ECtHR: dismissal of whistleblower doctor concerning alleged illegal euthanasia-case does not breach freedom of expression

Today, the European Court of Human Rights (ECtHR) handed down its Chamber judgment in Gawlik v. Liechtenstein (no. 23922/19), ruling that the dismissal of a doctor without notice, the doctor having lodged a criminal complaint for active euthanasia in his hospital, did not breach the freedom of expression in Article 10 of the European Convention on Human Rights (ECHR).

The applicant, Lothar Gawlik, is a German doctor who was dismissed after raising suspicions that euthanasia was taking place in his hospital (the Liechtenstein National Hospital). According to the applicant, he found evidence showing that four patients had died in that hospital following the administration by a Dr H. of morphine, and he reported these facts to the Prosecutor’s Office without going through the hospital’s complaints system first. The police took several investigative steps. After subsequently being dismissed without notice, Mr Gawlik commenced legal proceedings against the hospital, seeking 600,000 Swiss francs in damages. His action was upheld on appeal, but the Supreme Court quashed the appellate judgment in 2018. The applicant then lodged a constitutional complaint, invoking the freedom of expression in Article 10 ECHR 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 and accepted that the applicant regarded himself as a whistleblower, but it dismissed his complaint on the grounds that he had not tested his suspicions before going public.

In its judgment today, the ECtHR noted that the applicant’s dismissal amounted to an interference with Article 10 ECHR, and that the information disclosed by the applicant was of considerable public interest. However, the ECtHR concluded that the interference with the applicant’s rights had pursued the legitimate aims of protecting both the business reputation and interests of the employing National Hospital (including its interest in a professional work relationship based on mutual trust) and the reputation of the hospital’s chief physician who was concerned by the applicant’s allegations of euthanasia. Moreover, the ECtHR noted that the suspicions of active euthanasia which the applicant had reported to the Public Prosecutor’s Office had been clearly unfounded. The Strasbourg-based court stressed that information disclosed by whistleblowers may also be covered by the freedom of expression under certain circumstances where the information in question subsequently proves to be wrong or incorrect, but it noted that in the case at hand the applicant did not carefully verify that the information he disclosed was accurate and reliable. The ECtHR therefore concluded that no breach of Article 10 ECHR had been committed.

The judgment is available here.