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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 2 November 2020 - 1 BvR 2727/19 [CODICES] | |
Third Chamber of the First Senate Order of 2 November 2020 1 BvR 2727/19 | |
1. Labour law provisions are general laws that may restrict the fundamental right to freedom of expression (Article 5.1 of the Basic Law) within the meaning of Article 5.2 of the Basic Law.
2. If a statement violates human dignity, which is deemed inviolable under Article 1.1 of the Basic Law, freedom of expression must stand back. Human dignity is not open to any balancing with other fundamental rights. However, a violation of human dignity may only be assumed on the basis of a well-reasoned assessment.
3. Human dignity is violated where a person is not addressed as a human being, but as an ape. Such a racist statement also violates the prohibition of discrimination under the first sentence of Article 3.3 of the Basic Law.
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Summary: I. In the course of an argument that arose at a works council meeting in respect of the use of an IT system, the applicant said “Ugah, Ugah!” to his dark-skinned colleague, who in turn called him a “hustler”. Eventually, and based in part on this incident, the applicant’s employment contract was terminated. After hearing the evidence which included a relevant previous warning that had not led to a change in the applicant’s conduct, the labour courts considered the extraordinary termination to be lawful.
The applicant challenged these decisions claiming that, by deeming the termination lawful, the courts had violated his right to freedom of expression under Article 5.1 of the Basic Law.
II.
Based on the considerations below, the Federal Constitutional Court decided not to admit the constitutional complaint for decision.
It considered the complaint inadmissible for lack of sufficient substantiation, but also to be clearly unfounded. The challenged decisions of the labour courts did not fail to recognise the standards arising from Article 5.1 (freedom of expression), Article 1 (human dignity) and the first sentence of Article 3.3 of the Basic Law (prohibition of discrimination).
The decisions do not violate the applicant’s freedom of expression. The labour courts restricted the applicant’s freedom of expression by upholding the termination, but this is justified under constitutional law. The courts correctly assumed that the specifics of a situation in which a person with dark skin is directly addressed with imitated ape sounds is relevant. The labour courts’ conclusion that this was not merely a crude insult, but a fundamentally derogatory statement, given the connection of this behaviour to a characteristic of discrimination listed under § 1 of the General Act on Equal Treatment, is also not objectionable in light of the first sentence of Article 3.3 of the Basic Law, which protects people against racist discrimination.
The fundamental right of freedom of expression usually requires a balancing with the impending adverse effects on personal honour. However, freedom of expression must stand back where derogatory remarks constitute an attack on human dignity, profanity or calumny. The labour courts did not fail to recognise these aspects when they applied the legal provisions protecting against termination of employment contracts. In labour law, §§ 104, 75.1 of the Works Constitution Act and §§ 1, 7, 12 of the General Act on Equal Treatment reflect the constitutional guarantees of the inviolability of human dignity and the prohibition of discrimination. The labour courts stated in detail why this was a case of inhuman discrimination. This assessment, as well as the overall evaluation required in the context of extraordinary termination of employment without notice pursuant to § 626.1 of the Civil Code, is not objectionable under constitutional law.
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