CEDH · CASELAW;CLIN;ENG — 23 septembre 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 133 August-September 2010 Schüth v. Germany - 1620/03 Judgment 23.9.2010 [Section V] Article 8 Article 8-1 Respect for family life Respect for private life Dismissal of church employees for adultery: no violation; violation   [This summary also covers the judgment in the case of Obst v. Germany , no. 425/03, 23 September 2010] Facts – In the case of Obst the applicant had grown up in the Mormon faith and married in 1980 in accordance with Mormon rites. After holding various positions in the Mormon Church, he was appointed to the post of director for Europe of the public relations department in 1986. In December 1993 he confided to his pastor that he had been having an affair with another woman. The pastor advised him to tell his superior, which he did. His superior dismissed him without notice a few days later for adultery. In the case of Schüth the applicant had been the organist and choirmaster in a Catholic parish since the mid-1980s and until 1994, when he separated from his wife. Since 1995 he has been living with his new partner. In July 1997, after his children had told people in their kindergarten that their father was going to have another child, the dean of the parish discussed the matter with the applicant. A few days later the parish gave the applicant notice that he was being dismissed for adultery from April 1998. The applicants brought proceedings in the labour courts, which found at final instance that the dismissals had been lawful. Law – Article 8: In both cases the Court examined whether the balance struck by the labour courts – between the right to respect for private life guaranteed by Article   8 and the rights enjoyed by the Mormon and Catholic Churches under the Convention which safeguarded the autonomy of religious communities against unjustified State interference – had afforded the applicants sufficient protection. By putting in place a system of labour courts and a constitutional court having jurisdiction to review the former courts’ decisions, the State had in principle complied with its positive obligations towards litigants in the area of employment law. The applicants had been able to bring their cases before a labour court with jurisdiction to determine whether the dismissal had been lawful under State labour law while having regard to ecclesiastical labour law. In both cases the Federal Labour Court had found that the requirement of marital fidelity, imposed by the Mormon Church and the Catholic Church respectively, did not conflict with the fundamental principles of the legal order. In Obst the Federal Labour Court had pointed out that the only reason the Mormon Church had been able to base Mr   Obst’s dismissal on his adultery was because he had taken it upon himself to tell the Church about it. His dismissal had amounted to a necessary measure aimed at preserving the Church’s credibility, having regard in particular to the nature of his post and the importance of the duty of absolute fidelity to one’s spouse. The courts had explained why the Church had not first been obliged to inflict a less severe penalty, such as a warning. According to the Labour Appeal Court, the injury Mr   Obst had suffered as a result of his dismissal was limited, having regard, among other things, to his relatively young age. The labour courts had taken account of all the relevant factors and had carried out a detailed and meticulous balancing exercise of the interests at stake. The fact that the courts had given more weight to the interests of the Mormon Church than to those of Mr   Obst did not raise an issue under the Convention. Their conclusion that Mr   Obst had not been subject to unacceptable obligations did not appear unreasonable. Having grown up in the Mormon Church, he had – or should have – been aware, when signing the employment contract, of the importance of marital fidelity for his employer and of the incompatibility of his extra-marital relationship with the increased duties of loyalty he had contracted towards the Church as director for Europe of the public relations department. The duties of loyalty imposed on the applicant had been acceptable in that they had been aimed at preserving the credibility of the Mormon Church. The Labour Court of Appeal had clearly stated that its conclusions were not to be understood to imply that any act of adultery was in itself a ground justifying dismissal of a Church employee. In conclusion, having regard to the wider margin of appreciation of the State in the present case and in particular the fact that the labour courts had to strike a balance between several private interests, Article   8 of the Convention did not require the State to afford the applicant a higher degree of protection. Conclusion : no violation (unanimously). In Schüth the Court could not but observe the brevity of the labour courts’ reasoning regarding the consequences they had drawn from the applicant’s conduct. The Labour Court of Appeal had confined itself to stating that while his functions as organist and choirmaster did not fall within the regulations, that is, were not among those of the category of employees who had to be dismissed in the event of serious misconduct, they were nonetheless so closely bound up with the Catholic Church’s proclamatory mission that the parish could not continue employing him without losing all credibility. The interests of the Church employer had been weighed not against the applicant’s right to respect for his private and family life, but only against that of keeping his job. Moreover, under the wage tax card system, an employee was unable to conceal from his employer events relating to his civil status, for example divorce or the birth of a child. By qualifying the applicant’s conduct as a serious breach within the meaning of the Basic Regulations, the labour courts had regarded the point of view of the Church employer as decisive without carrying out any further verification. A more detailed examination was required when weighing the competing rights and interests at stake, particularly as in this case the applicant’s individual right had been balanced against a collective right. According to the Federal Constitutional Court, a Church could require its employees to observe a number of fundamental principles, but the employer-employee relationship based on civil law did not thereby acquire an ecclesiastical status. By signing his employment contract, the applicant had accepted a duty of loyalty towards the Catholic Church which had limited his right to respect for his private life to a certain degree; his signature could not be interpreted as an unequivocal personal undertaking to live a life of abstinence in the event of separation or divorce. The labour courts had given only marginal consideration to the fact that the applicant’s case had not received media coverage that, after fourteen years of service for the parish, the applicant did not appear to have challenged the position of the Catholic Church but rather to have failed to observe it in practice and that the impugned conduct concerned the very heart of the applicant’s private life. Lastly, the Labour Court of Appeal had merely stated that it had not disregarded the consequences of dismissal for the applicant without, however, specifying the factors it had taken into consideration. The fact that an employee who had been dismissed by a Church employer had limited opportunities of finding another job was of particular importance, particularly here, where the employee had special qualifications that would make it difficult for him to find a new job outside the Church. Accordingly, the labour courts had not sufficiently explained the reasons why, according to the conclusions of the Labour Court of Appeal, the interests of the parish far outweighed those of the applicant, and they had failed to weigh the rights of the applicant against those of the Church employer in a manner compatible with the Convention. Consequently, the State had not afforded the applicant the necessary protection. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes