AS TO THE ADMISSIBILITY OF
Application No. 10942/84
by R.Q.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 May 1984
by R.Q. against the Federal Republic of Germany and
registered on 10 May 1984 under file N° 10942/84;
Having regard to:
- the Commission's decision of 3 October 1984 to bring the
application to the notice of the respondent Government
pursuant to Rule 42 (2) (b) of the Rules of Procedure and
to invite them to submit observations on its admissibility
and merits with reference to Articles 10 and 11 of the
Convention;
- the respondent Government's observations dated 1 March 1985
and the observations in reply by the applicant
dated 30 April 1985;
- the Commission's decision of 18 October 1985 to invite
the parties to a hearing on the admissibility and merits of
the application, the timetable of which to be settled subject
to the outcome of the Glasenapp and Kosiek cases before the
European Court of Human Rights;
_ the judgments of the European Court of Human Rights of 28 August
1986 in the Glasenapp and Kosiek cases;
- the Commission's decision of 11 October 1986 to invite the
parties to make further written submissions on the
admissibility and merits of the application pursuant to
Rule 42 para. 3 subpara. (a) of the Rules of Procedure
- the respondent Government's observations of 4 February 1987 and
those of the applicant of 3 February 1987.
Having deliberated;
Decides as follows:
THE FACTS
The facts, apparently not in dispute between the parties, may
be summarised as follows:
The applicant, a German national born in 1942 and living in
Ehweiher in the Federal Republic of Germany, is represented by
Mr. G. Schumacher, a Rechtsanwalt practising in Mainz, and
Mr. W. Rothley, a Rechtsanwalt practising at Rochenhausen.
The applicant was a teacher in a secondary school teaching
German and gym, who studied at the Universities of Heidelberg, Mainz
and Paris. In 1970 and 1971 he passed the examinations for a secondary
school teaching post and was given permission by the Ministry of
Culture of the Rhineland Palatinate to begin service in preparation
for a grammar school teaching post on 1 September 1972. He was
appointed as a trainee teacher with temporary civil service status.
He took an oath of loyalty to the Constitution which was required for
this appointment and spent his one year's preparatory service in Bad
Kreuzenach during which he passed the relevant examination for a
grammar school teaching post as assistant teacher. On 7 March 1973
the applicant applied to the Land civil service of the Rhineland
Palatinate as a grammar school teacher with probationary civil service
status. On 1 September 1973 the applicant was appointed as a teacher
in a secondary school in Kaiserslautern with civil service status on a
probationary basis. On his appointment he took a further loyalty
oath in the following terms:
"I swear allegiance to the Basic Law of the Federal Republic
of Germany and to the Constitution of the Land Rhineland
Palatinate, obedience to the law, and conscientious
fulfilment of my official duties - so help me God."
In autumn 1975 doubts had arisen as to the applicant's loyalty
to the constitutional order in the light of his political attitude and
activities since October 1973, and in particular because of his
involvement in meetings in which the Communist League of West Germany
(Kommunistischer Bund West Deutschland - "KBW") and other Communist
groups had been involved. The applicant was therefore summoned by
the District Government of the Rhinehesse Palatinate for the
question of his preparedness to defend and advocate the principles of
the Basic Law, as is required of civil servants, to be examined. Two
hearings were held, on 22 October and 4 November 1975. The applicant
was reproached with having participated in several meetings in which
the KBW had taken part which had concerned, inter alia, Portuguese
migrant workers, the formation of a Chile Committee and a Committee
against Section 218 of the Criminal Code, which was concerned with
abortion, and the establishment of an "armed people's force"
(Bewaffnete Volksmacht). Furthermore the applicant had been involved
in demonstrations against the reduction in travel expenses for pupils
and was associated with a meeting of the right-wing National
Democratic Party of Germany (NPD) which had been accompanied by violence.
In the latter connection, the applicant was suspected of having
been a member of one of the KBW's "raiding squads".
At the first interview, the applicant requested that the
reproaches against him should be set out in writing. On receiving
them, he declined to make any comment on them. At the second
interview the applicant stated that he could only reply to the
detailed charges after having an opportunity to consider them in detail.
The applicant replied to these allegations concerning his
preparedness to defend and advocate the principles of the Basic Law in
writing in November 1975. In his comments he did not dispute the
factual basis of the charges made but stated that, notwithstanding
that he was a civil servant, he had the right to be present at meetings
which were publicly announced and open to the participation of
anyone, both to inform himself, and with a view to expressing his own
opinion. Thus he contended that he had only exercised his democratic
fundamental rights in favour of movements which pursued righteous aims.
On 7 November 1975, despite the confidentiality of the
proceedings about which he had been reminded, the applicant published
the contents of the hearings, together with the allegations made
against him at a party held for the upper part of the school at which
he taught. The applicant stated that his actions were in response to
the duty to create political pressure against the District Government's
measures against him, a view which was reported by the university
students committee, the technical college students committee, the KBW
of Kaiserslautern, the Socialist Workers Group of Kaiserslautern, the
Communist Group of Pupils, the Pupils Representation at the School of
Administration and several other groups.
On 19 December 1975 the applicant was given notice that he was
prohibited from performing his duties as a teacher with effect from 23
December 1975 by the District Government pursuant to Section 69 of the
Rhineland Palatinate Regional Civil Service Law (Landesbeamtengesetz
Rheinland-Pfalz (LBG)) in view of his failure to respect the
confidentiality of the hearings and due to the resultant unrest which
had been caused at the school where he taught and in other schools in
Kaiserslautern. This order was expressed to have been made to secure
good order at the school. In accordance with Section 80 para. 2 No. 4
of the Code of Administrative Procedure, this prohibition was given
immediate effect. The applicant's appeal to the Administrative Court
(Verwaltungsgericht) against the immediate operation of this order was
allowed on 14 January 1976 on the grounds that there was no particular
pressing public interest which required immediate enforcement. In
addition the Court held that the applicant had been given insufficient
opportunity to be heard before the prohibition had been imposed.
