FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26870/04 
by Dieter KERN 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 29 May 2007 as a Chamber composed of:

Mr P. Lorenzen, President, 
 Mrs S. Botoucharova, 
 Mr K. Jungwiert, 
 Mr R. Maruste, 
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, 
 Mr M. Villiger, judges, 
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 16 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dieter Kern, is a German national who was born in Lübeck and lives in Kosel.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is an environmental engineer (Umweltschutztechniker) who had been employed with the Lübeck municipality since 1989.  
His contract had been subject to the collective bargaining contract for federal employees (Bundesangestelltentarifvertrag).

The applicant is a member and the local chairman of the right-wing extremist collaboration Bündnis Rechts. On 12 September 2001, the day after the terrorist attacks on the World Trade Centre in New York and the Pentagon in Washington (DC), he issued a press release on behalf of the Bündnis Rechts which he both published on the internet and distributed to the press in the State Schleswig-Holstein. Extracts from the press release read as follows:

“How long can one carry on to exercise terrorism against peoples worldwide, stir up terrorism, sponsor civil wars, apply sanctions against peoples etc., like America has done for decades with its ‘one world-idiocy’ in order to bring them to their knees for the interest of a Zionist oligarchy, so that the situation ended in an act of liberation against the USA which had been overdue for a long time and in which human beings unconditionally sacrificed themselves in their fight for liberty?

Now that America has noted that it is no longer invulnerable as a world power and war monger, the moaning and whining is wide and it condemns as usual before investigating, instead of admitting its mistakes, because the act of violence was certainly not in the first place directed against civilians, but against the political leadership which, viewed under closer scrutiny, has to take responsibility for it. One does not have enemies by coincidence, but one has to make enemies and America has already done a lot in this respect.

...

Regarding the events, rejoicing is as inappropriate as the voicing of solidarity with the state USA as the ‘guardian of the western community of values’. The strikes should rather serve as a warning to America perhaps not to act as the policeman of the world on all continents and finally to ensure that less control is being accorded to certain power constellations within America!

The Bündnis Rechts fiercely condemns all terrorist attacks no matter by whom and expresses its condolences to all innocent, civil victims of such attacks. Terrorist attacks, no matter against whom, are basically unacceptable and intolerable.

...

Therefore, a differentiated view is appropriate. Emotions are understandable, but they cannot play a role when assessing the situation objectively.”

After having consulted the staff council, the Lübeck municipality informed the applicant about the extraordinary, alternatively ordinary termination of his employment on 1 October 2001. After having obtained the staff council’s approval on 4 October 2001, the municipality repeated the extraordinary, alternatively ordinary, dismissal on 11 October 2001.

On 19 February 2002, the Lübeck Labour Court declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary nor by the ordinary dismissal of 1 and 11 October 2001. It found that the dismissal of 1 October 2001 had been unlawful because the staff council had not yet approved it, as required by the applicable law, whereas the extraordinary dismissal of 11 October 2001 had been unlawful because the municipality had exceeded the required time-limit of two weeks since it took note of the events. Moreover, the Lübeck Labour Court considered the ordinary dismissal of 11 October 2001 to be unlawful because it was not socially justified within the meaning of section 1 (2) of the Unfair Dismissal Act (see Relevant domestic law). The press release of 12 September 2001 did not constitute a sufficient reason for the applicant’s dismissal as he did not exceed his obligation to recognise the free democratic order within the meaning of section 8 § 1 of the Law on Contracts for Federal Employees (see Relevant domestic law). The Lübeck Labour Court considered that the applicant, when writing the first paragraph of the press release, was at the borderline of a permissible exercise of an employee’s freedom of expression. However, having regard to the remainder of the press release, it could not be said that the applicant had approved of the terrorist attacks. The applicant had considered the attacks as terrorist acts, he had basically condemned all terrorist attacks and expressed his sincere condolences to all innocent victims of the attacks. Therefore, it could not be said that the applicant had made a malicious statement with regard to the numerous victims or that he had approved of the attacks. He had merely expressed his anti-american feelings which could neither be qualified as a lack of loyalty towards the municipality nor as a refusal to recognise the free democratic order.

Having found that the dismissal was unlawful, the Lübeck Labour Court however dismissed the applicant’s claim for continued employment until the labour proceedings had been completed. In this respect, the Lübeck Labour Court took note of a further extraordinary dismissal of 31 January 2002 in view of the applicant’s criminal conviction of the use of symbols of unconstitutional organisations (section 86a of the Criminal Code) and reasoned that that dismissal outweighed the applicant’s interest for continued employment. Even though the applicant had brought an objection against the dismissal of 31 January 2002 which was pending in a different set of proceedings before the labour courts, the Lübeck Labour Court found that the dismissal with regard to the above conviction was at least not manifestly void.

