THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36437/97 
by Olav HELLUM 
against Norway

The European Court of Human Rights (Third Section), sitting on 5 September 2000 as a Chamber composed of

Mr J.-P. Costa, President
 Mr L. Loucaides, 
 Mr P. Kūris, 
 Mrs F. Tulkens, 
 Mr K. Jungwiert, 
 Mrs H.S. Greve, 
 Mr M. Ugrekhelidze, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 15 October 1996 and registered on 11 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a Norwegian citizen, born in 1952 and resident in Fredrikstad.  Before the Court he is represented by Mr Knut Rognlien, a lawyer practising in Oslo.  The respondent Government are represented by its Agent, Mr Tolle Stabell, Attorney, Office of the Attorney General (Civil Matters).

The facts of the case, as described mainly in the national courts’ judgments, may be summarised as follows.

The applicant is a qualified teacher who also holds a degree in special educational needs.  From 1980 to 1987 he worked as a teacher in a prison and, from 1987 to 1989, as a social environment worker (miljøterapeut) in a community home for young people.

The applicant began working at the Østfold Central Hospital’s psychiatric division in Veum Hospital (“the hospital”) on 7 August 1989.  His job was classified as a social environment worker in order for him to receive a salary corresponding to his qualifications but, de facto, he mainly served as a non-qualified nursing assistant.  On recruiting him the hospital expressly retained the right to make changes to his “duty arrangements and place of service”.

The applicant had applied for a job on the hospital’s security ward - Ward 11, which was to be opened following the closure of the national hospital for the care for particularly difficult and/or dangerous psychiatric patients and the decentralisation of the services provided by the latter.  Veum hospital had sought to recruit psychiatric nurses but there was a shortage of qualified candidates.

Awaiting the opening of Ward 11, the applicant served for a brief period on Ward 12.  He worked on Ward 11 from 1 January 1990 until the autumn 1991, partly during the daytime and partly on night duty.  During this period there was a certain amount of disturbance on the Ward, partly owing to the hospital’s use of physical restraint of the patients, particularly by means of devices such as belts and straps.  In the view of the applicant, as well as other employees, the hospital used physical restraints too often and arbitrarily.  He raised the matter internally and also in several letters to the Chief County Medical Officer and the Committal Complaint Board in 1991.  The disturbances at the hospital were one of the reasons why, in October and November 1991, a special inspection was carried out of the hospital’s psychiatric division.  As to the use of physical restraints, it was noted in the conclusions of the inspection report that “physical restraints are employed too much without proper reason...  There has been no adequate supervision and control”.

On 2 September 1991 the applicant wrote to the hospital management stating, inter alia, that the possibility of expressing professional disagreement had been exhausted, and that he therefore asked to be allowed to leave Ward 11.  Accordingly, the applicant was temporarily transferred on 21 October 1991 to work on Ward 18.  However, the applicant did not wish to work with patients needing nursing assistance and, again at his own request, was transferred on 6 January 1992 to work night shifts on Ward 10 on a one year temporary assignment.  The applicant worked on Ward 10 until 16 April 1992, when he was granted sick leave.  By this time serious problems had arisen between him and the other  
person working night shifts on that Ward and several unsuccessful meetings with superiors had been held to try to solve the problem.  A further meeting was held in June 1992 with inter alia the hospital management, a union representative and the applicant, still on sick leave.  Due to the acuteness of the problem, it was decided to place the applicant as a social environment worker in the hospital’s Activity Unit (serving the hospital at large) where, it was hoped, his pedagogic skills could be put to use.  On his return to duty on 31 August 1992 he worked in the Activity Unit.

The applicant was, however, not satisfied with his new functions and, on 19 October 1992, was again granted sick leave.  By 1 November 1992 he was fit for work, but informed the hospital that he did not intend to return to the Activity Unit because he could not accept the transfer from night duty on Ward 10 with the resultant reduction in salary.  The applicant later failed to resume work despite the fact that his employer had let it be known that this would be regarded as absence without leave.  The applicant never returned to work at the hospital.  No formal decision was ever made by the applicant’s employer concerning his dismissal.