On 10 February 1976 the applicant was dismissed from civil
service status on probation with effect from 31 March 1976 by an order
of the District Government, after the Staff Committee's opinion had
been obtained. The reason given for his dismissal was his failure to
fulfil the necessary requirements as a civil servant during the
probationary period in accordance with Section 41 para. 1 No. 2 of the
LBG. The District Government further referred to Section 63 (1) of
the LBG, which specifies that civil servants' duties include the
requirement of their personal preparedness to protect and advocate the
basic constitutional order. The dismissal referred to the applicant's
activities which had been the subject of the hearings on 22 October
and 4 November 1975, as well as to the KBW's programme, which
advocates the armed struggle and the destruction of the bourgeois
State as a declared aim of the socialist revolution. The dismissal
stated that, even if in individual cases participation at meetings was
covered by the basic right to freedom of assembly, the applicant's
support for the KBW could be inferred by this one-sided preference for
this group. The District Government concluded that in view of these
associations the applicant did not show an adequate preparedness to
protect and advocate the fundamental constitutional order.
The applicant objected to this dismissal on 16 February 1976,
substantiating his grounds on 15 March 1976. On 23 October 1976 the
applicant's objection was rejected by the Ministry of Culture of the
Rhineland-Palatinate, which confirmed the grounds for his dismissal.
The Ministry referred to an additional ground justifying the
applicant's dismissal, namely the fact that he had signed a
sponsorship paper for the KBW prior to the elections for the Federal
Parliament (Bundestag) in 1976. Neither the dismissal order, nor the
ruling on the applicant's objection was made immediately enforceable.
Accordingly the applicant continued in his post as a teacher pending
the outcome of the administrative court proceedings which he commenced.
On 22 November 1976 the applicant appealed from this decision
to the Administrative Court of Neustadt/Weinstrasse alleging breaches
of procedure and of substantive law. The applicant stated again that
in attending meetings with which the KBW was associated he had merely
exercised his constitutionally guaranteed rights. He also pointed out
in addition that there had never been any complaints concerning his
work at school. On 14 February 1978 the applicant's dismissal was
quashed on the formal ground that it had not been signed by the
appropriate person. The District Government appealed against this
decision to the Administrative Court of Appeal (Oberverwaltungsgericht)
in Koblenz, which, on 11 April 1979, quashed the judgment of first
instance and recommitted the matter for a fresh hearing and decision
to the Administrative Court of Neustadt/Weinstrasse.
In the subsequent proceedings before the Administrative Court
the applicant expressly confirmed that he stood up for and supported
the fundamental constitutional order. He stated that he had never
been a member of the KBW, nor intended to become such a member, and
that he was not and is not a communist at all. He asserted that
during the whole of the period of his holding probationary civil
service status he had never infringed the provisions of the Basic Law
and none of his activities could suggest that he was inclined so to
do. He contended that only his conduct at work could be taken into
account in assessing his fitness to be a civil servant, and not that
in which he indulged during his leisure time, or prior to his
appointment. He concluded therefore that his dismissal had been
arbitrary. In addition he stressed that his acts in publicising the
questions raised at the hearings in October and November 1975 had been
intended to draw public attention to his case, as a reaction to the
District Government's unjustified investigations against him. He also
pointed out that he had not merely attended meetings at which
communist parties or groups had been represented, but many meetings in
which trade unions and parties represented in the German Federal
Parliament had been involved.
An oral hearing was held on 4 September 1979 before the
Administrative Court of Neustadt/Weinstrasse, when the applicant was
heard relating to the above issues as also in relation to various
allegations concerning activities which postdated the administrative
decision on the applicant's objection of 23 October 1976. On 10
November 1979 the applicant made a further statement, inter alia, to
the effect that:
"... 2. I repeat once again that I support the Basic
Constitutional Law of the Federal Republic of Germany and the
Constitution of the Rhineland-Palatinate and that I respect the
civil service law.
3. Finally, I declare ... that I am neither a KBW sympathiser,
nor a communist.
... Therefore I hope to have expressed clearly once again that
my lawyer's statements are correct and true when he affirms my
positive attitude towards the Basic Law and legal order."
On 6 December 1979 the Administrative Court rejected the
applicant's appeal in a decision which was served on 23 January 1980.
The Court held that it was not relevant whether the applicant was or
was not a member of the KBW, but whether or not the defendant
authority had reasons for doubts as to his loyalty to the
constitutional basic order. The Court ruled that the evidence as to
the applicant's attitude relating to events after 23 October 1976
could be taken into account since it provided further indications of
the basis for the applicant's dismissal and further evidence of his
attitude towards the fundamental principles of the Basic Law. The
Court added that it was not appropriate to merely take into account
the applicant's conduct during working hours.
The applicant appealed from this decision on 15 February 1980
to the Administrative Court of Appeal of the Rhineland-Palatinate,
inter alia on the grounds that the KBW required a clear confession
from its members and sympathisers as to their support for its
programme and that the applicant had never provided such a statement,
but had even distanced himself from the party. The applicant also
contended that only the factual situation prior to 23 October 1976
could be taken into account in relation to the decision of the court.
Any alternative approach would circumvent the Staff Committee's role
in the dismissal question. He alleged in addition that the references
to his attendance at meetings in which the KBW had been involved had
been relied upon to establish his lack of adequate loyalty without
sufficient proof. He stressed that the majority of the meetings which
he had attended were of trade unions, churches, or political groups
which had no particular connection with the KBW and at which meetings
the KBW had not played a dominant role.
With regard to a specific complaint that he was involved in
the sale of Communist literature from an information desk in
connection with the campaign against Section 218 of the Criminal Code
(relating to abortion) the applicant pointed out that he had supported
the initiative against the amendment of this provision of the
Criminal Code in a lawful manner which was beyond reproach. Unlawful
objectives could not be imputed to him in this connection.
Furthermore, in relation to the allegation of his
participation in the disruption of the NPD meeting, the applicant
contended that there had merely been a legal and legitimate protest
against the NPD, whose aims were anti-constitutional, which served to
illustrate the degree to which the applicant stood up for the
fundamental order of the Constitution. He added that the majority of
the protesters involved had not been members, or sympathisers, of the
KBW, and that even if a small minority of the protesters had belonged
to Communist parties or groups it was legitimate for non-sympathisers
with those views to have attended as well. Any alternative view would
prevent civil servants from taking part in any protest if any small
group of Communist or anti-Constitutional parties were in any way
involved in the protest rally. Such a view would be a serious
infringement of their freedom of political involvement and
association.
Finally, in respect of the signature on the election
sponsorship form for the KBW, the applicant submitted that his
signature should be seen as seeking to give the opportunity to smaller
parties to take part in the election proceedings, for which a minimum
number of signatures is required, in accordance with German electoral
law. The applicant further referred to a favourable petition signed by
43 colleagues and addressed to the Minister of Culture of the
Rhineland-Palatinate which referred to the quality of the applicant's
work at school. He also contended that all the previous proceedings
that had been instituted against teachers who had been members of
Communist groups had been quashed or terminated on the basis that such
persons were permitted to remain in the civil service, whereas he was
merely accused of failing to keep sufficient distance from such
groups. Lastly, the applicant referred to his clear and unequivocal
distancing from Communist activities, which included a publication in
a local newspaper.
On 19 August 1981 the applicant's appeal was rejected by the
Administrative Court of Appeal of the Rhineland-Palatinate, which held
that the applicant's interpretation of his political activities, that
they were merely orientated towards the content of the particular
issue involved, and not in any way connected with the KBW, could not
be sustained. The Court noted that the applicant had been actively
engaged in the activities of the Chile Committee and the Committee
against Section 218 of the Criminal Code, as well as in a large number
of activities in groups in which the KBW had also been involved and
that the KBW, which was a strongly organised group, must have had a
dominant position in relation to these various initiatives. Without
having to decide whether the applicant was in fact a member of the
KBW, the Court found that his behaviour could not be regarded as that
of an interested, but a detached, observer and must be characterised
as showing common cause with the KBW. This close identification with
the party was further illustrated by the evidence that the applicant
had sold copies of the KBW's newspaper. The Court of Appeal recalled
the importance of a civil servant maintaining a distance from the
activities of such extremist groups and movements and held that the
applicant's failure to maintain his clear commitment to the principles
of the Basic Law was established.
This decision was served on 1 September 1981 and the applicant
applied on 29 September 1981 for a declaration that an appeal on a
point of law was admissible (Revisionszulassungsbeschwerde) to the
Federal Administrative Court (Bundesverwaltungsgericht). The
applicant's grounds of appeal raised the question how far a civil
servant on probation must keep his distance from political activities
connected with anti-constitutional organisations, and in particular
the borderline between imprudent behaviour and political activities
which could ground doubts as to a civil servant's loyalty. He
challenged whether the requirement of distancing himself as applied by
the Administrative Court of Appeal was not an unwarranted restriction
on his freedom of expression contrary to Article 3 para. 3 of the
Basic Law. The applicant also challenged the acceptance of evidence
relating to his activities following the administrative decision of 23
October 1976.
On 1 July 1983 the Federal Administrative Court rejected this
application as ill-founded. In so doing it recognised that the
principles applicable to the requirement of constitutional loyalty of
civil servants were already clearly established in the case-law of the
higher courts, as was the question as to whether a civil servant's
actions arising after his initial dismissal may be taken into account
in assessing his overall attitude to the Basic Law. As a result of
this decision the applicant's appointment as a teacher was terminated
and his dismissal of 10 February 1976 became effective.
Thereupon the applicant lodged a constitutional complaint to
the Federal Constitutional Court, invoking Articles 3, 5, 8 and 33 of
the Basic Law, guaranteeing the right to freedom from arbitrary
treatment, the right to freedom of expression, the right to freedom of
peaceful assembly, and the equality of rights for all Germans,
including the right of eligibility for public employment. The
applicant contended that he had only exercised his political rights
guaranteed by the Constitution and that the Administrative Courts had
failed to balance the requirements of civil service law on the one
hand with the provisions of the Constitution contained in Articles 5,
8 and 33 on the other.
The Applicant's complaint was rejected on 27 October 1983 as
being unfit for decision on the grounds that it had insufficient
prospects of success. The Federal Constitutional Court held that the
Administrative Courts' conclusions from the applicant's political activities
had shown that, on balance, the applicant was not prepared to stand up
for the fundamental constitutional order. In reaching these
conclusions the Administrative Court of Appeal had not failed to take
due account of constitutional law and the Court recalled the
requirement of Article 33 para. 5 of the Basic Law that civil servants
must always stand up for the fundamental provisions of the
Constitution. The Court recognised that the exercise of the right of
freedom of expression within the scope of Article 5 of the Basic Law
was limited for civil servants by the duties flowing from the judicial
principles governing employment in the permanent civil service. Hence
the Court concluded that the decisions based on doubts as to the
applicant's preparedness to defend the basic constitutional order had
been justified and that the Administrative Courts had not failed to
appreciate the interaction between the applicant's fundamental rights
and his duty to abstain from unconstitutional activities.
This decision was served on the applicant's lawyer on 10
November 1983.
COMPLAINTS
The applicant complains that his dismissal from his post as a
teacher at a secondary school on the grounds of his political
activities and their alleged incompatibility with loyalty to the
Federal Constitution infringes Articles 10, 11, 14 and 18 of the
Convention.
In particular he complains that his dismissal from a
provisional appointment as a teacher, as a result of his participation
in political meetings, restricted his right to freedom of expression.
He points out that there was no reason for the restriction on his
right which accorded with the requirements of Article 10 para. 2 of
the Convention. He contends that the national courts have not even
affirmed the necessity of the restrictions which were applied to him,
and failed to take any account of his proper conduct as a
schoolteacher. Hence the reasons invoked by the domestic courts to
justify doubts as to the applicant's loyalty to the Constitution were
not "necessary" reasons, as required by Article 10 para. 2 of the
Convention, for restricting his freedom of expression.
The applicant further complains that his dismissal is contrary
to his right to freedom of association and peaceful assembly, in
association with others even where some of these persons were, in the
administration's and courts' views, persons who held unconstitutional
views. He contends that the measures against him were not foreseen by
Article 11 para. 2 of the Convention, and notes in particular that he
does not, as a teacher, belong to the "administration of the State".
The applicant also invokes Article 14 of the Convention on the
grounds that his dismissal from his post as a teacher was based on his
supposed and not his real political views.
Finally the applicant complains that the restrictions on his
right to freedom of expression and the right to peaceful assembly were
made by the domestic authorities for the purposes of eliminating
criticism and in particular to isolate particular political groups. In
this respect the applicant invokes Article 18 of the Convention and
recalls that he has been in the school service for 12 years, and that
there has never been any reason to complain about him in that
capacity, or any genuine reason for doubt as to his preparedness to
defend the fundamental constitutional order. The ruling of the
Federal Constitutional Court, to the effect that an individual civil
servant must dissociate himself from groups and movements which
combat the State, its constitutional organs and its fundamental order,
signifies, in the applicant's opinion, a compulsion to express certain
opinions and an abuse of the specific nature of the restrictions
envisaged by this provision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 May 1984 and registered on
10 May 1984.
On 3 October 1984 the Commission examined the question of the
admissibility of the application and decided, in accordance with Rule
42 para. 2 subpara.(b) of the Rules of Procedure, to give notice of
the application to the respondent Government and to invite them to
submit before 21 December 1984 their observations in writing on the
admissibility and merits of the application.
On 19 December 1984 the respondent Government requested an
extension of this time-limit until 8 February 1985, which request was
granted by the President on 4 January 1984.
On 11 February 1985 the respondent Government requested a
further extension of the time-limit for the submission of their
observations on admissibility and merits and indicated that the
observations would be submitted before 4 March 1985. The observations
of the respondent Government are dated 1 March 1985.
The applicant's representative was invited, on 18 March 1985,
to submit such observations in reply as he may wish to make before 3
May 1985.
On 30 April 1985 the applicant's representatives submitted
preliminary observations in reply and requested an extension of the
time-limit so that the applicant's second representative, Mr. W.
Rothley, Rechtsanwalt of Rockenhausen, of whose appointment the
Commission was implicitly notified by the same letter, could also
file his observations. The applicant's representatives were informed
that any such further observations should be filed before 28 June 1985.
On 28 June 1985 the applicant's second representative
requested an extension of the time-limit for the submission of his
further reply, which was granted until 31 August 1985. Subsequently,
on 2 September 1985 the applicant's second representative requested a
further extension of this time-limit until 20 September 1985, which
was granted on 13 September 1985. By letter of 19 September 1985 the
same representative requested a further extension until 1 October 1985.
On 18 October 1985 the Commission resumed its examination of
the application and decided, pursuant to Rule 42 para. 3 subpara. (b)
of the Rules of Procedure to invite the parties to make further
submissions orally on the admissibility and merits of the application.
The parties were informed that the implementation of this decision
would take account of the proceedings before the European Court of
Human Rights in the cases of Glasenapp and Kosiek, which raised
similar issues to the present application.
On 28 August 1986 the European Court of Human Rights gave
judgment in the above mentioned cases (Eur. Court H.R., Glasenapp
judgment, Series A No. 104, Eur. Court H.R., Kosiek judgment, Series A
No. 105).
On 11 October 1986 the Commission decided pursuant to Rule 42
para. 3 subpara. (a) of the Rules of Procedure to invite the parties
to submit further written observations on the admissibility and merits
of the application before 23 January 1987.
The applicant's first representative requested an extension
of this time-limit until 6 February 1987 which was granted by the
President on 29 January 1987. His observations were filed on 3
February 1987.
The respondent Government's observations were filed on 4
February 1987.
SUBMISSIONS OF THE PARTIES
The respondent Government
With regard to the factual circumstances of the application
The respondent Government point out that the applicant was
actively involved in a number of meetings, demonstrations and
campaigns initiated by the KBW and other groups of its sympathisers.
The applicant's involvement in these activities was for a considerable
period, as it is recorded in the judgment of the Administrative Court
of Neustadt/Weinstrasse of 6 December 1979, which referred to a
variety of activities both in the period from October 1973 to
September 1976, which preceded the ruling on the objection which
concluded the administrative proceedings concerning the applicant's
dismissal, and a further group of activities in the period up to May
1977. The applicant frequented meetings in which the KBW were
involved, took part in KBW committee work directed towards various
specific campaigns, such as the position in Chile and the campaign
against Section 218 of the Criminal Code, and in 1976 signed an
election sponsorship paper supporting the KBW in the Federal elections
of 1976. Furthermore, in 1976, the applicant was seen selling the
KBW's central party organ, the People's Communist Newspaper
("Kommunistische Volkszeitung"). From 1976 onwards he also took part
in the campaign against the "Radikalenerlass" which was the
administrative agreement on the interpretation and application of the
constitutional loyalty of members of the civil service, and the
"Berufsverbot", the debarment from pursuing one's profession or occupation.
In this connection the respondent Government refer to the
public image of the KBW during the period between 1973 and 1977. The
organisation was formed in 1973 from a variety of left-wing groups and
commenced public action in 1973. Its organisation was both public and
clandestine, the latter in order to avoid any possible ban on its
activities. The work of the KBW was characterised by the formation of
committees or initiatives to support popular demands, which were given
an interpretation in the terms of the "class war". The KBW, which has
a Marxist/Leninist orientation, became the Marxist/Leninist
organisation of the New Left with the largest number of members.
According to its programme it pursued the ultimate goal of introducing
a classless society into the Federal Republic of Germany, which would
only materialise through the proletarian revolution. The destruction
of the bourgeois state-machinery and the establishment of the
dictatorship of the proletariat would be a precondition for this
step. As such, the KBW recognised the legitimacy of the use of armed
force in achieving its goals, which included "accountability and the
possibility of voting representatives of the people out of office at
any time, remuneration for their work at a level not to exceed the
average wage of a skilled worker ... (and the)... election of judges
and all higher civil servants by the people (with the) possibility of
removal at any time by decision of the majority of the voters ...".