On 6 August 2002, on appeal by the municipality, the Schleswig-Holstein Labour Court of Appeal partly quashed the judgment of 19 February 2002 and declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary dismissals of 1 and 11 October 2001 nor by the ordinary dismissal of 1 October 2001. However, it considered that the ordinary dismissal of 11 October 2001 was lawful and that consequently the employment had ended on 31 March 2002. The Schleswig-Holstein Labour Court of Appeal noted that, according to section 8 § 1 of the Law on Contracts for Federal Employees, the applicant was required to recognise the free democratic order within the meaning of the Basic Law and act accordingly, even outside of his workplace. The above provision had to be interpreted in the light of freedom of expression which protected statements that were polemic or offending, but which were on its part subject to limitations such as section 8 § 1 of the Law on Contracts for Federal Employees which mirrors other provisions applicable to public servants. An employee was therefore required, when publicly commenting on current political affairs, to do so in a careful manner in order not to damage the public confidence in his impartial, just and welfare-oriented performance.

The Schleswig-Holstein Labour Court of Appeal found that the press release issued by the applicant exceeded the above limits. The core proposition in the first paragraph of the press release was that the USA exercised terrorism and pursued a “Zionist oligarchy”. The Schleswig-Holstein Labour Court of Appeal found the latter expression objectionable. While the notion “Zionism” as such did not have a negative meaning, the combination with “oligarchy” had a negative notion as it suggested world domination by the Jews living in the USA. Moreover, the applicant had approved of the terrorist attacks by stating that they were “an act of liberation against the USA which had been overdue for a long time”. While the second paragraph of the press release stated that the act of violence was certainly not in the first place directed against civilians”, the applicant did not consider the fact that the majority of the victims had been civilians  
(but also soldiers working in the Pentagon). Consequently, he had tried to downplay the attacks. When stating in the sixth paragraph that “the strikes should rather serve as a warning to America perhaps not to act as the policeman of the world”, the applicant had again approved of the attacks in the sense of “you deserved it”.

The Schleswig-Holstein Labour Court of Appeal continued that the impression which the applicant had created with the above passages of the press release could not be removed by the last three paragraphs. Even assuming that readers would in fact read the press release until the end,  
it could not be established that the applicant condemned the attacks as he restricted his condolences to the civilian victims and disregarded the considerable number of military victims in the Pentagon. The last paragraphs therefore could not serve as a revocation of his former statements. While the applicant could not be accused of having been disloyal to his employer when expressing his anti-american attitude,  
his approval of the attacks was in contempt of human dignity of the victims and therefore in breach of the free democratic order. A balancing of the diverging interests in the present case suggested that the interest of the municipality to terminate the employment outweighed the applicant’s interests to keep his position as an environmental engineer. Even though the Schleswig-Holstein Labour Court of Appeal recognised the applicant’s difficulties in finding a new employment given his age of forty-seven years, it reasoned that it was unacceptable for the municipality to continue the employment as it could not expect the applicant to respect the free democratic order in the future.

On 7 November 2002, the Federal Labour Court dismissed the applicant’s motion to be granted leave to appeal on points of law.  
The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 8 January 2004.

B.  Relevant domestic law

Section 1 (1) of the Unfair Dismissal Act (Kündigungsschutzgesetz) provides that a 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 based on grounds relating to the employee himself or to his conduct.

Section 8 § 1 of the Law on Contracts for Federal Employees (Bundesangestelltentarifvertragsgesetz) provides that employees must act as it is expected from employees and that they must recognise the free democratic order within the meaning of the Basic Law and act accordingly. The Law on Contracts for Federal Employees applies to employees at the federal, state (Länder) and municipal level alike.

COMPLAINT

The applicant complained under Article 10 of the Convention about the termination of his employment contract with the Lübeck municipality on 11 October 2001 and the subsequent decisions by the Schleswig-Holstein Labour Court of Appeal, the Federal Labour Court and the Federal Constitutional Court confirming it.

THE LAW

1. The applicant complained that the termination of his employment contract and the subsequent decisions by the Schleswig-Holstein Labour Court of Appeal, the Federal Labour Court and the Federal Constitutional Court which confirmed that termination violated his freedom of expression. Article 10 of the Convention provides:

“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.”

The applicant submitted that he had not been charged with a criminal offence after having released the press release. Hence it could not be said that he had disrupted the bond of loyalty of the municipality. It was incomprehensible for him that, as an employee with the municipality, he had not failed to fulfil the professional expectation placed on him when issuing a press release outside of his workplace. In its judgment of 19 February 2002, the Lübeck Labour Court had rightly reasoned that the press release was covered by freedom of expression and did neither contain inhuman statements nor did it amount to tolerating violence.  
The termination had been declared for political reasons and was therefore unlawful. He had not been able to find an equivalent position as an engineer once his employment with the municipality had ended. The applicant also referred to the judgment in the case of Vogt v. Germany.

The Court notes that the applicant’s employment with the municipality was terminated due to the press release which he had issued on 12 September 2001. Consequently, there was interference with the exercise of the right protected by Article 10 of the Convention.

Such an interference gives rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.

The municipality and the Schleswig-Holstein Labour Court of Appeal based their decisions on section 1 (1) of the Unfair Dismissal Act in conjunction with section 8 § 1 of the Law on Contracts for Federal White Collar Workers. There is no appearance in the present case that the laws were arbitrarily applied, contrary to the applicant’s allegation. Consequently, the measure had been prescribed by law.

Like in the Vogt v. Germany case (judgment of 26 September 1995, Series A no. 323), the present restriction of freedom of expression ultimately derived from civil servants’ or employees’ duty of discretion.  
In the Vogt v. Germany case, the Court had regard to the Government’s submissions that the restriction on the freedom of expression deriving from civil servants’ duty of discretion was aimed at protecting national security, preventing disorder and protecting the rights of others (Vogt v. Germany, cited above, p. 25, § 49). It further noted that a number of Contracting States impose a duty of discretion on their civil servants, founded on the notion that the civil service is the guarantor of the constitution and democracy.  
The Court found that this notion has a special importance in Germany because of the country’s experience under the Weimar Republic, which, when the Federal Republic was founded after the nightmare of Nazism,  
led to its constitution being based on the principle of a “democracy capable of defending itself” (wehrhafte Demokratie) (see Vogt v. Germany, cited above, p. 25, § 51; Otto v. Germany (dec.), no. 27574/02; Erdel v. Germany (dec.), no. 30067/04 and, mutatis mutandis, Rekvényi v. Hungary ([GC],  
no. 25390/94, § 41, Reports of Judgments and Decisions 1999-III).  
Even though the applicant was not a civil servant in the strict sense of German legislation, he nevertheless had, as an employee, a bond of loyalty with the municipality as expressed in section 8 § 1 of the Law on Contracts for Federal Employees. The Schleswig-Holstein Labour Court of Appeal and the subsequent decisions confirming its judgment stressed that the applicant had betrayed that bond of loyalty when issuing the press release in which he had approved of and tried to downplay the terrorist attacks. Against this background the Court concludes that the applicant’s dismissal pursued a legitimate aim within the meaning of paragraph 2 of Article 10.

While having regard to the circumstances of the case, the Court has to determine next whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service including employees maintain their duty of discretion and obligation to respect the free democratic order.

In the instant case, the Court notes that the German courts were divided over the issue of whether or not the applicant’s dismissal was justified by the distribution of his press release of 12 September 2001 issued on behalf of a right-wing extremist collaboration of which the applicant is a member and local chairman. At first instance, the Lübeck Labour Court found that, although the applicant had been at the borderline of a permissible exercise of an employee’s freedom of expression, it could not be said that he had approved of the terrorist attacks. On appeal, the Schleswig-Holstein Labour Court of Appeal reasoned that the press release issued by the applicant had breached his obligation to recognise the free democratic order, that the applicant had approved of the attacks and that he had tried to minimise their importance. Moreover, the Schleswig-Holstein Labour Court of Appeal found that the last paragraphs of the press release could not serve as a revocation of his former statements. It also found that the municipality’s interest to terminate the employment prevailed over the applicant’s interest, in particular his problems to find employment elsewhere because of his age, as it was unacceptable for the former to continue the employment as it could not expect the applicant to respect the free democratic order in the future.  
In this respect, the Court notes the applicant’s subsequent dismissal in view of his conviction of the use of symbols of unconstitutional organisations within the meaning of section 86a of the Criminal Code. The decision of the Schleswig-Holstein Labour Court of Appeal was approved by both the Federal Labour Court and the Federal Constitutional Court. Having regard to all the circumstances, the Court cannot find that the Schleswig-Holstein Labour Court of Appeal’s assessment was arbitrary or that it did not adequately take the applicant’s interests into account. The judgment of the Schleswig-Holstein Labour Court of Appeal, in particular its interpretation of the applicant’s press release, was carefully reasoned. It has correctly comprehended the content and the consequences of the applicant’s statements which approved the terrorist attacks and assumed the existence of a “Zionist oligarchy” as well as the impact of those statements on the civil service. By addressing the media, he did not sufficiently take into account the adverse effects of such activities on the integrity of the public service (see, mutatis mutandis, Van der Heijden v. the Netherlands, no 11002/84, Commission decision of 8 March 1985, Decisions and Reports (DR) 41, p. 271). Therefore, the Schleswig-Holstein Labour Court of Appeal’s assessment of the duty of discretion incumbent on the applicant, even if employed in a technical sector at municipal level, was not based on an excessive restriction on the freedom of expression of employees in the civil service.

Having regard to the domestic courts’ margin of appreciation in the matter (see Wille v. Liechtenstein, 28 October 1999, ECHR 1999-VII § 70), the Court finds that the interference complained of was not disproportionate to the legitimate aim pursued.

It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen  
 Registrar President

KERN v. GERMANY DECISION


KERN v. GERMANY DECISION