European Court of Human Rights

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1 European Court of Human Rights FIFTH SECTION CASE of OBST v. GERMANY (Application No 425/03) JUDGMENT September 23, 2010 STRASBOURG This decision will become final in the circumstances defined in Article 44 2 of the Convention. It is subject to editorial revision.

2 In the case Obst v. Germany The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger Rait Maruste Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, Ganna Yudkivska, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 31 August 2010, Deliver the judgment that was adopted on that date: PROCEDURE 1. At the root of the matter in an application (No. 425/03) against the Federal Republic of Germany by a national of that State, Michael Heinz Obst ("the applicant"), petitioned the Court January 2nd, 2003 under section 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). 2. The applicant is represented by Ulrike Muhr, Attorney at Essen. The German Government ("Government") were represented by their Agent, Ms Almut Wittling-Vogel, of the Federal Ministry of Justice. 3. The complainant alleges that the refusal of the labor courts to cancel his dismissal by the Mormon Church has violated Article 8 of the Convention. 4. On March 18, 2008, the President of the Fifth Section decided to communicate the request to the Government. As permitted by Article 29 3 of the Convention, it was also decided that the Board would decide together on the admissibility and merits of the case. 5. Both the Government and the applicant filed written submissions. Comments were also received from the Church of Jesus Christ of Latter-day Saints (Mormon Church), that the President was authorized to intervene in the written procedure (Article 36 2 of the Convention and 44 2). The parties have responded to those comments (Rule 44 5). FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background of the Case 6. The applicant was born in 1959 and lives in Neu-Anspach. 7. He grew up in the Mormon Church, which enjoys the status of legal person of public law (öffentlich-rechtliche Körperschaft). In 1980, he married according to the Mormon rite. After holding various positions within the Mormon Church, he was employed from 1 October 1986 as Director for Europe at the public relations department, with a monthly salary of DEM ( about 5000 euros (EUR)).

3 8. Paragraph 10 of his employment contract dated September 25, 1986 contained the following clause: Behavior in and out of the workplace "The employee has knowledge of the basic principles of the Church. He must refrain from communication or conduct likely to harm the reputation of the Church or to question these principles. It undertakes in particular to observe high ethical standards. He will abstain from smoking, drinking alcohol or coffee beans or use narcotics in the premises of the church and close to them, and during travel or business events. In case of serious breach, the employer may issue a summary dismissal. Increased obligations on professional conduct apply to three categories of employees as follows: a) senior managers (especially leaders); b) employees who, in exercising their duties, come into contact with people outside the church (...); c) employees who teach religion in the department of education. Employees belonging to these categories must be members of the Church of Jesus Christ of Latter-day Saints. If they lose their membership for any reason, or violate consistently the principles of the Church, a dismissal - without notice in severe cases - must follow. " 9. In early December 1993 the applicant wrote to his spiritual jurisdiction, S., and asked her pastoral care. During the conversation, he confided that his marriage was in jeopardy for years and he had had sex with another woman. S. advised him to contact N., regional president and supervisor of the applicant, stating that if he did not, he himself would undertake to inform N. On December 21, 1993, the applicant applied to N. which did not help pastoral lavished. On December 27, 1993, N. pronounced the dismissal of the applicant. Subsequently, the complainant was excommunicated through an internal disciplinary procedure. B. Decisions of lower Labor Courts 10. On January 14, 1994, he appealed to the Labour Court of Frankfurt am Main. By decision of 26 January 1995, it quashed the dismissal because he did not comply with the revelations of the prophet and founder of the Mormon Church, Joseph Smith. He explained that the exclusion of a member of the Church was provided if the person does not repent, this was not the case because the applicant had requested assistance to rebuild its pastoral couple. The court said the dismissal was therefore a disproportionate penalty. 11. On March 5, 1996, the Court of Appeal of Hesse's work dismissed the appeal by the Mormon Church. It found that although the commission of adultery, regarded by Mormons as the most abominable sin (greulichste Sünden go "), would permit in principle to the Mormon Church to utter dismissal of the employee concerned, taking such action against the complainant in this case was contrary to good morals. Observing that the Church was based on information on marital problems that the applicant had entrusted to his pastoral higher (Seelsorger) in order to obtain a pastoral support, it considered that the information was, to a point Morally, subject to pastoral secret (seelsorgerische Schweigepflicht). Accordingly, it held that, like a priest or a

4 Catholic bishop who teaches in a confession that a crime has been committed and can not repeat the information to others until it has been disclosed outside the sphere of religion, the two senior applicant was not entitled to use the words of the applicant for under the labor law. Given the fundamental importance of the case, the Court of Appeal allowed the appeal. C. The judgment of the Federal Labour Court 12. On April 24, 1997, the Federal Labour Court quashed the ruling of the appellate court and remanded the case to it. She said the dismissal at issue did not violate decency and did constitute a ground for termination under section 626 of the Civil Code (see paragraph 25 below), the applicant has by his conduct breached its obligations under paragraph 10 of his employment contract. 13. Referring to the ruling of the Federal Constitutional Court of 4 June 1985 (paragraph 26 below), the Federal Labour Court then recalled that under the constitutional right moral principles of the Mormon Church should be taken into account when considering the question of whether there is a substantial reason justifying dismissal as provided for in section 626 of the Civil Code. It went as follows: the Mormon Church as a religious society within the meaning of Article of the Weimar Constitution had a right guaranteed by the Constitution to regulate its affairs independently within the law applicable to all (paragraph 24 below) where churches chose to exercise their freedom of contract (Privatautonomie) to hire people, the state labor law was applicable, but the applicability of employment law did not result in the removal of labor relations in the field of business' own churches, a church could therefore in the interest of its own credibility, require its employees to observe the principles of his teachings and dogmatic Moral and ask them not to violate the basic obligations applicable to each of its members. The Federal Labour Court held that in this case the Mormon Church was therefore entitled to ask the applicant to comply with the fidelity within marriage. 14. She added that in the implementation of legal provisions concerning protection against dismissal, the labor courts were bound by the requirements of the Churches on two conditions: first, these requirements should reflect those established by the churches formed and secondly, by applying these requirements, the labor courts should not be in contradiction with the basic principles of legal order, which included the general prohibition of arbitrary and notions of morality "and" public order ". It was therefore up to the labor courts to ensure that churches do not put their employees to unacceptable demands of loyalty. 15. In this case, the Federal Labour Court held that the requirements of the Mormon Church about fidelity in marriage were not in contradiction with the fundamental principles of law. It noted that the marriage was also important and prominent in the churches and incorporated in world religions (including Catholicism, Judaism and Islam) and that this view was echoed by the Basic Law, Article 6 conferred protection particular marriage. As for adultery, the law continued to regard it as a serious breach, even if it was different in practice. 16. The Federal Labour Court added that the termination was not contrary to the principle of good faith (Treu und Glauben) in contractual relations. The right of the Mormon Church to dismiss an employee arose out of Article 2 1 of the Basic Law and in particular Article of the Weimar Constitution. However, the applicant could claim the right, under the same article, to determine for itself what information about his private life could be revealed. It belonged therefore to decide whether to make public his adultery and if so, to what end he did. Certainly, the Mormon Church could not base its decision on such information if they had been brought to

5 its attention by the firm itself. From the facts established by the court of appeal, the applicant had informed S. that as a spiritual director. But it is by N. that the Mormon Church had been aware of adultery. That the appellate court had found that the applicant had applied to N. a matter of pastoral and that it would have refrained from providing such assistance did not prove that the applicant had contacted N. only in his capacity as spiritual director. The Mormon Church had also challenged this perspective by noting that, according to his own views, N. had no jurisdiction to act as spiritual advisor to the complainant. The Federal Labour Court held that the holding of the Court of Appeal, in which it was held that the applicant's approach had not lost its pastoral character of the mere fact that S. asked him to address N, found no basis in fact established and it was in contradiction with the non-competence of N. The pastoral secret which it was held, and on which the appeals court based its opinion, therefore, had no place. Moreover, the complainant had stated that the Mormon Church does not know the denomination, the reference of the Court of Appeal to the practice of confession in the Catholic Church was irrelevant. In addition, the applicant had not explicitly meant to N. he addressed him in his capacity as spiritual director. He asked S. and