6 août 2011

ECtHR introduces the right to whistle-blow, Heinisch, 28274/08

ECtHR interpreted that the freedom of expression protects whistle-blowers from dismissal. Ms Brigitte Heinisch, geriatric nurse employed by Vivantes Netzwerk für Gesundheit GmbH to assist the elderly, complained about possible fraud to its superiors, and later filed a criminal complaint to the prosecution. The story became public and she was dismissed for this (§ 3). The deficiencies in institutional care were also pointed by the Medical Review Board of the Health Insurance (Medizinischer Dienst der Krankenkassen, §§ 7 and 9) and by the Berlin Inspectorate for Residential Homes (§ 84), but the prosecution discontinued the criminal investigation.

I like this judgment because it de facto gave a binding effect to the Termination of Employment Convention C158 of the International Labour Organisation (§ 39) and to the Resolution 1729(2010) on The Protection of Whistle-Blowers issued by the Parliamentary Assembly of the Council of Europe (§ 37).

The ECtHR rejected the argument of the German Government that Ms Heinisch was unable to prove the fraud (§ 53) with pointing that she acted in good faith, and there was a factual ground to do so.

The ECtHR didn’t accept the German argument on the duty of loyalty (§ 55), since this duty disappears after a number of internal complaints (§ 73). Even more so given the fact that the public authorities (Land of Berlin) controlled the majority of Vivantes GmbH shares (§ 71).

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