Information Note on the Court’s case-law No. 98
June 2007
Kern v. Germany (dec.) - 26870/04
Decision 29.5.2007 [Section V]
Article 10
Article 10-1
Freedom of expression
Dismissal of municipal employee for issuing a press release that appeared to vindicate the attacks on the World Trade Centre and the Pentagon: inadmissible
Under the Law on Contracts for Federal Employees persons in the employ of federal, state or municipal bodies were required to recognise, and act in accordance with, the free democratic order within the meaning of the Basic Law. The applicant was dismissed from his job as an environmental engineer with the Lübeck municipality after issuing a press release on behalf of a right-wing extremist group on the day following the terrorist attacks on the World Trade Centre and the Pentagon on 11 September 2001. In the press release the United States were accused of terrorism, “one-eyed idiocy” and of acting “in the interest of a Zionist oligarchy”. The 11 September attacks were described as “an act of liberation ... which had been overdue for a long time”. The release ended with a general condemnation of terrorist attacks. In finding the applicant's dismissal to have been lawful, the court of appeal noted that municipal employees were required, when publicly commenting on current political affairs, to do so in a careful manner in order not to damage public confidence in their impartial, just and welfare-oriented performance and that it would not be possible for the municipality to continue the employment as it could not rely on the applicant respecting the free democratic order in the future. The applicant was refused leave to appeal on points of law and the Federal Constitutional Court declined to accept his constitutional complaint for adjudication.
Inadmissible: It had to be determined whether a fair balance had been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that public servants complied with their duty of discretion and obligation to respect the free democratic order. The court of appeal had reasoned that the press release issued by the applicant breached his obligation to recognise the free democratic order and that the applicant had approved of the attacks and tried to minimise their importance. It had also found that the municipality's interest in terminating the employment prevailed over the applicant's difficulty in finding alternative employment. That decision had been approved by both the Federal Labour Court and the Federal Constitutional Court. Having regard to all the circumstances, the court of appeal's assessment could not be said to have been arbitrary or to have failed to take the applicant's interests into account adequately. Its judgment was carefully reasoned. It had correctly comprehended the content and the consequences of the applicant's statements. By addressing the media, the applicant had failed to take the adverse effects of such activities on the integrity of the public service sufficiently into account. Therefore, the court of appeal's assessment of the duty of discretion incumbent on the applicant, even though he was employed in a technical sector at the municipal level, had not unduly restricted the freedom of expression of civil service employees. Having regard to the domestic courts' margin of appreciation the interference was not disproportionate to the legitimate aim pursued: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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