ECHR ruling of December 17, 2020 in the case "Mile Novakovic v. Croatia"" (aplication No. 73544/14).
In 2014, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Croatia.
In the case, an aplication was successfully considered about the unjustified dismissal of a teacher, a Serb by nationality, for not using the standard Croatian language in lessons. The case involved a violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant, who is a former teacher and a Serb by nationality, was dismissed from his position at a secondary school in the Eastern Slavonia region (Croatia) for not using the standard Croatian language in the learning process. At the time of the incident, the applicant was 55 years old, and his work experience as a teacher was 29 years. The applicant unsuccessfully appealed against his dismissal. After the applicant's death, his heirs supported the consideration of the applicant's complaint on his behalf in the European Court.
Regarding compliance with article 8 of the Convention. (a) Applicability. The immediate reason for the applicant's dismissal was that he used Serbian in his daily work as a teacher, as well as the fact that the applicant allegedly could not adapt his language to the requirements of the teaching instructions due to his advanced age. The language used by a person is an integral part of his ethnic self-determination, which is an essential aspect of a person's private life. Moreover, the age of a person is part of his physical self-perception. Both ethnic self-determination and physical self-perception were the fundamental reasons for applying the contested measures to the applicant in the present case. Thus, Article 8 of the Convention is applicable to the facts of the present case according to the approach of the European Court (see the Decision of the Grand Chamber of the European Court in the case "Denisov v. Ukraine" (Denisov v. Ukraine) of September 25, 2018, complaint No. 76639/11 (Precedents of the European Court of Human Rights. Special issue. 2018. N 11)).
(b) Whether there has been a justified interference with the right guaranteed by article 8 of the Convention. The applicant's dismissal from his job was an interference with his right to respect for his private life. It was provided for by law and pursued the legitimate goal of "protecting the rights of others", namely the right of students attending school to receive education in the Croatian language. The question was whether the intervention was "necessary in a democratic society".
Croatian legislation allowed for teaching in the language of national minorities in accordance with applicable international standards, which obliged the State concerned to promote, among other things, the preservation of the languages of representatives of national minorities. During the period related to the circumstances of the present case, the question of which language should be taught at school was not finally resolved. The Croatian courts have encountered difficulties in deciding in which language the applicant would be expected to carry out teaching activities. Although, according to Croatian legislation, as a rule, classes in all schools had to be held in the Croatian language, due to the peculiarities of the peaceful reintegration process in the region, some schools in Eastern Slavonia at the time under review conducted training in the languages of national minorities, including Serbian. At the school where the applicant worked, an oral order that all training should take place exclusively in the Croatian language was issued only a month before the relevant inspection of the school, which became the reason for the applicant's dismissal.
The inspection was carried out only in relation to teachers, Serbs by nationality, according to an anonymous complaint of Croatian students. None of the teachers of Croatian nationality was subjected to a check to determine whether he used oral speech properly for teaching in the classroom or whether he fulfilled other requirements established by law in the exercise of his professional duties. Although the complaint of schoolchildren was filed only against Serbian teachers, in the special post-war conditions in the region during the period related to the circumstances of the present case, the identification of a certain group of persons on the basis of their language affiliation, which is closely related to ethnic origin, could reasonably raise the question of compliance with the requirement for the prohibition of discrimination guaranteed by both the Convention and the Constitution of Croatia.
Without questioning the importance of the goal pursued by the Croatian authorities, namely the protection of the right of students to receive education in the Croatian language, and the importance of this goal, taking into account the special circumstances of the country's region at the time under consideration, the present case has never considered alternative measures to dismissal that would allow the applicant to combine his teaching activities with applicable domestic legislation.
Firstly, the norms of Croatian legislation regulating the conduct of inspections provided for a procedure during which a teacher could correct shortcomings in his work for a certain period. In the decision of the inspection commission in the applicant's case, nothing justified its choice in favor of applying a stricter measure in the form of a complete ban on engaging in professional activity, which meant a significant interference with the applicant's convention rights.
Secondly, according to Croatian labor legislation, in cases of dismissal for personal reasons, the employer is obliged to provide the employee with additional education or training in another profession, unless he can prove that such education or training will be unsuccessful. It is striking that the possibility of providing the applicant with additional education or training was rejected by the school solely because of the applicant's age and work experience. Moreover, neither the schools nor the Croatian courts provided a detailed and convincing explanation of why the applicant's age was an insurmountable obstacle to changing his approach to education so that he could conduct lessons in Croatian, even though the burden of proof in this regard lay with the employer.
Citing reasons such as the age of the employee or the inability to retrain the employee, the employer and the competent State authorities should have provided appropriate and convincing reasons for this conclusion. However, the Croatian authorities did not do this in the context of the new education standards. Taking into account the undoubted similarity of the two languages considered in the case, as well as the fact that the applicant lived and worked in Croatia for most of his adult life, it is difficult to understand why the possibility of providing the applicant with additional training in Croatian could not be considered.
Taking into account, in particular, the special post-war situation in Eastern Slavonia during the period relevant to the circumstances of the case, the above considerations are sufficient to conclude that the applicant's dismissal from work did not correspond to an urgent social need and was not proportionate to the legitimate goal pursued.
The case involved a violation of the requirements of article 8 of the Convention (adopted by six votes in favor, with one against).
In the application of article 41 of the Convention. The European Court awarded the applicant 5,000 euros in compensation for non-pecuniary damage.