Information Note on the Court’s case-law
November 2022
Godenau v. Germany - 80450/17
Judgment 29.11.2022 [Section IV]
Article 10
Article 10-1
Freedom of expression
Applicant’s inclusion on a regional internal list of teachers deemed unsuitable for appointment to public schools due to doubts as to her loyalty to the Constitution: no violation
Facts – The applicant, a teacher at a public school in the Land of Hesse, was dismissed because of doubts as to her loyalty to the Constitution. These doubts were based on her previous membership and affiliation to right-wing political parties and organisations (with links to Neo-nazi groups) and her public statements expressing their ideology. Subsequently and on the same grounds, she was included on the internal list of “teachers deemed unsuitable for reappointment to a teaching post” maintained by the Hesse authorities for the purposes of providing information to any of the decentralised public education authorities in that Land that might receive a job application by those teachers. While any such authority retained a discretion whether to recruit the applicant or not, her inclusion on that list had at least made her appointment at a public school in Hesse considerably more difficult. The applicant unsuccessfully challenged the authorities’ refusal to delete her name from the impugned list.
Law – Article 10:
(a) Applicability - The subject matter of the present case was not whether the applicant had a right to be recruited to public service. She had not complained about her dismissal, which had been subject of a friendly settlement, or the authorities’ refusal to appoint her as a teacher. Rather, the matter before the Court was the refusal to delete her name from the impugned list. As she had been included on that list because of the opinions she had expressed and the political activities she had engaged in, Article 10 was applicable.
(b) Merits - The impugned measure had interfered with the applicant’s rights under Article 10 and had been prescribed by law. The duty of loyalty to the Constitution imposed on civil servants and public employees under German law was an expression of a “democracy capable of defending itself” and restrictions on the freedom of expression of teachers deriving from that duty of loyalty pursued legitimate aims under Article 10 § 2, notably the prevention of disorder and the protection of the rights of others. This applied to the applicant’s inclusion and retention on the list, which pursed the purpose of serving as a basis for a decision on her potential applications for a job at public schools in Hesse.
In recent cases concerning teachers, the Court had not delved into the question whether their status under the relevant domestic law was that of civil servants or other public employees and had instead focused on their role as teachers, being a symbol of authority for their pupils in the field of education, and reiterated that the particular duties and responsibilities incumbent on them also applied to a certain extent to their activities outside school. The Court saw no reason to depart from that approach in the instant case.
The Court noted the approach taken by the domestic courts that as far as public employees were concerned, the decisive element for the duty of loyalty to the Constitution, and the degree of loyalty owed, was the role and function exercised by the individual, and that a high degree of such loyalty was owed by teachers, which was equivalent or came close to that owed by civil servants. In that connection, the Court emphasised the enormous importance, from a public-policy perspective, of teaching and educating children, in a credible manner, about freedom, democracy, human rights and the rule of law.
As in Vogt v. Germany, it was undisputed that the applicant’s work as a teacher had been wholly satisfactory and there were no indications that she had sought to take advantage of her position to indoctrinate or exert improper influence on her pupils during lessons. However, in Vogt, there had been no evidence that the applicant had actually made statements that were hostile to the Constitution or had personally adopted such a stance. By contrast, in the present case the domestic authorities had relied heavily on the applicant’s additional activities and statements, and not merely on her active party membership, to conclude that there were doubts as to her loyalty to the Constitution. The Court was therefore satisfied that the domestic courts had based their conclusion on a well-reasoned assessment of the relevant facts.
Another significant difference from Vogt was the nature and consequences of the impugned measure. In issue was the applicant’s inclusion and retention on an internal regional list of teachers, which was accessible only to a very limited number of public officials in Hesse and not not known or visible to the public. It could therefore not be said to have had a severe negative effect on her reputation, unlike the applicant’s dismissal in Vogt. Further, the applicant had not been employed at the time her name was included on the list and, and unlike in Vogt, none of her existing positions or rights had been interfered with. While the list pursued the aim of preventing her future appointment, the public education authorities in Hesse had not been prevented from recruiting her and had been obliged to examine her job application. That factor constituted an important element of the proportionality assessment. Moreover, the applicant’s inclusion and retention on the impugned list could not possibly prevent her appointment to, or negatively affect her application for, a teaching post at a public school in another Land or at a private school in Hesse, as established by the domestic courts.
Lastly, the applicant had retained the possibility to request, at any point in time, that he name be deleted from the impugned list and to obtain a comprehensive judicial review as to the existence, at the time of the domestic courts’ assessment, of doubts concerning her political loyalty. That important procedural safeguard was also a factor to be taken into account in the proportionality assessment. In sum, the domestic authorities had adduced relevant and sufficient reasons and had not overstepped their margin of appreciation.
Conclusion: no violation (unanimously).
(See also Vogt v. Germany, 26 September 1995, Series A no. 323, Legal Summary; Mahi v. Belgium (dec.), 57462/19, 7 July 2020)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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