whether the claimant’s freedom of expression had been violated and established that the right to freedom of expression enshrined not only in Article 38(1) of the Constitution but also in several international instruments had indeed been infringed:

 “The Constitutional Court points out that no person’s employment may be terminated due to an expressed personal opinion, and thus also not the applicant’s in his capacity of an employee of the Ministry of the Interior. The right to the freedom of expression is guaranteed in Article 38 paragraph 1 of the Constitution, Article 10 of the European Convention² and Article 19 of the International Covenant,³ and it may be restricted only in exceptional cases (in the interest of state security, territorial unity, public order and peace, preventing disorder or crime and similar), and these were not the basis for the termination of the applicant’s employment in the present case, nor were they discussed or determined in court.”

The Constitutional Court then established further that the lower courts had not examined the reasons for the driver’s termination and found that that dismissal contravened the articles of the Constitution guaranteeing equality before the law, the right of appeal and the right to a fair trial. It gave force to its remedy by underlining that these rights were also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the International Covenant on Civil and Political Rights.

 “On the grounds of the same reasons that serve as the basis for the infringement of the cited constitutional provisions, the disputed judgments are also in breach of the relevant provisions of the International Pact on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

Having established that the rights guaranteed by the Constitution had been infringed, the Constitutional Court of Croatia relied on international instruments in two instances to strengthen its decision and to underline the importance of the fundamental rights that had been violated. It thus ruled that freedom of expression could not constitute a reason for termination and that the fact that the real reasons for the dismissal had not been sought violated the right to effective legal remedy. The Court overruled the judgments challenged by the complainant.