It follows that the KBW's programme and activities were
hostile to the Constitution of the Federal Republic of Germany and
that the organisation wished to do away with the free democratic basic
order of the Basic Law. This incompatibility of the KBW's activities
with the requirements of the Basic Law was even recognised by the
Secretary of the KBW's central committee in a lecture given 22 May 1974.
Admissibility and merits
a. Incompatibility (general and Article 10 of the Convention)
The respondent Government contend that the present complaint
is incompatible with the provisions of the Convention and submit that
the applicant's complaint concerned his dismissal from the civil
service and his ultimate desire to be appointed as a civil servant for
life. However, although the right of equal access to the public
service is guaranteed by the terms of the German Basic Law, an
equivalent guarantee is not contained in the Convention.
In accordance with civil service law, the probationary period
for which the applicant was appointed allows an assessment of
aptitude, qualifications and professional achievements prior to
conferring the official status of civil servant on a lifetime basis.
Amongst the relevant aptitudes which are required of a prospective
civil servant on a lifetime basis are the requisite guarantee that the
prospective civil servant will at all times advocate the free
democratic basic order within the meaning of the Basic Law. The
appointment of the applicant as a civil servant for life foundered on
his failure to fulfil this condition which is set out in Section 11
paragraph 1 read in conjunction with Section 9 paragraph 1 No. 2 LBG.
This duty of loyalty to the Constitution reflects the fact
that the civil servant exercises, in the various areas of the State's
organisation, the administrative function on behalf of the State and
its authorities. However, this "political duty of allegiance" is to
be distinguished from any duty to identify with the aim or any given
policy of the Government of the day. It imposes rather a duty to be
prepared to identify with the idea of the State which the civil
servant is supposed to serve, that is with the free democratic order
of the social State which subscribes the rule of law. Hence that part
of the application alleging a violation of Article 10 of the
Convention is incompatible with the provisions of the Convention
since, by the very nature of the matter, the applicant was not
criticising an invasion to his right to freedom of expression, because
no such invasion occurred. The measure taken was and remains without
influence on the applicant's freedom of expression. The case is
notably distinguishable from the Glasenapp and Kosiek cases
(Applications Nos. 9228/80 and 9704/82 respectively) where the
Commission considered that, on the facts of those cases, those
applicants had been called upon "to express their opinions, make clear
their attitudes and make a formal declaration of their allegiance to
the Constitution", and that accordingly those cases came within the
terms of Article 10 of the Convention.
In the present case, at no time was the applicant required to
reveal his political views or formally assert his allegiance to the
Constitution. He was accepted for the preparatory service as a
trainee-teacher, and later as an assistant teacher with provisional
civil service status, without a separate examination of his loyalty to
the Constitution and there was no requirement that he make a
declaration of any sort. Both these appointments were made without
further ado, there being no known grounds for reservations in respect
of his loyalty to the Constitution, and in both cases he took only the
required service oath referred to in the statement of facts.
Nor was the applicant questioned as to his allegiance to the
Constitution when he was dismissed from his post on probation. In the
course of the hearing no declaration was demanded of the applicant and
by contrast the procedure merely involved the granting to him of a
hearing as required by the law in order that he could respond to the
contemplated administrative measure. The granting of a hearing in
accordance with the law cannot constitute an invasion of freedom of
expression. On the contrary, it satisfied the right of the person
concerned to fair proceedings.
It follows in the Government's legal assessment that the fact
that the applicant made declarations on his attitude to the free
democratic basic order during the administrative court proceedings on
10 November 1979 is without significance, since this was done on his
own initiative. At no time was the applicant called upon by the
authorities and courts to make any such declaration. Furthermore, the
decisions of the authorities and the courts rest solely upon those
actual facts established in respect of the applicant's activities with
the KBW. Any attempt by the applicant to dispel the impression
created by those facts was merely his taking advantage of his right to
a hearing in accordance with the law.
This analysis is confirmed by the administrative court
judgment of first instance of 6 December 1979 which dismissed the
applicant's declaration of 10 November 1979 on the basis that mere lip
service on the applicant's part could not dispel the facts as to his
involvement in actions which contradicted the necessary degree of
loyalty to the Constitution. For the avoidance of doubt the
Government still dispute the basis upon which the Commission declared
the two above mentioned applications (Nos. 9228/80 and 9704/82)
admissible, and do not consider that the issue arising in any of these
three cases exceeds the boundaries of the question of access to the
civil service, a right not guaranteed by the Convention. This view is
confirmed by the judgments of the Court in those cases of 28 August 1986.
b. Manifestly ill-founded (Article 10 of the Convention)
In the alternative the respondent Government contend that the
applicant's complaints with regard to Article 10 of the Convention are
in any event manifestly ill-founded. Any alleged invasion of the
right to freedom of expression was in this case prescribed by law,
justified as necessary in the interests of national security and
public safety and for the prevention of disorder in a democratic
society.
This is evident from the following factors namely:
i. It must be required of a teacher that he educates children
and young persons entrusted to his care in the spirit of the
Constitution so that they respect basic human rights.
Similarly he must be able to communicate to his pupils in a
credible fashion the basic values of respect for human
dignity and the criteria of pluralism and tolerance. In
this respect a teacher must satisfy higher than usual
demands in terms of his own character and attitude towards
these questions, in view of the impressionability of his
pupils. This factor was particularly relevant in relation
to the applicant's subject, German, which might provide many
opportunities for influencing the general development of
young persons.
ii. Doubts had arisen as to the applicant's allegiance to the
Constitution and thus to his attitude to the teaching
profession as a result of his many political activities with
the KBW extending over a number of years. The nature of the
KBW is not in doubt, as an organisation dedicated to the
overthrow of the free democratic basic order and this fact
could hardly have been a secret to the applicant in view of
his contact with the organisation and its activities and his
general level of education. The degree of the applicant's
involvement with the KBW is further illustrated by his
signing of the sponsorship paper for the Federal elections,
which contributed to enabling the KBW to participate in the
elections, although the applicant must have known from the
KBW's programme that the party wished to abolish the
democratic system and thus free elections with it.
All in all these activities, the factual basis of which the
applicant did not dispute, permitted of only one conclusion, that on
account of his activity for the KBW the applicant was unsuitable for
further employment in the teaching profession and his dismissal was
justified as necessary for the prevention of disorder in a
democratic society.
In addition the applicant's complaint founders on Article 17
of the Convention.
c. Article 11 of the Convention:
aa) incompatible as a whole
The respondent Government point out that the applicant's
complaint to the Federal Constitutional Court raised the issue of the
alleged invasion of his freedom of assembly by virtue of his removal from
public service for taking part in assemblies in which other persons had
participated who, in the view of the Administrative Court, were beyond
the pale of the Constitution, and did not raise the additional alleged
violation of freedom of association or coalition. This is because the
applicant has up to now denied membership of the KBW. The respondent
Government submit that the applicant should clarify his position in this
respect.
The respondent Government contend first that the applicant's
complaint of an invasion of freedom of assembly is equally
incompatible, since the measures taken by the administrative
authorities against the applicant were not justified by reference to
the applicant's participation in assemblies but his participation in
the campaigns for the KBW. Thus the Government contend that it was
"not peaceful assemblies with members of the KBW for the purposes of
forming or expressing a personal opinion which led to his dismissal,
but rather his active support in various forms for the KBW, an
extreme left-wing organisation hostile to the Constitution".
The respondent Government point out that the District
Government of the Rhinehesse-Palatinate expressly conceded in the
dismissal order of 10 February 1976 that participation in events might
be covered by the basic right of freedom of assembly. Thus the mere
fact of participation in assemblies was not the reason for the measure
taken. The decisive factor was support for the KBW in the
circumstance that the applicant was an "active follower of the KBW".
The ruling of the Rhineland-Palatinate Ministry of Culture on
the applicant's objection to the decision of the District Government
of the Rhinehesse Palatinate similarly identified that the mere
holding and supporting of various aims, such as opposition to the
reduction in reimbursement of travel expenses and the proposed reform
of Article 218 of the Criminal Code, could not be criticised as they
were mere expressions of opinion. However, the basis of the dismissal
was the close association of the applicant with the KBW in respect of
each of these manifestations of his opinion, and the conclusion that
the applicant approved of, and supported, the political aims of the
KBW in a way which was manifest to both his school and the general
public.
In the respondent Government's view the applicant's
involvement and participation in KBW campaigns, committees and other
KBW initiatives has "nothing to do with taking part in assemblies".
Similarly, in the judgment of the Administrative Court of
Appeal of the Rhineland Palatinate of 19 August 1981 the applicant was
criticised for having repeatedly taken common cause with the KBW over
a period of years. The Court said, in relation to the applicant's
participation in an open meeting of the KBW, that it was undoubtedly
clear that the applicant "did not behave like an interested but aloof
observer, and not even simply like a hanger-on pursuing his own
interests on the edge of the event, but was himself involved in it,
like the KBW members and even was ready to carry one of the numerous
banners to be seen". In the respondent Government's view, it was
clear that mere participation in assemblies and appearing as a
hanger-on were not decisive for the applicant's dismissal; rather it
was the active support which he showed for the KBW which was
significant for the Court's decision.
The respondent Government's conclusion from these facts, that
the application would be inadmissible as incompatible with the
provisions of Article 11 of the Convention is, in the submission of
the Government, confirmed by the conclusion by the Federal
Constitutional Court in its order of 27 October 1983, when the
applicant's complaint was rejected without specific reference to
Article 8 of the Basic Law (freedom of assembly); the Court merely
stated that there was nothing to indicate a violation of this or any
other basic right.
Furthermore, in this respect, the respondent Government
contend that the very nature of the matter complained of by the
applicant does not relate to an invasion of freedom of assembly, but
that he claims a right of access to the civil service, a right not
guaranteed by the Convention.
bb) incompatible by virtue of paragraph 2, second sentence
In the alternative the respondent Government contend that the
applicant's complaint under Article 11 is incompatible in that, if the
applicant's dismissal constituted an interference with his freedom of
assembly, this interference was covered by the second sentence of
para. 2 of Article 11 of the Convention. In this context Article 11
para. 1 does not prevent the imposition of lawful restrictions on the
exercise of the right of freedom of assembly by members of the
administration of the State. To the extent that it is at all possible
to speak of an invasion of freedom of assembly in the present case,
the domestic law of the Federal Republic of Germany provides a
justified lawful restriction in this sense. The obligation derived
from civil service law to acknowledge allegiance by one's entire
conduct to the free democratic basic order within the meaning of the
Basic Law and of the Constitution of the Rhineland-Palatinate and to
advocate the preservation of the basic order legitimately excludes any
enjoyment of freedom of assembly running counter to this obligation.
cc) manifestly ill-founded
Finally, any alleged interference with the applicant's rights
under Article 11 para. 2 first sentence was in any case justified as
necessary in the interests of national security and for the prevention
of disorder in a democratic society. In this respect the respondent
Government invoke, mutatis mutandis, their arguments submitted in
respect of Article 10 para. 2 of the Convention above. The democratic
order of the Federal Republic of Germany was affected by the
activities of the KBW thus also by the applicant's activity in active
support thereof. Despite the slight differences which the
respondent Government acknowledge in the wording of Article 11 para. 2
first sentence as compared with Article 10 para. 2, the point at issue
here is still governed by the same considerations.
In the further alternative, the applicant's complaint under
Article 11 also founders by reference to Article 17, for the same
reasons as developed in respect of the complaint by reference to
Article 10 of the Convention.
The Applicant
Article 10 of the Convention
The applicant submits that the respondent Government's
observations cannot alter the fact that he was dismissed from the
public service as a result of his opinions. Had he not expressed
certain opinions, this particular sanction would not have applied to
him. It is significant in this respect that not even the respondent
Government suggest that the applicant conducted himself otherwise
than irreproachably as a teacher for many years. In so doing the
applicant obviously displayed the necessary loyalty to the Constitution.
It was only his expressions of opinion outside his work activities
which gave rise to the alleged doubts as to his loyalty and this in
itself illustrates that his freedom of expression was sanctioned. In
this respect the present case is to be distinguished from Application
No. 9228/80 Glasenapp v. the Federal Republic of Germany and
Application No. 9704/82 Kosiek v. the Federal Republic of Germany.
The applicant's long and unreproached service as a teacher underlines
that his dismissal was an attack on the unpopular views he held, even
though they never affected his work.
Nor can the restrictions on the applicant's freedom of
expression be justified under the terms of Article 10 para. 2 of the
Convention. The reliance on the ground of national security is
scarcely credible, bearing in mind the applicant's satisfactory school
service for a period of a number of years. In these circumstances it
cannot seriously be alleged that the applicant could have been a
negative influence on the pupils. This is particularly illustrated by
the fact that it was his out of school activities, unconnected with the
school, which were the alleged justification for the applicant's dismissal.
That the applicant's dismissal was a response to his unpopular opinions,
rather than to his suitability for employment, is reinforced by the
fact that, when the applicant appealed successfully to the
Administrative Court of Neustadt/Weinstrasse against the decision
that he be suspended from teaching immediately on 23 December 1975,
the authorities did not challenge the Administrative Court's decision
by a further appeal. They thereby accepted that the applicant's
teaching was not open to criticism and he continued in his job for a
further seven years.
As to the necessity in a democratic society of the dismissal
of the applicant in view of his opinions, a comparison of the
situation in other Western European countries is sufficient to
illustrate that the practice of loyalty control to which the applicant
was subject is unique to the Federal Republic of Germany. In these
circumstances the dismissal was not "necessary in a democratic
society". In this respect the respondent Government give no reasons
to explain why it is only the Federal Republic of Germany which
requires such measures to defend its national security and democratic
structure.
Furthermore, the respondent Government are no more able to
produce convincing arguments based on Article 17 of the Convention.
The applicant has never expressed opinions which were aimed at the
destruction of rights guaranteed by the Convention. The respondent
Government cite the example of the applicant's involvement in the
committee concerned with the reform of Section 218 of the Criminal
Code. However, as the applicant points out, in the meetings
concerning this issue no discussion was held about the Constitution,
still less about the KBW. The discussion concerned the plight of
women in need, and the fact that the so-called KBW expressed an
interest in such discussions, cannot convert the applicant's
involvement in this topic into support for the KBW. In the
applicant's view, every communal activity results in consequences
which various individuals can turn to their own private advantage.
Such involvement permitted the expression of opinion to a wider
audience and the applicant stresses that the domestic courts did not
find support for the KBW to have been expressed in this particular
way. By contrast with the position of the respondent Government in
their observations, where the applicant is alleged to have worked in
the activities of the KBW, the Rhineland-Palatinate Administrative
Court of Appeal, as the final instance of fact, found merely that the
applicant had made common cause with the KBW. The applicant was
therefore criticised, not for the way in which he expressed himself,
and in particular not for expressing himself in a way which might
attack the rights protected by the Convention, but for taking part in
meetings at which persons from the KBW circle also took part.
In this respect, it must be remembered that all the meetings
held were public meetings, to which anyone could have access. In
addition, the applicant took part in a large number of other meetings,
which were inspired by other organisations, including parties
represented in the Federal Parliament.
Article 11 of the Convention
Freedom of assembly
Contrary to the respondent Government's submissions, the
applicant was discriminated against in his participation in meetings
through a cumulative effect. This finding, of the applicant's
repeated involvement in various meetings, was the whole basis for the
applicant's dismissal, since the Rhineland Palatinate Administrative
Court of Appeal accepted as a fact that the applicant's membership of
the KBW was not established and that the applicant had indeed
expressly dissociated himself from that movement.
In this respect the applicant also seeks to distinguish
between the decisions reached by the administrative authorities, and
those reached by the courts. The final court instance of fact found
that it was not established that the applicant was a member of the KBW
and hence no contrary conclusion can be drawn from the previous
opinion of either the District Government or of the Ministry of
Culture.
With regard to the applicant's involvement in the various
meetings and initiatives for which he was criticised, none of these
was an initiative of the KBW; they were initiatives which had a specific
goal, such as the Section 218 repeal initiative, but the respondent
Government fail to acknowledge this. Nevertheless the Administrative
Court's decision is based upon the applicant's involvement in just
these meetings and initiatives. Thus, in summary, the factual kernel
of the criticisms made of the applicant's behaviour was his
participation in various "assemblies". This was what led to the
decision which the applicant now seeks to challenge. Had he not taken
part in these various forms of assembly no reproach could have been
made against him.
The respondent Government attempt to argue that the applicant
was not affected in the exercise of his freedom of assembly. This
view cannot be accepted, since the applicant was indeed affected in
the most direct possible way, in that his opportunity to earn his
living was totally removed. This obviously also had an effect in
respect of his future participation in meetings and assemblies.
Similarly other persons were influenced in a comparable way.
Freedom of association
In as much as the applicant had provided a sponsorship
signature for the KBW for its participation in the Federal elections,
an issue arises as to the protection of freedom of association. The
same is true for the criticisms made of his actions together with
supporters of the KBW. The applicant's association with members of
the KBW, by working alongside them, even without being a member of the
organisation, is sufficient to enjoy the protection of Article 11 of
the Convention. This provision protects all forms of co-operative
work, association and assocations, providing that they were involved,
as here, in lawful activities.
The State interference with the applicant's rights under
Article 11 cannot be justified under the second sentence of para. 2,
which must be read in conjunction with the first sentence of that
paragraph. It is clear from the whole context of the second paragraph
of Article 11 that not every interference with a civil servant's
freedom of association is automatically justified under the terms of
the second paragraph of the Article. The reference to the words
"armed forces" and "the police" in conjunction with the
"administration of the State" must clearly result in the words
"administration of the State" being narrowly construed, ejusdem
generis with the terms "armed forces" and "police". Hence not
every person employed in the public service can be regarded as
included within the concept of "members of the administration of the
State", and it is clear that, giving those words their natural
meaning, teachers do not administer their pupils or exercise any other
administrative function on behalf of the State. Nevertheless, in
accordance with the legal position in the Federal Republic of Germany,
all civil servants are subject to the same rigid restrictions
concerning their participation in assemblies and freedom of
association. This state of affairs is irreconcilable with the terms
of Article 11.
Nor can a justification for the interference in the present
case be found in the first sentence of para. 2 of Article 11. There
is no evidence of any necessity for the interference, and a mere
reference to the KBW will not suffice in this respect if a comparison
is made to the practice in other democratic countries. It is
illustrative of the unnecessary nature of these restrictions that they
are not required in any other democratic country apart from the
Federal Republic of Germany. Nor can any persuasive reason be found
why they should be required in the Federal Republic of Germany and not
elsewhere.
Nor have the applicant's activities under Article 11 of the
Convention been aimed at the destruction of the rights contained in
the Convention. The respondent Government do not explain how any of
the applicant's activities has such an aim, nor even how such a
submission could be reconciled with the findings of fact of the
administrative courts.
THE LAW
The applicant complains that the termination of his
appointment as a civil servant on probation was contrary to Articles 10 and 11
(Art. 10, 11) of the Convention since it was based upon the opinions which he
held, or manifested and his political activities in association with others.
The respondent Government contend that the termination of the applicant's
appointment reflected his failure to satisfy one of the criteria for his
continuing appointment as a civil servant on probation namely the requirement
that he show a positive attitude to the fundamental principles of the Basic Law
and the Constitution of the Rhineland Palatinate.
The Commission recalls that it has held that in certain cases
the reactions of the authorities to the opinions held or expressed by
individuals, including those employed in public service, may raise issues under
Articles 10 and 11 (Art. 10, 11) of the Convention (No. 9228/80, Comm. Rep.
11.5.84; No. 10293/83, Dec. 12.12.85 (to be published in DR 45); No. 11603/85,
Dec 20.1.87 (to be published)).
In this respect the respondent Government have contended that
the application is incompatible with the Convention ratione materiae.
The Commission recalls its analysis of similar cases relating to
loyalty control for civil servants. Where the operation of loyalty
control impinges on an individual's freedom of expression an issue
arises under Article 10 (Art. 10) of the Convention notwithstanding that the
individual concerned is or would wish to be a civil servant (No.
9228/80 Comm. Report 11.5.84, paras. 67-77; No. 9704/82 Comm. Report
11.5.84, paras. 60-70). This approach was specifically confirmed by
the Court in its judgments in those two cases in which it declined the
respondent Government's renewed invitation to find those applicants'
complaints incompatible with the Convention (Glasenapp judgment of
28 August 1986, Series A no. 104, paras. 49-50; Kosiek judgment of
28 August 1986, Series A no. 105, paras. 35-36).
Nevertheless, in view of the fact that the right to employment
in the public service is not guaranteed by the Convention, the
Commission must first establish whether the matters about which the
applicant complains amounted to an interference with the exercise of
freedom of expression or association or whether these matters lie
within the sphere of the right of access to the civil service. In
order to answer this question, the scope of the measure complained of
must be determined by putting it in the context of the facts of the
case and of the relevant legislation (see mutatis mutandis, Kosiek
judgment loc. cit. para. 36).
The District Government of the Rhinehesse Palatinate gave as
its reason for dismissing the applicant his activities for the benefit
of the KBW; the applicant was reproached with having continually and
actively taken part in meetings, demonstrations and activities steered
by the KBW and other Communist groups. The Government considered that
his involvement far exceeded that of a detached observer and he had in
practice closely identified with a variety of KBW initiatives. Its
decision was therefore based on the activities in which the applicant
was involved. The Commission notes in particular in this respect that
the applicant was suspected inter alia of participating in KBW
'raiding squads' which had deliberately disrupted a meeting of the NPD
with violent consequences.
The District Government considered that the applicant had not
proved himself, because he did not fulfil the condition - as required
under Section 63 (1) LBG - that he would consistently uphold the free
democratic system within the meaning of the Basic Law. This is one of
the personal qualifications required of anyone seeking a post as a
civil servant ("Beamter") - whether temporary or established - in the
Federal Republic of Germany. This requirement applies to recruitment
to the civil service, a matter that was deliberately omitted from the
Convention, and it cannot in itself be considered incompatible with
the Convention. The District Government originally assumed, in the
absence of evidence to the contrary, that the requirement had been
fulfilled, since the applicant was appointed as a teacher with the
status of probationary civil servant. After an examination of the
applicant's political activities, however, the District Government
came to the conclusion that the applicant did not meet one of the
conditions of eligibility laid down for the post in question, as a
result of which it decided to terminate his appointment as a
probationary civil servant (Sections 41(1) No. 2 and 63(1) LBG). The
applicant was afforded the opportunity of a hearing but was not
required to state his opinion nor was he interrogated about his views.
It follows from the foregoing that the question of the
applicant's eligibility for employment in the public service lies at the
heart of the present application. There was a substantial quantity of
largely undisputed evidence available to the administrative
authorities and the domestic courts from which the extent and nature
of the applicant's activities could be judged and their implications
for his suitability as a public employee assessed. The authorities
did not seek to establish the applicant's unexpressed attitudes or
opinions by questioning, nor require him to adopt a particular opinion in
order for their enquiries to be concluded.
In terminating the applicant's probationary appointment, the
responsible authorities took account of his opinions and activities
merely in order to determine whether he possessed one of the necessary
personal qualifications for continued appointment in the post in
question.
That being so, there has been no interference with the
exercise of the rights protected under Articles 10 or 11 (Art. 10, 11) of the
Convention and no issue arises under Articles 14 or 18 (Art. 14, 18) thereof.
It follows that the present application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)