AS TO THE ADMISSIBILITY OF
Application no. 14618/03
by Klaus BLUMBERG
The European Court of Human Rights (Fifth Section),
18 March 2008 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 May 2003,
Having deliberated, decides as follows:
The applicant, Mr Klaus Blumberg, is a German
national who was born in 1947 and lives in Kelheim. He was represented
before the Court by
Mr L. Paproth, a lawyer practising in Munich.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Since 1995 the applicant, a doctor, had been employed as an expert by the medical service of the Bavarian health insurance which provides medical expert reports to health insurance companies (Medizinischer Dienst der Krankenversicherung in Bayern).
On 17 March 1999 the applicant’s employer ordered him to conduct a medical examination of an apprentice with a view to her being employed by a client health insurance company. On 18 and 19 March 1999 the applicant contested this instruction as he feared a “possible bias” which could lead to difficulties if he had to work with the apprentice in the future. He did not specify exactly what those difficulties might be.
Following this refusal and two warnings (Abmahnungen) concerning the applicant’s failure to follow other instructions from his employer, he was dismissed on 25 March 1999.
Subsequently, he lodged an action with the Munich Labour Court to have his dismissal annulled. He argued that a “moral dilemma” had prevented him from carrying out the requested examination.
On 27 October 1999 the Munich Labour Court found
for the applicant.
It argued that, although he had not provided an objective or clear reasoning, the applicant had proved that he had experienced a subjective moral dilemma which could justify his refusal to carry out the examination.
On 20 April 2001 the Munich Labour Court of Appeal
quashed that decision and dismissed the applicant’s action, arguing
that the applicant could not rely on his freedom of conscience for the
following reasons: Firstly, when he had refused to carry out the examination
18/19 March 1999, the applicant had not mentioned a moral dilemma, but referred only to a fear of “bias”. Moreover, the applicant could not rely on a moral dilemma, as he had at one point – even if only for a short period – been prepared to carry out the requested examination, which proved that he had not felt bound by an unconditional, compelling decision of conscience (unbedingt verpflichtende Gewissensentscheidung). Secondly, even assuming that his decision had been based on conscience, it had been impossible for the applicant’s employer, on the basis of the applicant’s reasoning, to appreciate that he had been experiencing a moral dilemma.
In particular, the applicant had overlooked the fact that no conflict of interest would have arisen regardless of whether the applicant had recommended the apprentice for employment or not: he would only have had to work with the apprentice if he had recommended her. If he had decided in her favour, no question of conflict would have arisen. If the applicant had not recommended her, any future conflict would have been excluded because he would not have had to work with her.
On 19 March 2002 the Federal Labour Court refused the applicant leave to appeal on points of law as the Labour Court of Appeal’s decision had not diverged from the case-law of the Federal Labour Court.
On 23 October 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, and confirmed that the Labour Court of Appeal’s reasoning had not violated his freedom of conscience.
The applicant complained under Article 9 of the Convention that the German labour courts had infringed his freedom of conscience in that they had upheld his dismissal.
The applicant complained that the upholding of his extraordinary dismissal by the German labour courts had been in breach of his freedom of conscience as guaranteed by Article 9, the relevant parts of which read as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom...to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The Court notes that
Article 9 primarily protects the sphere
of personal beliefs and religious creeds, that is, the area which is
sometimes called the forum internum. It points out that Article 9 does not
always guarantee the right to behave in the public sphere in a way which
is dictated by
one’s personal beliefs. In particular, the term “practice”, as employed in Article 9 § 1, does not cover each act which is motivated or influenced by one’s belief (see, Porter v. the United Kingdom (dec.), no. 15814/02,
8 April 2003, and Zaoui v. Switzerland (dec.), no. 41615/98,
18 January 2001). Moreover, the Court has held that the term “beliefs” in Article 9, like the term “(philosophical) convictions” in Article 2 of Protocol no. 1, denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see, Campbell and Cosans v. the
United Kingdom, judgment of 25 February 1982, Series A no. 48, § 36).
The Court observes in the instant case that the applicant was not dismissed because he allegedly experienced a moral dilemma but because he refused to examine the apprentice. The question that arises therefore in the present case is whether the applicant’s refusal to examine the apprentice constituted a “manifestation of his personal beliefs” as protected by Article 9.
The Court notes the Labour Court of Appeal’s findings according to which the applicant did not substantiate that he had experienced a moral dilemma, given in particular that his conduct and the submissions he made to his former employer conflicted with the assumption that he had been constrained by a morally compelling decision. Moreover, the Labour Court of Appeal considered, and the Court finds its reasoning convincing, that neither a recommendation nor a non-recommendation of the apprentice for the employment on the part of the applicant could have resulted in a conflict of interest.
The Court therefore finds that the applicant’s refusal to examine the apprentice does not constitute an expression of a coherent view on a fundamental problem and that it can not therefore be regarded as a “manifestation of personal beliefs” in the sense protected by Article 9, with the result that the applicant’s dismissal by the German authorities and the subsequent ratification of that dismissal by the courts were compatible with that provision.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen Registrar President
BLUMBERG v. GERMANY DECISION
BLUMBERG v. GERMANY DECISION