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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VOGT v. GERMANY - 17851/91 [1993] ECHR 65 (30 November 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/65.html
Cite as: [1993] ECHR 65
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 17851/91
Dorothea Vogt
against
Germany
REPORT OF THE COMMISSION
(adopted on 30 November 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11 - 15) . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 44). . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16 - 40) . . . . . . . . . . . . . . .3
B. Relevant domestic law and practice
(paras. 41 - 44) . . . . . . . . . . . . . . .9
III. OPINION OF THE COMMISSION
(paras. 45 - 97) . . . . . . . . . . . . . . . . 13
A. Complaints declared admissible
(para. 45) . . . . . . . . . . . . . . . . . 13
B. Points at issue
(para. 46) . . . . . . . . . . . . . . . . . 13
C. Article 10 of the Convention
(paras. 47 - 83) . . . . . . . . . . . . . . 13
CONCLUSION
(para. 83) . . . . . . . . . . . . . . . . . 19
D. Article 11 of the Convention
(paras. 84 - 90) . . . . . . . . . . . . . . 19
CONCLUSION
(para. 90) . . . . . . . . . . . . . . . . . 20
E. Article 14 of the Convention
(paras. 91 - 94) . . . . . . . . . . . . . . 20
CONCLUSION
(para. 94) . . . . . . . . . . . . . . . . . 20
F. Recapitulation
(paras. 95 - 97) . . . . . . . . . . . . . . 21
DISSENTING OPINION OF MR. J.-C. SOYER . . . . . . . . . . . 22
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 23
APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . 24
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a German citizen, born in 1949 and living in
Jever. She is a teacher by profession. She is represented before the
Commission by Mr. P. Becker, a lawyer practising in Marburg,
Mr. O. Jäckel, a lawyer practising in Wiesbaden, and Mr. K. Dammann,
a lawyer practising in Hamburg.
3. The application is directed against Germany. The Government are
represented by their agent, Mr. J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice.
4. The case relates to the applicant's dismissal from the civil
service on account of her political activities as a member of the
German Communist Party (Deutsche Kommunistische Partei - DKP). The
applicant invokes Articles 10, 11 and 14 of the Convention.
B. The proceedings
5. The application was introduced on 13 February 1991 and registered
on 27 February 1991. After a preliminary examination of the case by
the Rapporteur, the Commission considered the admissibility on
7 October 1991. It decided to give notice of the application to the
Respondent Government and to invite the parties to submit written
observations on admissibility and merits.
6. The Government submitted their observations on 30 January 1992.
The applicant replied on 2 May 1992.
7. On 19 October 1992 the Commission declared the application
admissible and further decided, in accordance with Rule 50 (b) of the
Rules of Procedure, to obtain the parties' oral submissions on the
merits of the case.
8. On 18 November 1992 the text of the Commission's decision on
admissibility was sent to the parties.
9. On 11 February 1993 a hearing was held in Strasbourg. The
Government were represented by Mr. J. Meyer-Ladewig, agent, and by
Mrs. E. Chwolik-Lanfermann, Appellate Court judge, Federal Ministry of
Justice, and Mr. S. Mehrens, Ministerialrat, Ministry for Culture of
Lower Saxony, as advisers.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the parties' disposal with a view to securing a friendly
settlement. In the light of the parties' reaction, the Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes in Plenary Session, the following members being
present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
C.L. ROZAKIS
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
12. The text of this Report was adopted on 30 November 1993 and is
now transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts;
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. In 1976 the applicant was admitted to the preparatory service for
teachers (Vorbereitungsdienst) and worked as a trainee in Hesse. In
June 1977 she passed the second state examination for teachers and on
1 August 1977 she was admitted for a probationary period to a teacher's
post (Studienrätin) in the Lower Saxony state school service in Jever.
On 1 February 1979 the applicant was appointed as a permanent civil
servant with tenure for life (Beamtin auf Lebenzeit). She is a teacher
of the German and French languages. A report established in March 1981
assessing her professional qualifications described both her
qualifications and her performance as fully satisfactory.
17. The applicant states that, prior to her appointment for life, she
had joined the German Communist Party (Deutsche Kommunistische Partei -
DKP). It is not contested that, at the relevant time, it was the aim
of the DKP to overthrow the social structure and the constitutional
order of the Federal Republic of Germany and to establish a political
system like that in the former German Democratic Republic (GDR). The
leading position of the former Socialist Party (SED) of the GDR was
referred to in the Mannheim programme of the DKP of 21 October 1978 in
the following terms:
"under the guidance of the SED the workers, farmers and all
other citizens of the GDR will develop a socialist society
and strengthen on German soil the real socialism which is
the basic alternative to the capitalist order of
exploitation".
18. Following preliminary disciplinary investigations formal
disciplinary proceedings were instituted against the applicant on
13 July 1982 on the ground that as a civil servant she had violated her
obligation of political loyalty through her diverse political
activities including her candidature for the DKP in the 1982 Diet
(Landtag) elections of Lower Saxony. On 22 November 1983 an indictment
was filed in the disciplinary proceedings listing 11 public political
activities for the DKP, such as distributing information pamphlets,
representing the DKP in public discussions, being a leading DKP
official in a certain district and having stood as a DKP candidate for
the Federal elections of 6 March 1983.
19. On 15 July 1985 the proceedings were adjourned in order to extend
the investigations to further political activities which in the
meantime had come to light.
20. On 2 December 1986 a supplementary indictment was filed according
to which the applicant had further violated her obligations as a civil
servant by: -
a. having been a candidate for the DKP in the Diet elections
on 15 June 1986;
b. still being member of the executive council of the DKP's
regional organisation in Bremen-Lower Saxony;
c. still being the chairman in the DKP's local representation
in Wilhelmshaven-Friesland;
d. having participated as a delegate at the DKP's convention
held from 2-4 May 1986 in Hamburg.
21. On 12 August 1986 the applicant was provisionally dismissed from
service. As from October 1986, 40 per cent of her salary
(Dienstbezüge) was withheld.
22. On 16 October 1987 the disciplinary chamber of the Oldenburg
Administrative Court (Verwaltungsgericht) decided that the applicant
had violated her duty of political loyalty, due under Section 61 (2)
of the Lower Saxony Civil Service Act (Niedersächsisches
Beamtengesetz), and imposed the disciplinary sanction of dismissal.
The court granted the applicant payment of 75 per cent of the pension
rights acquired at the relevant time for a period of 6 months.
23. The disciplinary court considered that the applicant had
seriously violated her duty of political loyalty in that she was an
active member of the DKP which pursued aims that were contrary to the
constitution of the Federal Republic of Germany. This finding was not
dependent on a prohibition of the DKP by the Federal Constitutional
Court (Bundesverfassungsgericht). The anti-constitutional aims of the
DKP followed from its Mannheim programme. By her activities as a DKP
member the applicant had obviously supported the DKP's anti-
constitutional aims.
24. The court further observed that the principle of political
loyalty restricted the constitutional rights of civil servants.
However, this restriction or limitation was compatible with the German
constitution and also with international treaties.
25. As to the subjective aspect of the charges, the court referred
to a judgment of 24 June 1985 from which it followed that membership
in the DKP was incompatible with the civil servants' duty to observe
political loyalty; this judgment had been published in an official
publication and had also been communicated to the applicant personally.
Consequently, the applicant knew, at least from that day onwards, that
by being an active member of the DKP she violated this duty. As she
had manifested her intention to pursue her political activities, she
had definitely destroyed the relationship of mutual trust and
confidence. Therefore she had to be dismissed in spite of the fact
that she had rendered for many years her services without giving rise
to objections, that her teaching qualifications were uncontested and
that both parents and pupils appreciated her.
26. The applicant lodged an appeal (Berufung) which was rejected on
31 October 1989 by the Disciplinary Court of Lower Saxony
(Niedersächsischer Disziplinarhof).
27. The appellate court agreed with the lower court that although the
DKP had not been declared anti-constitutional by the Federal
Constitutional Court this did not prevent other courts from finding
that the aims of the DKP were inimical to the democratic constitutional
order. Referring to an analysis of the Mannheim programme by Mies and
Garns published under the title "Direction and Aim of the DKP" ("Weg
und Ziel der DKP"), 2nd edition 1981, the appellate court found that
the policies of Marx and Lenin were still the guidelines for the DKP
and its aim was the establishment of situations similar to those
prevailing in Communist states around 1980.
28. The appellate court considered that Article 48 (2) of the Basic
Law (Grundgesetz) and the corresponding constitutional provisions of
Lower Saxony protecting the political activities of parliamentarians
and of candidates for parliament were not incompatible with the demands
flowing from civil servants' duty of political loyalty. This principle
also lawfully limited civil servants' freedom of expression.
29. By standing as a candidate in the elections of the "Land"
Parliament and by accepting executive functions for the DKP, at both
district and regional level, the applicant had breached her duty
towards her employer, deriving from Section 61 (2) of the Lower Saxony
Civil Service Act (Beamtengesetz) to show through all her actions her
support for, and observance of, the free democratic basic order within
the meaning of the Basic Law. This duty related to both the actions
of a civil servant in the performance of his/her duties and those
engaged while not on duty. By actively engaging in work for the DKP,
a civil servant gave strong support to its anti-constitutional
objectives, thus breaching to a considerable extent his/her duty of
political loyalty. By assuming party functions and standing as a
candidate the applicant declared to others, while demonstrating at the
same time that she was a civil servant, that she was a spokeswoman for
the DKP and solicited support for its policies. The mere fact of a
civil servant taking on party functions and standing as a candidate in
elections for a party with anti-constitutional objectives, giving
active support to that party publicly, meant that he/she acted contrary
to his/her duty of political loyalty. References were made in this
context to the jurisprudence of the Federal Constitutional Court
(Bundesverfassungsgericht).
Thus, by her actions the applicant had identified herself with
the anti-constitutional objectives of the DKP. Anyone who as a civil
servant supported a party with anti-constitutional objectives had
himself/herself to be treated as an enemy, even if he/she asserted to
be personally upholding the Basic Law. Declarations in support of two
opposites were irreconcilable. A declaration in support of a
totalitarian party was tantamount to identifying with its objectives.
A declaration made at the same time in support of the free democratic
basic order lacked credibility.