N. to solve the problem of torque, but never indicated he wanted to "repent of all his heart," as stipulated in Section 42, verses 23 and 24, the writings of the prophet, and return to his wife. 17. The Federal Labour Court further observed that the dismissal in question was also necessary to preserve the credibility of the Mormon Church and that credibility had been threatened since the tasks performed by the applicant as a director for the Europe in the public relations department. As such, it had to promote a real and positive understanding of the Church's mission to support it, train and motivate about 170 employees in charge of public relations. The teaching of absolute fidelity to spouse and faith in the Church as essential basic principle was difficult if occupying an exposed position and preached this principle in the name of the Mormon Church does not respect himself. The fact that adultery had not been made public at the time of interview with S. and N. did not alter this conclusion. It could indeed require the Mormon Church than it once utter the dismissal lost credibility, especially since it was impossible to assume the silence of the wife or the new partner. 18. In addition, the Federal Labour Court noted that the Mormon Church had not been required to make a warning when it was a failure whose severity could not escape the applicant because of his long career within the Church and that his employer could not clearly disapproves. 19. The Federal Labour Court concludes that it was barred from the merits of the case on the grounds that the lower court had properly balanced the interests at stake on the criteria established in its decision. She added that the litigants should also have the opportunity to make representations as to a reclassification of dismissal in a dismissal with notice. D. The procedure following the referral of the case 20. On January 26, 1998, acting on a court, the appellate court applied the reasoning of the Federal Labour Court regarding the qualification of adultery in a serious breach (equivalent to a serious crime committed by an employee of an employer secular ) and as to the presentation of his duties. The resulting injury to the person concerned does not object to dismissal given his relative youth at the time of dismissal (thirty-four) and her length of employment (seven years). Having grown up in the Mormon Church and having held several positions, the applicant should be aware of the seriousness of his actions in the eyes of his employer, as there was no question of a single gap, but of an extramarital relationship sustainable. For what was the need for notice, the

6 Court of Appeal held that the Mormon Church had to fear a huge loss of credibility if the person who represented their interests across Europe did not meet its own requirements. The Church was therefore not bound by the usual notice period (three months) and to keep him in office beyond December 27, 1993, the date of dismissal. 21. Recalling that she had to deal with the merits of the dismissal that under labor law, the Labour Appeal Court did not rule on the fairness of the disciplinary proceedings within the Church Mormon which concerned the applicant that as a member. She also emphasized that its findings should not be understood as implying that adultery was in itself a reason for the dismissal of an employee of a church. The peculiarity of the case lay in the seriousness of adultery in the eyes of the Mormon Church and the important position in what was exercising the applicant which had the effect of the imposition of duties of loyalty increased. 22. On December 16, 1998, the Federal Labour Court rejected the applicant's request for admission of an appeal on the grounds that there was no difference with its case. 23. On June 27, 2002, the Federal Constitutional Court did not admit the applicant's constitutional complaint (No. 2 BvR 356/99) because he did not have sufficient prospects of success. According to her, the contested decisions did not raise constitutional issues relating to its decision of June 4, II. THE LAW AND PRACTICE OF THE RELEVANT COMMUNITY A. The Basic Law 24. Section 140 of the Basic Law provides that sections and 141 (articles known clergymen (Kirchenartikel)) of the Weimar Constitution of August 11, 1919 are part of the Basic Law. Section 137, as relevant here, reads: 1. There is no state church. Article The freedom to form religious societies is guaranteed (...) 3. Every religious society regulate and administer its affairs independently within the limits of the law applicable to all (...) " B. The provisions on dismissal 25. Article 626 of the Civil Code provides that each party to the contract may, without notice, terminate the employment relationship are important reasons if the facts are opposed to its continuation until the expiration of the notice period or until the scheduled end of the contract and taking into account all the circumstances of the case and the interests of the parties. The second paragraph of this article sets a deadline of two weeks from the time the employer has knowledge of the facts constituting such grounds in his eyes. Article 1 1 and 2 of the Law on protection against dismissal (Kündigungsschutzgesetz) provides in part that a dismissal is socially unjustified unless it is motivated by reasons related to the employee himself or his behavior. C. The decision of the Federal Constitutional Court of June 4, 1985

7 26. On June 4, 1985, the Federal Constitutional Court made a landmark on the validity of dismissals by churches against their employees as a result of a violation by them of their obligations of loyalty (our 2 BvR 1703/83, 1718/83 and 856/84, Case published in Reports of Judgments and Decisions of the Federal Constitutional Court, Volume 70, pp ). The purpose of constitutional remedies in question was, first dismissal of a doctor working in a Catholic hospital for his stance on abortion and, secondly, that of the commercial employee of a home for youth run by a Catholic monastic order because of its withdrawal from the Catholic Church. After the Labour Court had vindicated the two redundant churches had asked the Federal Constitutional Court. This had allowed their appeals. The high court noted that the right of religious societies to resolve their affairs autonomously within the limits of the law applicable to all, enshrined in Article of the Weimar Constitution, applies not only to churches but also, regardless of its legal form, to any institution affiliated to them and asked to participate in their mission. Was part of the constitutional guarantee the right of churches to choose the necessary personnel to accomplish their mission and thus to conclude labor contracts. When the churches chose to exercise like everyone else their freedom of contract, then the state labor law was applicable. However, the applicability of the labor law did not result in the removal of labor relations in the field of business appropriate for the Church. The constitutional guarantee of autonomy (Selbstbestimmungsrecht) of the churches affected the content of employment contracts. Thus, a church was in the interest of its own credibility, base its labor contracts on the model of a Christian community service and, therefore, require its employees to maintain the great principles of his teachings and moral and dogmatic basic obligations applicable to any member of the Church. This did not mean that the legal status of an employee of a church was "clericalization. Were concerned only the nature and extent of the obligations of loyalty arising from employment contracts. The working relationship based on civil law does not transform into an ecclesial status of the employee who seized and included all of his private life. The Federal Constitutional Court has also stated that the freedom of churches to settle their own affairs was exercised within the limits of all applicable laws, including provisions conferring protection against unjustified dismissal, such as Article 1 of Law on protection against dismissal and section 626 of the Civil Code. However, these provisions do not automatically outweigh the articles known clergymen of the Weimar Constitution. There was therefore necessary to balance the competing interests while giving special weight to the interpretation by the churches of their own faith and legal order. The Federal Constitutional Court continued as follows: "It follows that if the constitutional guarantee of the right of churches to set and administer their affairs autonomously allows them to base their employment contracts on the model of a Christian community service and church contain obligations base, the security must be taken into account under constitutional law and its scope must be specified when applying the provisions on protection against dismissal to dismissal for breach of duty of loyalty. An application of labor law that does not take into account the ecclesial duties of employees respect the fundamental principles of Christian life that churches are entitled to tax infringes the constitutional right of church autonomy. Therefore, in case of litigation, labor courts must apply the criteria set by the churches on the assessment of the contractual obligations of loyalty to the extent the Constitution recognizes the right of churches to decide independently. It is therefore typically made to the churches (verfasste Kirchen) what is required to determine "the credibility of the Church and its proclamation," which are "ecclesial specific tasks," which means "proximity" with the Church what are the "fundamental principles of religious tenets and moral" and

8 what should be considered a failure - a serious breach, if any - with its requirements. Also included in matters governed by the laws of church autonomy issue of whether and how a system of staggered bonds of loyalty should apply to employees serving the Church. To the extent that these requirements correspond to the criteria established by the churches, which must in case of doubt be a judge's question to the ecclesiastical authorities, the labor courts are bound by these requirements unless, applying them they put themselves at odds with the fundamental principles of law, such as the general prohibition of arbitrariness and the principle of morality and public order. It is therefore for the courts to ensure that the ecclesiastical institutions do not require their employees to unacceptable demands of loyalty, can, if necessary, be contrary to the very principles of the Church (...) If the courts come to the conclusion that a violation of the obligations of loyalty, they must consider whether the violation warrants dismissal objectively under section 1 of the Law on protection against dismissal and section 626 