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FIFTH
SECTION
CASE OF HEINISCH v. GERMANY
(Application
no. 28274/08)
JUDGMENT
STRASBOURG
21 July
2011
This
judgment will become final in the circumstances set out in 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
- 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.
- 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.
- 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.
- 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).
- 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 proceedings (Article 36 §
2 of the Convention and Rule 44 § 3 of the Rules of Court)
and which were 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
- 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
- Since
January 2002 the applicant had been working in a nursing home for the
elderly operated by Vivantes, where the patients were partly
bedridden, disoriented, 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.
- Between
24 January 2003 and 19 October 2004 the applicant and her colleagues
regularly indicated to the management that they were overburdened due
to the staff shortage 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 moreover repeatedly fell ill and was
partly unable to work. One medical certificate stated that this was
the result of overworking.
- In
November 2003, following a further inspection, the MDK, established
serious shortcomings in the care provided, inter alia, an
insufficient number of staff, insufficient standards and
unsatisfactory care as well as inadequate documentation of care, and
therefore threatened to terminate the service agreement with the
applicant’s employer. Subsequently, restructuring took place.
- 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.
- 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’ hygienic care (ausreichende
hygienische Grundversorgung) could not be guaranteed any more. He
also requested the management to stipulate how they intended to avoid
criminal responsibility – also for the staff – and how
they intended to ensure that sufficient care could be taken of the
patients. 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.
- 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 situation as regards the
personnel, although difficult, was not critical.
- On
22 November 2004 the management rejected the applicant’s
accusations.
- On
7 December 2004 the applicant’s lawyer lodged a criminal
complaint against Vivantes on account of 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 improvement in the care provided.
It was argued that, owing to the lack of staff and insufficient
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 reports 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 a protocol drawn up at a team meeting
advising Vivantes staff, in order to avoid disciplinary consequences,
not to disclose staff shortages and time pressure 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 correspond to or justify the fees
paid in any way. Vivantes GmbH is therefore enriching itself and
accepts the insufficiency 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 reports 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.”
- On
10 December 2004 the applicant’s lawyer also addressed the
board of directors of the applicant’s employer and stated that
the nursing home lacked staff and failed to meet hygiene standards.
- 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).
- By
a letter dated 19 January 2005 the nursing home dismissed the
applicant on account of her repeated illness with effect as of
31 March 2005. The applicant challenged the dismissal before the
Berlin Labour Court (file No. 35 Ca 3077/05).
- 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
withdrawal 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 which had not resulted, however, 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 those employed ...”
- On
31 January 2005 the applicant sent one leaflet by fax to the
residential accommodation, where it was distributed. Only then did
Vivantes become aware of the applicant’s criminal complaint.
- On
1 February 2005 the applicant’s employer gave her the
opportunity to make a statement regarding the leaflet which, however,
the applicant declined to do. 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.
- On
9 February 2005 the applicant’s employer dismissed her without
notice, alternatively by 31 March 2005, on suspicion of having
initiated the production and dissemination of the leaflet.
- A
new leaflet reporting on this dismissal was subsequently issued; in
addition, the situation was reported in a TV programme and in two
articles published in different newspapers.
- On
21 February 2005 the preliminary investigation proceedings against
Vivantes were resumed by the Berlin Public Prosecutor’s Office
at the applicant’s request.
- On
25 February 2005 the applicant lodged a claim against her dismissal
without notice of 9 February 2005 with the Berlin Labour Court (file
no. 39 Ca 4775/05).
- On
25 April 2005 the applicant’s former employer issued a further
dismissal. The applicant’s claim of 25 February 2005 was then
extended accordingly.
- On
12 May 2005 the applicant was heard as a witness by the public
prosecution in the preliminary investigation proceedings against
Vivantes. The preliminary proceedings were again discontinued on 26
May 2005 in accordance with Article 170 (2) of the Code of Criminal
Procedure.
B. Civil proceedings following the applicant’s
dismissal without notice
- 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 it 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
respect it found that the leaflet – the content of which was
attributable to the applicant, since she 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.
- 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 as required
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, her
mere reference to the lack of staff was not sufficient to enable her
to claim fraud, and since the applicant had further failed to specify
the alleged instruction to falsify reports – which could also
be seen from 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 of Vivantes to recognise shortcomings as regards personnel,
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 but had breached her duty of
loyalty towards her employer.
- On
6 June 2007 the Federal Labour Court (Bundesarbeitsgericht)
dismissed the applicant’s appeal against the refusal for
leave to appeal on points of law.
- By
a decision of 6 December 2007, which was served on the applicant on
12 December 2007, the Federal Constitutional Court refused to admit
her constitutional complaint for adjudication without stating further
reasons.
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
- 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 (so-called 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
- 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.
- 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. According to section 1(2) of
the Act, a termination shall be socially unjustified unless it is,
inter alia, based on grounds relating to the employee himself
or to his conduct or in the event that the 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
- In
a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal
Constitutional Court dealt with a case where an employee, at the
request of the public prosecutor, had given evidence and handed over
documents in preliminary criminal investigations that had been
instituted ex officio against his employer. 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 could, as a rule, not justify a dismissal
without notice from an employment relationship, unless the employee
had knowingly or frivolously reported incorrect information.
- 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 to implement 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 therefore not
sustain disadvantages in the event that the underlying allegations
proved wrong or could not be clarified in the course of the ensuing
proceedings. It held that, however, 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 filing the complaint or
the failure to previously point out the deficiencies complained of
internally within the enterprise. In this context the employee’s
motives to file the complaint were of particular significance. A
complaint that was filed 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 a previous internal
clarification of the allegations, the court stated that it had to be
determined in each individual case whether such an approach could be
reasonably expected from the employee. It would not be expected if
the latter obtained knowledge of an offence of which the failure to
report would result in him or herself becoming liable to criminal
prosecution or in the event of serious criminal offences and offences
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
- 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 thereof if he was examined as such or a warrant of arrest
was issued against him; the same shall apply if he requested such
notice or if there is a particular interest in notifying him.”
B. Relevant international law and practice
- 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).
- 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 24 of
the Council of Europe’s member States. Germany has signed but
not yet ratified the Revised European Social Charter.
- 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.
- 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
- 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
- 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
- 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.
- The
Court recalls in this context that in a number of cases involving
freedom of expression of civil or public servants, 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).
- The
Court therefore considers that the applicant’s dismissal, as
confirmed 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.
- 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
- The
applicant, while conceding that a termination without notice of an
employment relationship pursuant to 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 a 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.
- The
Court notes in this respect 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 pursuant 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 in the event that 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 a 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).
- 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).
- 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
- 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.
- In
their assessment of the situation the domestic courts had, inter
alia, taken into consideration that the applicant had not
previously raised her allegation that the documentation in connection
with the care provided had been falsified internally with her
employer. She had neither 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.
- 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 a verification of her
allegations and the competent public prosecution authorities
therefore had 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, questioned the latter
as a witness, she had refused to further specify her allegations or
to name additional witnesses. The preliminary investigations had thus
again been discontinued. In the proceedings concerning her dismissal
before the labour courts, the applicant had also failed to
substantiate her allegations that personnel had been asked to
document services that had not actually been rendered. Due to the
global 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
discretion when calling into question the authenticity of the
applicant’s allegations.
- The
Government finally argued 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 behind the criminal complaint had rather been to denounce the
alleged shortage of personnel 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 these 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 filing her criminal complaint. The motives behind her
actions were also illustrated by the polemic 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.
- 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
- The
applicant contested the Government’s argument that her criminal
complaint had been premature. She maintained that prior to filing 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 was led to assume that further internal
complaints would not constitute an effective means with a view to
investigating and remedying the shortcomings in the care provided.
For this 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.
- 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 personnel 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 insufficient care. It had
been her lawyer who had assessed such 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 retaliatory measures by Vivantes in the event that she
disclosed further internal information about the enterprise.
- 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 only been of subordinate
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.
- 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 potential penalties. She maintained that
on the other hand no concrete damage on the part of Vivantes as a
consequence of her criminal complaint had been established.
- 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
- 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 care staff, who were therefore only
in the position to provide 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 rights of patients
without having to fear retaliatory measures by their employer.
(b) The Court’s assessment
(i) The general principles applicable in
this case
- The
fundamental principles underlying the assessment of whether an
interference with the right to freedom of expression was
proportionate are well established in the Court’s case-law and
have been summed up as follows (see, among other authorities, Steel
and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR
2005 II) :
“...
(ii) The adjective ‘necessary’, within
the meaning of Article 10 § 2, implies the existence of a
‘pressing social need’. The Contracting States have a
certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with European supervision, embracing
both the legislation and the decisions applying it, even those given
by an independent court. The Court is therefore empowered to give the
final ruling on whether a ‘restriction’ is reconcilable
with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising
its supervisory jurisdiction, is not to take the place of the
competent national authorities but rather to review under Article 10
the decisions they delivered pursuant to their power of appreciation.
This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably,
carefully and in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole
and determine whether it was ‘proportionate to the legitimate
aim pursued’ and whether the reasons adduced by the national
authorities to justify it are ‘relevant and sufficient’
... In doing so, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they
relied on an acceptable assessment of the relevant facts ...”
- As
regards the application of Article 10 of the Convention to the
workplace, the Court has held that the signalling by an employee in
the public sector of illegal conduct or wrongdoing in the workplace
should, in certain circumstances, enjoy protection. This may be
called for in particular where the employee or civil servant
concerned is the only person, or part of a small category of persons,
aware of what is happening at work and is thus best placed to act in
the public interest by alerting the employer or the public at large
(see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR
2008 ...., and Marchenko v. Ukraine, no. 4063/04, §
46, 19 February 2009).
- The
Court is at the same time mindful that employees owe to their
employer a duty of loyalty, reserve and discretion (see, for example,
Marchenko, cited above, § 45). While such duty of loyalty
may be more pronounced in the event of civil servants and employees
in the public sector as compared to employees in private-law
employment relationships, the Court finds that it doubtlessly also
constitutes a feature of the latter category of employment. It
therefore shares the Government’s view that the principles and
criteria established in the Court’s case law with a view to
weighing an employee’s right to freedom of expression by
signalling illegal conduct or wrongdoing on the part of his or her
employer against the latter’s right to protection of its
reputation and commercial interests also apply in the case at hand.
The nature and extent of loyalty owed by an employee in a particular
case has an impact on the weighing of the employee’s rights and
the conflicting interests of the employer.
- Consequently,
in the light of this duty of loyalty and discretion, disclosure
should be made in the first place to the person’s superior or
other competent authority or body. It is only where this is clearly
impracticable that the information could, as a last resort, be
disclosed to the public. In assessing whether the restriction on
freedom of expression was proportionate, therefore, the Court must
take into account whether the applicant had any other effective means
of remedying the wrongdoing which he intended to uncover (see Guja,
cited above, § 73).
- The
Court must also have regard to a number of other factors when
assessing the proportionality of the interference in relation to the
legitimate aim pursued. In the first place, particular attention
shall be paid to the public interest involved in the disclosed
information. The Court reiterates in this regard that there is little
scope under Article 10 § 2 of the Convention for restrictions on
debate on questions of public interest (see, among other authorities,
Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR
2007 XIV).
- The
second factor relevant to this balancing exercise is the authenticity
of the information disclosed. It is open to the competent State
authorities to adopt measures intended to respond appropriately and
without excess to defamatory accusations devoid of foundation or
formulated in bad faith (see Castells v. Spain, 23 April 1992,
§ 46, Series A no. 236). Moreover, freedom of expression carries
with it duties and responsibilities and any person who chooses to
disclose information must carefully verify, to the extent permitted
by the circumstances, that it is accurate and reliable (see Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93, §
65, ECHR 1999 III).
- On
the other hand, the Court must weigh the damage, if any, suffered by
the employer as a result of the disclosure in question and assess
whether such damage outweighed the interest of the public in having
the information revealed (see Guja, cited above, § 76).
- The
motive behind the actions of the reporting employee is another
determinant factor in deciding whether a particular disclosure should
be protected or not. For instance, an act motivated by a personal
grievance or personal antagonism or the expectation of personal
advantage, including pecuniary gain, would not justify a particularly
strong level of protection. It is important to establish that,
in making the disclosure, the individual acted in good faith and in
the belief that the information was true, that it was in the public
interest to disclose it and that no other, more discreet means of
remedying the wrongdoing was available to him or her (see Guja,
cited above, § 77).
- Finally,
in connection with the review of the proportionality of the
interference in relation to the legitimate aim pursued, a careful
analysis of the penalty imposed on the applicant and its consequences
is required (see Fuentes Bobo, cited above, § 49).
(ii) Application of the above principles
in the present case
(α) The public interest in the
disclosed information
- Turning
to the circumstances of the present case, the Court notes that the
information disclosed by the applicant was undeniably of public
interest. In societies with an ever growing part of their elderly
population being subject to institutional care, and taking into
account the particular vulnerability of the patients concerned, who
often may not be in a position to draw attention to shortcomings in
the care rendered on their own initiative, the dissemination of
information about the quality or deficiencies of such care is of
vital importance with a view to preventing abuse. This is even more
evident when institutional care is provided by a State-owned company,
where the confidence of the public in an adequate provision of vital
care services by the State is at stake.
(β) Whether the applicant had
alternative channels for making the disclosure
- As
regards the availability of alternative channels for making
the disclosure and obtaining an internal clarification of the
allegations, the Court notes that the applicant not only indicated,
on numerous occasions between January 2003 and October 2004, to her
superiors that she was overburdened, but also averted the management
to a possible criminal complaint through her counsel by letter of 9
November 2004. While it is true that the legal qualification of the
employer’s conduct as aggravated fraud was mentioned for the
first time in the criminal complaint of 7 December 2004 drafted
by the applicant’s lawyer, the Court observes that the
applicant had nevertheless disclosed the factual circumstances on
which her subsequent criminal complaint were based – including
the fact that services had not been properly documented – in
her previous notifications to her employer. It further notes that the
criminal complaint requested the public prosecution authorities to
examine the circumstances of the case as described in the criminal
complaint under all relevant legal aspects and that the latter was
thus not necessarily limited to fraud.
- The
Court refers in this context to the aforementioned decision of the
Federal Labour Court of 3 July 2003 (see “Relevant domestic law
and practice” above) stating that seeking a previous internal
clarification of the allegations could not be reasonably expected of
an employee if the latter obtained knowledge of an offence of which
the failure to report would result in him or herself being liable to
criminal prosecution. 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. The Court further notes that similar reasoning is
reflected in the Parliamentary Assembly’s guiding principles on
the protection of whistle blowers (see “Relevant
international law and practice” above) stipulating that where
internal channels could not reasonably be expected to function
properly, external whistle-blowing should be protected.
- The
Court finds that these considerations also apply in the case at hand.
The applicant was of the opinion that none of her previous complaints
to her employer had contributed to an amelioration of the employment
and care situation in the nursing home. She also indicated to her
employer that one of her concerns was that failure to report the
deficiencies in the care provided would render her liable to criminal
prosecution. The Court therefore considers that it has not been
presented with sufficient evidence to counter the applicant’s
submission that any further internal complaints would not have
constituted an effective means with a view to investigating and
remedying the shortcomings in the care provided.
- The
Court also notes that German law does not provide for a particular
enforcement mechanism with a view to investigating a whistle blower’s
complaint and to seeking corrective action from the employer.
- In
the light of the foregoing, the Court considers that in circumstances
such as those in the present case external reporting by means of a
criminal complaint could be justified.
(γ) The authenticity of the disclosed
information
- Another
factor relevant to the balancing exercise is the authenticity of the
information disclosed. The Court reiterates in this context that
freedom of expression carries with it duties and responsibilities and
any person who chooses to disclose information must carefully verify,
to the extent permitted by the circumstances, that it is accurate and
reliable – in particular if, as in the present case, the person
owes a duty of discretion and loyalty to her employer (see Handyside
v. the United Kingdom, 7 December 1976, § 49, Series A no.
24, and Haseldine v. the United Kingdom, no. 18957/91,
Commission decision of 13 May 1992, Decisions and Reports (DR) 73,
pp. 225 and 231).
- The
Court notes in this context that the Federal Constitutional Court had
pointed out in its decision of 1 July 2001 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 could, as a rule, not
justify a dismissal without notice from an employment relationship,
unless the employee had knowingly or frivolously reported incorrect
information (file No. 1 BvR 2049/00). The Berlin Labour Court of
Appeal indeed found in the case at hand that the applicant had based
her criminal complaint frivolously on facts that could not be
demonstrated in the resulting preliminary criminal and labour court
proceedings.
- However,
the Court notes that the deficiencies disclosed by the applicant in
her criminal complaint had not only been raised in her previous
notifications to her employer but had also been the subject of
criticism by the MDK following its inspections in 2002 and 2003 which
had led it to point out that staff shortages were at the origin of
insufficient care. The allegations made by the applicant were
therefore not devoid of factual background and there is nothing to
establish that she had knowingly or frivolously reported incorrect
information. The factual information about the deficiencies in care
was further supplemented by the applicant in written submissions to
the labour courts in the proceedings regarding her dismissal.
Furthermore, the Court notes in this respect that according to the
statement of facts in the Labour Court of Appeal’s judgment of
28 March 2003 the applicant had, inter alia, alleged on the
occasion of the court hearing on the same date that she and other
staff members had been requested to supplement documentation on care
provided, even though the documented services had not actually been
rendered. In this connection she referred to the testimony of three
of her colleagues.
- As
far as the ensuing preliminary criminal proceedings are concerned,
the Court notes that it is primarily the task of the law enforcement
authorities to investigate the veracity of allegations made within
the scope of a criminal complaint and that it cannot reasonably be
expected from a person having lodged such complaint in good faith to
anticipate whether the investigations will lead to an indictment or
will be terminated. The Court refers in this context to the
aforementioned decision of the Federal Labour Court of 3 July 2003 in
which the latter held that an employee who exercised his or her
constitutionally guaranteed right to lodge a criminal complaint in
good faith could not sustain disadvantages in the event that the
underlying allegations proved wrong or could not be clarified in the
course of the ensuing proceedings. It further observes that the
Parliamentary Assembly’s guiding principles are based on
similar considerations, stating that a whistle-blower should 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 turned out that this was not the case, and
provided he or she did not pursue any unlawful or unethical
objectives.
- The
Court is not convinced by the Government’s argument that the
applicant’s failure to further specify her allegations and to
name additional witnesses in the course of the criminal
investigations against Vivantes called into question the authenticity
of her allegations made within the scope of the criminal complaint.
The Court notes, as has been submitted by the applicant, that such
conduct on her part may be explained by a fear of incriminating
herself as well as the risk of being subject to retaliatory measures
on the part of Vivantes in the event that she disclosed further
internal information. In any event, the Court considers that although
the lack of evidence may result in the preliminary investigations to
be discontinued, this does not necessarily lead to the conclusion
that the allegations underlying the criminal complaint had been
without factual basis or frivolous at the outset.
(δ) Whether the applicant acted in good
faith
- The
Court further notes that the applicant argued that her main motive
for filing the criminal complaint had been the potential threat to
the health of the particularly vulnerable patients resulting from the
unsatisfactory working conditions in the nursing home, whereas the
Government maintained that she had aimed to denounce the alleged
shortage of personnel and put additional pressure on her employer by
involving the public.
- On
the basis of the materials before it and even assuming that the
amelioration of her own working conditions might have been an
additional motive for her actions, the Court does not have reason to
doubt that the applicant acted in good faith and in the belief that
it was in the public interest to disclose the alleged wrongdoing on
the part of her employer to the prosecution authorities and that no
other, more discreet means of remedying the situation was available
to her.
- The
Court is not persuaded by the Government’s argument that in
view of the regular inspections by the Berlin Inspectorate for
Residential Homes as well as those carried out by the MDK, the
applicant should have been aware that a criminal complaint was
unnecessary and that she could have waited for the MDK to issue its
report on its inspection of 18 November 2004 before submitting
her criminal complaint. The Court notes in this respect that in the
applicant’s experience previous complaints by the MDK about the
conditions in the nursing home had not brought about any change and
she was therefore of the opinion that a further visit by the MDK
could not be considered as an effective alternative to remedy the
shortcomings and to avoid her own criminal liability. Following her
numerous previous internal complaints with Vivantes, which had been
to no avail, she apparently considered the criminal complaint to be a
last resort to remedy the deficiencies in the care provided. The
Court notes in this context that a report of a subsequent check
carried out by the MDK in 2006 points out that deficiencies in care
that had already been the subject of its reports in 2002, 2003 and
2004 persisted and required urgent action.
- As
regards the Government’s submissions that the polemic
formulation of the criminal complaint was evidence that the
applicant’s true motive was to denounce her employer and put
pressure on him, the Court considers that even if the applicant
allowed herself a certain degree of exaggeration and generalisation,
her allegations were not entirely devoid of factual grounds (see §
79 above) and did not amount to a gratuitous personal attack on her
employer but rather constituted a description of the serious
shortcomings in the functioning of the nursing home.
- This
finding is further corroborated by the fact that the applicant –
once she had concluded that external reporting was necessary –
did not have immediate recourse to the media or the dissemination of
flyers in order to attain maximum public attention but chose to first
have recourse to the public prosecution authorities with a view to
initiating investigations (see, by contrast, Balenovic v. Croatia,
(dec.), no. 28369/07, 30 September 2010). She sought
assistance and advice of a lawyer who made a legal assessment of the
facts as submitted by the applicant and formulated the criminal
complaint accordingly. It was only following her ordinary
dismissal on 19 January 2005 that she disseminated flyers in which
she complained of the alleged avarice of her employer and made
reference to her criminal complaint.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant acted in good faith when submitting her
criminal complaint against her employer.
(ε) The detriment to the employer
- On
the other hand, the Court also considers that the allegations
underlying the applicant’s criminal complaints, in particular
those containing allegations of fraud, were certainly prejudicial to
Vivante’s business reputation and commercial interests.
- It
reiterates in this context that there is an interest in protecting
the commercial success and viability of companies for the benefit of
shareholders and employees, but also for the wider economic good (see
Steel and Morris v. the United Kingdom, no. 68416/01, §
94, ECHR 2005 II). The Court finds it relevant to note in this
context that in the case at hand the employer is a State-owned
company providing, inter alia, services within the sector of
institutional care for the elderly. While the Court accepts that
State-owned companies also have an interest in commercial viability,
it nevertheless points out that the protection of public confidence
in the quality of the provision of vital public service by
State-owned or administered companies is decisive for the functioning
and economic good of the entire sector. For this reason the public
shareholder itself has an interest in investigating and clarifying
alleged deficiencies in this respect within the scope of an open
public debate.
- In
the light of these considerations, the Court finds that the public
interest in having information about shortcomings in the provision of
institutional care for the elderly by a State-owned company is so
important in a democratic society that it outweighs the interest in
protecting the latter’s business reputation and interests.
(ζ) The severity of the sanction
- Finally,
the Court notes that the heaviest sanction possible under labour law
was imposed on the applicant. This sanction not only had negative
repercussions on the applicant’s career but it could also have
a serious chilling effect on other employees of Vivantes and
discourage them from reporting any shortcomings in institutional
care. Moreover, in view of the media coverage of the applicant’s
case, the sanction could have a chilling effect not only on employees
of Vivantes but also on other employees in the nursing service
sector. This chilling effect works to the detriment of society as a
whole and also has to be taken into consideration when assessing the
proportionality of, and thus the justification for, the sanctions
imposed on the applicant, who, as the Court has held above, was
entitled to bring the matter at issue to the public’s attention
(see Kudeshkina v. Russia, no. 29492/05, § 99, 26
February 2009). This is particularly true in the area of care for the
elderly, where the patients are frequently not capable of defending
their own rights and where members of the nursing staff will be the
first to become aware of unsatisfactory conditions in the care
provided and are thus best placed to act in the public interest by
alerting the employer or the public at large.
- Accordingly,
it is the Court’s assessment that the applicant’s
dismissal without notice in the case at hand was disproportionately
severe.
(iii) Conclusion
- Being
mindful of the importance of the right to freedom of expression on
matters of general interest, of the right of employees to report
illegal conduct and wrongdoing at their place of work, the duties and
responsibilities of employees towards their employers and the right
of employers to manage their staff, and having weighed up the other
various interests involved in the present case, the Court comes to
the conclusion that the interference with the applicant’s right
to freedom of expression, in particular her right to impart
information, was not “necessary in a democratic society”.
- The
Court therefore considers that in the present case the domestic
courts failed to strike a fair balance between the need to protect
the employer’s reputation and rights on the one hand and the
need to protect the applicant’s right to freedom of expression
on the other.
- There
has accordingly been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
-
The applicant further complained that the proceedings before the
labour courts regarding her dismissal were unfair. In her opinion,
the employer should have been obliged to prove that her criminal
complaint had been frivolously based on untruthful allegations and
thus constituted a reason for a dismissal without notice pursuant to
Article 626 § 1 of the German Civil Code. The Court of Appeal
had, however, shifted the burden of proof in this respect to the
applicant. She relied on Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court has repeatedly held that Article 6 does not lay down any rules
on the admissibility of evidence or the way it should be assessed.
These are therefore primarily matters for regulation by national law
and the national courts, which enjoy a wide margin of appreciation
(see Klasen v. Germany, no. 75204/01, § 43, 5
October 2006). It notes that in the present
case, the applicant, who was represented by counsel throughout the
proceedings, had the benefit of adversarial proceedings and was at
all stages able to submit, and indeed submitted, the arguments she
considered relevant to the case. There is nothing to establish that
the evaluation of the case by the domestic courts was arbitrary.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 38,498.56 euros (EUR) in respect of incurred
pecuniary damage and the additional amount of EUR 112,135.19 for
future pecuniary damage. As regards pecuniary damage already
incurred, the amount of EUR 33,730.12 represented the loss of salary
following her dismissal without notice on 9 February 2005.
Furthermore, since contributions to the supplementary company pension
scheme for incapacity to work (Betriebsrente für eine volle
Erwerbsminderung) had been discontinued following her dismissal
in February 2005, the applicant argued that she had lost a monthly
supplementary company pension in the amount of EUR 194.63 to which
she would have been entitled as of 1 June 2008. Consequently, at the
time of submission of her just satisfaction claims mid-June 2010, the
accrued damage resulting from the loss of such monthly benefits since
1 June 2008 amounted to EUR 4,768.44. She further claimed that she
would have been entitled to such monthly benefits until payment of
her regular old-age pension as of 30 September 2028, resulting in
future pecuniary damage in the amount of EUR 47,861.27 until such
date. She finally argued that her monthly old-age pension entitlement
as of July 2028 would have amounted to EUR 334,76. Assuming an
average life expectancy of 83 years the loss of her pension
entitlement for a period of 16 years (2028 until 2044) thus
represented future pecuniary damage in the amount of EUR 64,273.92.
The
applicant further claimed EUR 10,000 in respect of non-pecuniary
damage, claiming that the lengthy proceedings before the domestic
courts had caused her psychological stress and impaired her health.
- The
Government contested these claims. As regards the applicant’s
claims in respect of pecuniary damage the Government argued that
there was nothing to establish that this damage had been caused by
the alleged breach of the Convention which originated in the
applicant’s dismissal without notice of 9 February 2005. The
Government pointed out that by a letter dated 19 January 2005, that
is, prior to the applicant’s dismissal without notice on 9
February 2005, she had already been given notice on account of her
repeated illness with effect as of 31 March 2005. For this reason, a
loss of income resulting from the dismissal without notice could only
be claimed for the period from 9 February until 31 March 2005,
the date on which her ordinary dismissal had become effective.
However, during this period the applicant had received sickness
benefits (Krankengeld) followed by a transitional allowance
(Übergangsgeld) and had not actually suffered any
pecuniary damage. The Government further submitted that the
applicant’s calculation with respect to her claim for loss of
company pension benefits did not demonstrate how that claim could
have its origin in an event which post-dated the termination of her
employment relationship by ordinary dismissal with effect as of 31
March 2005.
- As
regards non-pecuniary damage, the Government, while leaving the
matter to the Court’s discretion, considered the amount claimed
by the applicant to be excessive.
- The
Court notes that it is not disputed between the parties that the
applicant’s employment relationship ended as a consequence of
her ordinary dismissal with effect as of 31 March 2005. It further
observes that the applicant herself had submitted that she received
sickness benefits or a transitional allowance for the period between
9 February and 31 March 2005, which compensated for her salary. The
Court therefore finds that it has not been established that the
applicant suffered pecuniary damage during the period from 9 February
2005 until 31 March 2005. It further does not discern any causal
link between the violation found and pecuniary damage alleged for the
periods after termination of the employment relationship by means of
the ordinary dismissal with effect as of 31 March 2005. The Court
therefore rejects the applicant’s claim for pecuniary damage.
- On
the other hand, it considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards her
EUR 10,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 6,100 for the costs and expenses incurred
before the Court.
- The
Government argued that this sum considerably exceeded the amounts
usually awarded by the Court in respect of costs and expenses.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,000 in respect of
costs and expenses for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 10 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
10,000 (ten thousand euros) plus any tax that may be chargeable in
respect of non-pecuniary damage; and
(ii) EUR
5,000 plus any tax that may be chargeable to the applicant in respect
of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
