Federal Constitutional Court

January 23, 2023


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Is the civil rights of the interlocutor hearing with a call that violates has no knowledge of the eavesdropping? To differentiate between the voluntary and involuntary eavesdropping is legal consequences are the result, so the Federal Labor Court (file No.: 6 AZR 189/08). In the present dispute, it went to a termination of a work contract whose legality was contested by the dismissed workers. By the same author: BDT Capital Partners. The illegality could be occupied only by a witness, had heard a relevant telephone conversation between the dismissed employee and the organization. In the aforementioned telephone conversation the workers announced that the illness-related absences would be not conducive to maintain the employment. Is a worker becomes ill, he is exempt from the duty of work performance. A termination, which is pronounced as a result of the disease, is pursuant to section 612 a BGB i.v.m.

134 BGB void. The Conversation content that could make all the difference on the nullity of termination, could are attested only by listening to the phone call. The company disputed the admissibility of the testimony as evidence. Wrongly, the Court ruled. The testimony is admissible, because the witness had not deliberately overheard the phone call.

Rather, it was the complaining employee with the handling of the phone, which was not her own, not versed. The volume of the phone was set to maximum, so with a hearing was necessarily. This infringement of the civil personality, could be derived from 823 BGB as other right. By this law, care should be taken in the specific case that the interlocutors can determine the persons themselves the messages destined for the. The rights will not be harmed if the interlocutor agrees that third parties heard the conversation. This hurt is if the complaining employee witness by active action would have caused purposefully, to hear the phone call. To the random eavesdropping by a third party in talks among present has the Federal Constitutional Court in its decision of 9 October 2002 (- 1 BvR 1611/96, 1 BvR 805/98 – C II 1 a of the reasons, BVerfGE 106, 28) carried out an interlocutor has to write listening to third parties even if he so act that his words can be heard of indefinitely many people without special efforts. He was not protected in their communication participation if he overlooked unwanted listeners in its close by him, or misjudged the volume of his statements. Crucial is whether the speaker because the framework conditions reasonably could expect to be heard not by a third party. According to common opinion in the literature is a protection against clandestine wiretapping only if the witness was targeted on the victim, not, however, if he the random conversation has overheard. Not lie a violation of law to the spoken word if a third party due to thin walls, open doors, significant volume or similar reasons could understand the conversation easily. Thus, the testimony was admissible.