of the Civil Code (...) " D. Directive 78/2000/EC of November 27, /2000/EC Directive of 27 November 2000 establishing a general framework for equal treatment in employment and work states: Consideration (24) "The European Union has recognized in its Declaration No 11 on the status of churches and religious organizations, annexed to the Final Act of the Amsterdam Treaty, it respects and does not prejudice the status enjoyed by under national law of churches and religious associations or communities in the Member States and it equally respects the status of philosophical and non-denominational. In this context, Member States may maintain or lay down specific provisions on genuine occupational requirements, legitimate and justified that may be required to exercise a professional activity. " Article 4 Professional Requirements 1. (...) Member States may provide that a difference of treatment based on [religion or belief] does not constitute discrimination where, because of the nature of work or conditions of its exercise, characteristic constitutes a genuine occupational qualification and requirement, provided that the objective is legitimate and the requirement is proportionate. 2. 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 provisions whereby, in the case of professional activities churches and other public or private organizations whose ethos is based on religion or belief, a difference of treatment based on religion or belief of a person shall not constitute discrimination where, by the nature of these activities or the context in which they are exercised, religion or belief constitute a genuine occupational requirement, legitimate and justified, having regard to the ethics of the organization. (...) Provided that its provisions are otherwise complied with, this Directive is without prejudice to the right of churches and other public or private organizations whose ethos is based on religion or belief acting in accordance with constitutional provisions and laws, to require individuals working for them to act in good faith and loyalty to the ethics of the organization." LAW

9 I. ON THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 28. The complainant alleges that his adultery does not justify his dismissal and complains of the confirmation of that dismissal by the Labour Courts and the Federal Constitutional Court. He relies on Article 8 of the Convention, the relevant part in this case is as follows: 1. Everyone has the right to respect for private life (...) 2. There can be no interference by a public authority with the exercise of this right only if the interference is prescribed by law and is a measure which, in a democratic society, is necessary (...) the protection of rights and freedoms of others." 29. The Government rejected this argument. A. Admissibility 30. The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 3 of the Convention. She also notes that it does not conflict with any other ground of inadmissibility. It should therefore be declared admissible. B. Substance 1. The parties' comments a) The applicant 31. The complainant contends that the labor courts are engaging in an assessment and balancing of interests involved insufficient This process forms part of a automatism jurisprudence in this area for churches, benefiting the individual believes to a privileged status in German law that no other charity would enjoy. Her right to respect for private life or his inner world would not have been reviewed by the judge's work. However, as the applicant, Article 8 of the Convention gives the right to abandon a model of life and start a new one. The firm maintains that if he did not question the right of churches to settle their affairs autonomously, that right up to force their employees to comply with the precepts beyond the professional sphere. He argues that the labor courts have expanded their case in a totally unpredictable, a dismissal which until now according to him, to be delivered in case of remarriage, and not because of an extramarital intimacy. Given the number of prescriptions church, there is a lack of predictability in this regard and the dismissal at the end of the day depend solely the views of each of the directors of human resources. The judge's role is limited and labor to execute the will of the employer Church. According to the complainant, the consequence of this trend is that the employer and the labor court is called upon to intervene more in the privacy of employees to establish and evaluate the facts underlying the dismissal. Moreover, the fact that one or the other employee fails to meet certain requirements to the letter church will not shake the credibility of a church, but was merely the manifestation of the human condition of the individual in question. 32. In addition, the applicant said he did not waive his privacy by signing the employment contract with the Mormon Church. Asserting the authority would be vested in any employer of

10 hiring, adding that in any case he was not able to remove paragraph 10 of the contract, which was a standard clause. Moreover, he asserts that when the contract was signed in 1986, he was unable to predict that one day would be separated from his wife. According to the complainant, adultery is not the most heinous crime after the murder because other verses in the Book Mormon would mention the possibility of repentance and forgiveness. His supervisor S. would otherwise be forced to N. his extramarital relationship. Anyway, it was not subject to duties of loyalty increased, given its status of a responsible contributor only to assist the chairman of the district, it would have represented the Mormon church outside. 33. The applicant alleges that the ruling of the Federal Constitutional Court of 1985 is not his private life, that discretion is invoked by the Government not because the German public would be less sensitive to cases of remarriage and the European Directive No. 78/2000/EC only deals with the issue of recruitment and not that of dismissal after many years of service. b) The Government 34. The Government argues that the Mormon Church, despite its status as a corporation under public law, not part of the public. There had therefore been no interference by government in the applicant's rights. The Government therefore considers that the alleged failure of the Labour Court could be considered only in terms of positive obligations of the State. However, given the absence of a practice common to all member states, the discretion would be ample, since that is here a matter which touches the feelings, traditions and religious matters. The Government recalls that the European Commission of Human Right has also confirmed the preamble to the Federal Constitutional Court established in its decision of June 4, 1985, which the Federal Labour Court has referred in this case (Rommelfanger v. Germany, No /86, Commission decision of 6 September 1989, Decisions and Reports 62, 151). 35. The Government then stated that the labor courts, called upon to decide a dispute between two persons vested rights, must weigh the interest of the applicant with the right of the Mormon Church to settle its affairs autonomously under Article 137 of the Weimar Constitution. He said the judge's work, applying the legal provisions relating to termination, was required to take into account the principles established by the Mormon Church because, by virtue of their right to autonomy, he belonged to churches and religious communities they themselves to define the obligations of loyalty that employees should follow in order to safeguard the credibility of those churches and communities. The Government pointed out that this is the consideration of ecclesiastical precepts is not unlimited and that the state judge can not apply a principle that goes against the general principles of law. In other words, he said, if employers can certainly prescribe ecclesiastical duties of loyalty to their employees, it does not return them to determine what are the grounds for dismissal, which arises from the interpretation by the courts of laws concerning protection against dismissal. 36. The Federal Labour Court and, subsequently, the appellate court labor have applied these principles to this case and properly balancing the interests involved, namely the nature of the position occupied by the applicant (training 170 employees ), the severity of the breach from the perception of the Mormon Church (repeated adultery), the applicant's age (34 years) and job tenure (seven years). The Government adds that if a dismissal is the penalty actually the hardest to pronounce (ultima ratio) in German labor law, a less serious, such a warning was not appropriate in the case because, according him, the applicant could not doubt that his employer would not tolerate his behavior. He recalled that the applicant has voluntarily signed the contract

11 of employment with the Mormon Church, the contract provided that the obligation of loyalty to some of the increased incumbency. The applicant has thus agreed to the limitation of its rights, which is possible under the Convention (Rommelfanger, cited above). Having grown up in the Mormon Church, he was aware of the fundamental importance of fidelity of the spouses took on within it and the consequences that could lead to his adultery. Finally, the Government stated that the fact that the obligations of loyalty could affect the privacy of the employee was characteristic of contracts between employers and their ecclesiastical colleagues. c) The third-party intervener 37. The Mormon Church agreed to the essential conclusions of the Government, while stressing that a finding of violation of the Convention constitutes, according her, seriously interferes with consequences for labor relations in all communities religious throughout Europe. But the independent existence of these communities is essential to the maintenance of religious pluralism in a democratic society. That the churches would be responsible for determining how they organize themselves and decide the importance of the precepts are for them and their members. These precepts should be respected by the secular state authorities as part of the identity of the Church, even if less stringent standards could be applied under the law and secular beliefs. 38. The Mormon Church says that its requirements concerning the behavior of his followers are certainly high. The prohibition of adultery is not only one rule among others, but would be one of the most important commandments and put at the heart of its religious tenets. A true repentance would command the person to confess his actions to have the intention to restore the status quo, to end the adultery and assume the consequences of his sin as such are provided in an employment contract. 2. The assessment of the Court 39. The Court recalls that the notion of "privacy" is a broad term not susceptible to exhaustive definition. This term encompasses the physical and moral integrity of the person and sometimes includes aspects of physical and social identity of an individual, including the right to establish and develop relationships with others, the right to "personal development" or the right to selfdetermination as such. The Court also notes that factors such as, for example, sexual identity, name, sexual orientation and sexual life fall within the personal sphere protected by Article 8 (EB v. France [GC], No /02, 43, ECHR and Schlumpf v. Switzerland, No /06, 100, Jan. 8, 2009). 40. In this case, the Court first observed that the complainant did not complain of a state action, but a failure by him to protect his privacy against interference by the employer. In this regard, she noted at the outset that the Mormon Church, despite its status as a public corporation under German law, has no public power (cf. Rommelfanger, cited above, Finska Församlingen i Stockholm and Teuvo Hautaniemi v. Sweden, decision of the Commission on April 11, 1996, No /94, and Predota v. Austria (dec.), No /95, 18 January 2000). 41. The Court then reiterated that if Article 8 is essentially to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in this negative commitment may also have positive obligations inherent in effective respect for private life. These may require the adoption of measures to respect for

12 private life even in relations between individuals. If the boundary between the positive and negative of the State under Article 8 does not lend itself to a precise definition, the principles are similar. In particular, in both cases, we must take into account the balance to be struck between the interests and the interests of the individual, the State has, in any event by a margin of appreciation (Evans v. United Kingdom [GC], No. 6339/05, 75-76, ECHR 2007 IV, Rommelfanger, cited above, see also Fuentes Bobo v. Spain, No /98, 38, February 29, 2000). 42. The Court further recalls that the margin of appreciation to the State is greater when there is no consensus among member states of the Council of Europe on the relative importance of the interests at stake or how best to protect them. In general, the margin is large when the state must strike a balance between competing public and private interests or individual rights protected by the Convention (Evans, supra 77). 43 The main question that arises here is whether the State was required as part of its positive obligations under Article 8, to recognize the complainant's right to respect for his privacy against the extent termination made by the Mormon Church. Therefore, it is by examining the balance carried by the German Labour Courts of the applicant's right with the right of the Mormon Church under Articles 9 and 11 that the Court will determine whether the protection afforded to the applicant has or not reached a satisfactory degree. 44. In this regard, the Court noted that religious communities traditionally and universally exist in the form of organized structures and that, if the organization of such a community is concerned, Article 9 must be interpreted in light of Article 11 of the Convention, which safeguards associative life against unjustified interference by the state. Indeed, autonomy is indispensable for pluralism in a democratic society, is at the heart of the protection afforded by Article 9. The Court further recalls that, except in very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the state on the legitimacy of religious beliefs, or the method of expression of these (Hassan and Chaush v. Bulgaria [GC], No /96, 62 and 78, ECHR 2000 XI). Finally, when at stake are questions about the relationship between state and religion, issues on which differences can reasonably exist in a democratic society it is necessary to give special emphasis to the role of the national decision (Leyla Şahin v. Turkey [GC], No /98, 108, ECHR 2005 XI). 45. The Court first notes that putting in place a system of labor courts and a constitutional court jurisdiction to review decisions made by them, Germany has fulfilled its positive obligations in respect of individuals in the field of labor law, an area where disputes affecting generally the rights of persons under Article 8 of the Convention. Therefore, in this case, the applicant had the opportunity to bring his case before the labor court asked to examine the lawfulness of the dismissal dispute in terms of labor law legislation by taking into account the right of ecclesiastical work, and to balance the competing interests of the applicant and the employer Church. 46. The Court then observes that the Federal Labour Court in its ruling of April 24, 1997, was widely referred to the principles established by the Federal Constitutional Court in its ruling of 4 June 1985 (paragraph 26 above). The Federal Labour Court noted in particular that if the applicability of state labor law did not result in the removal of labor relations in the field of business' own churches, the labor court was bound by the principles fundamental moral and religious precepts of ecclesiastical employers only if these requirements reflect those established by the churches formed and they are not in contradiction with the fundamental principles of law. 47. Regarding the application of these criteria if the applicant, the Court noted that the Federal

13 Labour Court considered that the requirements of the Mormon Church about fidelity in marriage were not at odds with fundamental principles legal order on the grounds that the marriage was of preeminent importance in other religions and in the Basic Law. The Federal Labour Court has stressed in this respect that the Mormon Church had been based on adultery dismissal of the applicant that because the information relating to adultery had been brought to its attention by the interested party same. After considering the parties' arguments, it concluded that the applicant had his own informed his employer about his conduct constituting the dismissal and, in particular, his allegations about the only character pastoral talks with S. then with N, found no basis in fact established and were in contradiction with the lack of competence pastoral N. 48. The Court then noted that, according to the Federal Labour Court, the dismissal amounted to an extent necessary to preserve the credibility of the Mormon Church, especially given the nature of the position held and the applicant the importance of absolute loyalty to the spouse within the Church. The High Court has also explained why the Mormon Church had not been required to rule first a lesser penalty, such a warning. The Court also noted that according to the Labour Appeal Court, the harm resulting from the applicant's dismissal was limited with regard to his age, his length of service and the fact that, having grown up and held several positions in the 'Mormon Church, he would have been aware of the seriousness of his actions in the eyes of his employer, especially since he had not done a single gap, but an extramarital relationship sustainable. 49. The Court also notes that the labor courts have addressed the question whether the dismissal could be based on the contract of employment between the person and the Mormon Church and it was consistent with Article 626 of the Civil Code. They took into account all relevant factors and conducted a balancing detail and depth of interest in. The fact that they recognized the Mormon Church the right to oppose their employees with duties of loyalty and they have finally given more weight to the interests of the Mormon Church to those of the applicant does not in itself raise an issue under the Convention. In this regard, the Court observes that according to the Federal Labour Court, the judge's work was not bound without limitation the requirements of Churches and religious communities, but should ensure that these do not their employees with duties of loyalty unacceptable. 50. In the eyes of the Court, the courts' findings of work, that the applicant had not been subjected to unacceptable obligations, does not seem unreasonable. The Court believes that the interested party, having grown up in the Mormon Church, was or should be aware, when signing the contract and in particular paragraph 10 thereof (relating to compliance "high moral principles") of the importance of marital fidelity to his employer (see, mutatis mutandis, Ahtinen v. Finland, No /99, 41, September 23, 2008) and the inconsistency of the relationship extramarital affair he had chosen to establish bonds of loyalty he owed increased the Mormon Church as director for Europe at the public relations department. 51. The Court considers that the fact that the dismissal was based on conduct within the private complainant, and that in the absence of media coverage of the case or significant public impact of the conduct in question can not be decisive in case. It notes that the special nature of the professional requirements imposed on the applicant due to the fact that they were established by an employer whose ethos is based on religion or belief (see paragraph 27 above, Article 4 Directive 78/2000/EC; Vallauri see also Lombardi v. Italy, No /05, 41, ECHR (extracts)). In this regard, it believes that the labor courts have amply demonstrated that the obligations of loyalty imposed on the applicant were acceptable as they were intended to preserve the credibility of the Mormon Church. She also notes that the Labour Appeal Court has

14 made clear that its conclusions should not be construed as implying that any adultery constituted in itself sufficient reason for dismissal [without notice] an employee of a church, but that she had come because of the seriousness of adultery in the eyes of the Mormon Church and the important position it held that the applicant and submitted it to the obligations of loyalty increased. 52. In conclusion, having regard to the discretion of the state in the case (see paragraph 42 above) including the fact that the labor courts should strike a balance between different private interests, these factors are sufficient for the Court to estimate that in this case Article 8 of the Convention did not require the German state to offer greater protection to the applicant. 53. Therefore, there is no violation of this article here. FOR THESE REASONS, THE COURT UNANIMOUSLY, 1. Declares the application admissible, 2. Holds that there is no violation of Article 8 of the Convention. Done in French, and notified in writing September 23, 2010, pursuant to Article 77 2 and 3 of the Regulation. Claudia Westerdiek Clerk Peer Lorenzen President