FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30067/04
by Eike ERDEL
against Germany
The European Court of Human Rights (Fifth Section), sitting on
13 February 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 12 August 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Eike Erdel, is a German national who was born in 1971 and lives in Homberg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a practising lawyer and a member of the political party called the Republicans (Partei der Republikaner – hereafter referred to as
Die Republikaner). As the party is generally considered to be populist and right-wing, it has been under scrutiny by the offices for the protection of the Constitution (Verfassungsschutzämter) in various German States (Länder). In the general elections in September 2005 Die Republikaner won less than one percent of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court pursuant to Article 21(2) of the German Basic Law.
The applicant held the position of lieutenant on the reserve list (Oberleutnant der Reserve) and was called up for service in the German army (Bundeswehr) in a tank battalion (Panzerbatallion) on 5 May 1997.
By order of the Ministry of Defence, the Wetzlar District Recruiting Office (Kreiswehrersatzamt) revoked the applicant’s call-up order (Einberufung) on 6 November 1997. An objection by the applicant was dismissed on 16 March 1998 by the Defence Area Command (Wehrbereichsverwaltung). It reasoned that the revocation of the call-up order released the applicant from an obligation and therefore constituted an administrative act which resulted in a benefit (begünstigender Verwaltungsakt). Moreover, the revocation did not mean that the applicant was generally excluded from all future military exercises, but that he would no longer be considered for regular reserve trainings. The applicant would however keep his rank as a reserve officer. Because of incidents that had occurred against an extremist background, which had remained few but were taken seriously, the German army currently used its discretion regarding call-ups (Einberufungsermessen) in such way that it would only choose command personnel (Führungspersonal) for army reserve trainings (Reserveübungen) who were not only free from any suspicion of supporting anti-constitutional movements, but were also expected to take immediate action against such movements. Even though it could not be presumed that every member of Die Republikaner opposed the free democratic order, the 1996 annual report of the Federal Office for the Protection of the Constitution (Verfassungsschutz) had concluded that certain groups and wings within the party did so.
On 29 October 2002 the Giessen Administrative Court dismissed an action brought by the applicant, finding that the revocation was permissible under Article 49 of the Code of Administrative Procedure (Verwaltungsverfahrensgesetz). It considered the revocation to be an administrative act which resulted in a disadvantage (belastender Verwaltungsakt) as the applicant considered the revocation discriminatory. The Giessen Administrative Court further held that the Defence Area Command had not overstepped its discretion when asserting that the German army, as an institution which relied heavily on security, expected its personnel not only to step in to protect the free democratic order but also to take immediate action against anti-democratic activities. The Defence Area Command’s conclusion that the applicant did not fulfil those requirements was not subject to legal challenge. Even though the applicant had never given cause for complaint while serving in the German army, the authorities had acted reasonably in basing their decisions on the fact that, since offences attributable to right-wing elements had been committed in the German army attracting publicity and severely harming the army’s reputation, reserve officers who had a right-wing background would no longer be chosen for army reserve training in order to prevent further offences.
On 17 September 2003 the Federal Administrative Court dismissed an appeal by the applicant on points of law. It found that the revocation had been lawfully based on Article 49 of the Code of Administrative Procedure in conjunction with section 8 of the Soldiers Act which provided that a soldier must recognise the free democratic order within the meaning of the Basic Law and act at all times in such a way as to uphold it. The German army was not prevented from taking into account the applicant’s membership of
Die Republikaner when deciding upon his status as a reserve officer despite the fact that the Federal Constitutional Court had not itself declared the party unconstitutional pursuant to Article 21 of the Basic Law. The Federal Administrative Court referred to the Federal Constitutional Court’s settled case-law in that connection. Until the Federal Constitutional Court declared a political party unconstitutional pursuant to Article 21 of the Basic Law, a party and its members and functionaries could not be hampered in their political activities. While that provision would therefore protect a reserve officer’s political activities for his party independently of his military status, it could not prevent the German army from drawing consequences from his membership of that party for his status in the army. Moreover, the above decisions had not violated the applicant’s fundamental rights. The German army was conceived as an army in a democratic State. It could only serve its purpose if its integrity as a part of the democratic order was beyond doubt. Consequently, it could not allow this order to be undermined by its soldiers or tolerate any criminal offences with an extremist background. Section 8 of the Soldiers Act provided that every soldier had to defend the free democratic order. It was therefore compatible with the Basic Law for a reserve officer to have his call-up order revoked on grounds of his party membership provided that there were sufficient reasons to believe that the party’s loyalty to the Constitution was in doubt.
The Federal Administrative Court stated that such reasons were made out if a party was under scrutiny by the offices for the protection of the Constitution. However, both the authorities and the administrative courts had to satisfy themselves that such reasons really existed. As the respective decisions in the present case had referred to the 1996 report of the Federal Office for the Protection of the Constitution, this had been the case. As the German army enjoyed a certain margin of appreciation with regard to decisions concerning its human resources, it was sufficient to establish an initial suspicion (Anfangsverdacht) that the party was disloyal to the Constitution.
On 5 May 2004 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant. It reasoned that the assertion that the applicant’s membership of Die Republikaner precluded him from being called up for service in the Germany army could not be challenged from a constitutional point of view. The Federal Constitutional Court took note of the fact that the Defence Area Command had had regard to the 1996 report of the Federal Office for the Protection of the Constitution which had stated concerns about some of the party members’ loyalty to the Constitution. At the same time several criminal offences with a right-wing extremist background which had been committed by members of the German army had attracted widespread publicity and had considerably damaged the German army’s reputation.
The Federal Constitutional Court found these considerations reasonable and not extraneous. It had therefore not been necessary to determine whether or not the applicant himself was attracted to right-wing ideas or had participated in anti-constitutional activities.Relevant domestic law
The relevant provision of the Basic Law is worded as follows:-
Article 21
“2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.”
The relevant provisions of the Code of Administrative Procedure (Verwaltungsverfahrensgesetz) read as follows:-
Article 49 - Revocation of a lawful administrative act
“1. A lawful, non-beneficial administrative act may, even after it has become non-appealable, be revoked wholly or in part with effect for the future, except when an administrative act of like content would have to be issued or when revocation is not permissible for other reasons.
2. A lawful, beneficial administrative act may, even when it has become
non-appealable, be revoked wholly or in part with effect for the future only when: ...
...
3. the authority would be entitled, as a result of a subsequent change in circumstances, not to issue the administrative act and if failure to revoke it would be contrary to the public interest. ...”
The relevant provisions of the Soldiers Act (Soldatengesetz) read as follows:-
Section 3
“Soldiers shall be appointed and employed on the basis of their suitability, qualification and capabilities regardless of sex, origin, race, religious or political beliefs or relationships.”
Section 8
“A soldier must recognise the free democratic order within the meaning of the Basic Law and must act at all times in such a way as to uphold it.”
COMPLAINT
The applicant complained under Articles 10, 11 and 14 of the Convention about the revocation of his call-up order on account of his activities for the political party Die Republikaner.
THE LAW
1. The applicant complained that the revocation of his call-up order violated his right to freedom expression. He relied on Article 10 of the Convention, which 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.”
The applicant alleged that the revocation of his call-up order amounted to a disproportionate interference with his right to freedom of expression. As the Court had found in the case of Vogt v. Germany that there had been a violation of Article 10 with regard to a political party that had been declared unconstitutional by the Federal Constitutional Court pursuant to Article 21(2) of the German Basic Law, the present situation
a fortiori amounted to a violation because Die Republikaner had not been declared unconstitutional pursuant to that provision. The applicant further submitted that the revocation of his call-up order for service in the German army had been unforeseeable and infringed the principles set forth in section 3 of the Soldiers Act. The German army had been aware of his membership for several years.
The administrative courts had wrongly assumed an initial suspicion of disloyalty of his party to the Constitution and had failed to gather any evidence in this respect. Several courts in Germany, including the Federal Administrative Court in a judgment of 18 May 2001, had ruled that Die Republikaner did not pursue unconstitutional goals. The scrutiny of a party by the Office for the Protection of the Constitution was a political decision by the Minister of the Interior, who would regularly pursue his own interests. The applicant also submitted that, during his service in the German army, there had never been any complaint that he pursued extremist convictions.
The Court notes that the applicant’s call-up order was revoked because of his membership of and activities for a political party, Die Republikaner. The Court will assume, as did the national courts, that there was an interference with the exercise of the right protected by Article 10 of the Convention.
Such an interference gives rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.
The German military authorities and administrative courts based their decisions that the revocation was lawful on Article 49 of the Code of Administrative Procedure in conjunction with section 8 of the Soldiers Act which provides that a soldier must recognise the free democratic order within the meaning of the Basic Law and act at all times in such a way as to uphold it. In the circumstances of the present case, the Court is satisfied that the domestic legislation laid down with sufficient precision the conditions for revoking the applicant’s call-up order for service in the armed forces. Consequently, the measure was prescribed by law.
The applicant’s call-up order was revoked because of his activities within a party that was under scrutiny by the offices for the protection of the Constitution. The Defence Area Command and the German administrative courts reasoned that the revocation was necessary in order to prevent any future criminal offences with a right-wing extremist background being committed from within the German army, which was founded on the notion that it was the guarantor of the Constitution and democracy.
The Court notes that this notion has a special importance in Germany because of the country’s experience during the Third Reich and that the Federal Republic’s Constitution was based on the principle of a “democracy capable of defending itself” (wehrhafte Demokratie) (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, §51; Otto v. Germany (dec.), no. 27574/02; and, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, § 100, ECHR 2006‑...). Bearing in mind the role of the army in society, the Court recognises that it is a legitimate aim in any democratic society to have a politically neutral army (see, mutatis mutandis, Rekvényi v. Hungary ([GC], no. 25390/94, § 46, Reports of Judgments and Decisions 1999-III). The Court therefore concludes that the decision pursued legitimate aims “in the interests of national security” and “for the prevention of disorder or crime” within the meaning of paragraph 2 of Article 10.
While having regard to the circumstances of the case, the Court has to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its army properly furthers the purposes enumerated in Article 10 § 2. In doing so, the Court will bear in mind that whenever a soldier’s right to freedom of expression is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 100, and, mutatis mutandis, Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, judgment of 19 December 1994, Series A no. 302, § 36).
In connection with the above, the Court considers that the measure in question differs significantly from the very severe measure in the Vogt v. Germany case, which concerned the dismissal of a secondary-school teacher. The applicant is not a professional soldier, but a practising lawyer. Unlike Mrs Vogt, he was therefore not threatened with losing his livelihood by the revocation of his call-up order as a reserve officer. The Court further notes the Defence Area Command’s reasoning that the revocation of the call-up order would not result in the applicant’s loss of his rank as a reserve officer, but merely meant that he would not be considered for future military trainings.
Furthermore, the Court considers that a Contracting State does not overstep its margin of appreciation when deciding on whether or not to consider a reserve officer for future military trainings and thereby taking into account his active membership of a party which is considered
right-wing and populist and which has been under scrutiny by the offices for the protection of the Constitution. Even though no criticism had been levelled at the way the applicant actually performed his duties, the Court notes that the applicant bore a special responsibility as he held the position of lieutenant on the reserve list, namely, a senior post within the German army. The German courts also based their decisions on the fact that several criminal offences with a right-wing extremist background had been committed by members of the German army, attracting widespread publicity and considerably damaging the reputation of the German army, which, according to the Constitution, was anchored in the democratic State. Against this background, they found it sufficient to establish an initial suspicion that Die Republikaner were disloyal to the Constitution. They based that finding on facts established in a report by the Federal Office for the Protection of the Constitution. In this connection the Court notes that the Federal Administrative Court carefully examined why a ban on
Die Republikaner by the Federal Constitutional Court had not been a prerequisite to taking the applicant’s membership into account when revoking his call-up order. The Federal Administrative Court referred in that connection to the Federal Constitutional Court’s settled case-law.
In these circumstances it cannot be said that the revocation amounted to a disproportionate and hence unjustified restriction of the applicant’s right to freedom of expression.
It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complained of a breach of his right to the freedom of association guaranteed under Article 11 of the Convention, which is worded as follows:
“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.”
The Court notes that the complaints raised by the applicant under Article 11 of the Convention are in essence the same as those already examined under Article 10 of the Convention. Therefore, no separate issues arise under Article 11.
It follows that this part of the application must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant further alleged that he had been discriminated against as compared with other German soldiers who were members of different political parties. Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
As regards the complaint under Article 14, the Court, having regard to its conclusion concerning Article 10, finds that no separate issue arises under Article 14 in conjunction with Article 10.
It follows that this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy