Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17851/91

Dorothea Vogt

against

Germany

REPORT OF THE COMMISSION

(adopted on 30 November 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 15) . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5 - 10). . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11 - 15) . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 44). . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16 - 40) . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 41 - 44) . . . . . . . . . . . . . . .9

III. OPINION OF THE COMMISSION

(paras. 45 - 97) . . . . . . . . . . . . . . . . 13

A. Complaints declared admissible

(para. 45) . . . . . . . . . . . . . . . . . 13

B. Points at issue

(para. 46) . . . . . . . . . . . . . . . . . 13

C. Article 10 of the Convention

(paras. 47 - 83) . . . . . . . . . . . . . . 13

CONCLUSION

(para. 83) . . . . . . . . . . . . . . . . . 19

D. Article 11 of the Convention

(paras. 84 - 90) . . . . . . . . . . . . . . 19

CONCLUSION

(para. 90) . . . . . . . . . . . . . . . . . 20

E. Article 14 of the Convention

(paras. 91 - 94) . . . . . . . . . . . . . . 20

CONCLUSION

(para. 94) . . . . . . . . . . . . . . . . . 20

F. Recapitulation

(paras. 95 - 97) . . . . . . . . . . . . . . 21

DISSENTING OPINION OF MR. J.-C. SOYER . . . . . . . . . . . 22

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 23

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . 24

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a German citizen, born in 1949 and living in

Jever. She is a teacher by profession. She is represented before the

Commission by Mr. P. Becker, a lawyer practising in Marburg,

Mr. O. Jäckel, a lawyer practising in Wiesbaden, and Mr. K. Dammann,

a lawyer practising in Hamburg.

3. The application is directed against Germany. The Government are

represented by their agent, Mr. J. Meyer-Ladewig, Ministerialdirigent,

Federal Ministry of Justice.

4. The case relates to the applicant's dismissal from the civil

service on account of her political activities as a member of the

German Communist Party (Deutsche Kommunistische Partei - DKP). The

applicant invokes Articles 10, 11 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 13 February 1991 and registered

on 27 February 1991. After a preliminary examination of the case by

the Rapporteur, the Commission considered the admissibility on

7 October 1991. It decided to give notice of the application to the

Respondent Government and to invite the parties to submit written

observations on admissibility and merits.

6. The Government submitted their observations on 30 January 1992.

The applicant replied on 2 May 1992.

7. On 19 October 1992 the Commission declared the application

admissible and further decided, in accordance with Rule 50 (b) of the

Rules of Procedure, to obtain the parties' oral submissions on the

merits of the case.

8. On 18 November 1992 the text of the Commission's decision on

admissibility was sent to the parties.

9. On 11 February 1993 a hearing was held in Strasbourg. The

Government were represented by Mr. J. Meyer-Ladewig, agent, and by

Mrs. E. Chwolik-Lanfermann, Appellate Court judge, Federal Ministry of

Justice, and Mr. S. Mehrens, Ministerialrat, Ministry for Culture of

Lower Saxony, as advisers.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the parties' disposal with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes in Plenary Session, the following members being

present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

C.L. ROZAKIS

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

12. The text of this Report was adopted on 30 November 1993 and is

now transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts;

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In 1976 the applicant was admitted to the preparatory service for

teachers (Vorbereitungsdienst) and worked as a trainee in Hesse. In

June 1977 she passed the second state examination for teachers and on

1 August 1977 she was admitted for a probationary period to a teacher's

post (Studienrätin) in the Lower Saxony state school service in Jever.

On 1 February 1979 the applicant was appointed as a permanent civil

servant with tenure for life (Beamtin auf Lebenzeit). She is a teacher

of the German and French languages. A report established in March 1981

assessing her professional qualifications described both her

qualifications and her performance as fully satisfactory.

17. The applicant states that, prior to her appointment for life, she

had joined the German Communist Party (Deutsche Kommunistische Partei -

DKP). It is not contested that, at the relevant time, it was the aim

of the DKP to overthrow the social structure and the constitutional

order of the Federal Republic of Germany and to establish a political

system like that in the former German Democratic Republic (GDR). The

leading position of the former Socialist Party (SED) of the GDR was

referred to in the Mannheim programme of the DKP of 21 October 1978 in

the following terms:

"under the guidance of the SED the workers, farmers and all

other citizens of the GDR will develop a socialist society

and strengthen on German soil the real socialism which is

the basic alternative to the capitalist order of

exploitation".

18. Following preliminary disciplinary investigations formal

disciplinary proceedings were instituted against the applicant on

13 July 1982 on the ground that as a civil servant she had violated her

obligation of political loyalty through her diverse political

activities including her candidature for the DKP in the 1982 Diet

(Landtag) elections of Lower Saxony. On 22 November 1983 an indictment

was filed in the disciplinary proceedings listing 11 public political

activities for the DKP, such as distributing information pamphlets,

representing the DKP in public discussions, being a leading DKP

official in a certain district and having stood as a DKP candidate for

the Federal elections of 6 March 1983.

19. On 15 July 1985 the proceedings were adjourned in order to extend

the investigations to further political activities which in the

meantime had come to light.

