European Court of Human Rights

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.