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THE FACTS
The applicant, Mrs Ursula Knauth, is a German national who was born in 1944 and lives in Berlin. She was represented before the Court by Mr F. Wolff, a lawyer practising in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
The applicant had been working as a nursery-school teacher (Kindergärtnerin) in Berlin, in the German Democratic Republic (GDR), since 1962. After the reunification of Germany, and in accordance with the relevant provisions of the Treaty of 31 August 1990 on German Unification (Einigungsvertrag – Articles 13 and 20 § 1 taken together with Article 1 §§ 1-3 of Annex I, Chapter XIX, Subject A, Section III – see “Relevant domestic law and practice” below), the applicant was incorporated into the civil service of the Land of Berlin in the Federal Republic of Germany (FRG) and continued working there as a nursery-school teacher.
On 6 December 1990 the applicant answered in the negative when asked whether she had signed an undertaking to collaborate (Verpflichtungserklärung) with the GDR Ministry of National Security (Ministerium für Staatssicherheit – MfS – the GDR secret police), and about any contacts she had had with it, and whether she had received any gifts (Zuwendungen) for collaborating. After German reunification those questions were asked of civil servants from the GDR seeking definitive incorporation into the FRG civil service. The applicant stated that she had replied fully and truthfully to the best of her knowledge and belief (nach bestem Wissen und Gewissen) and that she was aware of the fact that an untrue answer on her part could result in her dismissal.
On 11 July 1994 a report by the federal commissioner responsible for examining data of the GDR State security police (Bundesbeauftragter für die Unterlagen des Staatssicherheitsdienstes der ehemaligen DDR, also known as the Gauck-Behörde) revealed that, after a contact period (Kontaktphase) from 13 June to 8 October 1973, the applicant had been registered as a security collaborator (Gesellschaftlicher Mitarbeiter für Sicherheit – GMS) of the Ministry of Security between 8 October 1973 and 19 November 1979, that on 8 October 1973 she had signed an undertaking to collaborate, that she had participated in fourteen spy operations between 19 August 1974 and 29 May 1976 and that a ministry official had confirmed that she had received gifts of money on five occasions.
On 17 August 1994 the applicant was questioned about that report.
In a decision of 24 August 1994 the Land of Berlin, after consulting the Staff Committee (Personalrat), dismissed the applicant for having collaborated with the GDR Ministry of Security and having lied about her collaboration with that ministry.
2. Proceedings in the German courts
On 8 September 1994 the applicant appealed against that decision, submitting that she did not remember having collaborated with the Ministry of Security and that, in any event, her collaboration, which had been of minor importance given that she had merely accompanied her husband, went back to such a distant period that it could no longer be held against her today and could not in any circumstances justify her dismissal.
In a judgment of 24 March 1995 the Berlin Labour Court (Arbeitsgericht) dismissed the applicant’s appeal and held that her ordinary dismissal (with notice) (ordentliche Kündigung) was justified under section 1(2) of the Unfair Dismissal Act (Kündigungsschutzgesetz – see “Relevant domestic law and practice” below).
The court held that the applicant was not fit to be a member of the civil service because she had untruthfully (wahrheitswidrig) declared that she had neither signed an undertaking to collaborate nor collaborated with the GDR Ministry of Security. The authorities had properly questioned her in that connection and the applicant had objectively and subjectively given an answer which had subsequently been proved to be untrue.
The court concluded that the Land of Berlin’s interest in dismissing a person who had previously lied to her employer about her collaboration with the GDR Ministry of Security, which had been the instrument of repression in that State, accordingly took precedence over the applicant’s age and long years of service.
On 2 June 1995 the applicant appealed against that judgment.
The Berlin Regional Labour Court (Landesarbeitsgericht) upheld that judgment on 26 October 1995.
The Regional Court held that the applicant’s activity could be regarded as collaboration with the GDR Ministry of Security for the purposes of Article 1 § 5 of Annex I, Chapter XIX, Subject A, Section III of the German Unification Treaty (see “Relevant domestic law and practice” below). The fact that she had accompanied her husband in order to provide a smokescreen did not alter that finding.
In the Regional Court’s view, the applicant could not have forgotten that she had collaborated with the Ministry or that she had signed an undertaking. Indeed, she had carried out many spy missions in the company of her husband and, in her undertaking, had expressly declared that she wanted to protect the State from enemy attacks. Furthermore, during questioning on 17 August 1994 the applicant had herself declared that she had not attached any importance to her past collaboration, which showed that she remembered it.
The applicant had therefore given an untruthful answer and was accordingly unfit to be a member of the FRG civil service.
