Der EGMR hielt fest, dass ein Eingriff in die Meinungsäußerungsfreiheit vorlag und dass dieser Eingriff auch eine gesetzliche Grundlage hatte, die das legitime Ziel verfolgte, die Rechte und den guten Ruf anderer zu schützen. Er kam aber - einstimmig - zum Ergebnis, dass der Eingriff nicht in einer demokratischen Gesellschaft notwendig war und daher eine Verletzung des Art 10 EMRK vorliegt. Aus der Begründung:
78. The Court notes that the applicant, a doctor in a public hospital, expressed concern in her letter of 16 September 2004 to the regional consultant about the correctness of diagnostic and therapeutic decisions made by her superior. She referred to concrete cases and provided detailed explanations as to why she was of the view that the quality of medical care given to those patients was open to criticism. [...] the Court is satisfied that the applicant took steps with a view to drawing the attention of the competent authorities to what she perceived as a serious dysfunction in the work of her then superior.PS: Die Presseabteilung des EGMR hat heute auch Factsheets mit "Länderprofilen" veröffentlicht (zB Österreich, Deutschland, Schweiz)
79. [...] It should be noted that the case before the medical authorities did not concern any negative statements about W.R.K.’s character or gratuitous attacks against her. The domestic courts did not find that the applicant had personally insulted the head physician in any way. [...]
80. The Court has previously acknowledged, in the context of the legal profession, that the special nature of the profession practised by an applicant must be considered in assessing whether the restriction on the applicant’s right answered any pressing need (see Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI). Medical practitioners also enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means to ensure the well-being of the latter. That can imply a need to preserve solidarity among members of the profession [...]
81. However, the Court observes that the domestic authorities [...] did not make any serious assessment of the truthfulness of the statements included in the opinion [...]. On no occasion during the domestic proceedings was it established that the applicant’s clinical judgment was deficient, or that she lacked professional skills. [...] Furthermore, at no time did the disciplinary courts address the question whether the applicant’s statements had been made in good faith. The medical courts failed to address in their decisions the question of whether the applicant’s concerns had been justified. They rather focused on the mere fact that the Code of Medical Ethics as it stood at the material time prohibited criticism of other colleagues.
82. Such a strict interpretation of the domestic law by the disciplinary courts as to ban any critical expression in the medical profession is not consonant with the right to freedom of expression [...]
83. The Court notes that the domestic authorities did not examine whether the applicant had been defending a socially justified interest. The Court considers that the applicant’s opinion was a critical assessment, from a medical point of view, of treatment received by patients from another doctor. Thus, it concerned issues of public interest.
84. Lastly, the Court has also been struck by the fact that the medical court paid no heed to the findings of the labour court. [...]
86. To sum up, the Court takes the view that the grounds relied on by the medical courts were neither relevant nor sufficient.
87. In conclusion, the Court considers that the interference complained of was not proportionate to the legitimate aim pursued and, accordingly, was not “necessary in a democratic society”.