20. On 2 December 1986 a supplementary indictment was filed according

to which the applicant had further violated her obligations as a civil

servant by: -

a. having been a candidate for the DKP in the Diet elections

on 15 June 1986;

b. still being member of the executive council of the DKP's

regional organisation in Bremen-Lower Saxony;

c. still being the chairman in the DKP's local representation

in Wilhelmshaven-Friesland;

d. having participated as a delegate at the DKP's convention

held from 2-4 May 1986 in Hamburg.

21. On 12 August 1986 the applicant was provisionally dismissed from

service. As from October 1986, 40 per cent of her salary

(Dienstbezüge) was withheld.

22. On 16 October 1987 the disciplinary chamber of the Oldenburg

Administrative Court (Verwaltungsgericht) decided that the applicant

had violated her duty of political loyalty, due under Section 61 (2)

of the Lower Saxony Civil Service Act (Niedersächsisches

Beamtengesetz), and imposed the disciplinary sanction of dismissal.

The court granted the applicant payment of 75 per cent of the pension

rights acquired at the relevant time for a period of 6 months.

23. The disciplinary court considered that the applicant had

seriously violated her duty of political loyalty in that she was an

active member of the DKP which pursued aims that were contrary to the

constitution of the Federal Republic of Germany. This finding was not

dependent on a prohibition of the DKP by the Federal Constitutional

Court (Bundesverfassungsgericht). The anti-constitutional aims of the

DKP followed from its Mannheim programme. By her activities as a DKP

member the applicant had obviously supported the DKP's anti-

constitutional aims.

24. The court further observed that the principle of political

loyalty restricted the constitutional rights of civil servants.

However, this restriction or limitation was compatible with the German

constitution and also with international treaties.

25. As to the subjective aspect of the charges, the court referred

to a judgment of 24 June 1985 from which it followed that membership

in the DKP was incompatible with the civil servants' duty to observe

political loyalty; this judgment had been published in an official

publication and had also been communicated to the applicant personally.

Consequently, the applicant knew, at least from that day onwards, that

by being an active member of the DKP she violated this duty. As she

had manifested her intention to pursue her political activities, she

had definitely destroyed the relationship of mutual trust and

confidence. Therefore she had to be dismissed in spite of the fact

that she had rendered for many years her services without giving rise

to objections, that her teaching qualifications were uncontested and

that both parents and pupils appreciated her.

26. The applicant lodged an appeal (Berufung) which was rejected on

31 October 1989 by the Disciplinary Court of Lower Saxony

(Niedersächsischer Disziplinarhof).

27. The appellate court agreed with the lower court that although the

DKP had not been declared anti-constitutional by the Federal

Constitutional Court this did not prevent other courts from finding

that the aims of the DKP were inimical to the democratic constitutional

order. Referring to an analysis of the Mannheim programme by Mies and

Garns published under the title "Direction and Aim of the DKP" ("Weg

und Ziel der DKP"), 2nd edition 1981, the appellate court found that

the policies of Marx and Lenin were still the guidelines for the DKP

and its aim was the establishment of situations similar to those

prevailing in Communist states around 1980.

28. The appellate court considered that Article 48 (2) of the Basic

Law (Grundgesetz) and the corresponding constitutional provisions of

Lower Saxony protecting the political activities of parliamentarians

and of candidates for parliament were not incompatible with the demands

flowing from civil servants' duty of political loyalty. This principle

also lawfully limited civil servants' freedom of expression.

29. By standing as a candidate in the elections of the "Land"

Parliament and by accepting executive functions for the DKP, at both

district and regional level, the applicant had breached her duty

towards her employer, deriving from Section 61 (2) of the Lower Saxony

Civil Service Act (Beamtengesetz) to show through all her actions her

support for, and observance of, the free democratic basic order within

the meaning of the Basic Law. This duty related to both the actions

of a civil servant in the performance of his/her duties and those

engaged while not on duty. By actively engaging in work for the DKP,

a civil servant gave strong support to its anti-constitutional

objectives, thus breaching to a considerable extent his/her duty of

political loyalty. By assuming party functions and standing as a

candidate the applicant declared to others, while demonstrating at the

same time that she was a civil servant, that she was a spokeswoman for

the DKP and solicited support for its policies. The mere fact of a

civil servant taking on party functions and standing as a candidate in

elections for a party with anti-constitutional objectives, giving

active support to that party publicly, meant that he/she acted contrary

to his/her duty of political loyalty. References were made in this

context to the jurisprudence of the Federal Constitutional Court

(Bundesverfassungsgericht).

Thus, by her actions the applicant had identified herself with

the anti-constitutional objectives of the DKP. Anyone who as a civil

servant supported a party with anti-constitutional objectives had

himself/herself to be treated as an enemy, even if he/she asserted to

be personally upholding the Basic Law. Declarations in support of two

opposites were irreconcilable. A declaration in support of a

totalitarian party was tantamount to identifying with its objectives.

A declaration made at the same time in support of the free democratic

basic order lacked credibility.