The Regional Court then reiterated that a “lack of personal aptitude” within the meaning of Article 1 of Annex I, Chapter XIX, Subject A, Section III of the German Unification Treaty (see “Relevant domestic law and practice” below) could derive from a lack of trust and from reasons connected with the employee’s character.
The Regional Court added that in the present case the authorities had been entitled to expect the applicant to reply truthfully to the two questions that had been put to her. Indeed, the authorities had to be able to check whether the applicant, who had not been chosen by them as an employee, but had been employed in accordance with the provisions of the German Unification Treaty, could continue to be a member of the civil service or whether she should be dismissed for having collaborated with the GDR Ministry of National Security. The Regional Court found that the lack of truthfulness and honesty in her reply had destroyed the confidence which the authorities had to have in the applicant and made her continued employment in the civil service unacceptable.
On 21 March 1996 the Federal Labour Court (Bundesarbeitsgericht) refused to entertain an appeal on points of law by the applicant on the ground that the ordinary courts’ decisions had been consistent with its own case-law and with that of the Federal Constitutional Court (Bundesverfassungsgericht).
On 3 December 1997 a bench of three judges of the Federal Constitutional Court refused the applicant leave to appeal.
B. Relevant domestic law and practice
Section 1(2) of the Unfair Dismissal Act provides:
“A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct...”
“Sozial ungerechtfertigt ist die Kündigung, wenn sie nicht durch Gründe, die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist.”
Article 13 of the Treaty of 31 August 1990 on German Unification provides that the administrative bodies and other institutions of the civil service in the former territory of the GDR come under the authority of the government of the Land in which they are situated.
Article 20 § 1 of the Unification Treaty provides that persons who were members of the GDR civil service at the time of reunification are subject to the transitional provisions in Annex I.
Article 1 §§ 1-3 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides for the incorporation of civil servants from the GDR into the FRG civil service by means of the substitution of the federal authorities and the Länder of the FRG for the GDR authorities in the existing employment relationship.
As members of the GDR civil service belonged to an institution that did not satisfy the criteria of a State based on the rule of law, special provisions on dismissal were included in Article 1 §§ 4-6 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III.
Thus, Article 1 § 4 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides:
“Ordinary dismissal [with notice] from the civil service is permissible if
(a) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude...”
“Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn
der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht oder wenn...”
Article 1 § 5 of the same section is worded as follows:
“A substantial ground for an extraordinary dismissal [without notice] exists, inter alia, if the employee
(b) has collaborated with the former Ministry of National Security or for the National Security Bureau [of the GDR]
and his or her continued employment in the civil service therefore appears unacceptable.”
“Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer
...
2. für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war
und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint.”
In a leading case the Federal Constitutional Court held that Article 1 § 5 of Annex I to the German Unification Treaty, Chapter XIX, Subject A, Section III was in conformity with the Basic Law because a person who had collaborated with the Ministry of National Security of the GDR did not generally satisfy the requisite conditions for becoming a member of the FRG civil service. In any event, dismissal required an assessment of each individual case during which account had to be taken, inter alia, of the degree of involvement (Mass der Verstrickung) of the person concerned (see Collection of Judgments and Decisions of the Federal Constitutional Court, vol. 96, pp. 189 et seq.).
According to the established case-law of the Federal Labour Court, a public employer is entitled to ask a civil servant if he or she collaborated with the Ministry of Security of the former GDR and whether he or she signed an undertaking to collaborate. The interest of the employer in obtaining a truthful answer takes precedence over the civil servant’s right to decide for himself or herself which information he or she is willing to disclose (informationelle Selbstbestimmung). Questioning the civil servant in this way is designed to “cleanse” the civil service of staff with a reprehensible past (vorbelastetem Personal) so that an efficient civil service can be put in place (Schaffung einer leistungsfähigen öffentlichen Verwaltung) in the general interest. Anyone who lies by declaring that they did not sign an undertaking and did not collaborate with the Ministry of National Security is generally unfit to be a member of the civil service (see Collection of Judgments and Decisions of the Federal Labour Court, vol. 74, pp. 120 et seq., and vol. 81, pp. 15 et seq.).
Article 242 of the Civil Code (Bundesgesetzbuch – BGB) lays down the principle of good faith (Treu und Glauben) in contractual relations.
Sections 19, 20 and 21 of the Law on the Data of the former GDR State Security Police (Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen Deutschen Demokratischen Republik – Stasi-Unterlagen-Gesetz – StUG) govern the conditions in which the commissioner may disclose data of this ministry to third parties, and they authorise, inter alia, the disclosure of information about members of the civil service.
COMPLAINTS
1. The applicant submitted that the use as evidence against her of confidential information relating to her collaboration with the GDR Ministry of National Security and her subsequent dismissal from the FRG civil service had infringed her right to protection of her private life as guaranteed by Article 8 of the Convention.
2. She also submitted that her dismissal had amounted to discriminatory treatment in breach of Article 14 of the Convention taken together with Article 8.
3. She maintained, lastly, that she had not had a fair hearing within the meaning of Article 6 § 1 of the Convention.
THE LAW
1. The applicant submitted that the use as evidence against her of confidential information relating to her collaboration with the GDR Ministry of National Security and her subsequent dismissal from the FRG civil service had infringed her right to protection of her private life as guaranteed by Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”
The Government submitted as their main argument that the measure in question had not amounted to interference, but had fallen within the ambit of the right of access to the civil service, which was not a right guaranteed by the Convention. In order to ensure the same conditions of access for everybody in accordance with Article 33 § 2 of the Basic Law, the legislature had made special provision in Annex I to the German Unification Treaty for scrutiny of the personal aptitude, among other things, of civil servants from the GDR. In the alternative, the Government submitted that if there had been any interference, it had been prescribed by law, had pursued, inter alia, the legitimate aims of preventing disorder and protecting the rights of others and had thus been necessary in a democratic society. In the instant case the German courts, which had been required to examine individually persons dismissed pursuant to Article 1 § 5 of Annex I to the German Unification Treaty, had provided detailed grounds, taking account of all the criteria established by the case-law, for their decision that the applicant could no longer be tolerated as an employee of the civil service. Indeed, it had emerged that the applicant had not only signed an undertaking to collaborate, but had actually collaborated with the GDR Ministry of National Security and had therefore deliberately lied when she had filled in the questionnaire given to her.
The applicant, for her part, submitted that the German authorities had infringed her right to protection of her private life by using as evidence against her a confidential declaration which she had signed at the material time with the GDR secret services, her subsequent dismissal being merely the consequence of that infringement. She alleged that the interference had been unjustified as it had been neither prescribed by law nor necessary in a democratic society for the achievement of any of the aims set forth in Article 8 § 2 of the Convention. As regards the question of lawfulness, no provision of any law or of the German Unification Treaty indicated that a citizen of the GDR was obliged to disclose his or her collaboration with the Ministry of Security. That treaty provided a legal basis for dismissal, but did not mention anywhere that a person was obliged to disclose that fact and incriminate themselves. With regard to the purpose, the applicant did not see how the pursuit of her activity as a nursery-school teacher would endanger national security or infringe the rights of others. Lastly, the applicant reiterated that her collaboration with the Ministry of National Security had been of minor importance, given that she had merely accompanied her husband, and that the collaboration in question had gone back to such a distant period that it could no longer be held against her today and could not in any circumstances justify her dismissal.
The Court reiterates that as a general rule the guarantees in the Convention extend to civil servants (see, in particular, mutatis mutandis, Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 22-23, § 43). It follows that the applicant’s status as a civil servant did not deprive her of the protection of Article 8.
The Court points out from the outset that after German reunification civil servants from the GDR who had been incorporated into the FRG civil service had to reply to a questionnaire asking them whether they had in the past collaborated with the GDR Ministry of National Security.
In the instant case the applicant was dismissed from the civil service because the federal commissioner responsible for examining the data of that ministry discovered that she had collaborated with the GDR Ministry of National Security, whereas she had denied this fact when the question had been put to her.
The use of the data by the federal commissioner is thus closely linked to the applicant’s dismissal, the latter being the direct consequence of the former.
The use of information about the political and/or private past of an individual may be regarded as an interference with private life (see, mutatis mutandis, Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, p. 22, § 48; Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II; and Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V).
The special feature of the present case is that its background is the incorporation of the GDR into the FRG – two States governed by different legal systems – and that after reunification GDR civil servants were incorporated into the FRG civil service on the conditions laid down in the German Unification Treaty.
However, even if the measures in question were to be regarded as an interference with the applicant’s right to protection of her private life, that interference was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” to achieve them.
With regard to the issue of lawfulness, the Court reiterates that the level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. It is, moreover, primarily for the national authorities to interpret and apply domestic law (see, mutatis mutandis, Vogt, cited above, p. 24, § 48, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).
In the instant case the applicant was dismissed pursuant to section 1(2) of the Unfair Dismissal Act, taken together with Article 1 § 5 of Annex I to the German Unification Treaty (see “Relevant domestic law and practice” above), which expressly provides that a civil servant may be dismissed on such grounds as having collaborated with the GDR Ministry of National Security.
The obligation on the applicant to reply truthfully to the questions about her possible collaboration with the GDR Ministry of National Security was based on Article 242 of the Civil Code, taken together with Article 1 §§ 4 and 5 of Annex I to the German Unification Treaty and the relevant case-law of the Federal Labour Court (see “Relevant domestic law and practice” above).
Lastly, the disclosure of information by the federal commissioner responsible for examining the data of that ministry was based on sections 19, 20 and 21 of the Law on the Data of the GDR State Security Police (see “Relevant domestic law and practice” above).
Those provisions are precise and accessible to everyone, and the applicant, as a civil servant incorporated into the FRG civil service, must have expected to be asked questions about her past conduct and any possible collaboration with the GDR Ministry of National Security. The interpretation of those provisions by the Berlin Regional Labour Court and the Federal Labour Court does not, moreover, appear to have been arbitrary. Lastly, the Federal Labour Court and the Federal Constitutional Court gave a clear definition of the concept of aptitude for the civil service and of the criteria applicable in the examination of each individual case.
As regards the question of purpose, the Court considers that the measure in issue pursued a public-interest aim: it appeared legitimate for the FRG to carry out an ex post facto review of the conduct of persons who, after reunification, had been incorporated into the civil service, the members of which are the guarantors of the Constitution and of democracy. It also appeared legitimate for the FRG to dismiss from the civil service, after examining each individual case, members who did not satisfy those criteria, for example because they had collaborated with the GDR Ministry of National Security, and above all because they had lied about their collaboration to their new employer.
The conditions laid down in the German Unification Treaty to that end were the logical counterbalance to the wholesale incorporation of civil servants from the GDR into the FRG civil service, and were given practical expression by the question put to them in that connection after reunification.
The measure in dispute therefore pursued the legitimate aims of preventing disorder and protecting the rights of others.
Nevertheless, it was plainly of some seriousness, since the applicant was dismissed from the civil service and lost her job.
Furthermore, the period of her collaboration with the GDR Ministry of National Security preceded by some ten years the questionnaire to which she was asked to reply.
However, the Court notes that the applicant was able to appeal against her dismissal by the administrative authorities to the German courts, which examined in detail the circumstances surrounding the applicant’s collaboration with the GDR Ministry of National Security and her subsequent conduct in addition to the arguments which she had submitted. In that connection the Regional Labour Court’s main criticism of the applicant was that in the questionnaire she had denied having actually collaborated or signing an undertaking to do so, whereas she could not have forgotten it, given the nature and period of that collaboration, even if it had been while accompanying her husband. Those were the main factors which led the German courts to conclude that the lack of sincerity and honesty in the reply given had destroyed the trust which the authorities had to have in the applicant and rendered her continued employment in the civil service unacceptable. In their decision the German courts also referred to the relevant established case-law of the Federal Labour Court and the Federal Constitutional Court.
The Court therefore considers that the penalty imposed on the applicant, although severe, must be viewed in relation to the general interest of German society, regard being had to the exceptional historical context in which she was incorporated into the FRG civil service and to the conditions set forth in the German Unification Treaty, of which she must have been aware.
In the light of all those factors, especially the exceptional circumstances relating to the reunification of Germany, the Court considers that, in so far as there was any interference, it was not disproportionate to the legitimate aim pursued, regard being had to the State’s margin of appreciation in such matters.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. The applicant also complained that the decision in issue had infringed her right to equality of treatment and had therefore breached Article 14 of the Convention taken together with Article 8. Article 14 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.”
Having regard to its line of reasoning under Article 8 of the Convention, the Court considers that no separate issue arises under Article 14.
It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3. Lastly, the applicant argued that she had not had a fair hearing within the meaning of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”
The applicant submitted that the data of the GDR Ministry of National Security were confidential in nature and could not properly be used as evidence against her. Nor could she be required to incriminate herself seeing that the right to silence existed not only in criminal proceedings, but also in other types of proceedings involving a risk of disciplinary sanctions.
The Court reiterates at the outset that disputes concerning teachers, and therefore a fortiori nursery-school teachers, belonging to the public service fall within the scope of Article 6 § 1 (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-VIII).
It further points out that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
In the instant case the German authorities cannot be criticised for using as evidence data held by the GDR Ministry of Security, given that the applicant had the opportunity to challenge their decision in the labour courts and to submit, at the various stages of the proceedings, any arguments she considered relevant to her case.
As the Court has already stated above, the labour courts examined in detail the circumstances of the applicant’s collaboration with the GDR Ministry of National Security and the arguments she had put forward.
With regard, lastly, to civil proceedings and disciplinary sanctions, which are not criminal in nature, the applicant cannot rely on the right not to incriminate herself because that is a right which is available to an accused in criminal proceedings and which is linked to the presumption of innocence (see, in particular, Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, p. 2064, § 67).
In conclusion, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of Article 6 § 1 of the Convention.
It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy