CASE OF KAROUSSIOTIS v. PORTUGAL [Extracts]

Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, same application submitted to other procedure);Violation of Art. 8

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1980 and lives in Krefeld (Germany).

On 25 August 2001 she gave birth to a child in Germany whose father, A., is a Portuguese national.

In October 2001 the child’s father was sentenced by the court of Krefeld to five years’ imprisonment for drug trafficking. His exclusion from Germany having been ordered, he was deported to Portugal in November 2004.

The applicant and the child’s father separated while he was in prison.

In January 2005, accompanied by a paternal uncle, the child went to Portugal to visit his father.

On 14 January 2005 the applicant travelled to Portugal to collect her child. She returned alone to Germany on 22 February 2005.

In March 2005 the applicant lodged, with the Federal Attorney-General, a request for the child’s return to Germany in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”).

On 27 October 2005 the German public prosecution service sent a request to the Portuguese authorities to obtain the child’s return, alleging that the child had been wrongfully removed from Portugal in breach of Article 3 of the Hague Convention.

The request was served on the child’s father, who opposed the return. A. denied, in particular, that the child’s removal had been wrongful and stated that the decision for the child’s trip had been taken by both parents. He explained that the child’s movement had been decided by both parents because the child’s mother had envisaged settling in Portugal.

On 24 January 2006 the Braga Family Court gave a judgment to the effect that the child should not be returned to Germany, finding that the child’s retention in Portugal was not wrongful within the meaning of Article 3 of the Hague Convention or of Article 11 of Council Regulation (EC) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Council Regulation no. 2201/2003”).

On 2 February 2006 the applicant appealed against the judgment before the Guimarães Court of Appeal arguing, among other things, that she had not been heard by the Braga Family Court.

In a judgment of 21 June 2006, the Guimarães Court of Appeal granted the applicant’s request. Annulling the judgment of the Braga Family Court, the Court of Appeal referred the case back to it, directing in particular that it should hear the child’s mother.

The child’s father appealed against the judgment of the Guimarães Court of Appeal before the Supreme Court, which dismissed his appeal on 7 November 2006.

On 15 August 2007, pursuant to an international letter of request from the Braga Family Court dated 14 February 2007, the mother was heard by the Krefeld court.

On 13 September 2007 the Krefeld court reported back to the Braga Family Court, sending the record of the hearing.

In a judgment of 21 May 2008, the Braga Family Court again rejected the request for the child’s return, finding that the child’s removal had not been wrongful as it had been agreed between the two parents.

On 12 June 2008 the applicant lodged an appeal before the Guimarães Court of Appeal. Her appeal was dismissed by a judgment of 9 January 2009.

In its judgment, the Court of Appeal stated:

“... it must be concluded that from the time when the mother of L. returned to Germany without her son, he began to be wrongfully retained in Portugal. Her return request showed, categorically, that she did not wish her son to remain in Portugal.”

Even though the Court of Appeal recognised that the case concerned a situation of wrongful retention of a child, under the terms of Council Regulation no. 2201/2003, it found it preferable for the child to remain in Portugal for the following reasons:

“The facts of the case show that the child, who has been looked after by his great-grandmother since March 2008, has a particular emotional attachment to her, seeing in her a mother figure, to the point of almost forgetting the image of his mother. His great-grandmother is the person who takes care of him day-to-day, with tenderness ... The mother very rarely calls her child, and when she does so, the child does not consider it very important. The child sees his great-grandmother, at the current stage of his development, as a figure of authority who brings him security and tranquillity, as shown in his behaviour at school and in his relationships with others. He is content in the environment in which he lives and has been very successful at school. Accordingly, to change his environment and take him away from the person to whom he relates would risk causing him psychological harm ...

All the conditions are thus met for the respondent State to prevent the child’s return, in the light of the child’s best interests, which must take precedence over the free movement of children – even if this is done safely – in accordance with Article 13 (b) of the Hague Convention [on the Civil Aspects of International Child Abduction] of 1980. Taking the view that a return to Germany would be harmful for the child, the respondent State has acted in accordance with Article 13 of the Hague Convention.”

On 2 March 2005 the public prosecutor at the Braga court opened proceedings in respect of parental responsibilities (regulação do poder paternal) vis-à-vis the child. Custody was provisionally awarded to the father.

On 3 October 2005 the Braga Family Court held its first conciliation hearing. As they failed to reach an agreement, the parents were requested to submit pleadings.

On 19 October 2005 the applicant filed her pleadings. Submitting that the child’s retention in Portugal was wrongful, the applicant argued that the Braga Family Court lacked territorial jurisdiction, as in her view the German courts had jurisdiction in accordance with Council Regulation no. 2201/2003.

The child’s father, in his pleadings of 21 October 2005, requested the court to award him custody.

On 27 October 2005 the public prosecutor at the Braga Family Court submitted that the decision should be deferred until the completion of the proceedings before the German courts concerning the child’s return.

In a decision of 31 July 2006, the Braga Family Court amended the provisional allocation of parental authority in respect of the child, transferring it to the child’s great-grandmother.

On 4 January 2008 the applicant (represented by her lawyer) and the child’s father jointly requested the Braga Family Court to award custody of the child to the applicant.

On 30 January 2008 the applicant requested the court to speed up the proceedings.

On 27 February 2008 the child’s father was remanded in custody in connection with an investigation into false imprisonment, extortion, drug trafficking, unlawful carrying of a weapon and theft.

On 10 March 2008 the applicant reiterated her request to the Braga Family Court to obtain parental authority of the child. In a decision of 4 April 2008, the court dismissed the applicant’s request, indicating that the proceedings had been stayed.

On 15 May 2008 the child’s great-grandmother requested the court to grant her permanent custody of the child.

Following the judgment of the Guimarães Court of Appeal of 9 January 2009, the Braga Family Court decided on 3 May 2009 that the proceedings in respect of parental responsibilities should be resumed.

On 26 January and 15 May 2009 the applicant requested the Braga Family Court to award her custody of the child, invoking her agreement with the child’s father.

By an international letter of request, the court sought information from the German social services about the applicant’s social and financial circumstances.

On 12 October 2009 the Braga Family Court received the reports that had been requested from the German authorities. On 20 October 2009 it received a report from the Portuguese social services showing the child’s general situation of well-being in Portugal.

To date, the proceedings are still pending before the Braga Family Court.

On 2 April 2008 the applicant filed a complaint with the European Commission alleging an infringement of Council Regulation no. 2201/2003. She complained about the excessive length of the proceedings before the Braga Family Court, relying on Article 11 of the Regulation.

On 15 September 2008 the applicant sent various documents in support of her application to the European Commission.

On 7 May 2009 the Commission’s Directorate-General for Justice, Freedom and Security asked the applicant for additional information concerning the proceedings for the return of the child on grounds of wrongful removal and retention. On 15 June 2009 the applicant sent that information to the Directorate-General, submitting a copy of the Guimarães Court of Appeal’s judgment of 9 January 2009.

According to the most recent information from the applicant, dating from 2 July 2010, the proceedings thus initiated before the European Commission were still pending.

The relevant part of Article 17 of the Treaty on European Union provides as follows:

“1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”

Article 258 of the Treaty on the Functioning of the European Union (formerly Article 226 of the Treaty establishing the European Community) provides as follows:

“If the Commission considers that a member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”

In addition, the relevant part of Article 260 of the Treaty on the Functioning of the European Union (formerly Article 228 of the Treaty establishing the European Community) provides as follows:

“3. ... If the Court [of Justice of the European Union] finds that there is an infringement it may impose a lump sum or penalty payment on the member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.”

The explanatory note accompanying the complaint form to be addressed to the European Commission for non-compliance with European Union law explains as follows:

“Anyone may lodge a complaint with the Commission against a member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an infringement of Community law by a member State. ...”


The applicant, Mr Nikky Sentges, is a Netherlands national, who was born in 1986 and lives in Maassluis. He is represented by his mother, Mrs M. Sentges, who exercises parental authority (ouderlijk gezag) over him. In the proceedings before the Court he is represented by Mr M.F. Vermaat, a lawyer practising in Hilversum.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant suffers from Duchenne Muscular Dystrophy (DMD), a disease characterised by progressive muscle degeneration, loss of the ability to walk and often the loss of lung or cardiac functions. There is currently no known cure for DMD. Most affected people survive into their twenties.

The applicant is unable to stand, walk or lift his arms, and his manual and digital functions are virtually absent. He uses an electric wheelchair to move about, both outside the home and at school. He uses an adapted joystick to control the movement of the chair as he lacks the muscle strength required to operate the standard joystick. For every act he needs or wishes to perform, including eating and drinking, he is completely dependent on assistance from third persons.

On 20 July 1999 the applicant’s parents requested their health insurance fund (ziekenfonds) to provide him with a “MANUS Manipulator”, a robotic arm specifically designed to be mounted on electric wheelchairs in order to give disabled people more autonomy in handling objects in their environment. This request was supported by a rehabilitation specialist (revalidatiearts) who informed the health insurance fund that when the applicant had tried out the robotic arm he had shown that he would be able to learn how to use it. Providing the applicant with the robotic arm would enable him to perform many acts unassisted, such as:

– pouring drinks and drinking;

– picking up various remote controls and using them;

– operating audio and video players, for example inserting and removing audio and video cassettes;

– switching a computer and printer on and off;

– pressing lift buttons and door bells when visiting third persons;

– shopping;

– making telephone calls and sending faxes;

– picking up items off the floor or out of cupboards;

– picking up papers and/or books and turning pages;

– scratching himself; and

– playing games.

Since the applicant was receiving the 24-hour assistance he required mainly from his parents, it was not possible to quantify in monetary terms the savings which would result from the use of the robotic arm. However, not long after being provided with the robotic arm, the applicant’s dependence on the constant presence of carers would be reduced by at least one to three hours a day. This would alleviate the task of the carers, who would thus be better able to continue fulfilling their task. In addition, the applicant would be able to continue living at home (for a longer period of time). The total cost of the robotic arm amounted to about 36,000 euros (EUR).

On 10 August 1999 the health insurance fund rejected the request for the reason that the provision of a robotic arm was covered neither by the Health Insurance Act (Ziekenfondswet), the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten) nor by any other social insurance scheme.

The objection (bezwaar) which the applicant’s parents filed against this decision was rejected by the health insurance fund on 18 May 2000. The insurance fund held that since Article 15 of the Health Insurance (Treatment and Services) Decree (Verstrekkingenbesluit Ziekenfondsverzekering) stipulated that insured persons were entitled to those medical devices which had been designated by the Minister for Health, Welfare and Sport (Minister van Volksgezondheid, Welzijn en Sport; “the Minister”), it was not allowed to provide for, pay for or make a payment towards devices other than those mentioned in Article 2 of the Regulation on Medical Devices 1996 (Regeling hulpmiddelen 1996; “the Regulation”). A robotic arm was not listed in that Regulation.

The appeal lodged by the applicant’s parents against this decision was upheld by the Regional Court (arrondissementsrechtbank) of Rotterdam on 12 December 2000. The Regional Court considered that the health insurance fund had given too narrow an interpretation to certain provisions of the Regulation. It therefore ordered the health insurance fund to come to a new decision on the request for the robotic arm. In view of this finding the Regional Court considered that it was not necessary to examine the arguments raised by the applicant’s parents relating to Article 8 of the Convention.

The health insurance fund appealed against the judgment of the Regional Court to the Central Appeals Tribunal (Centrale Raad van Beroep). It maintained that the robotic arm was not a medical device which could be provided pursuant to the Regulation. In this connection it pointed to the fact that the Health Care Insurance Board (College voor zorgverzekeringen) had advised the Minister in September 2000 to include the robotic arm in the Regulation. However, the Minister had decided not to adopt this proposal for the time being. Obviously, if an insured person was already able to enforce a right to be provided with a robotic arm, neither the advice of the Health Care Insurance Board nor the decision of the Minister would have been necessary.

The arguments presented on behalf of the applicant in the proceedings before the Central Appeals Tribunal included extensive reasoning relating to Article 8 of the Convention.

On 29 January 2002 the Central Appeals Tribunal rejected the appeal. It found that the Regulation did not contain an entitlement for the applicant to be provided with a robotic arm. As to Article 8, the Central Appeals Tribunal held as follows:

“The Tribunal is of the opinion that it has to be said that a direct and immediate link exists between [the applicant’s] private life and the measure demanded from [the health insurance fund], to wit the provision of a robotic arm. Taking into account the wide margin of appreciation which the State enjoys in these matters, it can nevertheless not be said that, when weighing the general interest, including the costs of health care, against the individual interest, the State could not reasonably have decided to exclude the robotic arm at issue from the package of treatment and services that persons are entitled to pursuant to the Health Insurance Act.”

The above-mentioned report of the Health Care Insurance Board stated that between 150 and 400 persons a year might be eligible for the robotic arm if it were to be included in the health insurance fund package. If the lifespan of a robotic arm was set at five years, the yearly costs would amount to EUR 10,900 per arm. It was likely that the provision of a robotic arm would also entail savings, but the exact extent of these savings was difficult to estimate.

Insurance under the Health Insurance Act is statutory: everyone who meets the criteria laid down in the legislation is automatically insured and consequently obliged to pay the statutory contribution. These criteria relate mainly to income; individuals whose income exceeds a certain amount are expected to take out private insurance. Children to whose maintenance an insured person contributes at least a particular amount per week are also insured.

A person insured under the Health Insurance Act must register with a health insurance fund in order to obtain insurance entitlements. The nature of the care available to those covered by the Health Insurance Act is defined in the Act itself and in more detail in the Health Insurance (Treatment and Services) Decree and the associated ministerial regulations.

In addition, all residents of the Netherlands are statutorily insured under the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten) which provides cover for very severe financial burdens as a result of serious long-term illnesses or disorders.


No violation of Art. 10;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul.

At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul.

In issue no. 23 dated 30 August 1992, two readers’ letters, entitled “Silahlar Özgürlüğü Engelleyemez” (“Weapons cannot win against freedom”) and “Suç Bizim” (“It is our fault”), were published.

The letters read as follows (translation):

(a) “Weapons cannot win against freedom

In the face of the escalating war of national liberation in Kurdistan, the fascist Turkish army continues to carry out bombings. The ‘Şırnak massacre’ which Gerçek journalists revealed at the cost of great self-sacrifice has been another concrete example this week.

