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DOI: https://doi.org/10.34069/AI/2022.57.09.5
How to Cite:
Panchenko, O.I. (2022). The case-law from the ECHR regarding the compensation of moral damage to the employee. Amazonia
Investiga, 11(57), 48-55. https://doi.org/10.34069/AI/2022.57.09.5
The case-law from the ECHR regarding the compensation of moral
damage to the employee
Практика ЄСПЛ щодо відшкодування моральної шкоди, заподіяної працівнику
Received: October 2, 2022 Accepted: November 7, 2022
Written by:
Olha Ivanivna Panchenko11
https://orcid.org/0000-0003-4365-0495
Abstract
The purpose of the article is to study the practice
by the ECHR regarding reimbursement for moral
harm caused to the employee. The subject matter
of research is moral damage. Methodology. The
methodological bases for the Article are: general
scientific, systematic methods, method of
descent from the abstract to the concrete,
sociological and legal research method, method
of generalizing judicial practice, etc. Research
results. The judgments by the ECHR on
compensation for moral damage to employees,
which was caused as a result of discrimination,
dismissal due to a strike, because of the statement
in the media, political beliefs, based on gender
and due to illness, were considered. Practical
meaning. It was proven that since the rights of the
second generation (which include labor rights)
are not reflected in the Convention, a person has
no right to apply for their protection to the Court.
This is possible only if other fundamental rights
were affected during the violation of labor rights.
Value/originality. The use of case-law from the
ECHR in the process of researching the
institution of compensation for moral damage to
an employee will contribute to the development
of its use in law enforcement activities and the
dissemination of the experience of equitable
reimbursement as a way to protect the violated
rights and legitimate interests of workers in
Ukrainian realities.
Keywords: ECHR, Convention, case-law,
discrimination, dismissal, labor rights.
11
Ph.D in Law, Senior Researcher, Senior Research Fellow of the Department of Doctorate and Post-graduate Studies of the National
Academy of Internal Affairs, Ukraine (Kyiv, Ukraine).
Panchenko, O.I. / Volume 11 - Issue 57: 48-55 / September, 2022
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Introduction
The European Court of Human Rights is an
international body that, under the conditions
defined by the Convention for the Protection of
Human Rights and Fundamental Freedoms, can
consider applications submitted by the persons
complaining of violations of their rights. The
Convention is an international treaty, on the basis
of which the majority of European States
undertook to observe human laws and
fundamental freedoms. These rights are
guaranteed both by the Convention itself and by
the protocols to it (Council of Europe, 1950),
the consent of which is binding on States Parties
to the Convention.
Many people who could not achieve the
restoration of their legal interests in the area of
labor relations in Ukrainian courts, ask
themselves: is it possible to apply for their
protection to the European Court of Human
Rights? The answer to this question is both yes
and no.
The fact is that the jurisdiction of the ECHR
extends to all issues of interpretation and
application of the Convention and its protocols
(Article 32 of the Convention); the latter
enshrines the fundamental freedoms,
establishing the foundations for justice and peace
in the whole world, such as: the right to life, the
prohibition of torture, the right to freedom and
personal integrity, etc.
Labor rights belong to the second generation of
human rights, which includes social, economic
and cultural rights. Although they are not the
main ones, they allow ensuring a decent standard
of living of an individual, his (her) well-being
and comprehensive development.
Accordingly, the rights of the second generation
are not reflected in the Convention, therefore a
person cannot apply for their protection to the
ECHR. This is possible only if other fundamental
rights of a person were affected during the
violation of labor laws.
Thus, the aim of the article is to study the practice
by the ECHR regarding reimbursement for moral
caused to the employee.
Methodology
The methodological bases for the Article are:
general scientific, group and special scientific
research approaches, methods and techniques.
The philosophical and methodological
framework for the study is the dialectical general
scientific approach, which is applied, in
particular, to clarifying the genesis of the
institution of compensation for moral damage to
the employee, to study the dynamics of the
Court’s legal views on this issue.
Among the general scientific methods, the
systematic one played an important role, with the
help of which, the analysis of the provisions of
the Convention and the examination of the
decisions of the Court is carried out. Method of
descent from the abstract to the concrete serves
to clarify the concretization of the provisions of
the ECHR and the use of the legal positions of
the Court in its decisions.
The sociological and legal group research
method makes it possible to identify the rights,
which are under protection of the Convention, for
the breach of which the employee acquires the
right to demand compensation for moral harm.
Special scientific methods obtain special
importance when interpreting the legal norms of
Ukrainian legal instruments and the content of
the Convention. The method of generalizing
judicial practice helps to summarize the case law
of the ECHR on the issue under investigation.
Clarification of the conceptual apparatus of the
research (“moral damage”, “discrimination”,
“second-generation rights”, etc.) required the use
of a number of formal and logical general
scientific techniques – induction, deduction,
analysis, synthesis.
Literature Review
According to the law of Ukraine No. 3477-IV
(2006) the courts apply the Convention and the
case law of the Court as a source of law in their
proceedings. In this regard, the well-known
Ukrainian scientist Shevchuk (2011) emphasizes
that the main feature of the precedent nature of
ECHR decisions is the “immutability of judicial
practice” (relative stability), which allows
individuals to regulate their behavior in
accordance with it. Therefore, one court decision
of the ECHR, in the opinion of the scientist,
cannot be a precedent, since it is not repeatable.
Metlova (2007) concludes that by implementing
the interpretation of the Convention in a
particular case, the Court also expresses its own
legal view. The presence of such a circumstance
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makes it possible to consider the decisions of the
ECHR as the source of law.
According to professors Lushnikov and
Lushnikova (2009), the acts of the Court occupy
an independent place in the system of sources of
law, as sources of law of a special kind (sui
generis); they have complex legal nature,
combining the properties of a legal instrument
and a judicial precedent.
Fikfak (2020) analyzes the 13 years’ practice of
the ECHR to understand whether it awards
equitable compensation for moral harm for the
breach of fundamental rights, enshrined in the
Convention.
Solomou (2014) investigated the issue whether
the Court has contributed to the custom of just
satisfaction in the Member States. She divided
her research into 3 parts: 1) historical evolution
of the international rule on just satisfaction; 2)
forms of satisfaction; 3) compensation for moral
damage.
Nowlin (2002) states that the ECHR is protecting
morality and the individuals’ right to
compensation for moral damage despite the fact
that there is no uniform approach to this concept
in the States-signatories to the European
Convention.
Results and Discussion
Discrimination
Most often, the fundamental right that is violated
in the context of the problem under investigation
is the prohibition of discrimination, enshrined in
Art. 14 of the Convention. Discrimination is the
most common violation of human rights, which
results in neglect of people belonging to a
particular group, intolerant treatment of a person
as the highest social value, and some other
violations.
According to the Law of Ukraine "On the
Principles of Preventing and Combating
Discrimination in Ukraine" (Law of Ukraine
No. 5207-VI, 2012), discrimination is the
situation in which an individual and/or a group of
individuals suffers from the restriction on the
recognition, exercise or enjoyment of rights and
freedoms in any form established in this Law on
the grounds of their race, skin color, political,
religious and other beliefs, sex, age, disability,
ethnic or social origin, nationality, marital and
property status, place of residence, linguistic or
on other grounds that have been, are or may be
actual or alleged (hereinafter – particular
grounds), except for cases when such restriction
has a legitimate, reasonably justified aim, which
is achievable in an appropriate and necessary
way.
According to the above-mentioned Convention,
“the exercise of rights and freedoms enshrined in
this Convention must be ensured without
discrimination on any basis – sex, race, color,
language, religion, political or other beliefs,
national or social origin, belonging to national
minorities, property status, birth, or on other
grounds”.
As one can see, in order to prove the fact of
discrimination, the victim should not only
provide incontrovertible data and evidence of
unlawful actions against him (her), but also the
fact of the violation of another fundamental
human right enshrined in the Convention.
Dismissal due to a strike
Thus, for example, in the decision of the
European Court of Human Rights in the case No.
44873/09 "Ognevenko v Russia" (2018), a
violation of Article 11 of the Convention was
established in connection with the dismissal of
the applicant after participating in a strike
organized by a trade union, which, in the opinion
of the Court, was a disproportionate restriction of
the applicant’s right to freedom of association.
First of all, the ECHR drew attention to the fact
that Paragraph 1, Article 11 of the Convention
provides for the freedom to establish trade unions
as one of the forms or a separate type of freedom
of association.
The Court also emphasized that “the right to
strike is one of the ways in which a union can act
to be heard; collective bargaining to protect
workers' interests and strikes are protected by
Article 11 of the Convention”.
The ECHR noted that when the applicant
contested his dismissal in the national courts, the
latter had to observe formal compliance with the
relevant Russian laws in their analysis, and
accordingly, they could not maintain a balance
between the applicant’s freedom of association
and competing public interests (Paragraph 82 of
the Resolution).
The Court concluded that the applicant’s
participation in the strike was perceived as a
breach of discipline, which, along with the
previous offence, resulted in the most severe
punishment – dismissal. The ECHR has
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previously emphasized that such sanctions
inevitably have a "deterrent effect" on trade
union members who take part in industrial
actions (such as strikes), to protect their
professional interests (paragraph 83 of the
Judgment).
The Court summarized that the dismissal of the
applicant after participating in a strike organized
by the trade union, which, due to the legal ban on
his participation in strikes (as he was a machinist)
resulted in failure to perform his work duties, is
a disproportionate restriction of the claimant’s
right to freedom of association. Therefore, in the
opinion of the Court, there was a violation of
Article 11 of the Convention.
The claimant sought EUR 2,000 and EUR 6,000
for pecuniary damage (wages for the period of
forced absenteeism) and moral damages,
respectively.
The Court believes that the applicant’s claims for
compensation for material and moral damages
are well-founded, reasonable and related to the
detected violation of the Convention. Based on
considerations of justice, the Court decided that
the applicant should be paid EUR 2,000 as
compensation for material damages and EUR
6,000 – for moral damage, as well as any taxes
that may be taxed these amounts.
Dismissal due to statement
In the case of Marunic v. Croatia (2012), the
applicant, Mirela Marunic, who is a citizen of
Croatia, complained that she was fired because of
the statements she made in the media, in violation
of her right to freedom of expression.
During the period from 2003 to October 2007,
Marunich was the director of the municipal
utility company, which belonged to the
municipality of Kostrena. In September 2007, the
daily newspaper Novi list published the article
with public criticism of the way Marunich
performed her job, which was made by the mayor
of the municipality of Kostrena, M.U. Eight days
later, Marunich responded to the criticism in
another article in the newspaper Novi list. She
complained that the problems with the
company’s operations were caused by the
municipality’s legal department, which allegedly
required the public utility to act illegally. She
demanded an audit of the company. Marunich
was summarily dismissed by the decision of the
company’s general meeting of shareholders
(chaired by M.U.) on the grounds that her public
statements harmed the company’s reputation.
Marunich filed a civil lawsuit for illegal
dismissal. Although he was successful at trial, the
Supreme Court rejected the claim, finding that
her dismissal was based on her public statements.
Her appeal to the Constitutional Court was also
struck down.
Marunich complained that her statements in the
mass media were made only to deny the unjust
accusations against her, and that her firing was a
violation of Article 10 (freedom of expression) of
the European Convention on Human Rights.
Having considered all the circumstances of the
case, the Court came to the conclusion that the
applicant’s articles in response to the acts by
M.U. were not disproportionate and did not go
beyond acceptable criticism. Accordingly, the
Court considers that the intervention in the
claimant’s activities in the form of termination
was not “necessary in democratic society” to
protect the business reputation and rights of the
company she headed.
Such a conclusion eliminates the need for further
consideration of the nature and severity of the
sanction imposed, namely the dismissal of the
applicant, as factors to be taken into account in
assessing the proportionality of the intervention.
Besides, it was proved that in this case there was
indeed a violation of Article 10 of the
Convention (the right to freedom of expression).
For the material and moral damage caused, the
applicant demanded EUR 104,789.31 as
compensation for pecuniary damage and EUR
57,320 – as compensation for moral damage,
respectively.
Considering the nature of the applicant’s
complaint regarding the violation of Art. 10 of
the Convention and the reasons, for which
violations of this article were established, the
Court decided that the most reasonable way to
eliminate the consequences of this violation in
this case would be reopening the proceedings.
Since domestic law allows for such
compensation, the ECHR considers that there is
no reason to award the claimant any amount of
compensation for material harm. Therefore, it
rejected this request.
On the other hand, the Court came to the
conclusion that moral damage was caused to the
applicant. In the interests of fairness, the Court
awards it €1,500 under this item.
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Dismissal due to political beliefs
The next case concerns the dismissal of a person
due to his political beliefs (Redfearn v. the
United Kingdom, 2012). The applicant, Arthur
Collins Redfearn, who is a British national, was
employed as a driver by a private company,
Serco Limited, from 05 December 2003 until his
dismissal on 30 June 2004, transporting children
and adults with physical and/or mental
disabilities in the Bradford area. Most of its
passengers were of Asian origin.
During Redfearn’s tenure, there were no
complaints about its implementation, nor about
the latter’s behavior.
His boss, also of Asian, promoted Redfearn to the
rank of “first class employee”. However,
following the publication of data in a local
newspaper regarding the driver’s political
affiliation, a number of trade unions and
employees raised the question of the possibility
of continuing his work in the Serco Limited
company. When, in June 2004, Redfearn was
elected local councilor from the British National
Party (BNP), he was immediately dismissed.
In August 2004 he brought a race discrimination
claim to the Employment Tribunal under the
Race Relations Act 1976. The Employment
Tribunal dismissed the claim on the grounds that
any discrimination against him was motivated by
the need to ensure the health and safety of its
passengers and accompanying persons, as there
was a risk that Serco vehicles might be attacked
by opponents of the BNP. In July 2005 the
Employment Appeal Tribunal granted his appeal,
including on the ground that the management had
not considered any other alternatives to
dismissal.
Having examined all the circumstances of the
case, the ECHR came to the conclusion that in
this case there was a violation of Art. 11 of the
Convention (right to freedom of assembly and
association). Firstly, the Court referred to its
well-established case law that in a healthy
democratic and pluralistic society the right to
freedom of association should extend not only to
individuals or associations, whose views are
received positively or are considered correct, but
also those whose views that do not correspond to
generally accepted ideas about morality.
Secondly, the Court noted that Redfearn was
released at the age of 56, meaning he might have
trouble finding a new job. In addition, the fact
that there were no complaints from customers or
colleagues on the work of the driver; he was
considered a “first-class employee”.
The Court considers that the most appropriate
domestic remedy for a person in Mr. Redfearn’s
position, dismissed on the basis of political
beliefs or affiliation, is a wrongful dismissal
claim under the 1996 Act. However, he was
unable to avail himself of this remedy, having
worked less than a year.
Such persons have the right to bring a claim to
the Employment Tribunal for discrimination on
grounds of race, sex or religion, but not on
grounds of political affiliation or belief. With no
other remedy available to Redfearn, he was
forced to bring a race discrimination claim under
the 1976 Act, which, however, does not regulate
relationships in this situation. The UK was
therefore required to take reasonable and
appropriate measures to protect workers,
including those with less than a year’s service,
from being dismissed on grounds of political
opinion or affiliation, or by providing an
additional exclusion from the one-year
qualifying period under the 1996 Act year or by
filing a separate lawsuit in connection with
illegal discrimination based on political beliefs or
affiliation. A legal system that allows dismissal
solely based on the employee’s political party
membership is open to abuse and therefore
imperfect.
According to Art. 41 of the Convention, if the
Court recognizes the fact of violation of the
Convention or protocols thereto and if the
domestic law of the relevant Party provides for
only partial compensation, the Court, if
necessary, provides just satisfaction to the
injured party. However, in the situation under
consideration, the applicant did not submit any
claim for compensation.
Dismissal based on gender
According to the materials of the case
"Emel Boyraz v. Turkey (2014) the applicant,
Emel Boyraz, who is a citizen of Turkey,
successfully passed the civil service examination
in 1999 and was appointed as a security officer at
a branch of the State Energy Company (TEDAŞ).
On July 05, 2000, she was informed that she
could not be officially employed, because she did
not meet the requirements of "being a man" and
"having completed military service". Emel
Boyraz appealed this decision on September 18,
2000. On February 27, 2001, the Ankara
Administrative Court ruled in favor of Ms.
Boyraz, and TEDAŞ offered her a contract.
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However, the company filed an appeal against
this decision; on March 31, 2003, the Twelfth
Chamber of the High Administrative Court found
that the administration’s decision was in
accordance with the law, since the requirements
for the post indicated that it was for men only,
which was in accordance with its nature and
public interest. On March 17, 2004, Ms. Boyraz
was dismissed from her position and her case was
closed.
The ECHR established that the Turkish courts
did not see a violation neither Art. 8, nor Art. 14
of the Convention in this case, as they relate to a
right not enshrined in this international
instrument, namely the right to employment as a
civil servant. The Court emphasized that Ms.
Boyraz was appointed as a security officer on a
contractual basis and was dismissed because of
her gender. Such a radical measure as dismissal
only because of gender has negatively affected
the identity, self-perception and self-esteem of
the person, and as a result, - on her private life.
Therefore, the Court decided that the dismissal of
Ms. Boyraz was a violation of her right to respect
for her private life, as it also had consequences
for her family and the possibility of having a
profession that corresponds to her qualifications.
The ECHR concluded that in this case there was
a violation of Art. 8 and Art. 14 of the
Convention.
For the violation of her legal rights, the applicant
demanded 200,000 euros (EUR) and 50,000
euros as compensation for material and moral
damage, respectively.
At the same time, the ECHR noted that Boyraz
did not provide any documents in support of her
claim for compensation for pecuniary damage,
therefore the Court left this claim unsatisfied.
However, it believes that the victim suffered pain
and suffering, which cannot be compensated by
confirming the fact that her rights were violated.
Considering the nature of the established
violations, the Court considers it appropriate to
award her 10,000 euros as compensation for
moral damage.
Dismissal due to illness
According to the materials of the case
“I.B. v Greece” (2013), the claimant has worked
for a jewellery company since 2001. In January
2005, he told three of his colleagues that he
feared he had contracted the human
immunodeficiency virus (HIV); this was later
confirmed by the relevant test. Shortly thereafter,
his employer received a letter from these three
persons, in which they claimed that the applicant
had AIDS and that the company should fire him.
Information about the applicant’s health began to
spread throughout the enterprise, where 70
people worked. The staff demanded his
dismissal. The employer invited an occupational
health doctor to communicate with employees;
he tried to calm them down by explaining the
ways of transmitting the disease. On February 21,
2005, 33 company employees sent a letter to the
director demanding the dismissal of I.B. with the
aim of “preserving their health and the right to
work”. On 23 February 2005, the employer
dismissed the applicant, paying him severance
pay under Greek law. Shortly thereafter, the
applicant was employed by another company. He
appealed to the court of first instance of Athens.
On June 13, 2006, the court found that the
dismissal was illegal. It was established that
termination of the employment contract is
reasonably excluded due to the applicant’s state
of health, and such actions on the part of the
employer are an abuse of his authority. In
addition, the court ruled that it was not necessary
to order the applicant to resume work, as he had
found a new one during that period.
The employer and the applicant filed an appeal
against this decision. On January 29, 2008, the
appellate court recognized that, by dismissing the
applicant, the employer yielded to pressure from
the employees in order to preserve healthy
working relations in the team. At the same time,
it was stated that the fears of the company’s
employees were unfounded, as the occupational
health doctor explained to them. The appellate
court emphasized that if the employee’s illness
did not have a negative impact on labor relations
or the smooth functioning of the enterprise, then
it cannot serve as an objective reason for
terminating the employment contract. However,
the complainant has not yet been absent from
work, and his absence due to illness could not be
foreseen in the near future.
This decision was also appealed; I.B. emphasized
that the Court of Appeal wrongfully dismissed
his application for reinstatement to his former
post in the company. By the decision of March
17, 2009, the Court of Cassation overruled the
decision of the court of appeal and recognized
that the termination of the employment contract
with the applicant was not illegal, as it was
justified by the need to restore harmonious
cooperation between employees and the smooth
functioning of the company.
According to the established precedent practice
of the Court, discrimination is different from the
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usual treatment of a person in similar or
comparable situations without an objective and
reasonable justification. The court considers that,
under these circumstances, the applicant was
treated with hostility because he was HIV-
positive, although his diagnosis did not have a
negative impact on labor relations and therefore
cannot be considered an objective reason for
terminating the contract. The employee’s
interests had to be protected in the same way as
the interests of the company, especially given his
HIV-positive status.
Commenting on the decision of the Court of
Cassation in this case, the ECHR noted that the
former did not provide an adequate explanation
as to why the interests of the employer prevailed
over the interests of the applicant, and could not
find the correct balance between the rights of two
parties. The applicant was the victim of
discrimination on grounds of health, in breach of
Article 8 in conjunction with Article 14 of the
Convention.
The Court ruled that Greece should pay the
applicant 6,339.18 Euros as compensation for
pecuniary damages and 8,000 Euros for moral
harm.
Conclusion
Article 9 of the Constitution of Ukraine
(Law of Ukraine No. 254k/96-VR, 1996)
stipulates that international treaties that are in
force, agreed to be binding by the Verkhovna
Rada of Ukraine, are part of the national
legislation of Ukraine.
The Convention on the Protection of Human
Rights and Fundamental Freedoms, ratified by
the legislator of Ukraine, is among them. This
legal instrument establishes that the European
Court of Human Rights is established to ensure
compliance by the Contracting Parties with their
obligations under the Convention and its
Protocols.
The Court is a supranational international
judicial institution, which considers complaints
by individuals alleging violations of their rights
by States parties to the Convention.
The jurisdiction of the ECHR extends to all
matters related to the interpretation and
application of the Convention and Protocols
thereto. Accordingly, the Court does not perform
the functions of a national court and does not
have the power to overrule or modify the
decisions of national courts.
The Court accepts applications for consideration
only after all domestic legal remedies have been
exhausted; therefore before bringing an action
before the Court, a person should use all judicial
remedies in the State, against which the
application is directed; otherwise, you must
prove that such means are ineffective.
According to Art. Article 41 of the international
treaty, if the Court recognizes the fact that there
has been a breach of the European Convention or
the Protocols to it, and the domestic law of a
Contracting Party allows only partial
reimbursement, the Court, if necessary, provides
the injured party with fair compensation. It
should be noted that the European Convention
does not reveal the essence of the concept of “fair
compensation”, enabling the ECHR, by virtue of
its competence, to interpret the concept
independently.
The use of case-law from the ECHR in the
process of researching the institution of
compensation for moral damage to an employee,
its elements, criteria for determining the amount
of just satisfaction will contribute to the
development of its use in law enforcement
activities and the dissemination of the experience
of equitable reimbursement as a way to protect
the violated rights and legitimate interests of
workers in Ukrainian realities.
Bibliographic references
Council of Europe (1950). European Convention
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Nos. 11, 14 and 15 supplemented by
Protocols Nos. 1, 4, 6, 7, 12, 13 and 16.
https://www.echr.coe.int/documents/convent
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Emel boyraz v Turkey (App no. 61960/08)
ECHR, 02 December 02, 2014.
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Fikfak, V. (2020). Non-pecuniary damages
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Forget the victim; it’s all about the state.
Leiden Journal of International Law, 33(2),
pp. 335-369. DOI:
https://doi.org/10.1017/S0922156520000035
I.B. v. Greece (App no. 552/10) ECHR, 03
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https://hudoc.echr.coe.int/eng#{%22itemid%
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Law of Ukraine No. 5207-VI. On the Principles
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September 06, 2012. Available online.
https://zakon.rada.gov.ua/laws/show/5207-
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