30. It was true that the DKP pursued not only political objectives

which conflicted with the constitutional order but also objectives

which were compatible with the Basic Law. However, a civil servant

ought not to realise his/her political aims by making use of a party

which inter alia pursued anti-constitutional objectives and attempt to

bring it to power. In this respect, the appellate court relied on the

following passages of an earlier decision of the Federal Administrative

Court (Bundesverwaltungsgericht):

"One may, it is true, agree with the Federal Disciplinary Court

(Bundesdisziplinarhof) that the civil servant does not wish to

change the system of government of the Federal Republic of

Germany by violent means and that this declaration can not merely

be judged to be "lip-service". The civil servant may also be

believed when he says that he is mainly concerned with

compensating for what he feels to be a discrepancy between the

principles laid down in the constitution and constitutional

reality in the Federal Republic of Germany and that he is

profoundly sincere in his idea of a society in which there is

more justice, especially in the economic sphere. However, this

does not permit him to see in the DKP, contrary to the view held

by the Federal Disciplinary Court, a political grouping in which

he believes he can carry through his idea of optimum political

order. It appears to be doubtful whether this perception of the

constitution which the civil servant voices here is indeed the

way the Basic Law is intended to be understood. This question

does not need to be answered here. In its judgment concerning

its ban on the former Communist Party (KPD), the Federal

Constitutional Court (Decisions of the Federal Constitutional

Court - BVerfGE 5, 85) declared to be incompatible with the free

democratic basic order not only the "fighting methods" of the

then KPD but also the stages to be passed through in order to

achieve the final aim of "the rule of socialism", namely the

proletarian revolution (by peaceful or violent means) and the

rule of the working class. It also argued that a person's

intensive propaganda and agitation for a political order which

he seeks to bring about - albeit not in the foreseeable future -

and which simply conflicts with the free democratic basic order,

must be directly detrimental to the basic order now. The Federal

Constitutional Court thus quite clearly also declared

incompatible with the free democratic basic order the transition

stages of unlimited duration which the party is steering towards

by means of intensive propaganda and agitation (BVerfGE 47, 365

et seq., at 374). Therefore, in contrast to the view of the

Federal Disciplinary Court, the civil servant's declaration that

he did not wish to change the political system in the Federal

Republic of Germany by violent means, declaration which,

incidentally, accords with many statements made by this party,

is of no legal significance (BVerfGE 76, 157)."

31. As regards the applicant, the appellate court considered that in

view of her top-level positions in the DKP she necessarily identified

herself with its objectives which were incompatible with the

constitution. She fully adopted the DKP's aims at least in public.

Her actions had therefore to be seen as the expression of her own anti-

constitutional attitudes. The mere fact that a civil servant is

supporting a party in public whose aims conflict with the constitution

meant that he/she acts contrary to his/her duty of political loyalty,

it being unimportant whether he/she profoundly approved of the party's

aim in its entirety or only partly. Moreover, during the investigation

proceedings the applicant had declared her unqualified support for the

aims of the DKP as laid out in the Mannheim programme.

32. The appellate court further agreed with the lower court that the

applicant had violated her professional duties intentionally. Since

the decision of the Federal Constitutional Court of 22 May 1975

(BVerfGE 39, 334) was published, no civil servant could any longer

believe that political activities in an anti-democratic political party

were unobjectionable as long as the party was not banned by the Federal

Constitutional Court. The applicant had been informed by her superiors

about this jurisprudence and had been given warnings. Nevertheless she

had continued with her activities for the DKP with unabated enthusiasm

and even increased her activities. Consequently, she deliberately took

the risk of being in breach of her duties. Finally, as far as the

sanction was concerned, the appellate court again referred to the

Federal Administrative Court and its own jurisprudence according to

which a civil servant had to be dismissed from service if he

persistently breached his/her duty of political loyalty and showed that

in this respect he/she would not listen to reason. Such a civil

servant could not be tolerated by the state, which must be able to rely

on the loyalty to the constitution of its civil servants.

33. This breach of duty was especially serious in the applicant's

case as in her role as a teacher she was supposed to teach the children

confided to her the fundamental values of the constitution. If a

teacher had no positive relationship with the free democratic basic

order within the meaning of the Basic Law, he/she could not provide the

children with the knowledge and the conviction that the current

democratic order was an asset worth defending. Moreover, there was the

danger that such a teacher would influence the pupils in such a way

that they adopt his/her own views which conflict with the basic

principles of the constitution. Experience had shown that pupils can

do little to counter such influence. Parents, who must place their

children in the care of the state schools because school attendance is

compulsory, have the right to expect the state only to appoint or to

retain in school service those teachers who affirm without reservation

the free democratic order and impress it upon their pupils in their

teaching. Therefore the state could not tolerate teachers who openly

engaged in activities for an anti-constitutional organisation.

34. In assessing the seriousness of the disciplinary offence and the

sentence it required, a possible fundamental change in the applicant's

attitude would have to be taken into account. Renewed trust might be

placed in her if she distanced herself from the unconstitutional

activities she had engaged in formerly and dissociated herself from the

party which pursued such objectives. This presupposed that at the time

the court gave its decision the applicant offered a guarantee that she

would in future fulfil her duty of political loyalty.

