THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39799/98
by Roland VOLKMER
against Germany
The European Court of Human Rights (Third Section), sitting on 22 November 2001 as a Chamber composed of
MrI. Cabral Barreto, President,
MrG. Ress,
MrL. Caflisch,
MrR. Türmen,
MrB. Zupančič,
MrsH.S. Greve,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 12 January 1998 and registered on 11 February 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Roland Volkmer, is a German national, who was born in 1941 and lives in Berlin. He was represented before the Court by Mr Meyer-Dulheuer, a lawyer practising in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1966 until 1977, and from 1981 until 1993, the applicant taught German, Latin and, from 1968 onwards civic education (Staatsbürgerkunde) in secondary schools, first in the German Democratic Republic (“the GDR”), and as from 1990 in the Federal Republic of Germany (FRG). From 1970 to 1977 and from 1983 to 1989 he also served as honorary secretary (ehrenamtlicher Parteisekretär) of the East German Socialist Unity Party (Sozialistische Einheitspartei Deutschlands - “the SED”) at his school.
Between 1 March 1977 and 1 August 1981 the applicant, instead of teaching at school, was employed on a full-time basis in the executive committee of the district administration of the SED (hauptamtlicher politischer Mitarbeiter der Kreisleitung der SED).
After the German reunification the applicant became a teacher in the public service of the State of Berlin. Subsequent to the publication of a book containing statements of a former pupil of the applicant, alleging that the latter, in his capacity as SED representative, had asked him to attend a church conference on ecology about which he had later been interrogated by an official of the district council, the applicant was interviewed on this incident by the district councillor for education and culture (Bezirkstadträtin der Abteilung Bildung und Kultur) of Berlin-Friedrichshain on 29 August 1991. The applicant confirmed that he had asked his pupil, a secretary of the SED’s youth organisation (FDJ), to attend the conference, yet without being aware of any conspiratorial context or a later interrogation of the pupil. As a consequence of the interview, the district councillor decided to assign the applicant to another school within Berlin‑Friedrichshain and reserved the right to take further steps.
In a letter to the district councillor, dated 29 September 1991, the applicant stated that the participation of his former pupil in the church conference had occurred on a voluntary basis without any abuse of the teacher-student relationship. The aim of this action had been to confront the pupil with opinions contrary to his own. In any event, he had not been aware of any such purpose as the observation of political opponents.
On 7 April 1992 the applicant signed a new contract with the State of Berlin adjusting the terms of his employment to the new political situation in Germany. On 5 November 1992, the Special Commissioner of the Government for « person-related » documents of the former State Security of the GDR (Sonderbeauftragter der Bundesregierung für die personenbezogenen Unterlagen des ehemaligen DDR-Staatsicherheitsdienstes), acting on a request by the State of Berlin, informed the authorities that the applicant had been registered as contact person since 1970 in files of the Ministry of State Security (Ministerium für Staatssicherheit, “the MSS”). After having signed a declaration of confidentiality, he had been interviewed on five occasions about certain persons by MSS-officials. However, the applicant had not prepared any reports on individuals. In June 1971 the MSS had decided to cease cooperation with the applicant after only a few meetings due to a lack of willingness to cooperate on his part.
On 25 January 1993 the applicant was heard once again by the district council (Bezirksamt) of Berlin-Friedrichshain in order to clarify why, in an official questionnaire handed out to him in January 1991, he had replied “no” to the questions whether he had carried out any activity for the MSS and whether he had signed a declaration to that effect. The applicant stated that his answers had been correct since his contacts with the MSS had led to nothing. Moreover, he had never signed a declaration that he had not worked for the MSS but merely a declaration of confidentiality. An offer by the district council to cancel his contract of employment by means of a friendly settlement was rejected by the applicant.
On 29 January 1993, the applicant was suspended from his teaching functions. After the main staff council for public employees (Hauptpersonalrat) had indicated that it would only accept an “ordinary dismissal” (ordentliche Kündigung) within the delays prescribed by law, the applicant was served with a notice of termination of his employment contract dated 26 May 1993, and taking effect on 1 August 1993. The dismissal was based on Chapter XIX, Topic A, section III, no 1, § 4, of Annex I to the Unification Treaty (see relevant domestic law and practice below). The notice of termination stated as the reason for the dismissal that the public employer could not reasonably be expected to continue the applicant’s employment. Firstly, the applicant had failed to rebut the charge that he had been active for the MSS. Moreover, as a full-time member of the executive committee of the district administration of the SED, and an active supporter of and collaborator with the former East German one-party system, he could not be considered suited to uphold the free democratic constitutional system in front of his pupils. This was also reflected by the fact that he had used at least one pupil for spying on political opponents and
by the lack of awareness of guilt he had shown during the interview of 25 January 1993. Finally, the applicant had failed to indicate his contacts with the MSS in the official questionnaire.
By a judgment of 6 October 1993, the Berlin Labour Court (Arbeitsgericht Berlin) held that the applicant’s employment had not been terminated by the dismissal of 26 May 1993, in the absence of any valid grounds for dismissal. In particular, the applicant could not be considered unsuited to teach German and Latin because of his former functions within the SED. Furthermore, the State of Berlin had forfeited its right to terminate the applicant’s employment after it had continued his employment following the first interview with the applicant in August 1991. The applicant had been justified in denying any activity for the MSS in the official questionnaire because the attempt by the MSS to make him cooperate had remained unsuccessful.
By a judgment of 16 March 1994 the Berlin Higher Labour Court of Berlin (Landesarbeitsgericht Berlin) reversed the judgment of the Labour Court. Although the Court held that the applicant had not cooperated with the MSS, and that his answers in the official questionnaire were correct since the inquiry was not whether he had had contact with the MSS but whether he had carried out activities for it, it found the dismissal to be justified on account of the applicant’s unsuitability to continue teaching. It held that his full-time employment as an SED official from 1977 to 1981 gave rise to doubts whether he was in a position to dispense the values of the German Basic Law (Grundgesetz) to his pupils. Similarly, his honorary function as an SED representative at his school from 1970-1977 and again from 1983-1989 reflected his identification with the political system of the GDR. Moreover, the fact that the applicant had asked one of his pupils, on the orders of the executive committee of the district administration of the SED, to attend a church conference in the knowledge that the pupil would subsequently be interrogated about that conference by the East German authorities, constituted an abuse of the teacher-pupil relationship for the purpose of spying on political opponents. The Court considered this behaviour to be incompatible with the educational aims of freedom of opinion and tolerance. The applicant’s argument that his intention had been to confront the pupil with opinions opposite to his own was, in the Court’s view, a mere excuse. Furthermore, the Court found that the public employer had not forfeited the right to dismiss the applicant after it had assigned him to another school because this measure was in the nature of a first and by no means final reaction to the interview with the applicant held on 29 September 1991. At that time the applicant had been explicitly informed that further steps could be taken against him and he could have expected, according to the practice in similar cases, a further consultation of the Special Commissioner of the Government in the matter. Similarly, the renewal of his contract in April 1992 was to be seen in the general context of readjusting the terms of employment of former public servants of the GDR and thus was without prejudice to the process of reviewing the personal involvement of such State employees with the political system of the GDR.
By a judgment of 16 November 1995 the Federal Labour Court (Bundesarbeitsgericht) held that the termination of the applicant’s employment was effective as of 1 January 1994 and dismissed the remainder of his appeal against the Higher Labour Court’s judgment of 16 March 1994. It found that the applicant lacked the personal aptitude required for public service. Contrary to the case where a teacher had been dismissed for membership of the German Communist Party, which dismissal had been found to be in violation of Article 10 of the Convention (Vogt v. Germany judgment of 26 September 1995, Series A no. 323), here the applicant’s dismissal was not only based on his SED membership and his political beliefs but on his professional and honorary functions within that party, which reflected his especially strong identification with the SED system and indicated his unfitness to uphold the free democratic constitutional system in front of his pupils. Indeed, as party secretary, it was his duty to implement the ideological aims of the SED at school (“die ideologische Umsetzung der Ziele der SED in der Schule”). His unsuitability was also shown by the fact that he had asked a pupil to spy on meetings of ideological opponents.
By a decision of 1 October 1997 the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant’s constitutional complaint against the above judgments.
B. Relevant domestic law and practice
Paragraphs 1 to 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty provide that civil servants of the GDR are integrated into the public service of the FRG by substituting in the existing work relations the Federal authorities and the Länder of the FRG for the authorities of the GDR. As civil servants of the GDR were part of an institution that did not satisfy the criteria of a State governed by the rule of law, special dismissal provisions were inserted in Paragraphs 4 to 6 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the Treaty.
Paragraph 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty accordingly provides :
“Ordinary dismissal from an employment relationship in the public administration is permissible if
1. the employee does not comply with the requirements on account of a lack of professional qualification or personal aptitude (...)”
“Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn
1. der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht (...)”
Paragraph 5 of the same Chapter reads as follows:
“A valid reason for an extraordinary dismissal exists, in particular, if the employee
(...)
2. cooperated with the former Ministry of State Security/Agency for National Security [of the German Democratic Republic]
and if the public employer can therefore not reasonably be expected to continue the employment relationship.”
“Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer
(...)
2. für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war
und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint”.
According to the case-law of the Federal Constitutional Court, a civil servant has a duty to uphold the free democratic constitutional system in everything he does (BverfG, Constitutional Court Decisions, vol. 2, p. 1). In particular, a school teacher is required to instil the fundamental values of the German Basic Law in his pupils and to ensure loyalty to those values in times of crisis as well as in situations of conflict (BVerfG, decision of 22 May 1975 - Ref. no. 2 BvL 13/73 - BverfG, Constitutional Court Decisions, vol. 39, p. 334).
COMPLAINTS
The applicant complained of violations of his rights under Articles 6 § 1, 10 § 1, 11 § 1 and 14 of the Convention.
THE LAW
1. The applicant alleged that his dismissal from the civil service on account of his political activities in the former GDR had infringed his right to freedom of expression secured under Article 10 of the Convention, which is worded as follows :
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government submitted, as their main argument, that the measure in dispute did not constitute an interference, as it concerned the right of access to the civil service, which is not a right guaranteed by the Convention. In order to guarantee the same conditions of access, as provided in Article 33 § 2 of the Basic Law, the legislator had inserted special provisions in Annex I to the Unification Treaty for the civil servants of the GDR in order to permit a control of their professional qualification and their personal aptitude. Even if there had been an interference, the Government submitted that it was prescribed by law and necessary in a democratic society in the interests of national security, for the prevention of disorder and for the protection of the rights of others. As the civil servants of the GDR were integrated into the public service of the FRG, it was necessary to control those who were particularly identified with the GRD-State, namely the 215,000 teachers, who constituted an important pillar of the unjust GDR-Regime, taking into account the fact that they now had a great responsibility in transmitting democratic values to their pupils in the FRG. In practice though, only 2 % of teachers from the former GDR had been dismissed for lack of personal aptitude or collaboration with the MSS. In the present case, there were serious doubts as to the personal aptitude of the applicant : his dismissal had been based not only on his SED membership and his political beliefs but on his professional and honorary functions within that party, which reflected his especially strong identification with the SED system and indicated his unfitness to uphold the free democratic constitutional system in front of his pupils. Indeed, as Secretary of the Party, it had been his duty to implement the ideological aims of the SED at his school. His unsuitability was also shown by the fact that he had asked a pupil to spy on meetings of ideological opponents.
The applicant submitted that there had been an interference by the German authorities with the exercise of his right to freedom of expression, as his dismissal had ended an existing relationship of employment (beendete ein bestehendes Arbeitsverhältnis). He asserted that his dismissal was not justified, as it was not necessary in a democratic society and was disproportionate to the aims pursued. He had been teaching German, Latin, and civic education for more than 20 years, and his professional qualifications had never been contested since the German reunification. He also argued that the decisions of the German Courts were incompatible with the Vogt v. Germany judgment of 26 September 1995, as he considered that the sole reason for his dismissal had also been his former membership of the SED rather than any concrete exercise of improper influence on his pupils. According to the applicant, his professional and honorary functions within the SED had been of a subordinate character; the interrogation of the pupil he had asked to attend the church conference had taken place without his knowledge.
The Court recalls that as a general rule civil servants do not fall outside the scope of the Convention (see the Vogt judgment cited above, Series A no. 323, pp. 22-23, § 43). Accordingly, the applicant’s status of public employee of the applicant did not deprive him of the protection of Article 10.
In the present case the Court notes that the applicant’s dismissal occurred in the general context of scrutiny of the professional qualifications and personal aptitude of the civil servants from the GDR - including teachers - who were integrated into the public service of the FRG after German reunification.
The applicant had been a secondary school teacher since February 1966. After the reunification in 1990 he became a teacher in the public service of the State of Berlin.
He was suspended on 29 January 1993 and dismissed as of 1 August 1993 (the date of termination of his employment was later found to be 31 December 1993 by the Federal Labour Court) for lack of personal aptitude to comply with the duty owed by every civil servant to uphold the free democratic system within the meaning of the Basic Law. According to the authorities, his honorary and professional functions within the SED indicated that he was not in a position to transmit the above-mentioned values to his students.
Taking into account the political context of the GDR, the Court considers that the applicant’s dismissal for lack of personal aptitude was also based on an analysis of his political opinions and activities within the SED.
However, even assuming that the measure in dispute amounted to an interference with exercise of the applicant’s right to freedom of expression, it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain these aims.
As regards the question of legality, the Court reiterates that the level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover, and the number and status of those to whom it is addressed. It is moreover primarily for the national authorities to interpret and apply domestic law (see the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266‑B, pp. 35-36, § 25, and the Vogt judgment cited above, p. 24, § 48).
In the present case, the decisions of the higher German courts were based on Chapter XIX, Topic A, Section III, no.1, § 4, of Annex I to the German Unification Treaty (see Relevant Domestic Law and Practice above), which provides expressly that a civil servant can be dismissed for lack of personal aptitude.
This provision is precise and accessible to everyone, and the applicant had to expect, as a civil servant who had been integrated into the public service of the FRG, to be subject to scrutiny of his professional qualifications and personal aptitude like his colleagues. The interpretation of this provision by the Berlin Higher Labour Court and the Federal Labour Court do not disclose any appearance of arbitrariness. Furthermore, the Federal Constitutional Court had clearly defined the duty of loyalty to the free democratic constitutional system imposed on civil servants, including school teachers.
As regards the aim of the measure in dispute, the Court considers that it pursued a legitimate aim, namely to ensure that holders of public authority who had abused their authority within the political system of the former GDR, and therefore could not be considered suited to uphold the free democratic constitutional system as enshrined in the Basic Law, were henceforth prevented from exercising their authority in an arbitrary manner inimical to the free democratic constitutional system.
The measure in dispute therefore pursued the legitimate aims of prevention of disorder and protection of rights of others.
The Court further notes that it is undisputed that the applicant held the honorary status of SED-representative at his school from 1970 to 1977, and again from 1983 to 1989. From 1 March 1977 until 1 August 1981 he worked on a full-time basis as SED official within the executive committee of the party’s district administration.
It observes that a democratic State is entitled to require civil servants to be loyal to the constitutional principles on which it is founded. In this connection, it takes into account Germany’s experience under the Weimar Republic and during the Nazi regime from 1933 to 1945 (see the Vogt judgment cited above, pp. 28, 59). Similarly, the Court notes Germany’s determination to avoid a repetition of the numerous instances of abuse of public authority which had occurred within the system of the GDR. These circumstances understandably lend special weight to the duty of political loyalty imposed on civil servants which was transferred into the constitutional order of the FRG. This is reflected in the provisions of the Unification Treaty quoted above.
Even so, the Court holds that there are reasons for considering the dismissal of a secondary-school teacher to be a very severe measure. This is so firstly because of the effect that such a measure has on the reputation of the person concerned and secondly because secondary-school teachers dismissed in this way may lose their livelihood. Lastly, secondary-school teachers in this situation may find it impossible to find another job, since teaching posts outside the civil service are scarce in Germany. Consequently, they will almost certainly be deprived of the opportunity to exercise the sole profession for which they have a calling, for which they have been trained and in which they have acquired skills and experience (see the Vogt judgment cited above, p. 29, § 60).
However, in the instant case, the specific circumstances were different from those in the Vogt case. Apart from the fact that the applicant was a fully employed member of the staff of the Socialist Unity Party for 4 years and, for 13 years, the honorary secretary of that party responsible for his school, which means that from 1970 to 1989 he exercised functions on behalf of the SED within the school service, there is one additional important element to be taken into consideration. The major feature distinguishing the present case from the Vogt case is in the fact that the applicant, in his capacity as SED secretary, had asked one of his pupils to attend a conference on ecology organised by church groups, as he admitted himself in the interview with the district councillor for education and culture of Berlin-Friedrichshain on 29 September 1991.
Regarding this aspect, the Court notes that in their judgments of 16 March 1994 and 16 November 1995, the higher German courts not only took into account the applicant’s functions as secretary of the SED but also his personal attitude towards his pupils before concluding that he lacked the personal aptitude required for the public service.
Moreover, the applicant’s argument that he had not been aware of the fact that his pupil was subsequently interrogated about the conference by the district authorities has been dealt with carefully by the Berlin Higher Labour Court in its judgment of 16 March 1994. Likewise, that court’s finding that the applicant had abused the teacher-pupil relationship because he had asked a pupil to attend the conference, not only in his function as SED secretary but also in his capacity as a teacher, as well as the conclusion that the applicant had used his pupil to spy on political opponents, are well reasoned.
As the Court had already stressed in the Vogt case, since teachers are figures of authority to their pupils, the special duties and responsabilities incumbent on them to a certain extent also apply to their activities outside school (see the Vogt judgment cited above, p. 29, § 60). Accordingly, an abuse of this authority gives rise to substantial doubts regarding a teacher’s personal capacity to assume his educational responsibilities.