The brutalities in Kurdistan are in fact the worst that have been experienced there in the past few years. The massacre carried out in Halepçe in southern Kurdistan by the reactionary BAAS administration is now taking place in northern Kurdistan. Şırnak is concrete proof of it. By causing provocation in Kurdistan, the Turkish Republic was heading for a massacre. Many people were killed. In a three-day attack with tanks, shells and bombs, Şırnak was razed to the ground.

And the bourgeois press, en masse, wrote about the slaughter. And as the bourgeois press has said, there are indeed scores of ‘unanswered’ questions to be asked. As to Şırnak, the attack on Şırnak is the most effective form of the campaign that is being waged throughout Turkey to eradicate the Kurds. Fascism will follow it up with many more Şırnaks.

But the struggle of our people for national freedom in Kurdistan has reached a point where it can no longer be thwarted by bloodshed, tanks and shells. Every attack launched by the Turkish Republic to wipe out the Kurds intensifies the struggle for freedom. The bourgeoisie and its toadying press, which draw attention every day to the brutalities in Bosnia-Herzegovina, fail to see the brutalities committed in Kurdistan. Of course, one can hardly expect reactionary fascists who call for a halt in the brutalities in Bosnia-Herzegovina to call for a halt in the brutalities in Kurdistan.

The Kurdish people, who are being torn from their homes and their fatherland, have nothing to lose. But they have much to gain.”

(b) “It is our fault

The TC[] murder gang is continuing its murders ... on the grounds of ‘protecting the Republic of Turkey’. But as people wake up to what is happening and become more aware, as they gradually learn to stand up for their rights and the idea that ‘if they won’t give, then we’ll take by force’ gradually germinates in people’s minds and grows stronger day by day – as long as this continues, the murders will obviously also continue ... Beginning of course with those who planted the seed in people’s minds – according to the generals, imperialism’s hired killers, and according to the double-chinned, pot-bellied, stiff-necked Turguts, Süleymans and Bülents ... Hence the events of 12 March, hence the events of 12 September ... Hence the gallows, hence the prisons, hence the people sentenced to 300 or 400 years. Hence the people murdered in the torture rooms ‘in order to protect the Republic of Turkey’. Hence the Mazlum Doğans exterminated in Diyarbakır Prison ... Hence the Revolutionaries recently officially assassinated ... The TC murder gang is continuing – and will continue – to commit its murders. Because the awakening of the people is like a flood of enthusiasm ... Hence Zonguldak, hence the municipal workers, hence the public service employees ... Hence Kurdistan. Can the ‘murder gangs’ stop that flood? There may be some who see the title of this letter and wonder what on earth it has to do with the text.

The ‘hired killers’ of imperialism, i.e. the authors of the 12 September coup d’état, and their successors of yesterday and today, those who are still looking for ‘democracy’, who in the past participated in one way or another in the struggle for democracy and freedom, who now covertly or openly criticise their past actions, who confuse the masses and present the parliamentary system and the rule of law as the means of salvation, give the green light to the killings of the TC murder gang.

I am addressing the ‘faithful servants’ of imperialism and its hardened spokesman (men), the one(s) who said some time ago ‘You won’t get me to say that the nationalists commit crimes’[], who say(s) today ‘Those are not what we call journalists’, who say(s) ‘Who’s against demonstrations? Who’s against claiming one’s rights? Of course they can hold a march ... They’re my workers, my peasants, my public employees’, but then has (have) the public employees who march to Ankara beaten up in the very heart of the city and say(s) afterwards ‘The police did the right thing’, and who postpone(s) strikes for months on end. I am addressing the blabbers, the deserters and the charlatans who are stirring up the reactionary consciousness of the masses, who try to judge these people by their attitude towards Kurdistan and try to work out how ‘democratic’ they are. The guilt of the murder gang is proven. It is through flesh-and-blood experience that people are beginning to see it and realise it. But what about the guilt of the charlatans, the ones who are thwarting the struggle for democracy and freedom ... Yes, what about their guilt ... They have their share in the killings by the murder gang ... May their ‘union’ be a happy one!”

In an indictment dated 21 September 1992, the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) charged the applicant in his capacity as the owner of the review, as well as the review’s editor, with disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people. The charges were brought under Article 312 of the Criminal Code and section 8 of the Prevention of Terrorism Act 1991 (“the 1991 Act” – see paragraphs 22 and 24 below).

In the proceedings before the Istanbul National Security Court, the applicant denied the charges. He asserted that the expression of an opinion could not constitute an offence. He further stated that the letters in issue had been written by the readers of the review and for that reason could not engage his responsibility.

In a judgment dated 12 April 1993, the court found the applicant guilty of an offence under the first paragraph of section 8 of the 1991 Act. It found no grounds for convicting him under Article 312 of the Criminal Code. The court initially sentenced the applicant to a fine of 200,000,000 Turkish liras (TRL). However, having regard to the applicant’s good conduct during the trial, it reduced the fine to TRL 166,666,666. The editor of the review was for his part sentenced to five months’ imprisonment and to a fine of TRL 83,333,333.

In its judgment, the court held that the incriminated letters contravened section 8 of the 1991 Act. The court concluded that the letters referred to eight districts in the south-east of Turkey as an independent State, “Kurdistan”, described the PKK (Workers’ party of Kurdistan) as a national liberation movement involved in a “national independence war” against the Turkish State and amounted to propaganda aimed at the destruction of the territorial integrity of the Turkish State. In addition the court found that the letters contained discriminatory statements on grounds of race.

The applicant appealed against his conviction to the Court of Cassation, contending that his trial and conviction contravened Articles 6 and 10 of the Convention. He asserted that section 8 of the 1991 Act was contrary to the Constitution and denied that the letters in question disseminated separatist propaganda. He also maintained that he had not been able to be present at the hearing at which the decision on his conviction had been given. He pleaded that the decision given in his absence and without his final statement having been taken was contrary to law.

On 26 November 1993 the Court of Cassation ruled that the amount of the fine imposed by the National Security Court was excessive and set aside the applicant’s conviction and sentence on that account. The court remitted the case to the Istanbul National Security Court.

In its judgment of 12 April 1994, the Istanbul National Security Court sentenced the applicant to a fine of TRL 100,000,000 but subsequently reduced the fine to TRL 83,333,333. As to the grounds for conviction, the court, inter alia, reiterated the reasoning used in its judgment of 12 April 1993.

The applicant appealed. He relied on the defence grounds which he had invoked at his first trial. He also maintained that the National Security Court had convicted him without having duly heard his defence.

On 30 September 1994 the Court of Cassation dismissed his appeal, upholding the National Security Court’s reasoning and its assessment of the evidence.

Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 25 below), the Istanbul National Security Court ex officio re-examined the applicant’s case. On 8 March 1996 the court confirmed the sentence which it had initially imposed on him.

The relevant provisions of the Criminal Code read as follows:

“Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.”

“The term ‘heavy fine’ shall mean payment to the Treasury of from twenty thousand to one hundred million Turkish liras, as the judge shall decide ...”

“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …”

“Harmful propaganda

A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years.

A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years.

A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years.

“Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …”

“Non-public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.

A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

The relevant provisions of the Press Act 1950 read as follows:

“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.

‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”

“Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor … the penalty imposed shall be reduced to one-third of that laid down by law for the offence concerned.”

The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:

“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.

It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[]. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.”

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[2]. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras …

“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”

“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.

However, the provisions of this section shall not apply to convictions pursuant to section 8[].”

“Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct.

The first and second paragraphs of section 19[] … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.”

The following amendments were made to the Prevention of Terrorism Act 1991 following the enactment of Law no. 4126 of 27 October 1995:

“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4[] and 6[] of Law no. 647 of 13 July 1965.”

The following provisions are relevant to sentences in respect of offences under the Press Act:

“The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred.

The provision in the first paragraph shall also apply to editors who are already serving their sentences.

The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.”

“If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence.

Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment.

Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”

The Execution of Sentences Act 1965 provides, inter alia:

“The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits.

If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor.

The sentence of imprisonment thus substituted for the fine may not exceed three years …”

“… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...”

The Code of Criminal Procedure contains the following provisions:

“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.

Non-application or erroneous application of a legal rule shall constitute unlawfulness[].”

“Unlawfulness is deemed to be manifest in the following cases:

1- where the court is not established in accordance with the law;

2- where one of the judges who have taken the decision was barred by statute from participating;

The Government supplied copies of several decisions given by the prosecutor attached to the Ankara National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 24 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.

Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 1991/23–75–132–177–100; 1992/33–62–73–89–143; 1993/29–30–38–39–82–94–114; 1994/3–6–12–14–68–108–131–141–155–171–172; 1995/1–25–29–37–48–64–67–84–88–92–96–101–120–124–134–135; 1996/2–8–18–21–34–38–42–43–49–54–73–86–91–103–119–353; 1997/11–19–32–33–82–89–113–118–130–140–148–152–153–154–187–191–200–606; 1998/6–8–50–51–56–85–162.

As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used.

The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows:

“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.

No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”

“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution …”

“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.

National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.

The president, one of the regular members, one of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.

Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.

Appeals against decisions of National Security Courts shall lie to the Court of Cassation.

“Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law ...”

Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:

“In the capitals of the provinces of … National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.”

“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”

“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank …”

“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.

Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years …

If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”

“National Security Courts shall have jurisdiction to try persons charged with

(a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code,

(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,

(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free democratic system of government, and offences which directly affect the State’s internal or external security.

“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”

“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …

The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”

“A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court …”

The relevant provisions of the Military Legal Service Act are worded as follows:

“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).

(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.

“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence …”

“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces …

The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors …”

“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”

“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:

A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.

B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.

The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file …”

“When military judges … sit in court they shall wear the special dress of their civilian counterparts …”

Article 112 of the Military Criminal Code of 22 May 1930 provides:

“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”

Under section 22 of Law 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1977 in Sivas.

On 6 May 1998 the applicant was taken into police custody on suspicion of being a member of an illegal organisation.

On 9 May 1998 he was brought before the public prosecutor and investigating judge at the Istanbul State Security Court, who ordered his pre-trial detention.

On 11 May 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him with membership of an illegal organisation.

On 14 July 1998 due to the factual and legal connection between the cases, the court decided to joint the applicant’s case to other proceedings, involving seven accused (no. 1998/2).

On the same day the applicant was released pending trial.

On 29 July 2000 a change took place in the judges sitting as a bench at the Istanbul State Security Court and therefore, the next hearing was scheduled on 7 September 2000.

On 16 November 2000 the hearing was postponed to 20 February 2001 due the change in the assignment of judges at the trial court.

On 20 February 2001 the applicant was summoned to appear before the court in order to make his supplementary submissions for his defence, in view of a possible alteration of the offence he was charged with.

On 10 May 2001 the court observed that the registered writ having sent to the applicant, returned to the case file without a delivery.

On 30 November 2001 the public prosecutor at the Istanbul State Security Court filed an additional bill of indictment, charging the applicant with using explosives.

From the date of 10 May 2001 to 24 May 2007, despite the authorities’ efforts to have summoned the applicant, his whereabouts could not be established. During that period, the court ordered the Avcılar Police Department to make an enquiry to the applicant’s family about his nonappearance. Subsequently, the court was informed that the applicant had gone abroad to study.

The trial court invited the prosecutor’s office to transmit the arrest warrant against the applicant to the customs with a view to securing his appearance before the court once he entered the country.

Following a constitutional amendment, State Security Courts were abolished and the applicant’s case was transferred to the Istanbul Assize Court.

On 6 November 2007, in his defence submissions to the court, the applicant’s lawyer claimed that the applicant had already been tried by another chamber of the Istanbul Assize Court on the basis of the same facts and requested that the matter be examined further.

On 3 April 2008 the Istanbul Assize Court ordered the case file of the proceedings in question to verify the reason for the applicant’s previous conviction.

On 24 February 2009 the court ruled that the criminal proceedings be discontinued on the ground that the prosecution was time-barred. On the same day, the applicant’s lawyer lodged an appeal against the judgment.

According to the submissions in the case file, the proceedings are currently pending before the Court of Cassation.


Violation of Art. 6-1;No separate issue under Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Between 1982 and 1989 the applicant used to live in a rented apartment located in the area of Terontola, in the province of Perugia. He was housing a Nigerian national whom the authorities maintain is the applicant's cousin, whereas the applicant alleges he is only a friend.

On 23 February 1988 a criminal complaint was filed against the applicant and against the person who was sharing the apartment with him for membership of a drug-trafficking ring.

On an unspecified date a search warrant was issued against the applicant's friend/cousin. On 13 November 1988 the applicant's apartment was searched. The police found a certain amount of drugs, partly in the house and partly in a nearby barn. On the same date the applicant was arrested and charged with illegal possession of drugs.

During his police interrogation the applicant chose the family home of a couple of close friends, Mr and Mrs C., as the address for service of communications relating to the case, as provided for by Section 171 of the former Italian Code of Criminal Procedure. The applicant was subsequently committed for trial before the Arezzo District Court on the charge of illegal possession of drugs.

On 7 December 1988 the Arezzo District Court acquitted the applicant on the ground of lack of evidence (insufficienza di prove). The court however found the applicant's friend/cousin guilty of possessing drugs and sentenced him to seven years' imprisonment.

Following his acquittal the applicant again elected Mr and Mrs C.'s family home as his address for service. However, shortly after his acquittal the applicant moved to Germany where he obtained employment. The applicant did not inform the Italian authorities of this change of address as required by Italian law.

On an unspecified date the Public Prosecutor attached to the Arezzo District Court appealed against the judgment acquitting the applicant. On 10 July 1989 the President of the Florence Court of Appeal issued a summons for the applicant to attend the appeal hearing set for 6 October 1989. On 2 August 1989 the bailiff (ufficiale giudiziario) completed a form stating that he could not serve the summons on account of the fact that the applicant was no longer living there and that it appeared that he had left the country (“non potuto notificare perchè il notificando non è piu' domiciliato presso la famiglia in questione ma pare sia ritornato all'estero”). On 16 August 1989 the bailiff completed a report stating that he had served the summons on the applicant by depositing it at the registry of the Florence Court of Appeal.

On 6 September 1989 the registry of the Florence Court of Appeal issued a notice to Mr D., the applicant's officially-appointed lawyer (avvocato d'ufficio), which stated that, as it had not been possible to serve the summons on the applicant, it had been filed with the court registry. On 25 September 1989 the bailiff served this notice on Mr D.

On 6 October 1989 the Florence Court of Appeal reversed the first-instance judgment concerning the applicant and sentenced him to seven years' imprisonment for illegal possession of drugs. The applicant, who had had no notice of the appeal proceedings, was not present at the hearing.

On 3 January 1990 the bailiff wrote a report stating that the attempt to serve notice of the judgment on the applicant at the old address had failed, the applicant no longer being domiciled there, as declared by Mr C. On 29 January 1990 the bailiff completed a report (relata di notifica) stating that he had served notice of the judgment on the applicant by filing it with the registry of the Florence Court of Appeal. The applicant did not receive any notice of the appeal judgment or of the prison sentence passed on him.

On 19 August 1995 the applicant was arrested when entering Italy on his return from a holiday. He was immediately imprisoned in compliance with the Florence Court of Appeal judgment of 6 October 1989.

On 22 September 1995 the applicant made an application to the Court of Cassation seeking leave to make a “late appeal” (restituzione nel termine).

By a decision (ordinanza) of 30 January 1996, which was deposited in the court's registry on 13 March 1996, the Court of Cassation rejected the applicant's request. It noted that the applicant had had knowledge of his conviction in absentia upon his arrest on 19 August 1995, whereas he had lodged the request for the late appeal on 22 September 1995, thus failing to comply with the ten-day time-limit set out in Article 175 of the Code of Criminal Procedure.

In a letter dated 20 July 1996 Mr and Mrs C. stated that they had never been served with notification that an appeal had been lodged in respect of the applicant. On or about 31 May 1997 the applicant was released from prison and was expelled to the United Kingdom.

Section 175 paragraphs 2 and 3 of the Code of Criminal Procedure provides as follows:

“When a judgment is delivered in absentia, an accused who proves that he had no knowledge of the judgment can apply for an extension of the time-limit to lodge an appeal against it provided that the judgment has not already been appealed by his lawyer and that the fact that he did not have knowledge of the judgment is not attributable to him ....

The request for an extension of the time-limit shall be lodged by the accused within ten days of his actual knowledge of the judgment”.

Section 1 of Law no. 742 of 7 October 1969 provides as follows:

“The running of procedural time-limits in the ordinary and administrative courts shall be automatically suspended from 1 August to 15 September each year and shall recommence at the end of the suspension period. Should a time-limit start running during this period, the starting-date shall be automatically postponed to the end of such period.”

In a judgment (no. 6336) of 25 November 1998, the Court of Cassation stated that the ten-days time-limit set out in Article 175 of the Code of Criminal Procedure is also suspended from 1 August to 15 September pursuant to Section 1 of Law 742/69.


Violation of Art. 8;Just satisfaction reserved

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1957 and lives in Essen.

On 15 November 1983 the applicant took up the position of organist and choirmaster at the Catholic parish church of Saint Lambertus (“the parish church”) in Essen.

Article 2 of his contract of employment dated 30 January 1984 stipulated, inter alia, that the Ecclesiastical Employment and Remuneration Regulations (see paragraph 37 below), as currently in force, formed an integral part of the contract and that any serious breach of the Church’s principles constituted a material ground for termination of contract without notice, in accordance with Article 42 of those regulations.

After the contract had been approved by the Bishop’s Vicar General, the applicant took the following oath:

“I hereby undertake to discharge my professional duties and to fulfil and observe ecclesiastical obligations.”

From 1 January 1985 onwards he also held the position of head musician in the deanery and was paid a gross monthly salary of 5,688.18 marks (about 2,900 euros).

In 1994 the applicant left his wife, who was the mother of his two children. The separation was made public in January 1995. Since then the applicant has been living with his new partner, who has also been his representative before the employment tribunals and the Court.

On 2 July 1997, after the applicant’s children had told people at their kindergarten that their father was going to have another child, the Dean of the parish discussed the matter with the applicant.

On 15 July 1997 the parish church dismissed the applicant with effect from 1 April 1998 on the ground that he had breached his duty of loyalty under Article 5 of the Catholic Church’s Basic Regulations (the “Basic Regulations” – see paragraph 38 below). In the light of the Catholic Church’s fundamental principles enshrining the sanctity of marriage, the applicant, by having an extramarital relationship with another woman, who was expecting his child, was accused not only of committing adultery but also of bigamy.

Following the applicant’s dismissal his wife petitioned for divorce, which was granted on 13 August 1998.

On 24 July 1997 the applicant took his case to the Essen Employment Tribunal.

On 9 December 1997 the Employment Tribunal granted the applicant’s claim and found that the dismissal of 15 July 1997 had not terminated his contract of employment. Observing the findings of the Federal Employment Court’s judgment of 9 April 1997 (see Obst v. Germany, no. 425/03, §§ 12-19, 23 September 2010), which had applied the principles set out by the Federal Constitutional Court in its leading decision of 4 June 1985 (see paragraph 35 below), it took the view that the applicant’s conduct did not yet (noch nicht) justify his dismissal, under section 1(1) of the Protection from Dismissal Act (see paragraph 36 below). In the Tribunal’s view, he had not been bound by heightened duties of loyalty (gesteigerte Loyalitätsobliegenheiten) because he did not perform pastoral or catechistic duties, did not have a canonical mandate (missio canonica) and was not a member of the managerial staff (leitender Mitarbeiter) within the meaning of Article 5 § 3 of the Basic Regulations. In the Tribunal’s view, the respondent had not proved that the applicant’s duties as head musician of the deanery were equivalent to managerial office; accordingly, pursuant to Article 5 §§ 1 and 2 of the Basic Regulations, the parish church should first have summoned him for a clarification interview (klärendes Gespräch) or issued him with a warning (Abmahnung) before having recourse to the most serious of the disciplinary measures available, his dismissal, especially on account of his length of service in the parish church (fourteen years) and the fact that he had practically no chance of finding work as an organist on the labour-market outside the Catholic Church. The Employment Tribunal observed that an employer could only be dispensed from the obligation to issue a warning in the first instance where the employee could not expect his or her conduct to be tolerated by the employer in view of the seriousness of the breach, or where he or she was not inclined to perform, or capable of performing, his or her professional duties.

In the Tribunal’s view, in so far as the parish church reproached the applicant for having fathered a child out of wedlock, such a shortcoming, after fourteen years of service, did not attain a level of seriousness that justified dismissal on that ground alone without prior warning. Article 5 § 4 of the Basic Regulations expressly required consideration of the question whether a staff member opposed the precepts of the Catholic Church or, whilst recognising its precepts, had not succeeded in complying with them in practice. The Tribunal added that the parish church had failed to prove that the applicant had told the Dean he did not wish to put an end to his new relationship.

On 13 August 1998 the Düsseldorf Employment Appeal Tribunal dismissed an appeal by the parish church. It endorsed the findings of the Employment Tribunal, observing that the reason for dismissal had not been the applicant’s paternity of a child born out of wedlock but rather his long-term extramarital relationship. The Tribunal pointed out that, whilst the applicant’s duties in the Church did not fall under Article 5 § 3 of the Basic Regulations, his dismissal nevertheless remained possible under Article 5 § 4, in view of the proximity between his work and the Church’s proclamatory mission. However, after formally hearing evidence from the applicant as a party to the proceedings, the Appeal Tribunal reached the conclusion that the dismissal had been vitiated by a procedural omission, as the parish church had failed to prove that the Dean had first sought to induce the applicant to put an end to his extramarital relationship. In view of the fundamental significance of the case, the Tribunal granted leave to appeal on points of law before the Federal Employment Tribunal.

On 12 August 1999 the Federal Employment Tribunal quashed the judgment of the Appeal Tribunal. It took the view that Article 5 § 1 of the Basic Regulations, which required a clarification interview, applied not only to dismissals decided under paragraph 2 of that Article (dismissal as the ultimate measure for a serious breach) but also to those based on paragraph 3 (exclusion from post as a matter of principle, and possibility of waiving dismissal on an exceptional basis). The difference between the two paragraphs being merely a question of degree, a clarification interview would be necessary in all cases. In the case before it, the Federal Tribunal took the view that considering the lack of clarity of the ecclesiastical provisions applicable to the applicant as to whether or not his functions entailed heightened duties of loyalty, it had not been clearly established that the applicant could have known with sufficient foreseeability that his dismissal would fall under Article 5 § 3 of the Basic Regulations. If the holding of a clarification interview had been mandatory in the applicant’s case, the absence of such an interview was thus capable of rendering his dismissal wrongful (sozialwidrig). However, the Federal Employment Tribunal observed that the Employment Appeal Tribunal had been mistaken in finding that no interview had been conducted with the applicant. On that point it took the view that the Appeal Tribunal had wrongly omitted to hear evidence also from the Dean, as a party to the proceedings, in order to establish whether or not he had attempted to induce the applicant to put an end to his extramarital relationship and that, accordingly, the judgment appealed against was to be quashed. However, since the facts had not yet been sufficiently established, the Federal Employment Tribunal was not in a position to rule on the question whether the applicant’s dismissal had been justified. As a result, it referred the case back to the Employment Appeal Tribunal.

The Federal Employment Tribunal further observed that, where an employing church entered into employment contracts, it used not only the freedom of contract (Privatautonomie) provided for under ordinary domestic labour law, but also the institutional guarantee of autonomous management enjoyed by the Churches. Church labour law was therefore applicable in conjunction with the ordinary domestic law. The enactment of the Basic Regulations, in particular Articles 4 and 5, reflected the principle of the Catholic Church’s autonomy, as provided for in Article 137 § 3 of the Weimar Constitution (see paragraph 34 below). The application of domestic labour law could not call into question the specificity of ecclesiastical service, which was protected by the Constitution. The Catholic Church was therefore entitled to base its contracts of employment on the model of a Christian service community and, in particular, to require its Catholic employees to recognise and comply with the principles of Catholic religious and moral precepts, as provided for in Article 4 § 1 of the Basic Regulations. As the credibility of the Church might depend on its employees’ conduct and respect for the ecclesiastical order, including in their day-to-day lives, Articles 4 and 5 of the Basic Regulations stipulated the applicable criteria on which to assess contractual duties of loyalty and the seriousness of any breach of such duties.

The Federal Employment Tribunal added that the specificity of the duties of loyalty lay in the fact that they concerned not so much occupational duties as conduct falling within secondary duties or even private life. It noted that the sanctity of marriage formed an integral part of the basic principles of the Catholic Church’s religious and moral precepts. The case concerned not only a relationship and a contract but also a sacrament. Even though adultery was no longer an offence since the new version of the 1983 Code of Canon Law, marriage had retained its indissoluble, perpetual and exclusive nature.

The Federal Employment Tribunal noted that, when employment tribunals applied ordinary labour law, they were bound by the precepts of religious denominations in so far as those precepts took account of the criteria recognised by established Churches. However, in applying those precepts the employment tribunals’ decisions could not run counter to the fundamental principles of law, which included the concepts of “morality” and “public order”. According to the case-law of the Federal Constitutional Court (see paragraph 35 below), it was for the employment tribunals to ensure that religious denominations did not impose excessive requirements of loyalty on their employees. The Federal Employment Tribunal found that the beliefs of the Catholic Church regarding fidelity in marriage were not at odds with the fundamental principles of law. Marriage enjoyed special protection under Article 6 of the Basic Law and adultery was regarded as a serious fault in a civil law context. The Tribunal observed that it had, moreover, already found in its judgment of 24 April 1997 that adultery constituted a serious fault in the view of the Catholic Church (see Obst, cited above, § 15).

The Federal Employment Tribunal concluded that the Employment Appeal Tribunal had rightly considered that the applicant’s conduct could be characterised as a serious personal moral fault, within the meaning of Article 5 § 2 of the Basic Regulations, and that it therefore constituted a ground for dismissal for the purposes of section 1(2) of the Protection from Dismissal Act. It noted that the applicant’s opinion that only a new marriage – which, according to the Catholic Church’s belief would be null and void – could be regarded as a serious breach was not substantiated by any provision of the Basic Regulations or other instruments.

On 3 February 2000, after the case had been referred back to it, the Düsseldorf Employment Appeal Tribunal upheld the parish church’s appeal against the judgment of the Employment Tribunal of 9 December 1997. After hearing evidence from the Dean as a party to the proceedings, and with the applicant having acknowledged that he had, at his interview of 2 July 1997 with the Dean, described as permanent his new relationship with his lawyer, the Tribunal held that the parish church had dismissed him in accordance with Article 5 § 1 of the Basic Regulations. According to the Dean’s statements at the hearing – which the Tribunal found more credible than those of the applicant – there had indeed been an interview between the two parties. In view of the applicant’s inflexible position as regards his new relationship, the Dean and the parish church had rightly considered that a prior warning would be superfluous.

The Employment Appeal Tribunal added that it was not unaware of the consequences of the applicant’s dismissal, which would most likely prevent him from exercising his profession and from paying the same amount in child maintenance. However, it admitted that the parish church could not continue to employ the applicant without losing all credibility in relation to the mandatory nature of its religious and moral precepts. In this connection it was necessary to take into account the fact that, even if the applicant was not among those members of staff that were bound by heightened duties of loyalty under Article 5 § 3 of the Basic Regulations, his activity was closely related to the Church’s proclamatory mission. It was thus hardly conceivable vis-à-vis the general public that the applicant and the Dean could continue to perform the liturgy together. According to the Employment Appeal Tribunal, the interests of the parish church prevailed by far over those of the applicant.

On 29 May 2000 the Federal Employment Tribunal found inadmissible a request by the applicant to appeal on points of law.

On 8 July 2002 the Federal Constitutional Court disallowed a constitutional complaint by the applicant (no. 2 BvR 1160/00) on the ground that it had insufficient chances of succeeding. In the Federal Court’s opinion, the decisions appealed against did not raise any constitutional issues in the light of its 4 June 1985 judgment (see paragraph 35 below).

Since September 2002 the applicant has been employed as choirmaster for a Protestant church in Essen and he also directs three choirs on a voluntary basis.

On 22 December 1997 the parish church issued a second dismissal with effect from 1 July 1998. On 4 December 1998 the Employment Tribunal rejected an application for annulment lodged by the applicant. To date those proceedings are still pending before the Düsseldorf Employment Appeal Tribunal.

The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel) of the Weimar Constitution of 11 August 1919, as incorporated into the Basic Law by Article 140 of that Law. A large number of Churches and religious societies, including the Catholic Church (about 24.9 million members) and the Protestant Church of Germany (about 24.5 million members), commonly known as the two “big Churches” (Grosskirchen), have the status of public-law entity but are not, however, part of government. Other religious denominations have legal capacity under civil law. The status of public-law entity enables the Churches concerned, among other things, to receive Church tax and to employ public servants.

The Catholic Church and the Protestant Church employ over one million individuals, particularly in their charities, making them the second largest employer in Germany after the State. The two main charities alone, Caritas (Catholic) and Diakonie (Protestant), employ respectively almost 500,000 and 450,000 “staff members”. Their activities concern mainly the running of hospitals, schools, kindergartens, homes for children and the elderly and advice centres (for HIV sufferers, migrants, victims of domestic violence). The Catholic and Protestant Churches regard their social activities as being part of their proclamatory mission and a way of putting the “love thy neighbour” commandment into practice.

The law governing employment relationships between Churches and their public servants is based on civil-service law. As regards other employees, the ordinary domestic labour law will apply, but with a certain number of exceptions stemming from the Churches’ right of autonomy. As a result of that right they may, among other things, impose specific duties of loyalty on their employees (see below). Moreover, in terms of industrial-relations law, Churches and their institutions are not bound by the domestic right of employee participation. Considering that their activities, especially charity work, are based on the model of a Christian service community, formed by the whole body of staff, they do not accept legal structures based in principle on an opposition between employer and employee. The Catholic Church and most of the Protestant denominations thus refuse to enter into collective agreements with trade unions, and the right to strike or lock-out are non-existent in their institutions. However, they have created their own systems of representation and staff participation in management.

As regards their financing, Churches and religious societies having the status of public-law entity are entitled to receive Church tax, which constitutes a significant portion (about 80%) of their total budget. Church tax is levied by the State tax authorities on behalf of Churches and religious societies, which in return pay the State 3 to 5% of their tax revenue. This is based on income tax, amounting to between 8 and 9% thereof. It is paid directly to the Treasury by the taxpayer’s employer together with income tax. In this connection municipal authorities issue “wage-tax cards” (Lohnsteuerkarte) that employees are required to give their employers. The card contains information about the employee, including the tax regime, rebates for dependent children and membership of a Church or religious society entitled to receive Church tax.

Article 140 of the Basic Law provides that Articles 136-139 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows:

“(1) There shall be no State church.

(2) The freedom to form religious societies shall be guaranteed. ...

(3) Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.

(4) Religious societies shall acquire legal capacity in accordance with the general provisions of civil law.

(5) Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ...

(6) Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land.

(7) Associations whose purpose is to foster a philosophical belief in the community shall have the same status as religious societies.

(8) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land.”

On 4 June 1985 the Federal Constitutional Court delivered a leading judgment on the validity of dismissals of Church employees on the grounds of a breach of their duty of loyalty (nos. 2 BvR 1703/83, 1718/83 and 856/84, judgment published in the Reports of Judgments and Decisions of the Federal Constitutional Court, volume 70, pp. 138-73). The subject matter of the constitutional complaints was, on the one hand, the dismissal of a doctor practising in a Catholic hospital on account of a view he had expressed on abortion, and on the other, the dismissal of a commercial employee of a youth home run by a Catholic monastic order because he had left the Catholic Church. The two dismissed employees had been successful in proceedings before the employment tribunals and the employing Churches had then taken their cases to the Federal Constitutional Court, which allowed their complaints.

The Federal Constitutional Court observed that the right of religious societies to manage their affairs autonomously within the limit of the general law, as enshrined in Article 137 § 3 of the Weimar Constitution, applied not only to the Churches, but also, regardless of legal form, to any institution associated with them and participating in their mission. This constitutional guarantee included the right for the Churches to choose the staff they needed for the fulfilment of their mission and, accordingly, to enter into employment contracts. When the Churches chose to exercise their freedom of contract, like everyone else, then ordinary domestic labour law became applicable. However, the applicability of labour law did not have the effect of removing employment relations from the domain of a Church’s own affairs. The constitutional guarantee of autonomy (Selbstbestimmungsrecht) afforded to Churches affected the content of contracts of employment. A Church could thus, in the interest of its own credibility, base its contracts of employment on the model of a Christian service community, and, accordingly, require its employees to respect the general principles of its dogmatic and moral doctrines and the basic duties applicable to all its members. That did not mean, however, that the legal status of a Church’s employee became “clericalised”. It merely concerned the nature and scope of duties of loyalty stemming from employment contracts. The civil-law employment relationship was not thereby transformed into an ecclesiastical status that subsumed the employee and dominated his entire private life.

The Federal Constitutional Court further observed that the freedom of the Churches to manage their own affairs was circumscribed by the general law, including those provisions that granted protection against wrongful dismissal such as section 1 of the Protection from Dismissal Act and Article 626 of the Civil Code. However, those provisions did not automatically prevail over the so-called “Church Articles” of the Weimar Constitution. It was thus appropriate to balance the different rights, with particular weight being accorded to the Churches’ interpretation of their own faith and legal order. The Federal Constitutional Court continued as follows:

“It follows that, whilst the constitutional guarantee of the Churches’ right to manage their affairs autonomously permits them to base their contracts of employment on the model of a Christian service community and to lay down the basic ecclesiastical duties, such guarantee must be considered in terms of constitutional law and its scope must be stipulated when it comes to applying the provisions concerning protection against dismissal to dismissals for a breach of duties of loyalty. An application of labour law that did not take account of the duties of Church employees to respect the fundamental principles of Christian life that the Churches are entitled to impose would be at odds with their constitutional right of autonomy.

Consequently, in the event of a dispute, the employment tribunals must apply the criteria laid down by the Churches concerning the assessment of the contractual duties of loyalty since the Constitution affords to Churches the right to decide on such matters autonomously. It is thus in principle for the established Churches (verfasste Kirchen) to determine what is required by ‘the credibility of the Church and its proclamation’, what ‘specific ecclesiastical tasks’ are, what ‘proximity’ to the Church means, what ‘the basic principles of religious and moral precepts are’ and what constitutes a breach – a serious breach in some cases – of its precepts. Matters governed by the Churches’ right of autonomy also include the question whether and how a scale of duties of loyalty must be applied to staff members working in the service of a Church.

In so far as such principles correspond to the criteria laid down by the established Churches, a question that must be referred by the tribunal to the Church authorities in case of doubt, the employment tribunals will be bound by them, unless by applying them they put themselves in conflict with the fundamental principles of law, such as the general prohibition of arbitrariness, the principle of morality, and public order. It is therefore a matter for the domestic courts to ensure that ecclesiastical institutions do not impose on their staff unacceptable demands of loyalty that might, in some cases, be at odds with the very principles of the Church ...

If the tribunal reaches the conclusion that there has been a breach of such duties of loyalty, it must ascertain whether that breach objectively justifies dismissal under section 1 of the Protection from Dismissal Act and Article 626 of the Civil Code ...”

Section 1(1) and (2) of the Protection from Dismissal Act (Kündigungsschutzgesetz) provides, in particular, that a dismissal is socially unjustified unless based on reasons related to the employee himself or his conduct.

Article 626 of the Civil Code allows each party to the contract to terminate the employment relationship without notice on serious grounds.

Article 2 § 2 (b) of the Ecclesiastical Employment and Pay Regulations (Kirchliche Arbeits- und Vergütungsverordnung) for the Dioceses (or Archdioceses) of Aachen, Essen, Cologne (Köln), Münster (part of North Rhine-Westphalia) and Paderborn, dated 15 December 1971, as in force until 1 January 1994, required that the way of life of the employee and the members of his household be compliant with the basic principles of the religious and moral precepts of the Catholic Church.

Article 6 provided that respect, manifested in words and deeds, for the principles of the Catholic Church, and a conduct in line with that required by ecclesiastical staff members, formed part of the employee’s duties.

Article 42 § 1, in the version currently in force, provides in particular that a serious ground justifying dismissal without notice is constituted by a patent breach (großer äusserer Verstoß) of ecclesiastical principles, for example the fact of leaving the Church (Kirchenaustritt).

Articles 4 and 5 of the Basic Regulations of the Catholic Church for ecclesiastical service in the context of ecclesiastical employment relationships (Grundordnung der Katholischen Kirche für den kirchlichen Dienst im Rahmen kirchlicher Arbeitsverhältnisse), which were adopted by the Episcopal Conference of German Bishops on 22 September 1993 and which came into force in the Diocese of Essen on 1 January 1994, read in their relevant parts as follows.

“1. Catholic employees [Mitarbeiterin und Mitarbeiter] are required to respect and comply with the basic principles of the Catholic Church’s religious and moral precepts. The example of personal life led in conformity with those principles is seen as important in particular for employees who perform pastoral, catechistic or educational duties, or who have a canonical mandate [Missio canonica]. These duties also apply to senior management staff.

Employees shall refrain from any hostile attitude towards the Church. They shall not undermine, by their personal way of life or professional conduct, the credibility of the [Catholic] Church and of the institution for which they work.”

“1. Where an employee no longer satisfies the employment criteria, the employer shall seek by discussion to prevent the breach in question with permanent effect. The employer will have to ascertain whether, to put an end to the said breach of duty, a clarification interview [klärendes Gespräch], a warning [Abmahnung], a formal reprimand, or any other measure (relocation, contractual amendment) would be appropriate. Dismissal may be envisaged in the last instance.

The Church shall regard as serious and as justifying dismissal on specifically ecclesiastical grounds [Kündigung aus kirchenspezifischen Gründen] the following breaches of the duty of loyalty:

– a breach of the duties provided for in Articles 3 and 4 hereof, in particular the fact of leaving the Church and public defence of positions that run counter to the Catholic Church’s guiding principles (for example those concerning abortion), and serious personal moral misconduct [schwerwiegende persönliche sittliche Verfehlungen];

– the fact of entering into a marriage that is null and void in the light of the Church’s faith and legal order, as interpreted thereby ...

The existence of one of the forms of conduct referred to under paragraph 2 of the present Article, and which are regarded as a general rule as grounds for dismissal, shall preclude the possibility of maintaining an employee in his or her post if the employee performs pastoral or catechistic duties, is a member of the managerial staff, or has a canonical mandate [Missio canonica].

Where the employee belongs to one of the categories referred to in paragraph 3 [of the present Article], the possibilit institution might be called into question, the burden placed on the ecclesiastical service community, the nature of the institution and its task, the institution’s proximity to the Church’s proclamatory mission, the employee’s position within the institution and the nature and seriousness of the relevant breach of the duties of loyalty. It will also be necessary to consider whether the employee has opposed the precepts of the Church or whether, whilst recognising those precepts, has not succeeded in complying with them in practice.”

Under section 2(3) of the Ecclesiastical Law on Religious Music of 15 June 1996, a church musician employed by the Protestant Church must in principle be affiliated with a denomination which is a member of the Protestant Church of Germany or part of an ecclesiastical union therewith. Under section 21(2) of that Law, in conjunction with section 7(1) of the implementing law of 13 November 1997, a person not fulfilling this condition may nevertheless be appointed, on an exceptional basis, to a post of church musician in secondary employment (Nebenamt) if he or she is affiliated with a Christian denomination that is part of the Labour Association of Christian Churches in Germany (Arbeitsgemeinschaft christlicher Kirchen in Deutschland), to which the Roman Catholic Church belongs. Under the Regulations of 18 November 1988 on the employment of church musicians, the average working week of such musicians in secondary employment represents less than eighteen hours.

Recital 24

“The European Union in its Declaration No. 11 on the status of Churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of Churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.”

Article 4

Occupational requirements

“1. ... Member States may provide that a difference of treatment which is based on a characteristic related to [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within Churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ...

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of Churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

The German legislature transposed the Directive into national law by means of the General Equal Treatment Act (Gesetz zur Umsetzung europäischer Richtlinien zur Verwirklichung des Grundsatzes der Gleichbehandlung – Allgemeines Gleichbehandlungsgesetz) of 14 August 2006. Section 9 thereof reads as follows:

“(1) Without prejudice to the provisions of section 8 [hereof], a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a justified occupational requirement is constituted by a given religion or belief, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities.

(2) The prohibition of differences in treatment based on religion or belief shall not affect the right of the religious societies, institutions affiliated therewith, regardless of legal form, or associations whose purpose is to foster a religion or belief in the community, as referred to in the previous subsection, to require their employees to demonstrate loyal and sincere conduct within the meaning of their own perception.”

On 31 January 2008 the European Commission sent a letter of formal notice to the Federal Republic of Germany (procedure no. 2007/2362) concerning the transposition of Directive 2000/78/EC into German law and concerning, among other things, “dismissals not covered by anti-discrimination law”. It noted that, whilst the Directive permitted a difference in treatment only if the religion or belief constituted a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos, section 9(1) of the General Equal Treatment Act also provided for different treatment when the religion or belief constituted an occupational requirement on the basis of its right of autonomy and the religious society’s or association’s own perception, without necessarily having regard to the nature of the activity. According to the European Commission, such a difference not being covered by the terms of the Directive, this manner of transposition did not fulfil the Directive’s objectives. Such transposition would enable a religious society to define an occupational requirement purely on account of its right of autonomy, without the requirement undergoing a proportionality test in the light of the actual activity. In addition, whilst Article 4 § 2 of the Directive presented the question in terms of genuine and determining occupational requirements, section 9(1) of the General Equal Treatment Act had reduced that notion to one of justified occupational requirements, which was a weaker standard than that of the Directive. The European Commission further observed that, whilst an organisation’s particular ethos played a role in determining the occupational requirement, it should not be the sole criterion, otherwise German legislation might not guarantee such a difference in treatment and, even as regards ordinary assistance activities, specific requirements related to religious affiliation might be imposed.

On 29 October 2009 the European Commission sent a reasoned opinion to Germany. It was stated in a press release published on the same day (IP/09/1620) that in its opinion the Commission had pointed out, among other things, that protection against discriminatory dismissals was not covered by German anti-discrimination law. The government’s reply to the letter of formal notice, the Commission’s reasoned opinion and the government’s reply to that opinion have not been made public to date.