X. v. THE GERMANY - 2499/65 [1967] ECHR 23 (01 June 1967)

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X. v. THE GERMANY - 2499/65 [1967] ECHR 23 (01 June 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1913 and residing atKelkheim/Taunus.From his statements and from documents submitted by him it appears thatfrom 1937 to 1945 he was employed by the IG-Farbenindustrie A.G. From1950 to 1952 he worked for a Greek firm in Athens. In 1953 he took upemployment with the Farbwerke H A.G. as personal assistant to themember of the Board of Directors responsible for Finance and Accounts.In August, 1954, during a meeting of the Technical Directors of theCompany, Mr. W., a fellow employee of considerable standing within thefirm made remarks about the Applicant which were calculated toadversely affect his reputation for integrity and which, if remaininguncontested, would have done great damage to his career. The Applicant,therefore, was not ready to accept a statement of regret from hisopponent which was prepared by Mr. K, a company lawyer, and which didnot appear to him sufficiently to repair the damage to his reputation.On the other hand, the opponent was unwilling to sign a statementprepared by the Applicant.When the Applicant realised that a friendly settlement could not bereached on his terms he instituted legal proceedings against hisopponent before the Regional Court (Landgericht) at Frankfurt.The Company which so far allegedly had taken a rather inactive part insettling the affair, indicated to the Applicant that he would bereleased from his employment if he proceeded with his law suit. TheApplicant states that he was forced to call witnesses after thedefendant had denied having made the derogatory remarks.On .. January, 1956, three days before the witnesses were to giveevidence in court, the Applicant was suspended by his employer andinvited to agree to the termination of his contract. When he refused,the Company, by letter of 15th February, 1956, gave him notice. Thisletter contained the following statement:"We had hoped, in spite of your letter of .. April, 1955 to DirectorDr. E, that, in the course of time, you would come to appreciate that,in the interests of a good working atmosphere, personal differencesarising within the Works cannot be settled by litigation. Since youstill find yourself unable to accept this opinion, we have no choicebut 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. hattenwir gehofft, dass sich im Laufe der Zeit auch bei Ihnen die Auffassungdurchsetzen würde, dass persönliche Streitigkeiten im Werk im Interessedes Betriebsfriedens nicht durch einen Prozess bereinigt werden können.Da Sie auch jetzt noch glauben, sich dieser Auffassung nichtanschliessen zu können, sehen wir uns veranlasst, hiermit die Kündigungzum .. 9.1956 auszusprechen. Wir verzichten bis zum Ablauf derKündigungsfrist auf Ihre weiteren Dienste.")Having failed to hear the representatives of the Staff Association(Betriebsrat) prior to the notice, the Company obtained their opinionsubsequently and gave notice again by letter of 21st February, 1956.On .. March, 1956, the Applicant lodged a complaint (Klage) with theLabour Court (Arbeitsgericht) at Frankfurt. The Court rejected hiscomplaint but, upon the Applicant's appeal (Berufung), the decision wasreversed by the Labour Court of Appeal (Landesarbeitsgericht) atFrankfurt on the ground that the Staff Association had not been heardin respect of the notice of 15th February, 1956, while the notice of21st February, 1956, was not the subject of the proceedings.The Company, considering the second notice as having determined thecontract as from .. September, 1956, stopped paying the Applicant'ssalary subsequent to that date. The Applicant now sued the Company forhis salary. The Labour Court at Frankfurt rejected his complaint. Hisappeal (Berufung) to the Labour Court of Appeal was dismissed. Uponfurther appeal (Revision) to the Federal Labour Court(Bundesarbeitsgericht), this Court, on .. November, 1958, set aside thelower Court's decision and sent the case back to the Labour Court ofAppeal for further consideration and decision. The Federal Labour Courtalso ordered that a decision should be given by the Labour Court ofAppeal as to the question whether the notice violated public policy(Sittenwidrigkeit) according to Section 138, paragraph (1), of theGerman Civil Code.By judgment of .. December, 1962, the Labour Court of Appeal allowedthe Applicant's claim and decided that the Company's notice of 21stFebruary, 1956 was unlawful in that it contained a violation of theprinciple of good faith (Treu und Glauben). Therefore, the Courtfurther held, it did not have to give a decision on the question of apossible violation of public policy.Upon the Company's appeal (Revision) to the Federal Labour Court, thisCourt, on .. May, 1964, again set aside the lower Court's decisionholding that the notice of 21st February, 1956 constituted neither aviolation of the principle of good faith nor of public policy. TheCourt stated, inter alia: "The plaintiff complains that the defendantgave him notice by way of revenge because he had rejected asinsufficient W's apology as drawn up by K and had brought civilproceedings against W. It is clear from the letter of dismissal thatthis behaviour on the part of the plaintiff was in fact the realgrounds of dismissal. These grounds were, however, not morallyreprehensible ...".("Der Kläger macht der Beklagten ferner zum Vorwurf, sie habe ihm ausRache dafür gekündigt, dass er die von K. entworfene Ehrenerklärung desW. als ungenügend abgelehnt und den Zivilprozess gegen W. geführt habe.Aus dem Kündigungsschreiben geht hervor, dass dieses Verhalten desKlägers in der Tat der eigentliche Kündigungsgrund war. Dieser Grundwar jedoch nicht sittlich verwerflich ...").The Court concluded that it was not revenge which prompted the Companyto give notice to the Applicant, but that it had a legitimate interestin maintaining the good working atmosphere within the Works which, inthe Company's opinion, was disturbed by the Applicant's desire toobtain satisfaction from the courts.This decision found wide criticism in German legal periodicals.Represented by two prominent German lawyers and equipped with a legalopinion given by Professor Arthur Niekisch of Kiel, the Applicantfinally lodged a constitutional appeal (Verfassungsbeschwerde) with theFederal Constitutional Court (Bundesverfassungsgericht). He alleged1) that the Federal Labour Court's decision of .. May, 1964 wasarbitrary (Verletzung des Willkürverbots) within the meaning of Article3, paragraph (1), of the German Basic Law in that this Court gave adecision regarding the question of a violation of public policy insteadof referring the case to the lower court;(2) that he did not have a fair trial (Verletzung des rechtlichenGehörs) within the meaning of Article 103 of the Basic Law in that thecourts had refused to admit evidence on the question of a violation ofpublic policy. He alleges that it was not necessary for the LabourCourt of Appeal to go into this matter as it allowed the Applicant'sclaim on other grounds. On the other hand, the Federal Labour Court hadno competence to hear any evidence. Thus he was refused the right everto present any evidence on this point. But, he continued, "no party toan action should be deprived of the possibility to exercise the rightof application and to be heard by the courts. If, in violation of theprinciple expressed in Article 103, paragraph (1), of the Basic Law,these rights are not observed, he ceases to be treated as a person anda free agent (Subjekt) in the proceedings and is degraded to being anobject of proceedings to which he makes no contribution";(3) that the Federal Labour Court's decision violated the general rightto freedom within the meaning of Article 2, paragraph (1), of the BasicLaw in that it considered a release from employment as a proper meansto put pressure on an employee to prevent him from settling disputesin court.[/align]

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[align=left]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.[/align]