30. It was true that the DKP pursued not only political objectives
which conflicted with the constitutional order but also objectives
which were compatible with the Basic Law. However, a civil servant
ought not to realise his/her political aims by making use of a party
which inter alia pursued anti-constitutional objectives and attempt to
bring it to power. In this respect, the appellate court relied on the
following passages of an earlier decision of the Federal Administrative
Court (Bundesverwaltungsgericht):
"One may, it is true, agree with the Federal Disciplinary Court
(Bundesdisziplinarhof) that the civil servant does not wish to
change the system of government of the Federal Republic of
Germany by violent means and that this declaration can not merely
be judged to be "lip-service". The civil servant may also be
believed when he says that he is mainly concerned with
compensating for what he feels to be a discrepancy between the
principles laid down in the constitution and constitutional
reality in the Federal Republic of Germany and that he is
profoundly sincere in his idea of a society in which there is
more justice, especially in the economic sphere. However, this
does not permit him to see in the DKP, contrary to the view held
by the Federal Disciplinary Court, a political grouping in which
he believes he can carry through his idea of optimum political
order. It appears to be doubtful whether this perception of the
constitution which the civil servant voices here is indeed the
way the Basic Law is intended to be understood. This question
does not need to be answered here. In its judgment concerning
its ban on the former Communist Party (KPD), the Federal
Constitutional Court (Decisions of the Federal Constitutional
Court - BVerfGE 5, 85) declared to be incompatible with the free
democratic basic order not only the "fighting methods" of the
then KPD but also the stages to be passed through in order to
achieve the final aim of "the rule of socialism", namely the
proletarian revolution (by peaceful or violent means) and the
rule of the working class. It also argued that a person's
intensive propaganda and agitation for a political order which
he seeks to bring about - albeit not in the foreseeable future -
and which simply conflicts with the free democratic basic order,
must be directly detrimental to the basic order now. The Federal
Constitutional Court thus quite clearly also declared
incompatible with the free democratic basic order the transition
stages of unlimited duration which the party is steering towards
by means of intensive propaganda and agitation (BVerfGE 47, 365
et seq., at 374). Therefore, in contrast to the view of the
Federal Disciplinary Court, the civil servant's declaration that
he did not wish to change the political system in the Federal
Republic of Germany by violent means, declaration which,
incidentally, accords with many statements made by this party,
is of no legal significance (BVerfGE 76, 157)."
31. As regards the applicant, the appellate court considered that in
view of her top-level positions in the DKP she necessarily identified
herself with its objectives which were incompatible with the
constitution. She fully adopted the DKP's aims at least in public.
Her actions had therefore to be seen as the expression of her own anti-
constitutional attitudes. The mere fact that a civil servant is
supporting a party in public whose aims conflict with the constitution
meant that he/she acts contrary to his/her duty of political loyalty,
it being unimportant whether he/she profoundly approved of the party's
aim in its entirety or only partly. Moreover, during the investigation
proceedings the applicant had declared her unqualified support for the
aims of the DKP as laid out in the Mannheim programme.
32. The appellate court further agreed with the lower court that the
applicant had violated her professional duties intentionally. Since
the decision of the Federal Constitutional Court of 22 May 1975
(BVerfGE 39, 334) was published, no civil servant could any longer
believe that political activities in an anti-democratic political party
were unobjectionable as long as the party was not banned by the Federal
Constitutional Court. The applicant had been informed by her superiors
about this jurisprudence and had been given warnings. Nevertheless she
had continued with her activities for the DKP with unabated enthusiasm
and even increased her activities. Consequently, she deliberately took
the risk of being in breach of her duties. Finally, as far as the
sanction was concerned, the appellate court again referred to the
Federal Administrative Court and its own jurisprudence according to
which a civil servant had to be dismissed from service if he
persistently breached his/her duty of political loyalty and showed that
in this respect he/she would not listen to reason. Such a civil
servant could not be tolerated by the state, which must be able to rely
on the loyalty to the constitution of its civil servants.
33. This breach of duty was especially serious in the applicant's
case as in her role as a teacher she was supposed to teach the children
confided to her the fundamental values of the constitution. If a
teacher had no positive relationship with the free democratic basic
order within the meaning of the Basic Law, he/she could not provide the
children with the knowledge and the conviction that the current
democratic order was an asset worth defending. Moreover, there was the
danger that such a teacher would influence the pupils in such a way
that they adopt his/her own views which conflict with the basic
principles of the constitution. Experience had shown that pupils can
do little to counter such influence. Parents, who must place their
children in the care of the state schools because school attendance is
compulsory, have the right to expect the state only to appoint or to
retain in school service those teachers who affirm without reservation
the free democratic order and impress it upon their pupils in their
teaching. Therefore the state could not tolerate teachers who openly
engaged in activities for an anti-constitutional organisation.
34. In assessing the seriousness of the disciplinary offence and the
sentence it required, a possible fundamental change in the applicant's
attitude would have to be taken into account. Renewed trust might be
placed in her if she distanced herself from the unconstitutional
activities she had engaged in formerly and dissociated herself from the
party which pursued such objectives. This presupposed that at the time
the court gave its decision the applicant offered a guarantee that she
would in future fulfil her duty of political loyalty.
35. However, the appellate court was not satisfied that the applicant
would in future offer the guarantee that she would support at all times
the free democratic order. Although it had been pointed out several
times to her during the disciplinary proceedings, which had lasted a
number of years, that her commitment to the DKP was incompatible with
her duty as a civil servant, she did not restrict her activities but
even extended them. Still at the last oral hearing before the
appellate court she had supported the DKP's objectives and reaffirmed
her intention to continue to play an active role in the party.
36. The fact that the applicant supported the "new cause" within the
DKP and welcomed the changes in the Soviet Union, East Germany and
Eastern Europe did not lessen the gravity of her disciplinary offence.
As long as the DKP pursued, as it did, anti-constitutional objectives
civil servants were not allowed to play a role in its work. They had
to distance themselves from such a party.
37. As the highest courts had stressed in their decisions again and
again, a serious disciplinary offence destroying the relationship of
trust between a civil servant and his employer had also been committed
when the civil servant made use of an anti-constitutional party in
order to realise aims which are in conformity with the constitution and
are as such to be welcomed, for example the maintenance of peace,
democratisation, the creation of social justice, the fight against
fascism etc. A declaration of the intention to pursue only such aims
could not preserve from the harshest disciplinary sanction possible.
Only where a civil servant convincingly changed his attitude and
clearly turned away from a party which was - still - anti-
constitutional could a disciplinary sanction be avoided. The applicant
however had not given any signs of a change in her views. In these
circumstances any less severe disciplinary measure which aimed at
persuading the applicant to give up her commitment to the DKP would
serve no purpose. The applicant's attitude rendered it impossible to
tolerate her as a civil servant and made her dismissal necessary. Her
otherwise irreproachable behaviour in fulfilling her duties as a
teacher could not alter this in any way because the basis of trust
necessary for the continuation of her employment as a civil servant was
lacking.
38. The applicant then lodged a constitutional complaint which was
rejected by a panel of three judges of the Federal Constitutional Court
on 7 August 1990 (served on 14 August 1990) as offering no prospects
of success. With regard to the right to freedom of expression as
guaranteed by Article 5 of the Basic Law, the Constitutional Court
stated that political loyalty was a traditional principle of the civil
service. It required that a civil servant always distance
himself/herself from groups and endeavours that fight against, combat
and defame the state, its constitutional organs and constitutional
order. Dismissal of a civil servant for violation of the principle of
loyalty required that the disciplinary court was convinced he/she no
longer offered the guarantee that he/she would at any time support and
advocate the free democratic order. The findings of the disciplinary
courts in this respect were unobjectionable and in no way arbitrary.
The applicant had already at a hearing of 9 March 1983 declared that
"there are no items, passages, paragraphs in the DKP programme which
I do not accept". Regardless of the resolution in Article 21 (2) 2nd
sentence of the Basic Law (see below para. 41) the disciplinary courts
were free to decide themselves that the DKP and its aims were inimical
to the constitution. Undoubtedly the applicant had done more than
simply paying lip service to her political conviction. In view of her
stubbornness (Belehrungsunwilligkeit) the disciplinary courts had
correctly assumed that the necessary basis of trust
(Vertrauensgrundlage) had been destroyed.
39. From 1987 to 1991 the applicant worked as artistic director and
theatre educationalist at the North Lower Saxony "Landesbühne" in
Wilhelmshaven.
40. With effect from 1 February 1991 the applicant was reemployed as
a teacher (Studienrat) in the school education service of the Land of
Lower Saxony. Prior to this, the so-called "Radikalenerlaß" had been
abolished in Lower Saxony and was followed by regulations passed by the
Land Government applying to so-called "old cases" (cf. para. 44 below).
B. Relevant domestic law and practice
41. Basic Law (Grundgesetz)
Article 5
(German)
"(1) Jeder hat das Recht, seine Meinung in Wort, Schrift
und Bild frei zu äußern und zu verbreiten und sich aus
allgemein zugänglichen Quellen ungehindert zu unterrichten.
Die Pressefreiheit und die Freiheit der Berichterstattung
durch Rundfunk und Film werden gewährleistet. Eine Zensur
findet nicht statt.
(2) Diese Rechte finden ihre Schranken in den Vorschriften
der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum
Schutze der Jugend und in dem Recht der persönlichen Ehre.
(3) Kunst und Wissenschaft, Forschung und Lehre sind frei.
Die Freiheit der Lehre entbindet nicht von der Treue zur
Verfassung."
(Translation)
"(1) Everyone shall have the right freely to express and
disseminate his opinion by speech, writing and pictures and
freely to inform himself from generally accessible sources.
Freedom of the press and freedom of reporting by means of
broadcasts and films are guaranteed. There shall be no
censorship.
(2) These rights are limited by the provisions of the
general laws, the provisions of law for the protection of
youth, and by the right to inviolability of personal
honour.
(3) Art and science, research and teaching, shall be free.
Freedom of teaching shall not absolve from loyalty to the
constitution."
Article 21
(German)
"(1) Die Parteien wirken bei der politischen Willensbildung
des Volkes mit. Ihre Gründung ist frei. Ihre innere
Ordnung muß demokratischen Grundsätzen entsprechen. Sie
müssen über die Herkunft ihrer Mittel öffentlich
Rechenschaft geben.
(2) Parteien, die nach ihren Zielen oder nach dem
Verhalten ihrer Anhänger darauf ausgehen, die freiheitliche
demokratische Grundordnung zu beeinträchtigen oder zu
beseitigen oder den Bestand der Bundesrepublik Deutschland
zu gefährden, sind verfassungswidrig. Über die Frage der
Verfassungswidrigkeit entscheidet das Bundesverfassungs-
gericht.
(3) Das Nähere regeln Bundesgesetze."
(Translation)
"(1) The political parties shall participate in the forming
of the political will of the people. They may be freely
established. Their internal organization must conform to
democratic principles. They must publicly account for the
sources of their funds.
(2) Parties which, by reason of their aims or the
behaviour of their adherents, seek to impair or abolish the
free democratic basic order or to endanger the existence of
the Federal Republic of Germany, shall be unconstitutional.
The Federal Constitutional Court shall decide on the
question of unconstitutionality.
(3) Details shall be regulated by federal laws."
Article 33 para. 5
(German)
"Das Recht des öffentlichen Dienstes ist unter
Berücksichtigung der hergebrachten Grundsätze des
Berufsbeamtentums zu regeln."
(Translation)
"The law of the public service shall be regulated with due
regard to the traditional principles of the professional
civil service."
Article 48 para. 2
(German)
"Niemand darf gehindert werden, das Amt eines Abgeordneten
zu übernehmen und auszuüben. Eine Kündigung oder Entlassung
aus diesem Grunde is unzulässig."
(Translation)
"No one may be prevented from accepting and exercising the
office of deputy. No one may be given notice of dismissal
nor dismissed from employment on this ground."
42. Niedersächsisches Beamtengesetz (Civil Service Act of Lower
Saxony):
Section 61 para. 2 :
(German)
"Der Beamte muß sich durch sein gesamtes Verhalten zu der
freiheitlich demokratischen Grundordnung im Sinne des
Grundgesetzes bekennen und für deren Einhaltung eintreten."
(Translation)
"The civil servant shall, through his conduct as a whole,
acknowledge and uphold observance of the free democratic
basic order within the meaning of the Basic Law."
43. Niedersächsische Disziplinarordnung (Disciplinary Code of Lower
Saxony):
Section 2 para. 1:
(German)
"Nach diesem Gesetz kann verfolgt werden
1. ein Beamter wegen eines während seines
Beamtenverhältnisses begangenen Dienstvergehens..."
(Translation)
"Under this Act may be prosecuted
1. a civil servant who has committed a disciplinary
offence during the course of his civil service
relationship..."
Section 5 para. 1:
(German)
"Disziplinarmaßnahmen sind:...
Entfernung aus dem Dienst...."
(Translation)
"Disciplinary measures are: ....
dismissal from service.........."
Section 11 para. 1:
(German)
"Die Entfernung aus dem Dienst bewirkt auch den Verlust des
Anspruches auf Bezüge und Versorgung..."
(Translation)
"Dismissal from service shall also entail the loss of
remuneration and pension rights......"
44. Decree on the employment of extremists in the civil service
("Radikalenerlaß")
On 28 January 1972 the Federal Chancellor and the Laender
heads of government agreed in the so-called "Radikalenerlaß" (Bulletin
No. 15 of 3 February 1972, p. 142) that the membership of public
service staff in parties or organisations opposed to the constitutional
order would, as a rule, lead to a conflict of loyalty. On the basis
of this agreement several sets of regulations were issued in Lower
Saxony - in particular the Land Government's decision, dated
10 July 1972, concerning "political activity of candidates and members
of the public service directed against the free democratic basic
order".
In 1990 the Social Democratic Party and the "Greens" agreed to
abolish the "Radikalenerlaß" in their coalition agreement on the
formation of a new Land Government in Lower Saxony. This was done in
a decision rendered by the Lower Saxony Land Ministry.
In another decision rendered on 28 August 1990 this Ministry
issued regulations on the treatment of so-called "old cases", i.e.
those cases where the persons concerned had been dismissed from the
civil service because of their political activity or where they were
not recruited as civil servants. This decision made it possible for
a new civil service relationship to be established for the group of
civil servants that had been dismissed from the service in disciplinary
proceedings provided that the recruitment and aptitude requirements
were fulfilled. Renewed recruitment was not linked with any back
payments or compensation payments.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
45. The Commission has declared admissible the applicant's complaints
that her dismissal from the Lower Saxony civil service, on account of
her political activities in the DKP, violated her rights to freedom of
expression and association and discriminated against her in respect of
these rights.
B. Points at issue
46. Accordingly, the points at issue are;
- whether there has been a violation of Article 10 (Art. 10)
of the Convention;
- whether there has been a violation of Article 11 (Art. 11)
of the Convention; and
- whether there has been a violation of Article 14 of the
Convention, read in conjunction with Article 10 and/or Article 11
(Art. 14+10, 14+11) of the Convention.
C. Article 10 (Art. 10) of the Convention
47. Article 10 (Art. 10) of the Convention provides;
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
1. Interference
48. The applicant submits that her dismissal from civil service, on
account of her political activities in the DKP, interfered with her
freedom of expression as guaranteed by Article 10 (Art. 10) of the
Convention. The Government do not contest that there has been such an
interference.
49. The Commission recalls that, at the time of her dismissal, the
applicant was a permanent civil servant with tenure for life (cf.
paras. 16 and 22 above). It considers that the present case must
therefore be distinguished from the cases of Glasenapp and Kosiek,
which concerned dismissals of probationary civil servants (see Eur.
Court H.R., Glasenapp judgment of 28 August 1986, Series A no. 104,
p. 9, para. 12 and p. 14, para. 24; Kosiek judgment of 28 August 1986,
Series A, no. 105, p. 11, paras. 15 and 17). In those cases the Court,
holding "that access to civil service lies at the heart of the issue",
found no interference with the exercise of the freedom of expression
protected by Article 10 (Art. 10) (Glasenapp judgment loc. cit. p. 27,
para. 53; Kosiek judgment loc. cit. p. 21, para. 39).
The Commission does not consider that in the present case,
concerning the dismissal of a permanent civil servant, "access to civil
service lies at the heart of the matter". It finds, with the parties,
that the dismissal of the present applicant, on account of her
political activities in the DKP, interfered with the exercise of her
freedom of expression.
2. Justification under Article 10 para. 2 (Art. 10-2)
of the Convention.
