CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 septembre 2013

.s800EAC49 { font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } FIFTH SECTION Application no. 14464/11 Rolf-Udo LANGNER against Germany lodged on 3 March 2011 STATEMENT OF FACTS 1.     The applicant, Mr Rolf-Udo Langner, is a German national, who was born in 1955 and lives in Pirna. He was represented before the Court by Mr   Erik Freiherr von Waldenfels, a lawyer practising in Dresden. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     Since 1993, the applicant was employed as head of the subdivision in charge of sanctioning misuse of housing property ( Zweckentfremdung ) in the Housing Office of the Municipality of Dresden. 4.     On 9 December 1998 a meeting of the staff of the Housing Office took place in the presence of the deputy mayor for economy and housing W. and of a number of staff and trade union representatives. The main subject on the agenda was the expiry of the regulation on misuse of housing property issued by the Government of the Land of Saxony by 31   December   1998 and the question of further employment of the staff working in this area. The staff members expected that the deputy mayor W. gave a clear statement taking into account their concerns. At the beginning of the meeting, the staff members were informed that Mr W. had little time and had to move on to another appointment. Accordingly, Mr W. limited himself to some general observations on the problems of the regulation on misuse of property and quickly terminated his address with season’s greetings. The applicant, who had the impression that the deputy mayor depreciated his own past work as well as that of his subdivision, considered that the situation on the housing market in 1998 did not justify the abolition of the regulation on misuse of housing property. In an attempt to induce the deputy mayor to look into the staff members’ interests, the applicant took the floor and accused W. of having committed perversion of justice ( Rechtsbeugung ) by having ordered the issue of an unlawful demolition permit for a block of flats in 1995/1996. 5.     On 11 December 1998 the applicant’s head of division requested the applicant to substantiate his allegations. 6.     On 17 December 1998 the applicant submitted several pages of written comments, in which he repeated his allegations that W. had committed perversion of justice by ordering the issue of a demolition permit in 1995/1996 without, at the same time, imposing compensation payments for the loss of housing space caused by the demolition. According to the applicant, W. had “ruthlessly pursued politico-economic interests”. He further submitted that all staff members of his sub-division considered that W. had deliberately discredited their work. Furthermore, W. had unlawfully attempted to dissolve the subdivision, thus jeopardising the working place of its staff. The statement given by W. during the staff meeting had been degrading and cynical and had contained half-truths and lies. W. had not assumed any personal responsibility and did not show any concern for finding a socially acceptable solution to the problems arising from the dissolution of the sub-division. 7. On 12 February 1999 the head of human resources of the Municipality of Dresden informed the staff council ( Gesamtpersonalrat ) about his intention to dismiss the applicant with three months’ notice. The head of human resources based this intention on the applicant’s behaviour during the staff meeting on 9 December 1998. The staff council was further informed that the applicant had, in the past, already displayed disloyal and inappropriately unruly behaviour towards his superiors. On 1 April 1998 the applicant had been reprimanded because he had put his superior’s directions concerning breaks and problems regarding medical treatment during working hours into question. On 9 July 1998 he had been reprimanded for his refusal to accept telephone calls outside consultation hours. On 8   March   1999 the staff council objected to the dismissal on the grounds that the reasons given did not contain an assessment of the applicant’s maintenance obligations and that it was possible to transfer the applicant to another position. 8.     By letter of 24 March 1999 the Municipality of Dresden dismissed the applicant with effect from 30 June 1999. The dismissal was primarily based on the applicant’s statement during the staff meeting. According to the letter of dismissal, the applicant’s accusations against W. had been unjustified. By making these accusations in front of a large number of staff members and of representatives of the staff committee and of the trade union, the applicant had seriously damaged his superior’s reputation and thus irrecoverably destroyed the mutual trust which was necessary for effective cooperation. It was further observed that the applicant had not availed himself of the possibility of submitting his concerns to his superior or to the mayor. Finally, it was noted that the applicant had been reprimanded for disloyal conduct on two previous occasions. 9.     On 17 July 1999 a local newspaper published a letter to the editor in which the applicant expressed the opinion that the deputy mayor W. was lacking any competence for resolving problems relating to housing issues. 10.     By judgment of 24 May 2000 the Dresden Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal since this could not be justified under section 1 of the Unfair Dismissal Act ( Kündigungsschutzgesetz , see relevant domestic law, below). The Labour Court did not find it necessary to decide whether the applicant’s allegations had been correct, as they were, in any event, covered by the applicant’s right to freedom of expression. 11.     On 8 January 2002 the Saxon Labour Court of Appeal ( Landesarbeitsgericht ) dismissed the appeal lodged by the Municipality of Dresden. The court noted that the staff council had been duly heard, but that the dismissal was invalid because the applicant’s statements did not justify his dismissal from office. 12. In the meantime, the applicant instituted separate proceedings with the aim to be provisionally employed pending the proceedings on his dismissal. On 26 June 2002 the Dresden Labour Court ordered the municipality of Dresden to continue the applicant’s employment. On 25   April 2003 the Labour Court of Appeal confirmed. On the basis of this decision, the applicant was employed in another municipal office from July   2002 to 31 March 2005. 13.     On 6 November 2003 the Federal Labour Court ( Bundesarbeitsgericht ), upon the Municipality’s appeal on points of law, quashed the judgment of 8 January 2002 and remitted the case to the Labour Court of Appeal. Under the case-law of the Federal Labour Court, gross insults directed against the employer or his deputy, which constituted a serious violation of the concerned person’s honour, could justify a dismissal on grounds relating to the employee’s conduct. In order to establish the seriousness of the violation of honour, it had to be established whether the applicant’s allegations were based on objective facts. It further had to be taken into account whether the criticism had been made among staff members or whether other persons had been present. It had finally to be considered that employees of the public service had to respect specific obligations under their Code of Conduct. 14.     The Federal Labour Court confirmed that the right to freedom of expression always had to be taken into account when assessing inappropriate language in a working place context and that the applicant’s allegations fell within the scope of his right to freedom of expression. Accordingly, the court had to weigh this right against the protected legal interests which had been interfered with. 15.     The Federal Labour Court considered that the Court of Appeal, when weighing the competing interests, had failed correctly to establish the seriousness of the applicant’s allegations and of the violation of the deputy mayor’s personality rights. Under the Criminal Code, perversion of justice was a crime subject to up to five years’ of imprisonment. In case of a criminal conviction under this provision, a deputy mayor would automatically lose his office. The conduct of a public service employee had to be measured against a stricter yardstick than that of an employee in the private sector. In particular, the employee was under an obligation to behave himself in such a way as not to interfere with his public employer’s reputation. Under the Professional Code of Conduct, the employee had to exercise special restraint when openly criticising a superior’s decisions. A public allegation of perversion of justice directed against a superior, in particular if it was unfounded, very seriously violated the superior’s personality rights and interfered, as a rule, with the employee’s professional duties. 16.     Accordingly, in order duly to weigh the competing interests in the light of the right to freedom of expression, the Court of Appeal would have to examine whether the applicant’s allegations had been justified or not. 17.     It had further to be taken into account that the allegations had been made during a staff meeting. While it was true that criticism made in this context could occasionally be exaggerated or polemic without giving the employer a ground for dismissal, this right was limited by the obligation not to disturb peace in the office. It had to be taken into account in the applicant’s favour that the staff meeting concerned the abolition of the applicant’s field of work and that the atmosphere had been rather tense. However, this did not justify neglecting the fact that the allegation of perversion of justice did not concern the subject matter of the staff meeting, but a single incident which dated back several years and had not been mentioned by the applicant since 1997. The applicant had not made use of the possibility of informing the mayor about his legal concerns against the deputy mayor’s decision. At the time of the staff meeting, the decision dated such a long time back that an attempt to put the decision into question must have lacked prospect of success. Accordingly, it appeared that the applicant’s statement was rather aimed at attacking the deputy mayor. 18.     It had also to be taken into account that the statement was made in the presence of persons who were not necessarily bound by confidentiality. Accordingly, there was the feasible risk that the applicant’s allegations would leak out of this close circle and be made known to a wider public. The Federal Labour Court finally observed that the applicant’s statement had to be seen in the wider context of his conduct and that the applicant had further exacerbated the conflict by the content of his written comments. 19.     On 16 November 2004 the Saxon Labour Court of Appeal quashed the judgment of the Labour Court dated 24 May 2000 and rejected the applicant’s motion. 20.     The Labour Court of Appeal considered that the applicant’s dismissal had been justified because the applicant, in his statement at the staff meeting and in his subsequent written submissions, had seriously insulted and slandered the deputy mayor by accusing him of perversion of justice. Based on a thorough examination of the factual and legal situation in 1995/1996, the Labour Court of Appeal considered that the decision taken by the deputy mayor at that time had been lawful. The applicant’s written submissions of 17 December 1998 demonstrated that he was not willing to accept and implement politically legitimate decisions, in case they concerned the subject matter of misuse of property. The letter to the editor (see paragraph 9, above) contained value judgments which did not amount to insult. However, the deputy mayor could not be expected to maintain daily co-operation with the applicant after reading this letter in which he had been described as incompetent. The Labour Court of Appeal further observed that the applicant had not revised his opinion during the proceedings. 21.     The Labour Court of Appeal further considered that the employer did not have any milder means at its disposal. In particular, it would not have been sufficient to reprimand the applicant and to transfer him to another working position. The court observed that the applicant was currently working in the Public Procurement Office and that there was no negative information about his conduct. This was a temporary employment which the applicant had obtained by court order in separate proceedings. The applicant had expressed his readiness even to accept employment at a lower level. However, the Labour Court of Appeal considered that the applicant would not have changed his attitude without his dismissal from office. It could have thus been expected that the applicant had carried on with his self-righteous attitude if he had not been dismissed. The Labour Court of Appeal finally considered that the applicant’s chances of finding new employment were low. Nevertheless, the employer’s interest to terminate the employment outweighed the applicant’s interests. 22.     On 25 August 2010 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint (no. 1 BvR 947/05). B.     Relevant domestic law 23.     Section 53 of the Collective Agreement for Public Service Employees in the eastern part of Germany ( Bundesangestelltentarifvertrag Ost , BAT-O) provides that an employee, who has worked a minimum period of five years in the public service, may be dismissed with three months’ notice. 24.     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 that Act, termination is socially unjustified unless it is, inter alia , based on grounds relating to the employee himself or to his conduct. 25.     Section 78(1) and (3) of the Law on Staff Representation in the Public Service of the Land of Saxony ( Personalvertretungsgesetz ) provides that a dismissal from office subject to a time-limit is invalid unless the staff committee has been duly heard. If the staff committee objects to the dismissal, a copy of the staff committee’s statement has to be served on the employee. Furthermore, in case the staff committee objects to the decision, the employer is obliged to continue the employment pending court proceedings on the validity of his dismissal unless the employee’s motion lacks sufficient prospect of success, his further employment would lead to unbearable economic hardship or the staff committee’s objections are obviously unfounded (section 78 (2)). COMPLAINT 26.     The applicant complained under Article 10 of the Convention that his dismissal from office violated his right to freedom of expression. QUESTIONS 1.     Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention? 2.     In particular, to what extent are the duties of loyalty and the responsibilities inherent in the applicant’s profession relevant to his claim and the State’s margin of appreciation in this field? 3.     Did the applicant’s dismissal from office constitute a proportionate response, having particular regard to the possibility of transferring him to another municipal office?