RUBINS v. LATVIA JUDGMENT – SEPARATE OPINION
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15. It is important to add that the assessment of the proportionality of a
dismissal of an employee should take into consideration not only the rights
of the employee but also the legitimate interests of the employer. The latter
is, in principle, entitled to take measures to ensure the smooth running of the
enterprise, including for the benefit of the employees taken as a whole, and,
in that context, to choose its employees, to propose changes to the terms of
their employment contract or to terminate the employment, provided that it
respects the applicable national law, notably labour law and contract law.
Furthermore, if the employer is a public university, the analysis should
also take into account its position in the domestic law and especially the
degree of autonomy it enjoys. Academic autonomy serves democracy in
general and freedom of expression in particular. An academic institution is,
in principle, entitled to exercise fully its freedom of taking employment
decisions, within the limits of its autonomy as laid down in domestic law.
We regret that the majority refrained from addressing these questions.
C. Conclusion
16. In sum, we believe that the majority of our colleagues have
misconceived the nature of the dispute (that is, the reason for the applicant’s
dismissal from his post) and the content of the ruling by the national courts
in order to arrive at their finding of a violation of the applicant’s right to
freedom of expression. The approach proposed by the majority brings with
it the risk of transforming the European Court of Human Rights into a
higher-instance labour court adjudicating on the merits of labour disputes.
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