CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juillet 2011

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text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA68D9128 { width:171.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIFTH SECTION             CASE OF HEINISCH v. GERMANY   (Application no. 28274/08)                 JUDGMENT     STRASBOURG   21 July 2011     FINAL   21/10/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Heinisch v. Germany , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President,   Karel Jungwiert,   Boštjan M. Zupančič,   Mark Villiger,   Isabelle Berro-Lefèvre,   Ann Power,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 21 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 28274/08) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Ms Brigitte Heinisch (“the applicant”), on 9 June 2008. 2.     The applicant was represented by Mr B. Hopmann, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice. 3.     The applicant alleged, in particular, that her dismissal without notice from her employment as a geriatric nurse, on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement had infringed her right to freedom of expression. 4.     On 15 December 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29 § 1). 5.     The applicant and the Government each filed observations on the admissibility and merits of the application. In addition, third-party submissions were received from Vereinte Dienstleistungsgewerkschaft (ver.di), a trade union representing employees in the service sector, including nursing services, which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule   44 § 3 of the Rules of Court) and which was represented by Mr   F.   Bsirske, Chairman of its Managing Board, and Mr G.   Herzberg, Deputy Chairman. The parties replied to those third-party submissions (Rule   44 § 6). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9   February 2005, when she was dismissed. A.     The events leading to the applicant’s dismissal 7.     Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund ( Medizinischer Dienst der Krankenkassen , hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff. 8.     Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19   May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking. 9.     In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia , staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place. 10.     Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer. 11.     In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care ( ausreichende hygienische Grundversorgung ) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22   November 2004 to respond. 12.     On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical. 13.     On 22 November 2004 the management rejected the applicant’s accusations. 14.     On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage: “The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.” 15.     On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards. 16.     On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure ( Strafprozessordnung - see “Relevant domestic law and practice” below). 17.     By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31   March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file   No. 35 Ca 3077/05). 18.     Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows: “Vivantes wants to intimidate colleagues!! Not with us! Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens Call for the foundation of a non-party solidarity group” The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows: “Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...” 19.     On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint. 20.     On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8   February 2005 the works council declared that it would not agree to the applicant’s dismissal. 21.     On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet. 22.     A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers. 23.     On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request. 24.     On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005. 25.     On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly. 26.     On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure. B.     Civil proceedings following the applicant’s dismissal without notice 27.     By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of 9   February 2005 since this could not be justified under Article 626 of the German Civil Code ( Bürgerliches Gesetzbuch ) or section 1(1) of the Unfair Dismissal Act ( Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home. 28.     Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal ( Landesarbeitsgericht ), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The   Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The   court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer. 29.     On 6 June 2007 the Federal Labour Court ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law. 30.     By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Relevant domestic law and practice 1.     Dismissal of an employee for having lodged a criminal complaint against the employer 31.     Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results. (a)     The relevant provisions of the German Civil Code and the Unfair Dismissal Act 32.     In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” ( wichtiger Grund ). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract. 33.     Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia , based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise. (b)     Case-law of the Federal Constitutional Court and Federal Labour Court 34.     In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio . The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information. 35.     In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR   235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In   addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. 2.     The Code of Criminal Procedure 36.     Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings: “(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.” B.     Relevant international law and practice 37.     In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It   invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles: 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; 6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and 6.1.3. it should codify relevant issues in the following areas of law: 6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ... 6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). 6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected. 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010). 38.     Article 24 of the Revised European Social Charter reads as follows: “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ... a)     the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ... The Appendix to Article 24 specifies : “3.   For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ... c     the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...” Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter. 39.     Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates: “The following, inter alia , shall not constitute valid reasons for termination: ... (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”. Germany has not ratified ILO Convention No. 158. 40.     A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 41.     The applicant complained that her dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     Admissibility 42.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Whether there was an interference 43.     The Court observes at the outset that it was not disputed between the parties that the criminal complaint lodged by the applicant had to be regarded as whistle-blowing on the alleged unlawful conduct of the employer, which fell within the ambit of Article 10 of the Convention. It   was also common ground between the parties that the resulting dismissal of the applicant and the related decisions of the domestic courts amounted to an interference with the applicant’s right to freedom of expression. 44.     The Court refers in this context to a number of cases involving freedom of expression of civil or public servants in which it has held that Article 10 applied to the workplace in general (see, for example, Kudeshkina v. Russia , no. 29492/05, § 85, 26 February 2009, and Vogt v. Germany , 26 September 1995, § 53, Series A no. 323). It has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain , no.   39293/98, § 38, 29 February 2000). 45.     The Court therefore considers that the applicant’s dismissal, as upheld by the German courts, on account of her criminal complaint against her employer constituted an interference with her right to freedom of expression, as guaranteed by Article   10 § 1 of the Convention. 46.     Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim. 2.     Whether the interference was “prescribed by law” and pursued a legitimate aim 47.     The applicant, while conceding that termination of an employment relationship without notice under Article 626 § 1 of the Civil Code could pursue the legitimate aim of protecting the reputation or rights of others, namely, the business reputation and interests of Vivantes, argued that the said provision did not contain any criteria for a lawful dismissal in the event of whistle-blowing on the part of an employee. The related decisions of the Federal Constitutional Court of 2 July 2001 and the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) did not amount to comprehensive and established case-law in this regard. The conditions for dismissal without notice on the ground that an employee has filed a criminal complaint against his or her employer were not sufficiently foreseeable and the resulting interference with the applicant’s right to freedom of expression had thus not been “prescribed by law” within the meaning of Article 10 § 2. 48.     The Court notes in this connection that Article 626 § 1 of the Civil Code allows the termination of an employment contract with immediate effect by either party if a “compelling reason” renders the continuation of the employment relationship unacceptable to the party giving notice. It further observes that, according to the decision of the domestic courts in the present case as well as the aforementioned leading decisions of the Federal Constitutional Court and the Federal Labour Code referred to by the parties, a criminal complaint against an employer may justify a dismissal under the said provision where it amounts to a “significant breach” of the employee’s duty of loyalty.   While the domestic courts have to assess whether such a significant breach of an employee’s duty has occurred in the light of the circumstances of each particular case, the Court considers that it is nevertheless foreseeable for an employee that a criminal complaint against his or her employer may in principle constitute a compelling ground for dismissal without notice under the said provision.   The Court reiterates in this context that domestic legislation cannot be expected in any case to provide for every eventuality and the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion “prescribed by law” (see Vogt v.   Germany , 26 September 1995, § 48, Series A no. 323). 49.     The Court therefore shares the Government’s view that the interference with the applicant’s right to freedom of expression was “prescribed by law”. It further notes that there was no dispute between the parties that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely, the business reputation and interests of Vivantes (see Steel and Morris v. the United Kingdom , no. 68416/01, §   94, ECHR 2005 ‑ II). 50.     The Court must therefore examine whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued. 3.     Whether the interference was necessary in a democratic society (a)     The parties’ submissions (i)     The Government 51.     The Government argued that the interference with the applicant’s right to freedom of expression in the case at hand had been justified under paragraph 2 of Article 10 since her dismissal without notice had been a necessary and proportionate means to protect the reputation and rights of her employer. 52.     In their assessment of the situation the domestic courts had, inter alia , taken into consideration that the applicant had not previously raised internally with her employer her allegation that the documentation in connection with the care provided had been falsified. Neither had she mentioned such a practice nor accused her employer of fraud either in her repeated notifications to the latter pointing out the shortcomings in the services rendered or in the letter sent by her counsel to the Vivantes management on 9 November 2004. The allegations of fraud had been made for the first time in her criminal complaint of 7   December 2004. 53.     The domestic courts had further considered that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the ensuing proceedings. Her complaint had lacked sufficiently concrete information to enable her allegations to be verified and the competent public prosecution authorities had therefore discontinued the preliminary investigations for lack of an initial suspicion ( Anfangsverdacht ). When the public prosecution authorities, following resumption of the preliminary proceedings at the applicant’s request, had questioned the latter as a witness, she had refused to further specify her allegations or to name additional witnesses. The preliminary investigations had thus been discontinued again. In the proceedings before the labour courts relating to her dismissal, the applicant had also failed to substantiate her allegations that staff had been asked to document services that had not actually been rendered. Owing to the blanket nature of the applicant’s allegations and her refusal to further substantiate her accusations, it had been impossible to assess their veracity and the domestic courts had thus not abused their power of discretion when calling into question the authenticity of the applicant’s allegations. 54.     