Information Note on the Court’s case-law 188

August-September 2015

Langner v. Germany - 14464/11

Judgment 17.9.2015 [Section V]

Article 10

Article 10-1

Freedom of expression

Dismissal of municipal worker for accusing deputy mayor of “perversion of justice”: no violation

Facts – The applicant was dismissed from his job in a municipal housing office after accusing the deputy mayor of “perversion of justice” both or ally at a staff meeting and in subsequent written comments to the applicant’s hierarchical superior. The allegation was made in relation to a demolition order the deputy mayor had issued two years earlier. The applicant also alleged that the deputy mayor h ad unlawfully attempted to dissolve the sub-division the applicant headed.

The applicant contested his dismissal before the German courts, which ultimately found his dismissal justified. In the Convention proceedings, the applicant complained of a violatio n of his right to freedom of expression.

Law – Article 10: The applicant’s dismissal, which was primarily based on the statements he had made during the staff meeting, had interfered with his right to freedom of expression. That interference was prescribed by law (section 53 of the Collective Agreement for Public Service Employees in connection with section 1 of the Unfair Dismissal Act) and pursued the legitimate aim of protecting the reputation and rights of others.

The Court therefore had to determine wh ether, in the light of the case as a whole, the sanction imposed on the applicant was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In deciding that issue, it had to take into account the circumstances of the case, including what had motivated the applicant’s statement, the legal and factual base, the actual wording used and its possible interpretations, its impact on the employer and the sanction inflicted o n the applicant.

As to what had motivated the statement, the Court noted that instead of addressing his concerns about the deputy mayor’s decision to the mayor or the prosecuting authority, the applicant had raised them at a staff meeting some two years la ter. The Federal Labour Court had found that the applicant’s statement had not been aimed at uncovering an unacceptable situation within the Housing Office but was instead motivated by personal misgivings he had about the deputy mayor in view of the impend ing dissolution of the applicant’s sub-division. The Court therefore considered that the applicant’s case was not a “whistle-blowing” case that warranted special protection under Article 10.

Having conducted a thorough examination of the factual and legal situation the Labour Court of Appeal had concluded that the deputy mayor’s decision to issue the demolition permit was lawful. As the long-serving head of the sub-division in charge of sancti oning misuse of housing property, the applicant must have been well-acquainted with that legal background. Accordingly, the Court was not satisfied that he had discharged his obligation to carefully verify the accuracy of his allegations.

Likewise, in view of his position, the applicant could reasonably be assumed to have been aware that “perversion of justice” was a serious crime under the domestic law. In the Court’s view, the use of that expression constituted a defamatory accusation – which the applican t had never withdrawn – rather than a criticism in the public interest. As to the impact of the accusations on the employer, the domestic courts had found that they were not only likely to damage the deputy mayor’s reputation, but also to interfere serious ly with the working atmosphere within the Housing Office. There was, in addition, a risk that they would be made known to a wider public since not everyone present at the meeting was a staff member. Lastly, although the applicant’s dismissal had constitute d the heaviest sanction possible, the Labour Court of Appeal’s view that the municipality could rightfully fear that the applicant would return to his past behaviour if reinstated had not, in the Court’s view, been unreasonable.

Having regard to the above considerations and, in particular, to the fact that the Federal Labour Court and the Labour Court of Appeal had both carefully examined the case in the light of the applicant’s right to freedom of expression, the Court considered relevant and sufficient th e domestic courts’ reasons for deciding that the applicant’s right to freedom of expression did not outweigh the public employer’s interest in his dismissal. There had not, therefore, been a disproportionate interference with the applicant’s right to freed om of expression.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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