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Thursday, 23 September 2010

Court Rules On 'Dangerous Liasons' German Complaints

Rulings have been made in two complaints before the European Court of Human Rights (Obst v. Germany and Schüth v. Germany ).

Obst v. Germany (application no. 425/03)
Schüth v. Germany (application no. 1620/03)

No violation of Article 8 (right to respect for private and family life)

of the European Convention on Human Rights in the case of Obst

Violation of Article 8 in the case of Schüth

Principal facts

Both cases concerned the applicants’ dismissal from a Church for engaging in an extra-marital relationship. The Court for the first time addressed the dismissal of Church employees on grounds of conduct falling within the sphere of their private lives.

The applicant in the first case is Michael Obst, a German national who was born in 1959 and lives in Neu-Anspach. He grew up in the Mormon faith and married in 1980 in accordance with Mormon rites. After holding various positions within the Mormon Church, he was appointed to the post of director of public relations for Europe in 1986. In early December 1993, Mr Obst addressed his pastor, confiding to him that his marriage had been deteriorating for years and that he had had an affair with another woman. Following the pastor’s advice, Mr Obst addressed his superior about the issue, who informed him of his dismissal without notice a few days later. Mr Obst was subsequently excommunicated by way of an internal disciplinary procedure.

Mr Obst brought proceedings before the Frankfurt Labour Court, which by judgment of January 1995 declared the dismissal void. The labour court of appeal initially upheld the judgment, but the Federal Labour Court quashed it and remitted the case, observing that by his conduct Mr Obst had not honoured the obligations arising from provisions in his work contract. It further referred to a leading judgment by the Federal Constitutional Court of 4 June 1985 concerning the lawfulness of the dismissal of Church employees after a violation of their loyalty obligations.

Following this judgment, Church employers had the right to govern their affairs in an autonomous manner, while at the same time labour courts were bound by the principles of the Church employers’ religious and moral precepts only to the extent that they did not conflict with the fundamental principles of the legal order of the State. According to the Federal Labour Court, the requirements of the Mormon Church regarding marital fidelity did not conflict with the fundamental principles of the legal order, because marriage was also of pre-eminent importance under the German Basic Law.

The dismissal had been necessary for the Church to keep its credibility, which was under threat in view of Mr Obst’s responsibilities as director of public relations for Europe. The Church had moreover not been obliged to give an advance warning, as given his long career with the Church, Mr Obst must have been aware of the severity of his misconduct. Following the remittal, the labour court of appeal overturned the first-instance judgment in January 1998.

Mr Obst’s further appeal to the Federal Labour Court was to no avail. In June 2002, the Federal Constitutional Court dismissed his constitutional complaint with reference to its leading judgment of 4 June 1985.

The applicant in the second case is Bernhard Schüth, a German national, born in 1957, who lives in Essen. He had been the organist and choirmaster in the Catholic parish of St Lambert in Essen since the mid-1980s, when he separated from his wife in 1994. From 1995 on he lived with his new partner. After his children had spoken in kindergarten about the fact that their father was going to have another child, the dean of the parish held a meeting with Mr Schüth in July 1997. A few days later, the parish informed him of his dismissal as of April 1998, on the grounds that he had violated the basic regulations of the Catholic Church on employment with the Church. In particular, by engaging in an extra-marital relationship with another woman who expected a child from him, he had not only committed adultery but was also guilty of bigamy.

Mr Schüth brought proceedings before the Essen Labour Court, which in a judgment of December 1997 declared the dismissal void. The labour court of appeal initially upheld the judgment, but the Federal Labour Court quashed it and remitted the case, finding that the labour court of appeal should have heard the dean of the parish to establish whether he had tried to induce Mr Schüth to end his extra-marital relationship. As in the case of Mr Obst, the Federal Labour Court referred to the leading judgment by the Federal Constitutional Court and pointed out that the requirements of the Catholic Church concerning marital fidelity did not conflict with the fundamental principles of the legal order.

Following the remittal, the labour court of appeal overturned the first-instance judgment in February 2000, finding that given Mr Schüth’s determined stance to uphold his new relationship, the dean had rightly been able to assume that an advance warning would have been superfluous. The court held that the parish could not continue employing him as organist without losing all credibility, as his activity was closely connected to the Church’s mission.

Mr Schüth’s further appeal to the Federal Labour Court was to no avail. In July 2002, the Federal Constitutional Court dismissed his constitutional complaint with reference to its leading judgment of 4 June 1985.

Relying on Article 8, both Mr Obst and Mr Schüth complained of the refusal of the courts to overturn their dismissal.

Decision of the Court

In both cases, the Court had to examine whether the balance struck by the German labour courts, between the applicants’ right to respect for their private life under Article 8 on the one hand and the Convention rights of the Catholic and the Mormon Church on the other, had afforded the applicants sufficient protection. The Court reiterated that the autonomy of religious communities was protected against undue interference by the State under Article 9 (freedom of religion) read in the light of Article 11 (freedom of assembly and association).

By putting in place a system of labour courts and a constitutional court having jurisdiction to review the former courts’ decisions, Germany had in principle complied with its positive obligations towards litigants in the area of employment law. The applicants had been able to bring their cases before a labour court with jurisdiction to determine whether the dismissal had been lawful under State labour law while having regard to ecclesiastical labour law. In both cases, the Federal Labour Court had found that the requirements of the Mormon Church and the Catholic Church, respectively, regarding marital fidelity did not conflict with the fundamental principles of the legal order.

As regards Mr Obst, the Court observed that the German labour courts had taken account of all the relevant factors and undertaken a careful and thorough balancing exercise regarding the interests involved. They had pointed out that the Mormon Church had only been able to base Mr Obst’s dismissal on his adultery because he had informed the Church of it by his own initiative. According to the German courts’ findings, his dismissal amounted to a necessary measure aimed at preserving the Church’s credibility, having regard in particular to the nature of his post. The courts had explained why the Church had not been obliged to inflict a less severe penalty, such as a warning, and they had underlined that the injury suffered by Mr Obst as a result of his dismissal was limited, having regard among other things to his relatively young age.

The fact that, after a thorough balancing exercise, the German courts had given more weight to the interests of the Mormon Church than to those of Mr Obst, did not itself raise an issue under the Convention. The conclusion that Mr Obst had not been subject to unacceptable obligations was reasonable, given that, having grown up in the Mormon Church, he had been or should have been aware when signing the employment contract of the importance of marital fidelity for his employer and of the incompatibility of his extra-marital relationship with the increased duties of loyalty he had contracted towards the Church as director for Europe of the public relations department.

As regards Mr Schüth, in contrast, the Court observed that the labour court of appeal had confined itself to stating that while his functions as organist and choirmaster did not fall within the group of employees who in case of serious misconduct had to be dismissed, namely those working in counselling, in catechesis or in a leading position, his functions were nonetheless so closely connected to the Catholic Church’s proclamatory mission that the parish could not continue employing him without losing all credibility. That court had not examined this argument any further but appeared to have simply reproduced the opinion of the Church employer on this point.

The labour courts had moreover made no mention of Mr Schüth’s de facto family life or of the legal protection afforded to it. The interests of the Church employer had thus not been balanced against Mr Schüth’s right to respect for his private and family life, but only against his interest in keeping his post. A more detailed examination would have been required when weighing the competing rights and interests at stake.

While the Court accepted that in signing the employment contract, Mr Schüth had entered into a duty of loyalty towards the Catholic Church which limited his right to respect for his private life to a certain degree, his signature on the contract could not be interpreted as an unequivocal undertaking to live a life of abstinence in the event of separation or divorce. The German labour courts had given only marginal consideration to the fact that Mr Schüth’s case had not received media coverage and that, after 14 years of service for the parish, he did not appear to have challenged the position of the Catholic Church.

The fact that an employee who had been dismissed by a Church employer had only limited opportunities of finding another job was of particular importance. This was all the more so where the dismissed employee had special qualifications that made it difficult, or even impossible, to find a new job outside the Church, as was the case with Mr Schüth, who now worked part-time in a Protestant parish. In that connection the Court noted that the rules of the Protestant Church relating to Church musicians stipulated that non-members of the Protestant Church might only be employed in exceptional cases and solely in the context of an additional job.

The Court found that the German labour courts had failed to weigh Mr Schüth’s rights against those of the Church employer in a manner compatible with the Convention.

The Court unanimously concluded that there had been no violation of Article 8 in Mr Obst’s case and that there had been a violation of Article 8 in Mr Schüth’s case.

The Court held that the question of the application of Article 41 (just satisfaction) in Mr Schüth’s case was not ready for decision and would be decided at a later stage. The parties have three months from the delivery of the judgment to reach an agreement in this respect.

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