Dissenting opinion of the Judge Wojtyczek in the case of Mile Novaković v. Croatia, No. 73544/14, ECtHR (First Section), 17 December 2020

Unjustified dismissal of an ethnic Serbian teacher for not using the standard Croatian language in class with students, due to his advanced age which would prevent him from adapting the teaching language to the needs of the workplace.

Art. 8 ECHR
Art. 14 ECHR
Art. 1 Prot. 12 ECHR

1. In the present case, the qualifying criteria for the function of teacher are: (I) knowledge of the official language of the respondent State and (II) its use in schools for educational purposes. These factors do not relate to private life. In particular, the ability to speak a certain language as a requirement for holding a certain position is not a factor relating to private life. In fact, the language in which instruction is given relates to the public sphere. The imposition of a certain national language for teaching in educational establishments, as opposed to the choice of language spoken at home or in private conversation in the workplace, is not a matter of freedom of choice of the teacher, nor does it belong to the sphere of his private life. The contested measures were not based on reasons encroaching on the individual's freedom of choice in the sphere of private life. Moreover, the contested measures were not based on grounds invading the applicant's right to speak his mother tongue in everyday life.

2. For these reasons, the alleged discrimination did not occur in the sphere of private life, as required by Art. 8. On the contrary, it occurred in the sphere of public life, which remains outside the scope of Art. 8. The grievance raised by the applicant under Art. 1 of Prot. No. 12 is, in my view, admissible. The appeal should therefore have been examined under the latter provision.