In the present case, the Court therefore accepts the view of the Berlin Higher Labour Court that the use of a pupil as an instrument to spy on political opponents is incompatible with a teacher’s duty to educate his pupils so as to ensure their respect for the principles of freedom of expression and tolerance for other opinions. Such a view is within the margin of appreciation the Contracting States enjoy within the application of Article 10 § 2 of the Convention.
In the light of all the foregoing and taking into account the specific situation of German reunification, the Court concludes that, in the specific circumstances of the present case, even assuming that the applicant’s dismissal amounted to an interference, it was proportionate to the legitimate aim pursued.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. The applicant also alleged that his dismissal constituted a sanction for the honorary and professional functions he had exercised within the SED. That sanction, according to him, had violated his right to freedom of association under Article 11 of the Convention, which is worded as follows:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
Both the Government and the applicant referred to the arguments they had submitted under Article 10.
The Court reiterates that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10 (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, the Ezelin v. France judgment of 26 April 1991, Series A no. 202, p. 20, § 37, and the
Vogt judgment cited above, p. 30, § 64). The protection of personal opinions, secured by Article 10, is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.
With reference to the principles set forth in respect of Article 10 (see above), the applicant, as a public employee, was also entitled to the protection of Article 11.
The applicant was dismissed from his post as secondary-school teacher because he was considered personally unsuitable for upholding the free democratic constitutional system in front of his pupils. The applicant’s lack of suitability had been partly inferred from his strong identification with the political system of the GDR, which, according to the German courts, was largely reflected by his long-standing honorary and full-time functions within the SED. Thus, the German courts considered the functions which he had exercised within the SED to be incompatible with the duty of loyalty owed by school teachers as civil servants towards the constitution of the FRG.
In this connection, the Court notes that the notion of “administration of the State” should be interpreted narrowly, in the light of the post held by the official concerned. However, regardless of the question of whether school teachers are to be regarded as being part of the “administration of the State” for the purposes of Article 11 § 2 - a question which the Court does not consider necessary to determine in the instant case -, the applicant’s dismissal was, for the reasons previously given in relation to Article 10, and assuming that it amounted to an interference, proportionate to the legitimate aim pursued (see a contrario the Vogt judgment cited above, p. 31, § 68).
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3. The applicant also complained of a violation of Article 14 of the Convention in conjunction with Articles 6, 10 and 11 of the Convention. Article 14 is worded as follows :
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
In the light of its reasoning under Article 10 and 11, the Court considers that no separate question arises under Article 14.
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
4. Lastly, the applicant alleged that the proceedings before the German Courts had infringed his right to a fair trial as guaranteed under Article 6 § 1 of the Convention, the relevant part of which is worded as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government submitted that Article 6 did not apply in the present case as the entire school system in Germany was under the supervision of the State and the applicant’s post as a secondary-school teacher entailed direct participation in the exercise of powers conferred by public law and designed to safeguard the general interest of the State. Even if Article 6 was applicable, the German courts had taken into consideration all the arguments submitted by the applicant.
The applicant asserted that Article 6 was applicable and that the Federal Labour Court had ignored his argument that he had not exercised any powers of decision in his function as SED district official from 1977 to 1981. Furthermore, that court’s finding that he had incited one of his pupils to spy at meetings of political opponents was arbitrary because he had not been aware of the fact that his pupil would subsequently be interrogated. The applicant also challenged the German courts’ finding that the State of Berlin had not forfeited the right to dismiss him.
The Court recalls that the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police. In order to determine the applicability of Article 6 § 1 to civil servants, the Court therefore has to ascertain, in each case, whether the applicant’s post entails – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In so doing, the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its communication of 18 March 1988 and by the Court of Justice of the European Communities (see Pellegrin v. France [GC], n° 28541/95, § 66, ECHR 1999-VIII).
In that connection, the Court notes that secondary-school teachers belong to a category of post which does not fall under the exceptions mentioned above. Accordingly, Article 6 § 1 applies to the proceedings at issue.
The Court further recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and the Garcia Ruiz v. Spain judgment of 21 January 1999, Reports of Judgments and Decisions 1999-I, § 28). Lastly, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see the above mentioned Garcia Ruiz judgment, § 26).
In the present case, the Court notes that the applicant had an opportunity to contest the decision of the authorities before the German courts in adversarial proceedings and to submit all the arguments he considered relevant to his case. Moreover, the German Courts carefully stated the reasons why the applicant lacked the personal aptitude required for a secondary teacher in the public service. Finally, the decisions of the German courts do not disclose any appearance of arbitrariness or omission with respect to the applicant’s arguments.
In conclusion, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of Article 6 § 1 of the Convention.
It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Vincent Berger Ireneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy