EHRM, 21-07-2011, nr. 28274/08

Since January 2002 the applicant had been working in a nursing home for the elderly operated by Vivantes, where the patients were partly bedridden, disoriented, and generally dependent on special assistance. In 2002 the Medical Review Board of the health insurance fund (Medizinischer Dienst der Krankenkassen, hereinafter referred to as ‘MDK’) established serious shortcomings in the daily care provided there, caused by a shortage of staff.

Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened due to the staff shortage and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant moreover repeatedly fell ill and was partly unable to work. One medical certificate stated that this was the result of overworking.

In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, inter alia, an insufficient number of staff, insufficient standards and unsatisfactory care as well as inadequate documentation of care, and therefore threatened to terminate the service agreement with the applicant's employer. Subsequently, restructuring took place.

Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer.

In a letter dated 9 November 2004 the applicant's legal counsel wrote to the Vivantes management. He pointed out that on account of the lack of staff the patients' hygienic care (ausreichende hygienische Grundversorgung) could not be guaranteed any more. He also requested the management to stipulate how they intended to avoid criminal responsibility — also for the staff — and how they intended to ensure that sufficient care could be taken of the patients. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond.

On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the situation as regards the personnel, although difficult, was not critical.

On 22 November 2004 the management rejected the applicant's accusations.

On 7 December 2004 the applicant's lawyer lodged a criminal complaint against Vivantes on account of aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself, following her numerous complaints to Vivantes, which had not brought any improvement in the care provided. It was argued that, owing to the lack of staff and insufficient standards, her employer knowingly failed to provide the high quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify reports of services rendered. The applicant's complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to a protocol drawn up at a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressure to patients and their relatives. The criminal complaint included the following passage:

On 10 December 2004 the applicant's lawyer also addressed the board of directors of the applicant's employer and stated that the nursing home lacked staff and failed to meet hygiene standards.

On 5 January 2005 the Berlin Public Prosecutor's Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 (2) of the Code of Criminal Procedure (Strafprozessordnung — see ‘Relevant domestic law and practice’ below).

By a letter dated 19 January 2005 the nursing home dismissed the applicant on account of her repeated illness with effect as of 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05).

Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows:

The leaflet also stated that the applicant had lodged a criminal complaint which had not resulted, however, in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows:

On 31 January 2005 the applicant sent one leaflet by fax to the residential accommodation, where it was distributed. Only then did Vivantes become aware of the applicant's criminal complaint.

On 1 February 2005 the applicant's employer gave her the opportunity to make a statement regarding the leaflet which, however, the applicant declined to do. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant's dismissal.

On 9 February 2005 the applicant's employer dismissed her without notice, alternatively by 31 March 2005, on suspicion of having initiated the production and dissemination of the leaflet.

A new leaflet reporting on this dismissal was subsequently issued; in addition, the situation was reported in a TV programme and in two articles published in different newspapers.

On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor's Office at the applicant's request.

On 25 February 2005 the applicant lodged a claim against her dismissal without notice of 9 February 2005 with the Berlin Labour Court (file no. 39 Ca 4775/05).

On 25 April 2005 the applicant's former employer issued a further dismissal. The applicant's claim of 25 February 2005 was then extended accordingly.

On 12 May 2005 the applicant was heard as a witness by the public prosecution in the preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 in accordance with Article 170 (2) of the Code of Criminal Procedure.

By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court (Arbeitsgericht) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since it could not be justified under Article 626 of the German Civil Code (Bürgerliches Gesetzbuch) or section 1 § 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz — see ‘Relevant domestic law and practice’ below). In this respect it found that the leaflet — the content of which was attributable to the applicant, since she transmitted it to her employer without any further declaration — was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the ‘working climate’ in the nursing home.

Following a hearing on 28 March 2006 the Berlin Labour Court of Appeal (Landesarbeitsgericht), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant's criminal complaint had provided a ‘compelling reason’ for the termination of the employment relationship without notice as required under Article 626 (1) of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, her mere reference to the lack of staff was not sufficient to enable her to claim fraud, and since the applicant had further failed to specify the alleged instruction to falsify reports — which could also be seen from the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial of Vivantes to recognise shortcomings as regards personnel, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see ‘Relevant domestic law and practice’ below) concluded that the applicant had not been acting within her constitutional rights but had breached her duty of loyalty towards her employer.

On 6 June 2007 the Federal Labour Court (Bundesarbeitsgericht) dismissed the applicant's appeal against the refusal for leave to appeal on points of law.

By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused to admit her constitutional complaint for adjudication without stating further reasons.

In its Resolution 1729 (2010) on ‘The protection of ‘whistle-blowers’’ the Parliamentary Assembly of the Council of Europe stressed the importance of ‘whistle-blowing’ — concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk — as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of ‘whistle-blowers’, keeping in mind the following guiding principles:

The above guidelines were also referred to in the Parliamentary Assembly's related Recommendation 1916 (2010).

Article 24 of the Revised European Social Charter reads as follows:

The Appendix to Article 24 specifies :

Article 24 of the Revised European Social Charter has been ratified by 24 of the Council of Europe's member States. Germany has signed but not yet ratified the Revised European Social Charter.

Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates:

Germany has not ratified ILO Convention No. 158.

A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe's Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant claimed 38,498.56 euros (EUR) in respect of incurred pecuniary damage and the additional amount of EUR 112,135.19 for future pecuniary damage. As regards pecuniary damage already incurred, the amount of EUR 33,730.12 represented the loss of salary following her dismissal without notice on 9 February 2005. Furthermore, since contributions to the supplementary company pension scheme for incapacity to work (Betriebsrente für eine volle Erwerbsminderung) had been discontinued following her dismissal in February 2005, the applicant argued that she had lost a monthly supplementary company pension in the amount of EUR 194.63 to which she would have been entitled as of 1 June 2008. Consequently, at the time of submission of her just satisfaction claims mid-June 2010, the accrued damage resulting from the loss of such monthly benefits since 1 June 2008 amounted to EUR 4,768.44. She further claimed that she would have been entitled to such monthly benefits until payment of her regular old-age pension as of 30 September 2028, resulting in future pecuniary damage in the amount of EUR 47,861.27 until such date. She finally argued that her monthly old-age pension entitlement as of July 2028 would have amounted to EUR 334,76. Assuming an average life expectancy of 83 years the loss of her pension entitlement for a period of 16 years (2028 until 2044) thus represented future pecuniary damage in the amount of EUR 64,273.92.

The applicant further claimed EUR 10,000 in respect of non-pecuniary damage, claiming that the lengthy proceedings before the domestic courts had caused her psychological stress and impaired her health.

The Government contested these claims. As regards the applicant's claims in respect of pecuniary damage the Government argued that there was nothing to establish that this damage had been caused by the alleged breach of the Convention which originated in the applicant's dismissal without notice of 9 February 2005. The Government pointed out that by a letter dated 19 January 2005, that is, prior to the applicant's dismissal without notice on 9 February 2005, she had already been given notice on account of her repeated illness with effect as of 31 March 2005. For this reason, a loss of income resulting from the dismissal without notice could only be claimed for the period from 9 February until 31 March 2005, the date on which her ordinary dismissal had become effective. However, during this period the applicant had received sickness benefits (Krankengeld) followed by a transitional allowance (Übergangsgeld) and had not actually suffered any pecuniary damage. The Government further submitted that the applicant's calculation with respect to her claim for loss of company pension benefits did not demonstrate how that claim could have its origin in an event which post-dated the termination of her employment relationship by ordinary dismissal with effect as of 31 March 2005.

As regards non-pecuniary damage, the Government, while leaving the matter to the Court's discretion, considered the amount claimed by the applicant to be excessive.

The Court notes that it is not disputed between the parties that the applicant's employment relationship ended as a consequence of her ordinary dismissal with effect as of 31 March 2005. It further observes that the applicant herself had submitted that she received sickness benefits or a transitional allowance for the period between 9 February and 31 March 2005, which compensated for her salary. The Court therefore finds that it has not been established that the applicant suffered pecuniary damage during the period from 9 February 2005 until 31 March 2005. It further does not discern any causal link between the violation found and pecuniary damage alleged for the periods after termination of the employment relationship by means of the ordinary dismissal with effect as of 31 March 2005. The Court therefore rejects the applicant's claim for pecuniary damage.

On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head.

The applicant also claimed EUR 6,100 for the costs and expenses incurred before the Court.

The Government argued that this sum considerably exceeded the amounts usually awarded by the Court in respect of costs and expenses.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 in respect of costs and expenses for the proceedings before the Court.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.