Germany / higher administrative court of Berlin-Brandenburg / OVG 4 S 11/23 / ECLI:DE:OVGBEBB:2023:0727.OVG4S11.23.00

Country

Germany

Title

Germany / higher administrative court of Berlin-Brandenburg / OVG 4 S 11/23 / ECLI:DE:OVGBEBB:2023:0727.OVG4S11.23.00

View full case

Year

2023

Decision/ruling/judgment date

Thursday, July 27, 2023

Incident(s) concerned/related

Other forms of hate speech

Related Bias motivation

Racial or ethnic origin

Groups affected

Muslims

Court/Body type

National Court

Court/Body

Higher administrative court of Berlin-Brandenburg

Key facts of the case

The applicant was a police officer. He was dismissed because he clicked "like" on right-wing posts on social media platforms. These posts contradicted the free democratic basic order of the Federal Republic of Germany, which is why it had to be doubted that the applicant was loyal to the constitution. The applicant liked the following posts: "I drink Coca-Cola and not Uludag/ At Christmas I have Santa Claus and not Mohammed/ I watch Germany's Next Top Model and not girls in headscarves!/ I eat McBacon and not falafel!" "We are not right-wing!!!!!!!' We are peaceful, critical, democratic constitutional patriots (sic!)!!!! Just because we don't want millions of transphobic and anti-Semitic Islamists to immigrate in violation of the constitution does not make us right-wing!!!!!!!"

Main reasoning/argumentation

Sec. 33 (1) of the Civil Cervant Status Act stipulates that civil servants must be committed to the liberal democratic oder. The Berlin Administrative Court initially ruled in favor of the applicant in the expedited legal proceedings. The Court found that it was not sufficiently certain that the posts liked by the applicant raised doubts about his loyalty to the constitution. Given the uncertain outcome of the non-preliminary decision, the interest in the applicant to continue his training outweighed the interest in immediate dismissal. However, the Berlin Higher Administrative Court overturned the decision. Cumulatively, the posts liked by the applicant indicated lacking commitment to the constitution and justified immediate dismissal.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The posts liked by the applicant contain, amongst other things, insults and slurs against Muslims. The public employer was entitled to dismissing the applicant with immediate effect, as the assessment of the posts in sum indicated lacking commitment to the constitution. While the applicant's statements may be covered by freedom of expression (Art. 5 Basic Law), this is irrelevant for the issues at stake. It does not take away from the obligation of civil servants to uphold the liberal democratic constitutional order.

Results (sanctions, outcome) and key consequences or implications of the case

The application for interim legal protection was rejected. The applicant (police officer) was dismissed from service. His objection to this had no suspensive effect. The applicant appealed against the dismissal before the Berlin Administrative Court.

Key quotation in original language and its unofficial translation into English with reference details

"Der Dienstherr darf einen Polizisten im Beamtenverhältnis auf Widerruf wegen Zweifeln an der Verfassungstreue entlassen, wenn er zahlreiche Internetbeiträge der "Neuen Rechten" verfolgt und mehrere von ihnen gelikt hat, darunter solche, mit denen Moslems geschmäht und Pandemieschutzmaßnahmen mit der Verfolgung von Juden im Nationalsozialismus gleichgesetzt werden." "The employer may dismiss a police officer on probation due to doubts about his loyalty to the constitution if he has followed numerous internet posts by the "New Right" and liked several of them, including those that vilify Muslims and equate pandemic protection measures with the persecution of Jews under National Socialism."

DISCLAIMERThe information presented here is collected under contract by the FRA's research network FRANET. The information and views contained do not necessarily reflect the views or the official position of the FRA.