In late June 1994 the applicant sued the hospital for unlawful dismissal, but in a judgment of 30 January 1995 the Sarpsborg City Court found against him.  On appeal, this judgment was upheld on 27 November 1995 by the Borgarting High Court, which concluded that he was himself responsible for having brought his employment to an end. 

As the City Court had done, the High Court praised the applicant for having aired his critical views on the use of coercive measures.  However, it found no basis for associating the hospital’s treatment of him with the conflict on Ward 11. Nor was there anything to indicate that his transfer to the Activity Unit had been motivated by a desire to transfer an allegedly troublesome employee from a nursing ward.

The High Court found that during the relatively brief periods the applicant had worked on Wards 10, 11, 12 and 18 there had, except for his brief assignment on Ward 18, been incidents perceived as negative by certain colleagues.  This had been so even if there were colleagues with whom he had worked well.  In general, the High Court noted, his relations with colleagues had showed a negative trend.  The problems had come to a peak on Ward 10, where the situation had become untenable.

A colleague had, at one point, passed on confidential information that the applicant had been depressed owing to the serious illness and death of a close relative.  This information was later abused by a chief physician who had stated during a meeting on personnel policy matters that he considered the applicant mentally ill.  The hospital Director later expressed regret about this occurrence, noting that the applicant had not requested any evaluation of his medical state at the said meeting.  In this connection, the High Court stated:

“[The applicant] argues that the chief physician of Ward 11 responded to his criticism of the conditions on the Ward by asserting that he was mentally ill.  Statements of this kind – if it is correct that this was said – may result in liability for the employer under section 2-1 subsection 1, first paragraph, of the Damage Compensation Act, although it may rightly be questioned whether it was reasonable to expect the senior consultant to respond in such a manner… However, the High Court cannot see that [the applicant] has been able to 
establish as probable that this particular isolated incident, which was only touched upon during the submission of evidence before the High Court, has caused him any financial loss.  As regards compensation for any non-pecuniary damage, the High Court notes that such a claim must be brought against the person who has caused the damage, i.e. the chief physician.  It is accordingly unnecessary for the Court to go more closely into the procedural provisions laid down in section 61 A of the Working Environment Act.”

The High Court, which heard the case anew, sat with three professional judges and two “lay” judges particularly qualified to handle labour disputes, one representing the employer’s side and another the employee’s side.  Normally there shall be four such “lay” judges – two from each side – outnumbering the professional judges, unless the parties agree only to have two, like in the present case.  The hearing before the High Court lasted for four days during which a total of 24 witnesses were heard (of whom six were heard for the first time in the case).

On 15 April 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal under Article 373 (3) no. 2 of the Code of Civil Procedure (tvistemålsloven).  It observed that the appeal could not be upheld without the Supreme Court departing form the High Court’s judgment on a point where it was essential for the latter to hear evidence from the parties and witnesses or to carry out investigative measures, which it was not open to the Supreme Court to do.

COMPLAINTS

The applicant complains that there has been an unjustified interference with his right to freedom of expression and information under Article 10 of the Convention, firstly, on account of his transfer from Ward 10 to the Activity Unit and, secondly, by one of his superiors, a chief physician, labelling him as mentally ill.

THE LAW

The applicant complains that there has been an unjustified interference with his right to freedom of expression and information under Article 10 of the Convention, firstly, on account of his transfer from Ward 10 to the Activity Unit and, secondly, by one of his superiors, a chief physician, labelling him as “mentally ill”.  The relevant part of Article 10 of the Convention reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, …  for the protection of health or morals, [or] for the protection of the reputation or rights of others… .”

 

 The applicant maintained that the above measures were sanctions imposed on him for having criticised the manner in which patients had been treated at the hospital where he was employed.

Although the applicant’s grievances both relate to the same factual complex, the Court considers that they raise different issues and proposes to examine them separately.

1. As regards the transfer, the applicant stressed that he had initially been recruited to deal with particularly difficult and dangerous patients.  His criticism of the widespread and arbitrary use of coercive measures on the security Ward had been addressed only to the various competent authorities and sought to protect the patients’ rights.  His remarks concerning the treatment of such patients de facto resulted in his constructive dismissal, as his tasks in the Activity Unit did not correspond to those which he had been recruited to perform.  The manner in which he had put forward his criticisms was part of the reason for his transfer.  The applicant disagreed with the findings of the national courts.

Although the applicant would not dispute that there were certain co-operation problems on Ward 10, this was not exclusively due to him and could, in any event, not justify his being removed from all the Wards within the Intensive Care Unit, to a virtually non existent post in the Activity Unit.

The Government disputed that there had been an interference with the applicant’s right to freedom of expressions in the present case.  Whereas the only transfer which had been imposed on the applicant was the one from Ward 10 to the Activity Unit in 1992, the previous transfers had been in accordance with the applicant’s wishes and were thus not capable of raising any issue under Article 10 of the Convention.  There was no basis for the allegation that the transfer in question constituted a sanction against the applicant for having criticised the conditions on Ward 11.  The decisive factor for the transfer was a serious personnel management problem, namely the need to solve the lack of co-operation that existed on Ward 10 in the spring of 1992.

The Court observes from the outset that, while the applicant felt that he encountered strong resistance in some quarters within the hospital, his criticism of certain treatment applied to patients was endorsed by the competent authorities and courts and led to a number of measures being taken in order to ensure compliance with the applicable regulations.  Thus, it appears that a particular feature of the complaint is that it concerns a dispute of fact pertaining to the specific reasons underlying the contested transfer, rather than a question of law related to the scope of protection of the right to freedom of expression under Article 10 of the Convention.

In this connection, it is recalled that it is not normally within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see, for instance, the Klaas v. Germany judgment of 23 September 1993, Series A no. 269, p. 17, § 29).

Moreover, the Court is not persuaded by the applicant’s arguments challenging the national courts’ findings of fact.  No material has been adduced before the Court which could call into question the High Court’s finding to the effect that the co-operation problems on Ward 10 were the decisive reason for the transfer and was, under the applicable law, a sufficient reason for taking the measure, falling within the employer’s contractual freedom (see, mutatis mutandis, the Sibson v. the United Kingdom judgment of 20 April 1993, Series A no. 258-A, p. 14, § 29).  Its overriding feature was an attempt to solve a difficult personnel conflict between two individual employees.

Against this background, the Court does not find that the impugned transfer could be regarded as an interference with the applicant’s right to freedom of expression engaging the responsibility of the respondent State under paragraph 1 of Article 10 of the Convention.  Having reached this conclusion, no examination under the second paragraph of this Article is called for.  Accordingly, the Court finds that the present case discloses no appearance of a violation of Article 10 of the Convention on this point.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. As to the chief physician’s unjustified labelling of him as “mentally ill”, the applicant pointed out that it had serious effects on his psycho-social working environment.  Neither the chief physician nor others within the unit’s management conceded that they had been mistaken in their assumption that his criticism of the modalities of patient treatment were the expressions of a mentally ill person.  The regrets expressed by the hospital Director did not address the free speech issue raised by the applicant and could not deprive him of victim status for the purpose of his complaint under Article 10 of the Convention.

The Court notes, as pointed out by the Government, that a formal expression of regret was made by the hospital for the chief physician’s remark.  The High Court accepted that such an allegation could give rise to liability for the employer under Section 2-1 of the 1969 Damage Compensation Act.  In the absence of proof of pecuniary damage, it rejected the applicant’s compensation claim, while pointing out that a compensation claim for non-pecuniary damage could be directed against the chief physician himself.

In the light of the above the Court is satisfied that the authorities of the respondent State acknowledged in substance the matter which, in the applicant’s view, amounted to a sanction violating his freedom of expression under Article 10.  Moreover, in so far as the applicant used the remedies available to him under domestic law, he was afforded adequate redress.  Accordingly, on this point, he can no longer claim to be a “victim” for the purposes of Article 34 of a violation of Article 10 of the Convention. 

This part of the application must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé J.-P. Costa 
 Registrar President

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