35. However, the appellate court was not satisfied that the applicant

would in future offer the guarantee that she would support at all times

the free democratic order. Although it had been pointed out several

times to her during the disciplinary proceedings, which had lasted a

number of years, that her commitment to the DKP was incompatible with

her duty as a civil servant, she did not restrict her activities but

even extended them. Still at the last oral hearing before the

appellate court she had supported the DKP's objectives and reaffirmed

her intention to continue to play an active role in the party.

36. The fact that the applicant supported the "new cause" within the

DKP and welcomed the changes in the Soviet Union, East Germany and

Eastern Europe did not lessen the gravity of her disciplinary offence.

As long as the DKP pursued, as it did, anti-constitutional objectives

civil servants were not allowed to play a role in its work. They had

to distance themselves from such a party.

37. As the highest courts had stressed in their decisions again and

again, a serious disciplinary offence destroying the relationship of

trust between a civil servant and his employer had also been committed

when the civil servant made use of an anti-constitutional party in

order to realise aims which are in conformity with the constitution and

are as such to be welcomed, for example the maintenance of peace,

democratisation, the creation of social justice, the fight against

fascism etc. A declaration of the intention to pursue only such aims

could not preserve from the harshest disciplinary sanction possible.

Only where a civil servant convincingly changed his attitude and

clearly turned away from a party which was - still - anti-

constitutional could a disciplinary sanction be avoided. The applicant

however had not given any signs of a change in her views. In these

circumstances any less severe disciplinary measure which aimed at

persuading the applicant to give up her commitment to the DKP would

serve no purpose. The applicant's attitude rendered it impossible to

tolerate her as a civil servant and made her dismissal necessary. Her

otherwise irreproachable behaviour in fulfilling her duties as a

teacher could not alter this in any way because the basis of trust

necessary for the continuation of her employment as a civil servant was

lacking.

38. The applicant then lodged a constitutional complaint which was

rejected by a panel of three judges of the Federal Constitutional Court

on 7 August 1990 (served on 14 August 1990) as offering no prospects

of success. With regard to the right to freedom of expression as

guaranteed by Article 5 of the Basic Law, the Constitutional Court

stated that political loyalty was a traditional principle of the civil

service. It required that a civil servant always distance

himself/herself from groups and endeavours that fight against, combat

and defame the state, its constitutional organs and constitutional

order. Dismissal of a civil servant for violation of the principle of

loyalty required that the disciplinary court was convinced he/she no

longer offered the guarantee that he/she would at any time support and

advocate the free democratic order. The findings of the disciplinary

courts in this respect were unobjectionable and in no way arbitrary.

The applicant had already at a hearing of 9 March 1983 declared that

"there are no items, passages, paragraphs in the DKP programme which

I do not accept". Regardless of the resolution in Article 21 (2) 2nd

sentence of the Basic Law (see below para. 41) the disciplinary courts

were free to decide themselves that the DKP and its aims were inimical

to the constitution. Undoubtedly the applicant had done more than

simply paying lip service to her political conviction. In view of her

stubbornness (Belehrungsunwilligkeit) the disciplinary courts had

correctly assumed that the necessary basis of trust

(Vertrauensgrundlage) had been destroyed.

39. From 1987 to 1991 the applicant worked as artistic director and

theatre educationalist at the North Lower Saxony "Landesbühne" in

Wilhelmshaven.

40. With effect from 1 February 1991 the applicant was reemployed as

a teacher (Studienrat) in the school education service of the Land of

Lower Saxony. Prior to this, the so-called "Radikalenerlaß" had been

abolished in Lower Saxony and was followed by regulations passed by the

Land Government applying to so-called "old cases" (cf. para. 44 below).

B. Relevant domestic law and practice

41. Basic Law (Grundgesetz)

Article 5

(German)

"(1) Jeder hat das Recht, seine Meinung in Wort, Schrift

und Bild frei zu äußern und zu verbreiten und sich aus

allgemein zugänglichen Quellen ungehindert zu unterrichten.

Die Pressefreiheit und die Freiheit der Berichterstattung

durch Rundfunk und Film werden gewährleistet. Eine Zensur

findet nicht statt.

(2) Diese Rechte finden ihre Schranken in den Vorschriften

der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum

Schutze der Jugend und in dem Recht der persönlichen Ehre.

(3) Kunst und Wissenschaft, Forschung und Lehre sind frei.

Die Freiheit der Lehre entbindet nicht von der Treue zur

Verfassung."

(Translation)

"(1) Everyone shall have the right freely to express and

disseminate his opinion by speech, writing and pictures and

freely to inform himself from generally accessible sources.

Freedom of the press and freedom of reporting by means of

broadcasts and films are guaranteed. There shall be no

censorship.

(2) These rights are limited by the provisions of the

general laws, the provisions of law for the protection of

youth, and by the right to inviolability of personal

honour.

(3) Art and science, research and teaching, shall be free.

Freedom of teaching shall not absolve from loyalty to the

constitution."

Article 21

(German)

"(1) Die Parteien wirken bei der politischen Willensbildung

des Volkes mit. Ihre Gründung ist frei. Ihre innere

Ordnung muß demokratischen Grundsätzen entsprechen. Sie

müssen über die Herkunft ihrer Mittel öffentlich

Rechenschaft geben.

(2) Parteien, die nach ihren Zielen oder nach dem

Verhalten ihrer Anhänger darauf ausgehen, die freiheitliche

demokratische Grundordnung zu beeinträchtigen oder zu

beseitigen oder den Bestand der Bundesrepublik Deutschland

zu gefährden, sind verfassungswidrig. Über die Frage der

Verfassungswidrigkeit entscheidet das Bundesverfassungs-

gericht.

(3) Das Nähere regeln Bundesgesetze."

(Translation)

"(1) The political parties shall participate in the forming

of the political will of the people. They may be freely

established. Their internal organization must conform to

democratic principles. They must publicly account for the

sources of their funds.

(2) Parties which, by reason of their aims or the

behaviour of their adherents, seek to impair or abolish the

free democratic basic order or to endanger the existence of

the Federal Republic of Germany, shall be unconstitutional.

The Federal Constitutional Court shall decide on the

question of unconstitutionality.

(3) Details shall be regulated by federal laws."

Article 33 para. 5

(German)

"Das Recht des öffentlichen Dienstes ist unter

Berücksichtigung der hergebrachten Grundsätze des

Berufsbeamtentums zu regeln."

(Translation)

"The law of the public service shall be regulated with due

regard to the traditional principles of the professional

civil service."

Article 48 para. 2

(German)

"Niemand darf gehindert werden, das Amt eines Abgeordneten

zu übernehmen und auszuüben. Eine Kündigung oder Entlassung

aus diesem Grunde is unzulässig."

(Translation)

"No one may be prevented from accepting and exercising the

office of deputy. No one may be given notice of dismissal

nor dismissed from employment on this ground."

42. Niedersächsisches Beamtengesetz (Civil Service Act of Lower

Saxony):

Section 61 para. 2 :

(German)

"Der Beamte muß sich durch sein gesamtes Verhalten zu der

freiheitlich demokratischen Grundordnung im Sinne des

Grundgesetzes bekennen und für deren Einhaltung eintreten."

(Translation)

"The civil servant shall, through his conduct as a whole,

acknowledge and uphold observance of the free democratic

basic order within the meaning of the Basic Law."

43. Niedersächsische Disziplinarordnung (Disciplinary Code of Lower

Saxony):

Section 2 para. 1:

(German)

"Nach diesem Gesetz kann verfolgt werden

1. ein Beamter wegen eines während seines

Beamtenverhältnisses begangenen Dienstvergehens..."

(Translation)

"Under this Act may be prosecuted

1. a civil servant who has committed a disciplinary

offence during the course of his civil service

relationship..."

Section 5 para. 1:

(German)

"Disziplinarmaßnahmen sind:...

Entfernung aus dem Dienst...."

(Translation)

"Disciplinary measures are: ....

dismissal from service.........."

Section 11 para. 1:

(German)

"Die Entfernung aus dem Dienst bewirkt auch den Verlust des

Anspruches auf Bezüge und Versorgung..."

(Translation)

"Dismissal from service shall also entail the loss of

remuneration and pension rights......"

44. Decree on the employment of extremists in the civil service

("Radikalenerlaß")

On 28 January 1972 the Federal Chancellor and the Laender

heads of government agreed in the so-called "Radikalenerlaß" (Bulletin

No. 15 of 3 February 1972, p. 142) that the membership of public

service staff in parties or organisations opposed to the constitutional

order would, as a rule, lead to a conflict of loyalty. On the basis

of this agreement several sets of regulations were issued in Lower

Saxony - in particular the Land Government's decision, dated

10 July 1972, concerning "political activity of candidates and members

of the public service directed against the free democratic basic

order".

In 1990 the Social Democratic Party and the "Greens" agreed to

abolish the "Radikalenerlaß" in their coalition agreement on the

formation of a new Land Government in Lower Saxony. This was done in

a decision rendered by the Lower Saxony Land Ministry.

In another decision rendered on 28 August 1990 this Ministry

issued regulations on the treatment of so-called "old cases", i.e.

those cases where the persons concerned had been dismissed from the

civil service because of their political activity or where they were

not recruited as civil servants. This decision made it possible for

a new civil service relationship to be established for the group of

civil servants that had been dismissed from the service in disciplinary

proceedings provided that the recruitment and aptitude requirements

were fulfilled. Renewed recruitment was not linked with any back

payments or compensation payments.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

45. The Commission has declared admissible the applicant's complaints

that her dismissal from the Lower Saxony civil service, on account of

her political activities in the DKP, violated her rights to freedom of

expression and association and discriminated against her in respect of

these rights.

B. Points at issue

46. Accordingly, the points at issue are;

- whether there has been a violation of Article 10 (Art. 10)

of the Convention;

- whether there has been a violation of Article 11 (Art. 11)

of the Convention; and

- whether there has been a violation of Article 14 of the

Convention, read in conjunction with Article 10 and/or Article 11

(Art. 14+10, 14+11) of the Convention.