50. The above interference contravenes the Convention if it does not
satisfy the requirements of para. 2 of Article 10 (Art. 10-2). It
therefore falls to be determined whether, at the relevant time, the
interference was "prescribed by law", had an aim or aims legitimate
under Article 10 para. 2 (Art. 10-2) and was "necessary in a democratic
society" for the aforesaid aim or aims.
a. "Prescribed by law"
51. The applicant submits that her dismissal is the consequence of
the "Radikalenerlaß" (cf. para. 44 above), which provided that civil
servants who were members of organisations inimical to the constitution
should be dismissed. The term inimical to the constitution cannot be
found in the Basic Law. The Basic Law only speaks of "unconstitutional
parties" and the unconstitutionality has to be established by the
Federal Constitutional Court. The determination of the question of
whether or not membership in a political party is compatible with the
duties of a civil servant thus amounts to a political assessment which
is not covered by the legislation governing the status of civil
servants.
52. The Government point out that the principle of political loyalty
which has to be observed by civil servants clearly follows from Section
61 para. 2 of the Civil Service Act applicable in the applicant's case
and the sanction imposed on her was provided for in the applicable
disciplinary law (cf. paras. 42 and 43 above).
53. The Commission, recalling its findings in the cases of Glasenapp
and Kosiek concerning analogous provisions (Glasenapp v. Germany, Comm.
Report 11.5.84, Eur. Court H.R., Series A no. 104, pp. 41-42,
paras. 79-84; Kosiek v. Germany, Comm. Report 11.5.84, Eur. Court H.R.,
Series A no. 105, pp. 34-35, paras. 72-77), finds in the present case
that the text of the relevant provisions and in particular the norm
requiring allegiance to the constitution were readily accessible and
that the duty of political loyalty was formulated with sufficient
precision to allow the applicant to regulate her conduct accordingly
and to foresee the consequences which her political activity might
entail. It further notes that the applicant had repeatedly been warned
about the consequences of her being a member of the DKP (see para. 32
above).
54. The Commission finds that, in these circumstances, the
restrictions in question were sufficiently accessible, foreseeable and
certain to be "prescribed by law" within the meaning of Article 10
para. 2 (Art. 10-2).
b. Legitimate aim
55. The applicant has made no submissions on this issue.
56. The Government submit that the restrictions applied were intended
to protect national security and to prevent disorder.
57. The Commission recalls that restrictions must pursue one of the
specific aims mentioned in Article 10 para. 2 (Art. 10-2). The
requirement at issue in the present case that civil servants must
observe political loyalty in respect of the constitutional order and
the concept of the pluralist democracy enshrined in the Basic Law, is
based on the idea that the civil service to some extent represents the
constitutional system. It also takes account of the risk that the
civil service as a powerful structure lends itself to undermining the
constitution if its members are actively antagonistic to it.
58. The Commission further recalls that the defence of democracy is
one of the main justifications of restrictions "in the interests of
national security", (cf. the Glasenapp and Kosiek Reports, loc. cit.
p. 43, paras. 85-89, and pp. 35-36, paras. 78-82). Legislation
requiring civil servants to show a generally positive attitude towards
the basic democratic values anchored in the constitution can therefore
be regarded as pursuing the legitimate aim of national security. In
this context the Commission also bears in mind the German historical
experience with the National Socialist State (cf. Glasenapp Report,
loc. cit. p.45, para. 96). The Commission does not feel called upon
to examine whether the prevention of disorder constituted a further
legitimate aim in the present case.
c. Necessity
59. The Commission is finally called upon to examine whether the
applicant's dismissal from civil service being a restriction on her
freedom to hold an opinion could be regarded as being "necessary in a
democratic society" in the interests of national security, i.e.,
whether it corresponded to a "pressing social need". The level of this
requirement is not as high as a measure which is "indispensable", but
exceeds that which is merely "useful", "reasonable" or "desirable" (cf.
The Sunday Times judgment of 26 April 1979, Series A no. 30, p. 36,
para. 59).
60. According to the same judgment (ibid.) the initial responsibility
for evaluating the necessity of a given interference falls upon the
domestic authorities who enjoy a "margin of appreciation". The review
of the necessity by the Convention organs nevertheless covers "not only
the basic legislation but also the decision applying it, even one given
by an independent Court". The scope of the domestic "margin of
appreciation" varies depending upon the aim which is being protected
under Article 10 para. 2 (Art. 10-2) of the Convention. Whereas the
Contracting States may be in a better position than the Convention
organs to give an opinion on such questions as morals, in relation to
the more objective aims identified in Article 10 para. 2 (Art. 10-2),
the domestic discretion is reduced and the scope of review under the
Convention is enhanced.
61. The Commission further recalls that the protection of Article 10
(Art. 10) also extends to "ideas" that are not favourably received or
regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb; such are the demands of that
pluralism, tolerance and broadmindedness without which there is no
"democratic society" (see, inter alia, Oberschlick judgment of
23 May 1991, Series A no. 204, p. 25, para. 57 with further
references).
62. The Commission notes the reference to "duties and
responsibilities" in Article 10 para. 2 (Art. 10-2). It considers that
this notion must be interpreted in the light of the criterion
"democratic society" in the same provision. Permissible restrictions
of freedom of expression can in the present case only arise where the
necessity flows from the applicant's position as a teacher and member
of the DKP, considered in the context of the Federal Republic of
Germany as one State of a divided nation at the relevant time (cf.
above para. 17 and Glasenapp Report, loc. cit. pp. 45-46, para. 97).
aa. Factors relevant to the applicant's position
63. The Commission has considered:
- the nature of the applicant's post and her conduct in that
post, and
- the applicant's opinions as expressed by her.
i. The applicant's post and her conduct in that post
64. The applicant was appointed for life as a teacher of the German
and French languages after having successfully passed a probationary
period. She was teaching senior classes in a secondary school.
65. The Commission notes that the applicant's appointment was in the
civil service. The restrictions to which she was subject governed her
appointment to such status and are to be distinguished from more
general restrictions upon the public at large.
66. The applicant has not argued that political loyalty cannot be
required from civil servants and the Commission does not find that such
a requirement was a wholly extraneous factor which could not be
expected to flow directly from the functions to which she was
appointed.
67. The applicant states that she was already a member of the DKP
when she became a permanent civil servant, but it has not been alleged
by the Government that she expressed or displayed her political
opinions at the school. In the disciplinary proceedings against her
she was not reproached with having in any way attempted to indoctrinate
her pupils with her political opinions. On the contrary, her
professional qualifications were fully recognised and she was
appreciated both by her pupils and their parents.
ii. The applicant's opinions as expressed by her
68. The applicant was only blamed for her extra-curricular political
activities in the public sphere. It has not been alleged that these
activities were known to her pupils or could easily have become known
to them or that they had any repercussion on her teaching activities.
69. Although the applicant seems to have adhered to a moderate
tendency within the DKP (cf. para. 36 above) she nevertheless
maintained in the disciplinary proceedings against her that she fully
supported the DKP's programme and policies (cf. para. 38 above).
70. It is not contested that, at the relevant time, it was the aim
of the DKP to overthrow the social structure and the constitutional
order of the Federal Republic of Germany and to establish a political
system like that in the former German Democratic Republic (cf. para. 17
above).
bb. Measures applied to the applicant
71. The Commission has recognised in the Glasenapp case (loc. cit.
p. 49, para. 110) that where a Government seeks to achieve the ultimate
protection of the rule of law and the democratic system such aim is
recognised in the Convention itself as Article 17 (Art. 17) gives
precedence to such objectives even over the protection of the specific
rights which the Convention otherwise guarantees. Nevertheless, in
view of the cardinal importance of the protected values in question the
Convention requires a clearly established need for any interference
with the rights it guarantees. This is especially true in the context
of freedom of expression which is the cornerstone of the principles of
democracy and human rights protected by the Convention.
72. The question is therefore whether or not requiring the applicant
to discontinue her political activities as a member of the DKP
corresponded to a pressing social need in this sense. As was already
recognised in the Glasenapp case, an exaggerated test of conformity
with the civil servant's duty of allegiance to the democratic order may
discourage the free expression of diverse opinions, which is expressly
guaranteed by the Convention (loc. cit. p. 49, para. 11).
73. On the other hand it is also to be taken into account that the
applicant as a teacher in a secondary school and in daily contact with
pupils of an impressionable age was subject to special duties and
responsibilities in relation to her opinions and their expression, both
directly at the school and to a lesser degree as a figure of authority
for her pupils, at other times. Her job as a teacher equally imposed
special responsibilities on the authorities responsible for public
education, to ensure the free exchange and development of ideas in the
context of freedom of expression within the school, since excessive
protection from one form of indoctrination may institute an
indoctrination of another kind (Glasenapp case, Comm. Report, loc. cit.
p. 49, para. 112).
cc. Evaluation of the measures applied to the applicant in the
light of these factors
74. The Commission recalls that in a number of member States of the
Council of Europe there is a duty on civil servants to exercise
restraint in their expression of opinion. Nevertheless this duty is
frequently dependent upon the nature of the functions performed by the
civil servant in question.
75. The Commission considers that particular importance must be
attached to the question of whether the applicant's position was such
that a misconduct was likely to have negative effects on the values
enumerated in para. 2 of Article 10 (Art. 10-2) that the States are not
only entitled but called upon to protect.
76. In this context the Commission notes that no breach of duty, such
as the advocacy or indoctrination of an extreme political view, took
place at the school. The applicant was only reproached with her
membership in the DKP and her activities for this party, outside
school.
77. It has not been established in the disciplinary proceedings that
in her capacity as member of the DKP and election candidate the
applicant, while expressing her general support for the programme of
the DKP, ever made any public statement which showed clearly that she
was an enemy of the democratic constitutional order.
78. The Commission is therefore not satisfied that the applicant's
conduct affected state security or public order in a relevant manner,
as, e.g., in a case where a civil servant publicly advocates racial
hatred (cf. Dec. 29.3.93, No. 19459/92).
79. Nor does the Commission detect any other reason creating a
"pressing social need" to dismiss the applicant from her post. The
Commission notes that, following the institution of disciplinary
proceedings against her in July 1982, the applicant was allowed to
continue her professional activities until August 1986 (cf. paras. 18
and 21 above). The Commission also observes that, after her dismissal
in 1987, the applicant worked as artistic director and theatre
educationalist at the North Lower Saxony "Landesbühne" in
Wilhelmshaven.
80. The Commission finally notes that with effect from
1 February 1991 the applicant was reinstated as a teacher and civil
servant. The Government submit that this did not constitute a measure
of reparation but of good will; the applicant was simply given another
chance in the context of a new situation.
81. The Commission observes that, at that time, the general political
situation in Europe had completely changed and the threat of a
communist overthrow had considerably diminished after the collapse of
the totalitarian communist régimes. However, the failure of these
régimes had become apparent long before and the score of communist
parties in free elections in democratic countries had declined or was
even derisory, as in the Federal Republic of Germany.
82. To sum up, the operation of loyalty control in the present case
did not correspond to a "pressing social need" and the applicant's
dismissal, being a disproportionate measure, was not necessary in a
democratic society for any of the purposes referred to in Article 10
para. 2 (Art. 10-2) of the Convention.
CONCLUSION
83. The Commission concludes by 13 votes to 1 that there has been a
violation of Article 10 (Art. 10) of the Convention.
D. Article 11 (Art. 11) of the Convention
84. Article 11 (Art. 11) of the Convention provides:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the
right to form and to join trade unions for the protection
of his interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of
the armed forces, of the police or of the administration of
the State."
1. Interference
85. Freedom of association as guaranteed by Article 11 para. 1
(Art. 11-1) of the Convention includes the right to form and to join
a political party (cf. Eur. Court H.R., Young, James and Webster
judgment of 13 August 1981, Series A no. 44, p. 21, para. 57).
86. The applicant's dismissal from civil service was ordered because
of her refusal to abandon active membership in the DKP. Consequently,
there was interference with her rights under Article 11 para. 1
(Art. 11-1) of the Convention.
2. Justification under Article 11 para. 2 (Art. 11-2) of the
Convention
87. The basic requirements for the justification of measures
restricting rights under Article 11 para. 1 (Art. 11-1) first sentence
are analogous to those governing restrictions under Article 10 para. 2
(Art. 10-2) of the Convention (cf. para. 50 above).
88. The Commission notes the exception, made in the second sentence
of Article 11 para. 2 (Art. 11-2). It considers that the applicant,
as a secondary school teacher, was not a member of "the administration
of the State" within the meaning of this provision. The functions of
the teaching profession do not resemble those of the armed forces and
the police (as to this criterion, cf. No. 11603/85, Dec. 20.1.87,
D.R. 50 p. 228 at p. 239) and in particular do not by definition
involve the exercise of State authority.
89. Noting that pluralism, tolerance and broadmindedness are
hallmarks of a "democratic society" (Young, James and Webster judgment,
loc. cit. p. 25, para. 63), the Commission considers that the measure
taken against the applicant, namely her dismissal from civil service
on account of her active membership in the DKP, was not proportionate
to the legitimate aim pursued. In this connection the Commission again
refers to its findings under Article 10 para. 2 (Art. 10-2) (paras. 59
ff.). It also notes that, while the former Communist Party of Germany
(Kommunistische Partei Deutschlands - KPD) was declared
unconstitutional by the Federal Constitutional Court in 1956 (cf.
No.250/57, Dec. 20.7.57, , Yearbook 1 p. 222), there was no decision
of the Federal Constitutional Court, under Article 21 para. 2 of the
Basic Law (cf. para. 41 above), declaring the DKP unconstitutional.
CONCLUSION
90. The Commission concludes by 13 votes to 1 that there has been a
violation of Article 11 (Art. 11) of the Convention.
E. Article 14 (Art. 14) of the Convention
91. Article 14 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
92. The applicant claims to have been the victim of discrimination
on the ground of her political opinion contrary to Article 14 (Art. 14)
of the Convention.
93. The Commission, having found a violation of Article 10 (Art. 10)
of the Convention (at para. 83 above), does not consider that a
separate issue arises under Article 14 (Art. 14) of the Convention.
CONCLUSION
94. The Commission concludes by 13 votes to 1 that it is not
necessary to examine the application also in relation to Article 14
(Art. 14) of the Convention.
F. Recapitulation
95. The Commission concludes by 13 votes to 1 that there has been a
violation of Article 10 (Art. 10) of the Convention (para. 83).
96. The Commission concludes by 13 votes to 1 that there has been a
violation of Article 11 (Art. 11) of the Convention (para. 90).
97. The Commission concludes by 13 votes to 1 that it is not
necessary to examine the application also in relation to Article 14
(Art. 14) of the Convention (para. 94).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. French)
DISSENTING OPINION OF MR. J.-C. SOYER
Unlike the majority of the Commission, I consider that the
measure taken against the applicant was justified, under both
Article 10 para. 2 and Article 11 para. 2. The reasons for my opinion
are set out below.
1. The declared aim of the DKP was to overthrow the constitutional
order of the Federal Republic and undermine the bases of democracy, and
it was a matter of public knowledge that the applicant was an active
member of the DKP (paras. 17 and 20 of the Article 31 report).
2. Consequently, for the defence of democracy, the measure taken
against the applicant was "useful", "reasonable" and "desirable"; it
therefore satisfied the criteria of necessity set out in the Sunday
Times judgment (para. 59 of the Article 31 report).
3. Accordingly, it is of little importance that the applicant did
not conduct herself as a political activist while actually teaching
(para. 76 of the Article 31 report). A teacher's influence is often
exerted more effectively through the model of her personality, which
sets up an imitative reflex, than through direct indoctrination. This
was, moreover, one of the known techniques of "hidden persuasion", the
basis of agit-prop.
4. Nor is it of any greater importance that at the time when the
disciplinary penalty was imposed the results obtained by communist
parties in elections had already declined considerably (para. 81 of the
Article 31 report), since Marxism, in general, did not supplant
democracy through free elections.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
13 February 1991 Introduction of the application
27 February 1991 Registration of the application
Examination of Admissibility
7 October 1991 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
30 January 1992 Government's observations
2 May 1992 Applicant's observations in reply
19 October 1992 Commission's deliberations and
decision on admissibility
Examination of the merits
11 February 1993 Oral hearing on the merits
30 November 1993 Commission's deliberations on the
merits, final vote and adoption of
the Report