Information Note on the Court’s case-law No. 80
November 2005
Otto v. Germany (dec.) - 27574/02
Decision 24.11.2005 [Section III]
Article 10
Article 10-1
Freedom of expression
Refusal for promotion of a civil servant with the police on account of political activities: inadmissible
The applicant, who was employed as a civil servant with the police, was a member of a political party considered as populist and right-wing(Die Republikaner). The party had not been declared unconstitutional but had been under the scrutiny of the authorities. The applicant was refused for a promotion to chief inspector. He was informed by the Regional Council that promotions were generally based on suitability, capabilities and professional qualifications. Given his membership of Die Republikaner, a party which was suspected of pursuing anti-constitutional goals, the Council had severe doubts as to his suitability for the post.The applicant instituted proceedings against his non-promotion, but the Administrative Court found that the decision had been lawful. The employer enjoyed a margin of appreciation as regards promotion, and it had not been overstepped by considering that the applicant was unsuitable because of his political activities. The applicant’s successive appeals were dismissed.
Inadmissible under Article 10: Although Article 10 did not apply to questions related to the recruitment to the civil service, this was not at the heart of the instant case, which concerned a complaint of not being further promoted because of membership of a political party. The disputed measure had thus amounted to an interference with the applicant’s freedom of expression. The measure had been prescribed by law and pursued the legitimate aim of having a politically neutral police force (by imposing an obligation on certain categories of police officials of refraining from political activities). As regards the necessity of the measure in a democratic society, even though no criticism had been levelled at the way the applicant actually performed his duties, he bore a special responsibility as a senior civil servant with the police. That responsibility, which required police officers to have particular balanced views removed from party politics, would even increase upon the applicant’s promotion. The Die Republikaner had not been banned, but the German courts had carefully examined why this was not considered a prerequisite when assessing the applicant’s suitability for the post. The case significantly differed from Vogt v. Germany, where the applicant had been dismissed from his job, mainly because the applicant was not threatened with losing his livelihood by not receiving further promotion. Moreover, the applicant had already been promoted several times during his professional career, and the decision not to promote him further had taken place at a very advanced stage of his career. Therefore, the restriction of the applicant’s right to freedom of expression had not been disproportionate or unjustified: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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