AS TO THE ADMISSIBILITY OF
Application No. 11580/85
by Rupert SCHREIBER
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 4 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 April 1985
by Rupert Schreiber against the Federal Republic of Germany and
registered on 17 June 1985 under file No. 11580/85;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as they appear from the applicant's
statements and the documents submitted by him may be summarised as
follows:
The applicant is a German citizen, born in 1929, who resides
in Cologne. Together with others he submitted an earlier application
(No. 8387/78) which concerned his activities as trustee for
thalidomide victims. The Commission rejected that application on
4 March 1980 (D.R. 19 p. 233). The present case, which concerns
the applicant's dismissal from a university post, is not related to
his earlier application.
In February 1966 the law faculty of the University of Cologne
accepted the applicant's post-doctoral thesis (Habilitation)
qualifying him as a university lecturer (Dozent) for legal philosophy,
civil and commercial law. On 24 May 1966 he was appointed to a
lecturer's post as temporary civil servant (Beamter auf Widerruf).
He remained in that same post until his dismissal in 1977 of which
he now complains.
During his tenure of the post, the applicant apparently
received only one offer of a professorship in a Hamburg academy in
1969. However, the applicant did not accept it.
Subsequently, the applicant made attempts to change his status
in Cologne. In August 1971 he wrote to the Minister for Science and
Research (Minister für Wissenschaft und Forschung) of North Rhine-
Westphalia asking for an appointment as extraordinary professor
(ausserplanmässiger Professor) at the law faculty. The Minister
replied that such an appointment required a proposal by the
university. The applicant accordingly requested the law faculty to
make such a proposal. However, in January 1972 the faculty rejected
the request, without considering the applicant's scientific
qualification, on the ground that he had insulted the faculty and its
individual members in a letter. In a decision (Widerspruchsbescheid)
of 15 October 1972 the faculty again confirmed the opinion that, when
making a proposal for an appointment as extraordinary professor,
regard must be had not only to the scientific qualification of the
person concerned, but also to his personal aptitude ("Würdigkeit"),
which was denied in this case.
Thereupon the applicant instituted proceedings before the
Administrative Court (Verwaltungsgericht) of Cologne claiming that the
Minister should appoint him as extraordinary professor without a
faculty proposal or that the faculty should propose his appointment.
However, both claims were rejected. The Administrative Court held
on 10 June 1974 that the faculty's opinion was, in principle,
justified but that the negative assessment of the applicant's
personal aptitude did not justify a permanent refusal of his
appointment.
It appears that in the subsequent appeal proceedings before
the Administrative Court of Appeal (Oberverwaltungsgericht) of Münster
attempts were made to reach a settlement of the matter. In this
context the applicant again applied to the faculty in November 1975
that it should propose his appointment as extraordinary professor.
During the proceedings the applicant disclosed his dispute
with the law faculty to the students' representatives (Vertreter der
Studentenschaft). This led to polemic publications of the students in
February 1976. There was also a confrontation between the applicant
and the faculty concerning a ceremony for a criminal law professor on
the occasion of the latter's 70th birthday. In reply to the
invitation to take part in the ceremony, the applicant, in a letter to
all members of the faculty, stated the following:
(German)
"Ich finde es nicht richtig, einen Kommentator
nationalsozialistischer Unrechtsgesetze, mit denen
unschuldige Menschen gemordet und gequält wurden, in
dieser Weise zu ehren und damit als Muster eines
Professors der Rechtswissenschaft vorzustellen."
(English translation)
"I regard it as inappropriate to honour in
this way a person who has published commentaries on
immoral Nazi statutes on the basis of which innocent
people have been murdered and maltreated, and thereby
to set him up as a model law professor."
The applicant alleges that the professor in question had,
inter alia, written a commentary on the National Socialist Act for the
Protection of Aryan Blood (Blutschutzgesetz) and the Ordinance against
People's Parasites (Volksschädlingsverordnung). He had further pleaded
in favour of punishment in accordance with "sound popular opinion"
("gesundes Volksempfinden") even before this concept was introduced
into Nazi legislation. He had finally suggested imposition of the
death penalty on the basis of "guilt by person" ("Täterschuld").
The faculty's dean reported these facts to the Administrative
Court of Appeal in a letter of 11 May 1976. He stated that the
faculty maintained its view that personal aptitude was a criterion to
be considered when making proposals for a university appointment.
Having regard to the Administrative Court's opinion, the faculty had
made a move towards the applicant, inviting him to subscribe an
undertaking that he would, in future, abstain from allegations that
faculty members deliberately sought to cause him damage. The
applicant had refused to do so, and this in itself prejudiced the
necessary co-operation in the faculty. Moreover, the applicant had
not only informed the students of the objective facts of his case, but
had shown them documents containing unjustified allegations against
the faculty. His discriminatory allegations against the criminal law
professor were wholly unjustified as the professor in question had
"shown a markedly reserved attitude vis-à-vis National Socialism and
its legal concepts and had avoided any identification with the
relevant views" ("eine betont distanzierte Haltung gegenüber dem
Nationalsozialismus und dessen Rechtsanschauungen an den Tag gelegt
und jede Identifizierung mit entsprechenden Anschauungen vermieden
hat").
Defamatory behaviour of this kind was absolutely intolerable
in a corporate body requiring a sense of collegiality. Aptitude for
teamwork was an essential requirement for appointment as extraordinary
professor. If appointed, the applicant would, by virtue of Section 211
of the Civil Servants Act (Landesbeamtengesetz), become a permanent
university teacher exercising his main professional function within
the faculty, in which case his activities would have to be
co-ordinated with other colleagues on a much larger scale than if he
were dismissed from his temporary civil servant's post and became a
private lecturer (Privatdozent) with a weekly teaching obligation of
two hours. Moreover, a proposal to appoint the applicant as
extraordinary professor would signal to the public that the faculty
considered him apt in every respect to perform the functions of a
university professor ("Lehrstuhlreife"). This involved a guarantee to
other scientific institutions that the faculty considered him as
qualified not only from the scientific, but also the personal point of
view. Accordingly such a decision was of importance for the reputation
of the faculty as a whole.
In May 1976 the faculty decided also to examine the
applicant's scientific qualification. For this purpose it sought
expert advice from four university teachers in the applicant's
disciplines who were not attached to the university of Cologne.
Only one recommended the applicant's appointment while the others
expressed doubts that the applicant had sufficiently proved his
scientific qualification since the submission of his post-doctoral
thesis. In November 1976 the faculty unanimously decided not to
propose the applicant's appointment as extraordinary professor.
On 27 January 1977 the faculty further decided not to propose
the applicant for any permanent post which might become vacant in
future.
The attempts for settlement thus having failed, the
Administrative Court of Appeal rejected the applicant's appeals in
the proceedings against the Minister on 28 March 1980 and in the
proceedings against the faculty on 20 January 1981. Both judgments
were subsequently confirmed by the Federal Administrative Court
(Bundesverwaltungsgericht) which did not grant the applicant leave to
appeal on points of law (Nichtzulassung der Revision). The applicant
did not lodge a constitutional complaint.
The University of Cologne, acting through its chancellor
(Rektor), had in the meantime on 27 July 1977 terminated the applicant's
appointment as temporary civil servant with effect from 30 September 1977.
The decision was based on the ground that such appointments were by
their nature of a temporary character and aimed at securing a
livelihood to lecturers during an interim period until they found
a permanent teaching post in a university. They could not be
transformed into permanent employment. The applicant had occupied
the post for eleven years, but had been unable to achieve the aim of
a permanent appointment in another university although sufficient
vacancies had existed in his disciplines. A permanent appointment in
Cologne was excluded because of the faculty's above decision of
27 January 1977 and because the applicant's attempts to be appointed
or to be proposed for appointment as extraordinary professor had also
failed. In these circumstances it was not justified that the
advantages connected with the post be reserved for the applicant and
withheld from the many other qualified private lecturers for whom
vacant lecturer posts were not available.
