FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 16912/05
by Timo LAHR
against Germany
The European Court of Human Rights (Fifth Section), sitting on 1 July 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 30 April 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Timo Lahr, is a German national who was born in 1977 and lives in Welzheim. He was represented before the Court by Ms G. Pahl, a lawyer practising in Hamburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant is an electrical engineering technician and a member of the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, hereafter, “the NPD”). In 1998 he was a local chairperson of that party. The NPD was considered right-wing extremist and populist and was under scrutiny by the Federal Office for the Protection of the Constitution and those of various German States (Länder). The NPD has not been declared unconstitutional by the Federal Constitutional Court in accordance with Article 21 § 2 of the Basic Law.
On 1 March 1998 the applicant commenced his compulsory military service, which was to end on 31 December 1998. To serve one’s compulsory military service is an obligation imposed by the Basic Law without conferring a right to the conscript to be enlisted. A conscript receives approximately EUR 300 net allowance a month. On 21 April 1998 the applicant’s superior notified the Military Counter-Intelligence Service of his membership of and functions in the NPD. On 1 June 1998 he was appointed as a Private First Class. The applicant performed his duties within the army conscientiously and without any disciplinary reprimand. He did not carry out any political activities within the army.
2. The proceedings
On 27 August 1998 the applicant’s military service was terminated with effect from 31 August 1998. His presence in the army was found to endanger its integrity and order within the meaning of section 29 § 1 No. 6 of the Compulsory Military Service Act (Wehrpflichtgesetz) on account of his membership of and functions in the NPD, a party considered to be right-wing extremist and populist. Moreover, the toleration of an NPD functionary within the army would harm its reputation.
On 1 October 1998 the objection he filed was rejected on the ground that his membership of and functions in the NPD were in breach of a soldier’s special duty of loyalty to the Constitution. His membership of and functions in the NPD, a party that pursued unconstitutional aims, manifested his lack of readiness to defend the free democratic order within the meaning of the Basic Law, which posed a danger to military order.
On 12 November 2002 the Augsburg Administrative Court rejected a claim lodged by the applicant, finding that the order of 27 August 1998 gave sufficient reasons to consider that his continuing military service would pose a serious danger to military order. Section 29 § 1 No. 6 of the Compulsory Military Service Act gave the authorities no discretion where conduct posing a serious danger to military order was established. Military order within the meaning of that provision embraced the readiness to defence which was guaranteed, inter alia, by the army’s bond to the constitutional order of which it was a guarantor. Relying on the 1998 annual reports on the protection of the Constitution of the Federal Ministry of the Interior and the Bavarian State Ministry of the Interior the court established that at the relevant time the NPD aimed at the – if need be violent – subversion of the democratic order. It referred to several statements by the party leader who pursued the political aim to “install the NPD in absolute power”. Moreover it referred to the speech given by a convicted neo-Nazi at the party congress, who appealed for a “revolution which could not be achieved without blood and victims”. The court found that the above statements by party functionaries had to be attributed to the applicant in his function as a local chairperson at the relevant time. Therefore, his further presence in the German army posed in itself a danger to military order even though his behaviour within the army did not give rise to any complaints. The court clarified that his dismissal did not result in the loss of his rank.
On 7 July 2004 the Federal Administrative Court rejected an appeal lodged by the applicant. It endorsed the reasons given by the lower instances and observed that the applicant’s holding of functions in the NPD during his military service was in breach of a soldier’s special duty of loyalty to the Constitution, which was manifested in section 8 of the Soldiers’ Act and was a requisite for the functioning of the army.
The NPD’s anti-constitutional attitude, which was expressed by the party leader, had to be attributed to the applicant, who held functions in the party and failed to dissociate himself from those statements. The court referred to the Federal Constitutional Court’s settled case-law that it was not contrary to Article 21 of the Basic Law that the German army drew consequences from the applicant’s membership of a party which had not been declared unconstitutional, as that provision merely protected the political activity of the party members.
On 21 January 2005 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant. It found the arguments given by the lower instances sufficient to justify the termination of his military service, which was therefore in line with the German Constitution and particularly with the prohibition of discrimination.
B. Relevant domestic law
1. The relevant provision of the Basic Law:
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.”
2. The relevant provision of the Compulsory Military Service Act as amended in 2005 (Wehrpflichtgesetz):
Section 29 Dismissal
§1 [...] Furthermore [military service] shall be terminated, if [...]
No.5. based on his previous conduct [the conscript’s] continued presence in the army would pose a serious danger to military order or to the security of the troops, [...]
3. The relevant provision of the Soldiers’ Act (Soldatengesetz):
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.”
COMPLAINTS
The applicant complained under Article 10 of the Convention that the early termination of his compulsory military service on the grounds of his membership of and functions in the NPD violated his right to freedom of expression. He submitted that the fact of his membership of and functions in a party, which had not been declared unconstitutional, could not be considered to his detriment. Moreover, his conduct within the army and his political convictions did not pose a concrete danger to military order.
He submitted under Article 4 (presumably Article 14) of the Convention that he had been the victim of discrimination on the ground of his political opinion.
THE LAW
1. The applicant complained that the early termination of his compulsory military service violated his right to freedom of 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 Court notes that the applicant’s military service was terminated because of his membership of and functions in a political party, the NPD. The Court will assume 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.
a) Prescribed by law
The German military authorities and administrative courts based their decisions that the dismissal order was lawful on section 29 § 1 No.6
(now No. 5) of the Compulsory Military Service Act 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. The Court is satisfied that the domestic legislation laid down with sufficient precision the conditions for an early dismissal from compulsory military service. Consequently, the measure was prescribed by law.
b) Legitimate aim
The applicant’s military service was terminated because of his activities within a political party that was considered right-wing extremist and populist and was under scrutiny by the offices for the protection of the Constitution. The military authorities and the administrative courts reasoned that his service had to be terminated in order to secure the German army’s military order and its readiness to defend the free democratic constitutional system, which was founded on the notion that the army 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; Erdel v. Germany (dec.), no. 30067/04, 13 February 2007; 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 the legitimate aim “in the interests of national security” within the meaning of paragraph 2 of Article 10.
c) Necessary in a democratic society
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 at 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 Erdel, cited above).
The Court notes that it has already examined the question whether the German authorities could draw negative consequences from active membership of a party, which was considered right-wing extremist and populist and was under scrutiny by the offices for the protection of the Constitution but had not been declared anti-constitutional by the Federal Constitutional Court in accordance with Article 21 of the Basic Law
(see Otto v. Germany (dec.), no. 27574/02, 24 November 2005, and Erdel, cited above). In the instant case the Federal Administrative Court carefully examined thereby referring to the Federal Constitutional Court’s settled case-law, why a ban on the NPD by that jurisdiction had not been a requisite to take the applicant’s membership of and functions in the NPD into account when dismissing him early from compulsory military service.
Furthermore, the Court considers that a Contracting State does not overstep its margin of appreciation when deciding on whether or not the further presence of a conscript within the army would pose a serious danger to military order thereby taking into account his active membership of a party which is considered right-wing extremist 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, as a conscript within the German army, was subject to a special duty of loyalty to the Constitution. The German courts based their decisions on the fact that the German army was, according to the Constitution, embedded in the free democratic order. Based on facts compiled in the 1998 annual reports on the protection of the Constitution of the Federal Ministry of the Interior and the Bavarian State Ministry of the Interior, they established that the NPD pursued anti-constitutional aims at the relevant time. Against this background they established comprehensively that the applicant’s holding of functions in the party during his compulsory military service and his failure to dissociate himself from the unconstitutional aims of that party posed a serious danger to the army’s integrity and loyalty to the Constitution.
The Court notes that the measure in question, which is merely the early termination of a duty imposed on some young men of a certain age, the compulsory military service, without salary except for a small daily allowance, thus without any effects on the applicant’s livelihood, differs significantly from the very severe measure in the Vogt v. Germany case, which concerned the dismissal of a secondary school teacher who was a member of the German Communist Party (DKP).
In these circumstances it cannot be said that the early termination of the applicant’s military service amounted to a disproportionate and hence unjustified restriction of his 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 further alleged that he had been discriminated against as compared to other groups of soldiers, in particular to convicted criminals or to the mentally ill, whose removal from the army was left to the military authorities’ discretion. 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.”
Having regard to its conclusion concerning Article 10, the Court considers that any relevant difference in treatment was compatible with Article 14 of the Convention.
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