CASE OF LANGNER v. GERMANY
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Síofra O’Leary;Vincent A. De Gaetano
5. The applicant was born in 1955 and lives in Pirna. 6. The applicant had been employed as head of the sub-division in charge of sanctioning misuse of housing property (Zweckentfremdung) in the Housing Office of the Municipality of Dresden since 1993. 7. 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., an elected official who, inter alia, governed the Housing Office, and of a number of staff and trade union representatives. Following a short address on the issue of the expiry of the regulation on misuse of housing property by 31 December 1998 given by W., the applicant took the floor and accused W. of having committed perversion of justice (Rechtsbeugung) by ordering the issue of an unlawful demolition permit for a block of flats in 1995/1996. 8. On 11 December 1998 the applicant’s head of division requested the applicant to substantiate his allegations in writing. 9. On 17 December 1998 the applicant submitted several pages of written comments, in which he repeated several times (using bold characters) 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 sub-division, thus putting at risk its staff’s employment. The statement made by W. during the staff meeting had been degrading and cynical and had contained halftruths 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. 10. 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 representatives of the staff committee and of the trade union, the applicant had damaged his superior’s reputation and thus irrevocably 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. 11. 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. lacked any competence for resolving problems relating to housing issues. 12. 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. 13. On 8 January 2002 the Saxon Labour Court of Appeal (Landesarbeitsgericht) dismissed the appeal lodged by the Municipality of Dresden. 14. 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 (no. 2 AZR 177/02). Under the case-law of the Federal Labour Court, gross insults directed against the employer or the employer’s representative, which constituted a serious violation of the concerned person’s honour, could justify 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. Account also had to be taken of whether the criticism had been made among staff members or whether other persons had been present. Finally it had to be considered that employees of the public service had to respect specific obligations under their Code of Conduct. 15. 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 workplace 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 interest with which there had been an interference. 16. The Federal Labour Court considered that the Court of Appeal, when weighing the competing interests, had failed to establish correctly 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’ 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 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. 17. 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. 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 suppression 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 did not make use of the possibility of informing the Mayor about his legal concerns regarding the Deputy Mayor’s decision. At the time of the staff meeting, the decision dated back such a long time that an attempt to put the decision into question must have lacked the 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 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 dismissed the applicant’s action. 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 detailed 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, if they concerned sanctions for misuse of property by house owners. The content of the letter to the editor (see paragraph 11, 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 temporary employment which the applicant had obtained by court order in separate proceedings. The applicant had expressed his readiness to accept employment even 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. The Municipality could reasonably expect that the applicant would have 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 in terminating the employment outweighed the applicant’s interests. 22. On 15 March 2005 the Federal Labour Court dismissed the applicant’s request to be granted leave to appeal on points of law. 23. On 25 August 2010 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint (no. 1 BvR 947/05), without providing reasons.