THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German citizen, born in 1913 and residing at

Kelkheim/Taunus.

From his statements and from documents submitted by him it appears that

from 1937 to 1945 he was employed by the IG-Farbenindustrie A.G. From

1950 to 1952 he worked for a Greek firm in Athens. In 1953 he took up

employment with the Farbwerke H A.G. as personal assistant to the

member of the Board of Directors responsible for Finance and Accounts.

In August, 1954, during a meeting of the Technical Directors of the

Company, Mr. W., a fellow employee of considerable standing within the

firm made remarks about the Applicant which were calculated to

adversely affect his reputation for integrity and which, if remaining

uncontested, would have done great damage to his career. The Applicant,

therefore, was not ready to accept a statement of regret from his

opponent which was prepared by Mr. K, a company lawyer, and which did

not appear to him sufficiently to repair the damage to his reputation.

On the other hand, the opponent was unwilling to sign a statement

prepared by the Applicant.

When the Applicant realised that a friendly settlement could not be

reached on his terms he instituted legal proceedings against his

opponent before the Regional Court (Landgericht) at Frankfurt.

The Company which so far allegedly had taken a rather inactive part in

settling the affair, indicated to the Applicant that he would be

released from his employment if he proceeded with his law suit. The

Applicant states that he was forced to call witnesses after the

defendant had denied having made the derogatory remarks.

On .. January, 1956, three days before the witnesses were to give

evidence in court, the Applicant was suspended by his employer and

invited to agree to the termination of his contract. When he refused,

the Company, by letter of 15th February, 1956, gave him notice. This

letter contained the following statement:

"We had hoped, in spite of your letter of .. April, 1955 to Director

Dr. E, that, in the course of time, you would come to appreciate that,

in the interests of a good working atmosphere, personal differences

arising within the Works cannot be settled by litigation. Since you

still find yourself unable to accept this opinion, we have no choice

but to give you notice herewith with effect from .. September, 1956.

Your services will not be required during the period of notice."

("Trotz Ihres Schreibens vom .. 4.1955 an Herrn Direktor Dr. E. hatten

wir gehofft, dass sich im Laufe der Zeit auch bei Ihnen die Auffassung

durchsetzen würde, dass persönliche Streitigkeiten im Werk im Interesse

des Betriebsfriedens nicht durch einen Prozess bereinigt werden können.

Da Sie auch jetzt noch glauben, sich dieser Auffassung nicht

anschliessen zu können, sehen wir uns veranlasst, hiermit die Kündigung

zum .. 9.1956 auszusprechen. Wir verzichten bis zum Ablauf der

Kündigungsfrist auf Ihre weiteren Dienste.")

Having failed to hear the representatives of the Staff Association

(Betriebsrat) prior to the notice, the Company obtained their opinion

subsequently and gave notice again by letter of 21st February, 1956.

On .. March, 1956, the Applicant lodged a complaint (Klage) with the

Labour Court (Arbeitsgericht) at Frankfurt. The Court rejected his

complaint but, upon the Applicant's appeal (Berufung), the decision was

reversed by the Labour Court of Appeal (Landesarbeitsgericht) at

Frankfurt on the ground that the Staff Association had not been heard

in respect of the notice of 15th February, 1956, while the notice of

21st February, 1956, was not the subject of the proceedings.

The Company, considering the second notice as having determined the

contract as from .. September, 1956, stopped paying the Applicant's

salary subsequent to that date. The Applicant now sued the Company for

his salary. The Labour Court at Frankfurt rejected his complaint. His

appeal (Berufung) to the Labour Court of Appeal was dismissed. Upon

further appeal (Revision) to the Federal Labour Court

(Bundesarbeitsgericht), this Court, on .. November, 1958, set aside the

lower Court's decision and sent the case back to the Labour Court of

Appeal for further consideration and decision. The Federal Labour Court

also ordered that a decision should be given by the Labour Court of

Appeal as to the question whether the notice violated public policy

(Sittenwidrigkeit) according to Section 138, paragraph (1), of the

German Civil Code.

By judgment of .. December, 1962, the Labour Court of Appeal allowed

the Applicant's claim and decided that the Company's notice of 21st

February, 1956 was unlawful in that it contained a violation of the

principle of good faith (Treu und Glauben). Therefore, the Court

further held, it did not have to give a decision on the question of a

possible violation of public policy.

Upon the Company's appeal (Revision) to the Federal Labour Court, this

Court, on .. May, 1964, again set aside the lower Court's decision

holding that the notice of 21st February, 1956 constituted neither a

violation of the principle of good faith nor of public policy. The

Court stated, inter alia: "The plaintiff complains that the defendant

gave him notice by way of revenge because he had rejected as

insufficient W's apology as drawn up by K and had brought civil

proceedings against W. It is clear from the letter of dismissal that

this behaviour on the part of the plaintiff was in fact the real

grounds of dismissal. These grounds were, however, not morally

reprehensible ...".

("Der Kläger macht der Beklagten ferner zum Vorwurf, sie habe ihm aus

Rache dafür gekündigt, dass er die von K. entworfene Ehrenerklärung des

W. als ungenügend abgelehnt und den Zivilprozess gegen W. geführt habe.

Aus dem Kündigungsschreiben geht hervor, dass dieses Verhalten des

Klägers in der Tat der eigentliche Kündigungsgrund war. Dieser Grund

war jedoch nicht sittlich verwerflich ...").

The Court concluded that it was not revenge which prompted the Company

to give notice to the Applicant, but that it had a legitimate interest

in maintaining the good working atmosphere within the Works which, in

the Company's opinion, was disturbed by the Applicant's desire to

obtain satisfaction from the courts.

This decision found wide criticism in German legal periodicals.

Represented by two prominent German lawyers and equipped with a legal

opinion given by Professor Arthur Niekisch of Kiel, the Applicant

finally lodged a constitutional appeal (Verfassungsbeschwerde) with the

Federal Constitutional Court (Bundesverfassungsgericht). He alleged:

(1) that the Federal Labour Court's decision of .. May, 1964 was

arbitrary (Verletzung des Willkürverbots) within the meaning of Article

3, paragraph (1), of the German Basic Law in that this Court gave a

decision regarding the question of a violation of public policy instead

of referring the case to the lower court;

(2) that he did not have a fair trial (Verletzung des rechtlichen

Gehörs) within the meaning of Article 103 of the Basic Law in that the

courts had refused to admit evidence on the question of a violation of

public policy. He alleges that it was not necessary for the Labour

Court of Appeal to go into this matter as it allowed the Applicant's

claim on other grounds. On the other hand, the Federal Labour Court had

no competence to hear any evidence. Thus he was refused the right ever

to present any evidence on this point. But, he continued, "no party to

an action should be deprived of the possibility to exercise the right

of application and to be heard by the courts. If, in violation of the

principle expressed in Article 103, paragraph (1), of the Basic Law,

these rights are not observed, he ceases to be treated as a person and

a free agent (Subjekt) in the proceedings and is degraded to being an

object of proceedings to which he makes no contribution";

(3) that the Federal Labour Court's decision violated the general right

to freedom within the meaning of Article 2, paragraph (1), of the Basic

Law in that it considered a release from employment as a proper means

to put pressure on an employee to prevent him from settling disputes

in court.

By decision of .. November, 1964, 3 judges of the Federal

Constitutional Court rejected the appeal as being clearly ill-founded.

The Court held, inter alia, that there was no denial of equal treatment

nor of a fair trial, in that the Federal Labour Court had acted on the

presumption that the facts which were to be proved by the Applicant

were true. The Court does not mention the problem whether the right to

a fair trial could be violated owing to the fact that a person is

dismissed from his employment because he instituted an action in the

courts.

The Applicant now complains of a violation of Articles 6 and 17 of the

Convention. He alleges that, in the determination of his civil rights

and obligations, he was denied a fair hearing by an independent and

impartial tribunal established by law. He maintains that the right to

a fair hearing is illusory when his access to the courts is barred by

economic pressure.

He further alleges that the Federal Labour Court denied him a fair

hearing concerning the question whether the notice contravened public

policy in that the Court gave a decision regarding this issue although

it had no competence to do so.

He expressly does not wish to complain about his dismissal from

employment itself.

THE LAW

Whereas the Applicant complains that he was denied a fair hearing

within the meaning of Article 6, paragraph (1) (Art. 6-1), of the

Convention on the question whether or not his dismissal from employment

contravened public policy; whereas in this connection he submits that

the Federal Labour Court, on .. May, 1964, took a decision on the

question of a violation of public policy although it was not competent

to do so;

Whereas it is true that the Federal Labour Court, in its above

decision, decided on a question of law by relying on the findings of

fact of the Labour Court of Appeal; whereas the Federal Constitutional

Court found that this procedure before the Federal Labour Court did not

violate the Applicant's constitutional rights under the German Basic

Law (Grundgesetz) and in particular Article 101, paragraph (1) in fine,

and 103, paragraph (1); whereas Article 101 states in paragraph (1) in

fine: "... No-one may be removed from the jurisdiction of his lawful

judge"; and whereas Article 103, paragraph (1) provides that "in the

courts everyone is entitled to a hearing in accordance with the law";

whereas the Commission finds that this provision of the German Basic

Law corresponds as far as the issue in this case is concerned to the

provision of Article 6, paragraph (1) (Art. 6-1), of the Convention;

Whereas the Commission further finds that the above decision of the

Federal Constitutional Court does not disclose any appearance of a

violation of the rights and freedoms set forth in the Convention and

especially in Article 6 (Art. 6); whereas, in respect of the judicial

decision complained of, the Commission has frequently stated that in

accordance with Article 19 (Art. 19) of the Convention its only task

is to ensure observance of the obligations undertaken by the Parties

in the Convention;

Whereas, in particular, it is not competent to deal with an application

alleging that errors of law or fact have been committed by domestic

courts, except where the Commission considers that such errors might

have involved a possible violation of any of the rights and freedoms

limitatively listed in the Convention; whereas, in this respect, the

Commission refers to its Decisions Nos. 458/59 (X v. Belgium - Yearbook

III, page 233) and 1140/61 (X v. Austria - Collection of Decisions,

Volume 8, page 57); and whereas there is no appearance of a violation

in the proceedings complained of; whereas it follows that this part of

the Application is manifestly ill-founded within the meaning of Article

27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the Applicant also complains that he was prejudiced in the

exercise of his right to institute proceedings to re-establish his

reputation; whereas in this respect he submits that he was denied a

fair hearing by an independent and impartial tribunal established by

law within the meaning of Article 6, paragraph (1) (Art. 6-1), of the

Convention;

Whereas he points out, in particular, that the decision of the Federal

Labour Court had declared lawful his dismissal for which the express

motive had been proceedings instituted by him before the Regional Court

of Frankfurt for the re-establishment of his reputation; whereas,

further, this decision was approved by the Federal Constitutional

Court; whereas he submits that the effect of these two decisions was

to preclude him from having recourse to the courts for the purpose of

establishing his reputation;

Whereas it is, however, clear that the Applicant did, in fact,

institute proceedings in order to re-establish his reputation; whereas,

consequently, an examination of the case as it has been submitted,

including an examination made ex officio, does not disclose any

appearance of a violation of the rights and freedoms set forth in the

Convention and in particular in Articles 6 and 17 (Art. 6, 17); whereas

it follows that this part of the Application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention.

Now therefore the Commission declares this Application INADMISSIBLE.