AS TO THE ADMISSIBILITY OF
Application No. 17851/91
by Dorothea VOGT
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
19 October 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 13 February 1991
by Dorothea Vogt against the Federal Republic of Germany and registered
on 27 February 1992 under file No. 17851/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1949 and living in
Jever. She is a teacher by profession. She is represented by
Messrs. Becker and Jäckel, lawyers in Marburg.
The facts of the case, as submitted by the parties, may be
summarised as follows.
From 1976 to 1977 the applicant worked as a trainee as part of
the preparatory service for teachers (Vorbereitungsdienst) and on
1 August 1977 she became a teacher (Studienrätin) in the Lower Saxony
state school service in Jever. In 1979 she was made a permanent civil
servant with tenure for life (Beamtin auf Lebenszeit).
On 12 August 1986, by means of a disciplinary sanction, the
applicant was provisionally suspended from service on account of her
political activities as a member of the German Communist Party (DKP).
On 15 October 1987 the Disciplinary Chamber of the Oldenburg
Administrative Court (Verwaltungsgericht) decided that the applicant
had violated her duty of political loyalty (politische Treuepflicht)
and imposed, in accordance with Section 61 (2) of the Regional Civil
Service Act (Niedersächsisches Beamtengesetz), the disciplinary
sanction of dismissal. For a period of six months she was paid the
equivalent of 75% of the pension rights acquired at the relevant time.
An appeal (Berufung) was rejected by the Oldenburg Administrative
Court of Appeal (Oberverwaltungsgericht). On 31 October 1989 the
applicant was ordered to pay the costs of the administrative court
proceedings.
A constitutional complaint was rejected by a panel of three
judges of the Federal Constitutional Court (Bundesverfassungsgericht)
on 7 August 1990 (served on 14 August 1990) as offering no prospects
of success.
On 1 February 1991 the applicant was re-employed as a teacher.
COMPLAINTS
The applicant submits that the disciplinary proceedings obliged
her to choose either to renounce her political convictions or to accept
the consequence of losing her job. She therefore considers that her
dismissal constitutes an unreasonable and unjustified interference with
her freedom of opinion as guaranteed by Article 10 of the Convention.
She also invokes Article 11 and further alleges a violation of
Article 10 in conjunction with Article 14 as she considers herself
discriminated against in comparison with civil servants who are not
members of a political party.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 February 1991 and registered
on 27 February 1991.
On 10 March 1991 the Commission decided to give notice of the
application to the respondent Government, but without inviting them to
submit observations at that stage.
On 7 October 1991 the Commission decided to invite the respondent
Government to submit observations in writing on the admissibility and
merits of the application.
The Government submitted their observations on 30 January 1992.
The applicant replied on 2 May 1992.
THE LAW
The applicant complains of her dismissal from the teaching
profession which constitutes, according to her, an unjustified
interference with her rights to freedom of expression as guaranteed by
Article 10 para. 1 (Art. 10-1) and to freedom of association as
guaranteed by Article 11 para. 1 (Art. 11-1) of the Convention. She
also considers that the measure is discriminatory in respect of these
rights.
The Government accept that the application is admissible.
The Commission considers that the application raises serious
issues of law and fact in relation to the Articles invoked by the
applicant. There are no grounds to reject the application under
Articles 26 and 27 (Art. 26, 27) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy