Judgement 54588/13

Applicant name GULIYEV
Applicant type Natural person
Number of applicants 1
Application no. 54588/13
Date 06/07/2023
JudgesMarko Bošnjak, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Lətif Hüseynov,
 Péter Paczolay,
 Ivana Jelić,
 Gilberto Felici
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason No legal basis
Type of privacy Private life
Keywords Dismissal office; quality of law
Facts of the caseThis case concerns the applicant’s dismissal from the prosecution service. He complained, in particular, that his dismissal had been unlawful and in breach of his right to respect for his private.
Analysis1. The inner workings of the ECtHR remain a mystery. Sometimes the Court would issue a ruling both under Article 6 ECHR as to the procedural elements of the case and then also assess potential substantial violations under Article 8 ECHR. Other times, however, such as in this matter, the Court would assess matters as to fair procedural issues exclusively under substantive provisions of the ECHR, such as Article 8 containing the right to privacy, pointing to the procedural requirements implicit in those doctrines or to the doctrine of quality of law. When and why it choses one route or the other is not always clear.
2. As to the applicability of Article 8 ECHR to the case, the ECtHR reiterates that private life encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature. Private life may be affected in employment-related disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures in particular when such affects (i) an applicant’s “inner circle”, (ii) an applicant’s opportunity to establish and develop relationships with others, and (iii) an applicant’s social and professional reputation. In this case, the applicant’s dismissal from the prosecution service were closely related to his relationship, and personal conflict, with his former girlfriend and were therefore clearly linked to his private life. The Court also underlines that dismissal constitutes one of the harshest disciplinary sanctions possible in the applicant’s profession, having serious consequences for his professional life, including his future career prospects, and for his professional and personal reputation. Thus, there has been an interference with the right to privacy of applicant.
3. As to the legitimacy of the interference, the Court turns to the quality of law requirements and in particular the requirement of foreseeability. The ECtHR finds that the provisions of the law were worded in very general and vague terms allowing for a broad interpretation by the domestic authorities. The Court observes that the domestic authorities based their decision on applicant’s failure to solve his “problems” with his former girlfriend, the opening of a criminal investigation into an incident and the applicant’s inability to prevent his ex from complaining to various State bodies and publishing articles criticising him in connection with that incident. Decisions made on domestic level did not indicate which norm of the Ethics Code had allegedly been breached and his employer also failed to explain what was meant by the reference to the “problems” between the applicant and his ex or how the applicant’s unwillingness to marry or otherwise formalise his relationship could be considered unethical conduct or an “action incompatible with the position of prosecutor”. Furthermore, the domestic courts called on to examine the lawfulness of the dismissal simply accepted the employer’s characterisation of the factual grounds held against the applicant as actions incompatible with the position of prosecutor, and did not go into the arguments raised by the applicant. That is why the ECtHR finds that the domestic authorities adopted an unpredictable and unforeseeably broad interpretation of those provisions. Therefore, the manner in which the domestic law was interpreted and applied in the present case did not afford the applicant protection against arbitrary interference. Lastly, the fact that the domestic authorities referred to the Ethics Code in a general manner, without citing specifically any of its provisions, constituted another aspect of the unforeseeable application of domestic law in the present case.
Other Article violation? No Article 6 ECHR
Damage awarded hat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
Documents Judgment