The Government argued, lastly, that when lodging the criminal complaint against her employer the applicant had not acted in good faith and in the public interest with a view to disclosing a criminal offence. Her motive for lodging the criminal complaint had rather been to denounce the alleged shortage of staff and put additional pressure on her employer by involving the public. The applicant had been aware that Vivantes was subject to inspections by the Berlin Inspectorate for Residential Homes as well as to checks by an independent supervisory body, the MDK, and that in view of those checks a criminal complaint about an alleged staff shortage and resulting deficiencies in care was unnecessary. In particular, she could have waited for the MDK to issue a report following its visit carried out on 18   November 2004 before lodging her criminal complaint. The motives behind her actions were also illustrated by the polemical way in which her criminal complaint had been phrased and the fact that following her dismissal she had disseminated flyers in which she complained of the alleged avarice of her employer. Furthermore, her lawyer’s letter of 9   November 2004 announcing to the Vivantes management that a criminal complaint and a “certainly unpleasant public discussion” could be avoided only if the employer took steps to remedy the staff shortages also showed that she intended to put pressure on her employer. 55.     The Government concluded that the domestic courts had examined the circumstances of the instant case and, relying on the aforementioned arguments, had struck a fair balance between the public interest in being informed about shortcomings in the sensitive area of care for the elderly on the one hand, and the protection of the public’s trust in the provision of services in this area as well as the protection of the commercial interests and success of the operating service companies on the other, and had come to the conclusion that the latter prevailed in the present case. They further pointed out that the domestic courts had weighed the applicant’s right to freedom of expression against her duty of loyalty towards her employer, applying criteria that coincided with those established by the Court in the case of Guja ( Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008 ‑ ...). The result of their assessment had thus fallen within the margin of appreciation enjoyed by the States in interfering with the right to freedom of expression. (ii)     The applicant 56.     The applicant contested the Government’s argument that her criminal complaint had been premature. She maintained that prior to lodging the criminal complaint against Vivantes she had made continuous efforts over a period of over two years to inform the relevant departments within the enterprise of the existing deficiencies. Since all her attempts to draw the management’s attention to the situation had been to no avail, she had been led to assume that further internal complaints would not constitute an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. For that reason she had considered the criminal complaint as a last resort, also with a view to avoiding potential criminal liability herself. This had also been the reason her counsel had written to the Vivantes management on 9 November 2004 informing them of her intention to lodge a criminal complaint. 57.     The applicant further contended that her criminal complaint had not been frivolous or unfounded. In her repeated pleas to Vivantes she had disclosed all the circumstances of the case that had been the foundation of her subsequent criminal complaint, including the fact that staff had been asked to record services which had not actually been rendered in the manner documented. The deficiencies disclosed by her had also been the subject of criticism by the MDK, following its inspections in 2002 and 2003, when it had pointed out that staff shortages were at the origin of the inadequate care. It had been her lawyer who had assessed the facts from a legal point of view when formulating the criminal complaint and qualifying them as constituting the criminal offence of fraud – an assessment that she was not competent to call into question. She had further substantiated her complaint to the extent possible in the subsequent proceedings while being mindful of the risk of incriminating herself and of incurring retaliatory measures by Vivantes in the event that she disclosed further internal information about the enterprise. 58.     The applicant submitted that her motive for filing the complaint had been the potential threat to the health of the particularly vulnerable patients as a result of the unsatisfactory working conditions in the nursing home; the question whether the accompanying documentation had been accurate had been of only secondary significance to her. In her opinion the criminal complaint had not been unnecessary in view of the supervision carried out by the MDK, as pointed out by the Government, and she contested the argument that the true purpose of her complaint had been to put undue pressure on her employer. She argued in this connection that previous complaints by the MDK about the conditions in the nursing home had not brought about any change in working conditions there and therefore, in her opinion, a subsequent visit by the MDK could not have been considered as an effective alternative to remedy the shortcomings. In any event she would neither have had a right to be involved in such an inspection nor to be informed about its outcome. 59.     The applicant further pointed out that her dismissal without notice had been the severest sanction possible and could only be justified in the absence of less severe penalties. With regard to Vivantes, on the other hand, no concrete damage as a consequence of her criminal complaint had been established. 60.     The applicant concluded that her dismissal without notice had not been necessary for the protection of the reputation or rights of Vivantes and had thus been disproportionate. The domestic courts had not struck a fair balance between the considerable public interest in being informed about shortcomings in the care for the elderly provided by a State-owned company on the one hand and the rights of the service provider on the other. (iii)     The third party 61.     The trade union ver.di provided information on the organisation of institutional care for the elderly in Germany as well as the working conditions of employees in this sector, which were frequently characterised by staff shortages resulting in a heavy workload and overtime for employees. In many nursing homes too many patients were assigned to individual members of staff, who were therefore in a position to provide only basic care. Supervision of nursing homes was mainly carried out by the Medical Review Board of the health insurance fund on the basis of annual inspections. The latter was under no obligation to consult the staff employed in the nursing homes on the occasion of such visits. However, it was the employees who were the first to become aware of unsatisfactory conditions in the care provided. For this reason staff should be provided with effective means to draw attention to shortcomings in the provision of care and should be able to report breaches of the