The applicant filed an objection (Widerspruch) claiming
essentially that the termination of his appointment to the temporary
civil servant's post in question lacked a legal basis. It could be
inferred from Section 212 of the Civil Servants Act that tenure of
such a post was possible until reaching the age of retirement.
Furthermore Section 211 provided that lecturers appointed as
extraordinary professors could not be dismissed except under certain
circumstances. As he claimed to be entitled to an appointment as
extraordinary professor, Section 211 should be applied in his case.
The applicant finally complained that the real ground for dismissal -
namely his refusal to participate in the celebration for the
above-mentioned criminal law professor - had not been mentioned in
the chancellor's decision nor discussed at the hearing (Anhörung)
preceding his dismissal.
However, these objections were rejected by a decision
(Widerspruchsbescheid) of the chancellor of 22 February 1978.
The applicant now challenged his dismissal before the
Administrative Court. He repeated his earlier submissions and further
claimed that the (Federal) Act on Principles concerning the
Organisation of Universities (Hochschulrahmengesetz) which had
entered into force on 27 January 1976 had removed the earlier
distinction betweeen university professors and lecturers, introducing
a life tenure as professors for both. The transitional provisions
regulated the appointment of lecturers to new professorships.
Nevertheless the chancellor had justified the applicant's dismissal by
referring to his eleven years of tenure. The dismissal constituted a
serious abuse of discretionary powers by the chancellor. The true
ground was the applicant's justified refusal to participate in a
ceremony in honour of a criminal law professor who had written
commentaries on immoral Nazi statutes. The chancellor had told the
applicant it was irrelevant that the law faculty might also have been
prompted by this incident to seek the applicant's dismissal. He had
further told the applicant that the dismissal was based on general
considerations related to the temporary nature of his post, and not
on personal grounds. However, he had, on the other hand, assured
representatives of the lecturers that the applicant's dismissal was
based on personal grounds, that it therefore was an individual case
and that they must not fear that other lecturers would be dismissed
because of excessive length of tenure. Neither in the university of
Cologne nor elsewhere had an appointment to a lecturer's post ever
been terminated on the ground of excessive length of tenure, although
there were cases where it had lasted up to eighteen years.
The university's chancellor replied to the applicant's action
on 19 April 1978. He stated, inter alia, that already since April 1975
the Minister had made repeated inquiries about the university's
intentions concerning the continued employment of the applicant as a
temporary or permanent civil servant. This was based on general
guidelines issued in 1966 for junior staff ("Mittelbau") of the
universities, according to which a review should be carried out after
eight years of tenure. As a consequence of the university's negative
reactions concerning a permanent appointment of the applicant, the
Minister had on 21 March 1977 proposed the termination of the
applicant's temporary appointment. The dismissal was thus based on
general considerations relating to the nature of a temporary civil
servant's appointment which, under Section 35 of the Civil Servants
Act, could be revoked at any time. The applicant's case was a special
one in this respect as there were no longer any prospects for his
permanent appointment. He could not invoke Sections 211 or 212 of the
Act which contained special provisions for particular situations.
However, the applicant's case came under the general rule that a
temporary appointment could, in principle, be revoked, and he must
also have been aware of that. The grounds which the applicant
suspected to be the true reasons behind his dismissal had not been
relevant to the decision terminating his appointment. The
chancellor's decision had been exclusively based on objective reasons
and not on considerations concerning the applicant personally. The
faculty's decision not to propose him for appointment to a permanent
post resulted from an examination of his scientific qualification.
The statements in the faculty's letter of 11 May 1976 concerning the
applicant's personal behaviour were irrelevant in this context. They
had been submitted in proceedings relating to a wholly different
matter, namely the faculty's earlier decision to refuse a proposal
for an appointment as extraordinary professor on the ground that the
applicant lacked personal aptitude for such a post.
The proceedings were then adjourned pending the outcome of the
litigation concerning the appointment as extraordinary professor.
They were resumed on 8 April 1981.
On 15 July 1981 the Administrative Court dismissed the
applicant's action on the following grounds: The relevant provisions
of the Civil Servants Act gave the university's chancellor discretion
to terminate a temporary appointment. Sections 34 and 35 of the Act
had been complied with. The chancellor furthermore had not overstepped
the limits of his discretionary powers nor used them in a manner which
was incompatible with their aim.
Termination of the applicant's appointment was justified under
Section 35 by objective reasons related to the specific nature of the
applicant's post. The 1966 guidelines showed that continued tenure of
such a post was regarded as unjustified if, after eight years, the
university did not intend to offer permanent employment to the person
concerned. The applicant had not obtained a permanent post in another
university and the law faculty of Cologne had denied the applicant's
scientific qualification for an appointment as university professor.
The Administrative Court of Appeal had confirmed the lawfulness of
this decision. It was therefore manifest that the applicant could no
expect to obtain a permanent post. The applicant had not proved that
other cases of long tenure up to eighteen years were comparable to his
case. He was in a special situation in that he definitely could not
longer achieve the aim connected with a lecturer's post, while the
situation of other lecturers with a tenure of eleven or more years
might be different in this respect.
Finally, the applicant could not rely on the Federal Act on
Principles concerning the Organisation of Universities. The
chancellor was not bound to maintain the applicant's temporary
appointment with a view to giving him a chance to apply for
appointment to a new professorship under the transitional provisions.
Such transfer was not mandatory in all cases, and in any event it also
required an appropriate qualification (Section 75 paras. 3 and 5 of
the Federal Act). As the lack of qualification was manifest in the
applicant's case, the chancellor's discretion could not be restricted
in this respect.
In view of the finding that the termination of the applicant's
temporary appointment was justified because he had no longer any
chance to be appointed permanently, there was no need to consider the
applicant's submissions regarding the allegedly true reasons behind
the chancellor's decision and the Administrative Tribunal was only
required to review the facts on which this decision had actually been
based. The letter of the dean of the law faculty of 11 May 1976 was
irrelevant in this context as it had been submitted in other
proceedings relating exclusively to the faculty's refusal to propose
the applicant's appointment as extraordinary professor because he
lacked the required personal aptitude.
The applicant's appeal (Berufung) against this decision was
dismissed by the Administrative Court of Appeal on 2 September 1983
after it had rejected a challenge of the judges and also the
applicant's requests for evidence. The Court held that the
applicant's right to be heard had not been violated. Even if the
question of the applicant's lack of chances for a permanent
appointment had not been sufficiently discussed at first instance, he
had had an opportunity to raise it in the appeal proceedings. The
Administrative Court had rightly dismissed the action; in particular
it had correctly held that an appointment to a temporary civil
servant's post as lecturer could be terminated on the basis of
objective reasons. The applicant could not rely on the Act on
Principles concerning the Organisation of Universities or related
statutes nor on the allegation that no other lecturer's appointment
had ever been terminated. As the university had submitted, this was
due to the fact that a need for termination against the will of the
person concerned had never arisen. In the present case the dismissal
had been based on an objective ground related to the nature and
purpose of a lecturer's post, because at the time of the chancellor's
decision there had been no prospect for the applicant's appointment
within a reasonable time to a permanent post either in Cologne or
elsewhere.
It was also justified to consider the interests of other
lecturers for whom no temporary post was available at that time.
The alleged assurances given by the chancellor to other lecturers that
they would not be dismissed for excessive length of tenure provided no
argument to the applicant that he had been discriminated against
contrary to Article 3 of the Basic Law. He overlooked that in his
case it was not only the length of tenure, but also the lack of
chances for a permanent appointment which justified the termination of
his temporary appointment. In this respect the applicant's situation
was apparently different from that of other lecturers with a
comparative length of tenure. For the same reason he could not
criticise that no general instructions had been given to terminate
appointments after a certain length of tenure, and that the university
had only terminated his appointment.
It was true that the faculty was responsible for facts which
had led to the termination of his appointment in that it had refused
to propose his appointment as extraordinary professor and had decided
not to consider him for any other permanent civil servant's post. In
this context the faculty had stated certain reasons in its letter of
11 May 1976. However, the chancellor of the university had to take
into account only the actual consequences of the faculty's decisions,
i.e. the lack of prospects for a permanent appointment, without
considering the circumstances under which these decisions had been
taken. Accordingly the faculty's letter of 11 May 1976 could not be
regarded as relevant. Finally, it was also irrelevant that the
university's representative had stated at the hearing before the
Administrative Court of Appeal: "Since the dismissal had to be
pronounced it was necessary to think about the reasons on which to
base the dismissal." ("Nachdem die Entlassung ausgesprochen werden
musste, musste man sich Gedanken machen, weshalb die Entlassung
ausgesprochen werden musste.")
The Court refused leave to appeal on points of law to the
Federal Administrative Court. This decision was confirmed by the
Federal Administrative Court on 5 July 1984. The Federal
Administrative Court considered that none of the grounds invoked by
the applicant as justifying the admission of an appeal on points of
law had been established. It could not be challenged that the Court
had refused to take evidence on certain facts which it considered as
irrelevant. This was so even if the Court's views concerning the
relevance of those facts was doubtful from a legal point of view. The
Administrative Court of Appeal had regarded as irrelevant that no
general instructions had been given to terminate temporary
appointments after a certain length of tenure, as it had considered
the termination of the applicant's appointment as lawful in the
individual case. That case had been considered as showing a specific
feature, namely a lack of chances to be appointed to a permanent post
within a reasonable period. In substance the applicant thus only
sought to challenge the Court's assessment of the facts. A complaint
of procedural defects in the establishment of the facts could not be
based on such an argument. Finally, it did not violate fundamental
procedural principles that the Court had not discussed the applicant's
refusal to take part in a ceremony in honour of a criminal law
professor. The Court was only required to set out the reasons which
it considered as relevant for its judgment. It had stated that the
university's chancellor was bound to take into account the
consequences of the faculty's decision, namely the lack of chances for
a permanent appointment of the applicant, while he could disregard the
reasons which had led to the faculty's decision. On this basis the
Court had considered the faculty's letter of 11 May 1976 irrelevant
for its judgment. In these circumstances there was no necessity for
the Court to deal with the applicant's confrontation with the faculty
in 1976.
The applicant then lodged a constitutional complaint
(Verfassungsbeschwerde) in which he invoked, in particular, the
freedom of expression and freedom of science (Article 5 of the Basic
Law), the constitutional principles governing the status of civil
servants (Article 33 of the Basic Law), the principle of equality
(Article 3 of the Basic Law) and the right to be heard (Article 103 of
the Basic Law). However, on 30 October 1984 a three-judge commission
of the Federal Constitutional Court (Bundesverfassungsgericht)
refused to accept the complaint, finding that it had insufficient
prospects of success. It stated that the termination of the
applicant's appointment was primarily an issue of the application of
ordinary law by the competent Administrative Courts. A review by the
Federal Constitutional Court was possible only within narrow limits if
the decisions of these courts showed disregard for the principles of
the constitution or arbitrariness. However, there was no appearance
of arbitrariness or of the violation of specific constitutional
guarantees. In particular, there was no violation of the principle of
equality because even the applicant failed to cite a comparable case
where a lecturer had been maintained in a temporary post despite a
lack of any chance to be permanently appointed. Nor was there a
violation of the authority's duty to protect the interests of its
temporary civil servant (Fürsorgepflicht des Dienstherrn) as the
applicant had been given sufficient opportunities after his
qualification as lecturer to find an adequate position. There was no
constitutional obligation to maintain him in his post even having
regard to the specific circumstances of the case, in particular the
age of the applicant. There was no room to apply Article 5 of the
Basic Law. The judicial decisions were exclusively based on the
consideration that the length of tenure and the manifest lack of
chances for a permanent appointment justified the termination of the
applicant's temporary appointment. Constitutional principles had not
been disregarded. Article 5 para. 3 of the Basic Law did not
stipulate any right of persons exercising scientific functions in the
universities to remain in office without restrictions or time-limits.
The application of the general civil servants statutes to these
persons remained unaffected by Article 5 para. 3.
Finally, there was no violation of Article 103 para. 1 of the
Basic Law. The applicant had been given an opportunity to be heard on
all aspects of his case before the Administrative Court of Appeal.
Any shortcomings concerning the right to be heard at first instance
had been cured in this way. There was no constitutional obligation of
the courts to give hints or discuss specific matters if only the right
to be heard had been respected. Nor did Article 103 protect against
court decisions in which certain facts or pieces of evidence were not
discussed due to provisions of formal or substantive law. Finally,
Article 103 could, in principle, not be violated by court decisions in
respect of which it was alleged that they contained wrong assessments
of the facts or that the importance of certain facts was not reflected
in the legal conclusions.
COMPLAINTS
The applicant now alleges that his rights under Articles 6, 9
and 10 (Art. 6, Art. 9, Art. 10) of the Convention have been violated.
As regards Article 6 (Art. 6), the applicant claims that he has not had
a "fair hearing" because the courts based their decisions on arguments which
had not been discussed in the proceedings and because they refused to take any
evidence on the relevant facts. The applicant further complains that the
proceedings lasted seven years and thus were not conducted within "reasonable
time".
As regards his complaints under Articles 9 and 10 (Art. 9, Art. 10) of
the Convention, the applicant submits that he must, in principle, be free to
express his opinions and ideas concerning judicial murder by the Nazis,
including the view that he disapproves of a ceremony of the law faculty in
honour of a person who had written commentaries on immoral Nazi statutes.
However, because of this action he lost his post as a university lecturer. This
sanction was much more serious than that considered in application No. 9251/81,
G. v. Federal Republic of Germany (Dec. 16.12.82, unpublished), because he was
not only refused access to a civil servant's post, but lost his income after
eleven years of teaching at the university at the age of 55, when it was
practically impossible for him to start a new professional career. Moreover, he
was not only sanctioned for having expressed his opinion, but he was also
prevented from expressing ideas. While he could continue some teaching and
research activities, he was forced to find another source of income, which
necessarily implied a practical reduction of his academic activities.
Moreover, his reputation had been seriously damaged by the discriminatory
revocation of his university appointment.
The applicant claims that the restriction imposed on the
exercise of his freedom of expression is not justified by Article 10
para. 2 (Art. 10-2). It is not unlawful to disapprove of a ceremony in honour
of a person who had been involved in Nazi crimes. A democratic society must
allow criticism of Nazi political murderers and, in his view, it amounts to a
mockery of Nazi victims if a ceremony is held in honour of such a person. He
had done nothing but disapprove of such an action.
As his attitude was prompted by fundamental ethical
orientations, the applicant must be entitled to invoke his freedom
of conscience. On this basis he claims that there has also been a
breach of Article 9 (Art. 9) of the Convention.
THE LAW
1. The applicant submits that the termination of his appointment
as temporary civil servant, following refusals of permanent
appointment, was a sanction for his having expressed disapproval of
a university ceremony held in 1976 in honour of a professor who
allegedly had published commentaries on immoral Nazi statutes. He
claims that this sanction amounted to an unjustified interference with
his freedom of expression (Article 10 of the Convention) (Art. 10) and his
freedom of conscience (Article 9 of the Convention) (Art. 9).
a) The Commission notes that the decision to terminate the
applicant's temporary appointment was based on the ground that he had
been unable to obtain permanent appointment. It further notes that
the refusal of permanent appointment as extraordinary professor was
the subject of court proceedings which terminated in 1981 at the
Federal Administrative Court. Insofar as the applicant's above
complaint that he was sanctioned for the expression of specific
opinions concerning the above university ceremony is, in substance,
directed against the refusal of permanent appointment as extraordinary
professor, the Commission cannot deal with the matter. The applicant
failed to lodge a constitutional complaint in this respect and in any
event did not complain to the Commission within a period of six
months from the final domestic decision. The applicant thus did not
comply with the requirements of Article 26 (Art. 26) of the Convention both as
regards the exhaustion of domestic remedies and the time-limit. This part of
the application must accordingly be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
b) Insofar as the applicant's above complaint is directed against
the refusal to appoint him to another permanent university post, the
Commission notes that the applicant did not take any remedies against
the relevant faculty decision of 27 January 1977. This part of the
application must therefore again be rejected under Article 27 para. 3
(Art. 27-3) of the Convention for failure to exhaust domestic remedies as
required by Article 26 (Art. 26).
c) Lastly, insofar as the applicant's above complaint is directed
against the subsequent decision to terminate his temporary
appointment, he has exhausted domestic remedies by lodging a
constitutional complaint and has submitted his application within
six months from the Federal Constitutional Court's decision of
30 0ctober 1984. However, the applicant's dismissal was not by its
terms based on the 1976 incident. The university relied on the fact
that the applicant had not been able to obtain a permanent appointment
and had no prospects to obtain such an appointment. This reason was
found to be sufficient by the courts of all instances to justify the
termination of the applicant's temporary appointment, and it was
repeatedly confirmed that the grounds underlying the refusals of
permanent appointment, including the statements made by the applicant
in 1976, were irrelevant in this context. It was pointed out that the
said statements had been considered in different proceedings, namely
those concerning the refusal of the applicant's permanent appointment
as extraordinary professor, which had been concluded in 1981.
The applicant submits that, notwithstanding the reasons adduced
by the university for the termination of his temporary appointment, the
real reason behind this measure was the fact that he had expressed
disapproval of the university ceremony in 1976. However, this
argument was expressly rejected by the domestic courts and the
Commission finds no indication that this finding was arbitrary or
unreasonable. There is no indication in the file that the applicant's
dismissal was in fact based on the expression of critical views
concerning the said university ceremony.
The right to employment in the public service is not as such
guaranteed by the Convention (cf. Eur. Court H.R., Glasenapp judgment
of 28 August 1986, Series A no. 104, pp. 25-26 paras. 48-49; Kosiek
judgment of 28 August 1986, p. 20 paras. 34-35). As it has not been
established that in the present case the applicant's dismissal from
the public service was based on an expression of opinion, there is no
appearance of an interference with his rights under Article 10 (Art. 10) of the
Convention, which guarantees the freedom of expression. Nor is there any
appearance, in the decision terminating his employment, of an interference with
his freedom of conscience as guaranteed by Article 9 (Art. 9) of the
Convention. It follows that the applicant's complaints in this respect are
manifestly ill-founded and must be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant finally complains that he did not have a fair
hearing and that his case was not determined within a reasonable time.
He invokes Article 6 (Art. 6) of the Convention in this respect.
However, Article 6 (Art. 6) is only applicable in cases which concern
the determination of civil rights and obligations or of criminal
charges. In the present case there is no question of a criminal
charge. As regards "civil rights and obligations", it has been
established in the Commission's case-law that litigation concerning
access to, or dismissal from, a public appointment in the civil
service falls outside the scope of Article 6 para. 1 (Art. 6-1) of the
Convention (cf. e.g. No. 9248/81, Leander v. Sweden, Dec. 10.10.83, D.R. 34
p. 78, at p. 83; concerning a university lecturer No. 8963/80, X v. Federal
Republic of Germany, Dec. 10.12.80, unpublished). It follows that the
applicant's procedural complaints are incompatible, ratione materiae, with the
provisions of the Convention and must accordingly be rejected under Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission
&SDECLARES THE APPLICATION INADMISSIBLE.&S
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)