C. Article 10 (Art. 10) of the Convention

47. Article 10 (Art. 10) of the Convention provides;

"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 or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

1. Interference

48. The applicant submits that her dismissal from civil service, on

account of her political activities in the DKP, interfered with her

freedom of expression as guaranteed by Article 10 (Art. 10) of the

Convention. The Government do not contest that there has been such an

interference.

49. The Commission recalls that, at the time of her dismissal, the

applicant was a permanent civil servant with tenure for life (cf.

paras. 16 and 22 above). It considers that the present case must

therefore be distinguished from the cases of Glasenapp and Kosiek,

which concerned dismissals of probationary civil servants (see Eur.

Court H.R., Glasenapp judgment of 28 August 1986, Series A no. 104,

p. 9, para. 12 and p. 14, para. 24; Kosiek judgment of 28 August 1986,

Series A, no. 105, p. 11, paras. 15 and 17). In those cases the Court,

holding "that access to civil service lies at the heart of the issue",

found no interference with the exercise of the freedom of expression

protected by Article 10 (Art. 10) (Glasenapp judgment loc. cit. p. 27,

para. 53; Kosiek judgment loc. cit. p. 21, para. 39).

The Commission does not consider that in the present case,

concerning the dismissal of a permanent civil servant, "access to civil

service lies at the heart of the matter". It finds, with the parties,

that the dismissal of the present applicant, on account of her

political activities in the DKP, interfered with the exercise of her

freedom of expression.

2. Justification under Article 10 para. 2 (Art. 10-2)

of the Convention.

50. The above interference contravenes the Convention if it does not

satisfy the requirements of para. 2 of Article 10 (Art. 10-2). It

therefore falls to be determined whether, at the relevant time, the

interference was "prescribed by law", had an aim or aims legitimate

under Article 10 para. 2 (Art. 10-2) and was "necessary in a democratic

society" for the aforesaid aim or aims.

a. "Prescribed by law"

51. The applicant submits that her dismissal is the consequence of

the "Radikalenerlaß" (cf. para. 44 above), which provided that civil

servants who were members of organisations inimical to the constitution

should be dismissed. The term inimical to the constitution cannot be

found in the Basic Law. The Basic Law only speaks of "unconstitutional

parties" and the unconstitutionality has to be established by the

Federal Constitutional Court. The determination of the question of

whether or not membership in a political party is compatible with the

duties of a civil servant thus amounts to a political assessment which

is not covered by the legislation governing the status of civil

servants.

52. The Government point out that the principle of political loyalty

which has to be observed by civil servants clearly follows from Section

61 para. 2 of the Civil Service Act applicable in the applicant's case

and the sanction imposed on her was provided for in the applicable

disciplinary law (cf. paras. 42 and 43 above).

53. The Commission, recalling its findings in the cases of Glasenapp

and Kosiek concerning analogous provisions (Glasenapp v. Germany, Comm.

Report 11.5.84, Eur. Court H.R., Series A no. 104, pp. 41-42,

paras. 79-84; Kosiek v. Germany, Comm. Report 11.5.84, Eur. Court H.R.,

Series A no. 105, pp. 34-35, paras. 72-77), finds in the present case

that the text of the relevant provisions and in particular the norm

requiring allegiance to the constitution were readily accessible and

that the duty of political loyalty was formulated with sufficient

precision to allow the applicant to regulate her conduct accordingly

and to foresee the consequences which her political activity might

entail. It further notes that the applicant had repeatedly been warned

about the consequences of her being a member of the DKP (see para. 32

above).

54. The Commission finds that, in these circumstances, the

restrictions in question were sufficiently accessible, foreseeable and

certain to be "prescribed by law" within the meaning of Article 10

para. 2 (Art. 10-2).

b. Legitimate aim

55. The applicant has made no submissions on this issue.

56. The Government submit that the restrictions applied were intended

to protect national security and to prevent disorder.

57. The Commission recalls that restrictions must pursue one of the

specific aims mentioned in Article 10 para. 2 (Art. 10-2). The

requirement at issue in the present case that civil servants must

observe political loyalty in respect of the constitutional order and

the concept of the pluralist democracy enshrined in the Basic Law, is

based on the idea that the civil service to some extent represents the

constitutional system. It also takes account of the risk that the

civil service as a powerful structure lends itself to undermining the

constitution if its members are actively antagonistic to it.

58. The Commission further recalls that the defence of democracy is

one of the main justifications of restrictions "in the interests of

national security", (cf. the Glasenapp and Kosiek Reports, loc. cit.

p. 43, paras. 85-89, and pp. 35-36, paras. 78-82). Legislation

requiring civil servants to show a generally positive attitude towards

the basic democratic values anchored in the constitution can therefore

be regarded as pursuing the legitimate aim of national security. In

this context the Commission also bears in mind the German historical

experience with the National Socialist State (cf. Glasenapp Report,

loc. cit. p.45, para. 96). The Commission does not feel called upon

to examine whether the prevention of disorder constituted a further

legitimate aim in the present case.

c. Necessity

59. The Commission is finally called upon to examine whether the

applicant's dismissal from civil service being a restriction on her

freedom to hold an opinion could be regarded as being "necessary in a

democratic society" in the interests of national security, i.e.,

whether it corresponded to a "pressing social need". The level of this

requirement is not as high as a measure which is "indispensable", but

exceeds that which is merely "useful", "reasonable" or "desirable" (cf.

The Sunday Times judgment of 26 April 1979, Series A no. 30, p. 36,

para. 59).

60. According to the same judgment (ibid.) the initial responsibility

for evaluating the necessity of a given interference falls upon the

domestic authorities who enjoy a "margin of appreciation". The review

of the necessity by the Convention organs nevertheless covers "not only

the basic legislation but also the decision applying it, even one given

by an independent Court". The scope of the domestic "margin of

appreciation" varies depending upon the aim which is being protected

under Article 10 para. 2 (Art. 10-2) of the Convention. Whereas the

Contracting States may be in a better position than the Convention

organs to give an opinion on such questions as morals, in relation to

the more objective aims identified in Article 10 para. 2 (Art. 10-2),

the domestic discretion is reduced and the scope of review under the

Convention is enhanced.

61. The Commission further recalls that the protection of Article 10

(Art. 10) also extends to "ideas" that are not favourably received or

regarded as inoffensive or as a matter of indifference, but also to

those that offend, shock or disturb; such are the demands of that

pluralism, tolerance and broadmindedness without which there is no

"democratic society" (see, inter alia, Oberschlick judgment of

23 May 1991, Series A no. 204, p. 25, para. 57 with further

references).

62. The Commission notes the reference to "duties and

responsibilities" in Article 10 para. 2 (Art. 10-2). It considers that

this notion must be interpreted in the light of the criterion

"democratic society" in the same provision. Permissible restrictions

of freedom of expression can in the present case only arise where the

necessity flows from the applicant's position as a teacher and member

of the DKP, considered in the context of the Federal Republic of

Germany as one State of a divided nation at the relevant time (cf.

above para. 17 and Glasenapp Report, loc. cit. pp. 45-46, para. 97).

aa. Factors relevant to the applicant's position

63. The Commission has considered:

- the nature of the applicant's post and her conduct in that

post, and

- the applicant's opinions as expressed by her.

i. The applicant's post and her conduct in that post

64. The applicant was appointed for life as a teacher of the German

and French languages after having successfully passed a probationary

period. She was teaching senior classes in a secondary school.

65. The Commission notes that the applicant's appointment was in the

civil service. The restrictions to which she was subject governed her

appointment to such status and are to be distinguished from more

general restrictions upon the public at large.

66. The applicant has not argued that political loyalty cannot be

required from civil servants and the Commission does not find that such

a requirement was a wholly extraneous factor which could not be

expected to flow directly from the functions to which she was

appointed.

67. The applicant states that she was already a member of the DKP

when she became a permanent civil servant, but it has not been alleged

by the Government that she expressed or displayed her political

opinions at the school. In the disciplinary proceedings against her

she was not reproached with having in any way attempted to indoctrinate

her pupils with her political opinions. On the contrary, her

professional qualifications were fully recognised and she was

appreciated both by her pupils and their parents.

ii. The applicant's opinions as expressed by her

68. The applicant was only blamed for her extra-curricular political

activities in the public sphere. It has not been alleged that these

activities were known to her pupils or could easily have become known

to them or that they had any repercussion on her teaching activities.

69. Although the applicant seems to have adhered to a moderate

tendency within the DKP (cf. para. 36 above) she nevertheless

maintained in the disciplinary proceedings against her that she fully

supported the DKP's programme and policies (cf. para. 38 above).

70. It is not contested that, at the relevant time, it was the aim

of the DKP to overthrow the social structure and the constitutional

order of the Federal Republic of Germany and to establish a political

system like that in the former German Democratic Republic (cf. para. 17

above).

bb. Measures applied to the applicant

71. The Commission has recognised in the Glasenapp case (loc. cit.

p. 49, para. 110) that where a Government seeks to achieve the ultimate

protection of the rule of law and the democratic system such aim is

recognised in the Convention itself as Article 17 (Art. 17) gives

precedence to such objectives even over the protection of the specific

rights which the Convention otherwise guarantees. Nevertheless, in

view of the cardinal importance of the protected values in question the

Convention requires a clearly established need for any interference

with the rights it guarantees. This is especially true in the context

of freedom of expression which is the cornerstone of the principles of

democracy and human rights protected by the Convention.

72. The question is therefore whether or not requiring the applicant

to discontinue her political activities as a member of the DKP

corresponded to a pressing social need in this sense. As was already

recognised in the Glasenapp case, an exaggerated test of conformity

with the civil servant's duty of allegiance to the democratic order may

discourage the free expression of diverse opinions, which is expressly

guaranteed by the Convention (loc. cit. p. 49, para. 11).

73. On the other hand it is also to be taken into account that the

applicant as a teacher in a secondary school and in daily contact with

pupils of an impressionable age was subject to special duties and

responsibilities in relation to her opinions and their expression, both

directly at the school and to a lesser degree as a figure of authority

for her pupils, at other times. Her job as a teacher equally imposed

special responsibilities on the authorities responsible for public

education, to ensure the free exchange and development of ideas in the

context of freedom of expression within the school, since excessive

protection from one form of indoctrination may institute an

indoctrination of another kind (Glasenapp case, Comm. Report, loc. cit.

p. 49, para. 112).

cc. Evaluation of the measures applied to the applicant in the

light of these factors

74. The Commission recalls that in a number of member States of the

Council of Europe there is a duty on civil servants to exercise

restraint in their expression of opinion. Nevertheless this duty is

frequently dependent upon the nature of the functions performed by the

civil servant in question.

75. The Commission considers that particular importance must be

attached to the question of whether the applicant's position was such

that a misconduct was likely to have negative effects on the values

enumerated in para. 2 of Article 10 (Art. 10-2) that the States are not

only entitled but called upon to protect.

76. In this context the Commission notes that no breach of duty, such

as the advocacy or indoctrination of an extreme political view, took

place at the school. The applicant was only reproached with her

membership in the DKP and her activities for this party, outside

school.

77. It has not been established in the disciplinary proceedings that

in her capacity as member of the DKP and election candidate the

applicant, while expressing her general support for the programme of

the DKP, ever made any public statement which showed clearly that she

was an enemy of the democratic constitutional order.

78. The Commission is therefore not satisfied that the applicant's

conduct affected state security or public order in a relevant manner,

as, e.g., in a case where a civil servant publicly advocates racial

hatred (cf. Dec. 29.3.93, No. 19459/92).

79. Nor does the Commission detect any other reason creating a

"pressing social need" to dismiss the applicant from her post. The

Commission notes that, following the institution of disciplinary

proceedings against her in July 1982, the applicant was allowed to

continue her professional activities until August 1986 (cf. paras. 18

and 21 above). The Commission also observes that, after her dismissal

in 1987, the applicant worked as artistic director and theatre

educationalist at the North Lower Saxony "Landesbühne" in

Wilhelmshaven.

80. The Commission finally notes that with effect from

1 February 1991 the applicant was reinstated as a teacher and civil

servant. The Government submit that this did not constitute a measure

of reparation but of good will; the applicant was simply given another

chance in the context of a new situation.

81. The Commission observes that, at that time, the general political

situation in Europe had completely changed and the threat of a

communist overthrow had considerably diminished after the collapse of

the totalitarian communist régimes. However, the failure of these

régimes had become apparent long before and the score of communist

parties in free elections in democratic countries had declined or was

even derisory, as in the Federal Republic of Germany.

82. To sum up, the operation of loyalty control in the present case

did not correspond to a "pressing social need" and the applicant's

dismissal, being a disproportionate measure, was not necessary in a

democratic society for any of the purposes referred to in Article 10

para. 2 (Art. 10-2) of the Convention.

CONCLUSION

83. The Commission concludes by 13 votes to 1 that there has been a

violation of Article 10 (Art. 10) of the Convention.

D. Article 11 (Art. 11) of the Convention

84. Article 11 (Art. 11) of the Convention provides:

"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."

1. Interference

85. Freedom of association as guaranteed by Article 11 para. 1

(Art. 11-1) of the Convention includes the right to form and to join

a political party (cf. Eur. Court H.R., Young, James and Webster

judgment of 13 August 1981, Series A no. 44, p. 21, para. 57).

86. The applicant's dismissal from civil service was ordered because

of her refusal to abandon active membership in the DKP. Consequently,

there was interference with her rights under Article 11 para. 1

(Art. 11-1) of the Convention.

2. Justification under Article 11 para. 2 (Art. 11-2) of the

Convention

87. The basic requirements for the justification of measures

restricting rights under Article 11 para. 1 (Art. 11-1) first sentence

are analogous to those governing restrictions under Article 10 para. 2

(Art. 10-2) of the Convention (cf. para. 50 above).

88. The Commission notes the exception, made in the second sentence

of Article 11 para. 2 (Art. 11-2). It considers that the applicant,

as a secondary school teacher, was not a member of "the administration

of the State" within the meaning of this provision. The functions of

the teaching profession do not resemble those of the armed forces and

the police (as to this criterion, cf. No. 11603/85, Dec. 20.1.87,

D.R. 50 p. 228 at p. 239) and in particular do not by definition

involve the exercise of State authority.

89. Noting that pluralism, tolerance and broadmindedness are

hallmarks of a "democratic society" (Young, James and Webster judgment,

loc. cit. p. 25, para. 63), the Commission considers that the measure

taken against the applicant, namely her dismissal from civil service

on account of her active membership in the DKP, was not proportionate

to the legitimate aim pursued. In this connection the Commission again

refers to its findings under Article 10 para. 2 (Art. 10-2) (paras. 59

ff.). It also notes that, while the former Communist Party of Germany

(Kommunistische Partei Deutschlands - KPD) was declared

unconstitutional by the Federal Constitutional Court in 1956 (cf.

No.250/57, Dec. 20.7.57, , Yearbook 1 p. 222), there was no decision

of the Federal Constitutional Court, under Article 21 para. 2 of the

Basic Law (cf. para. 41 above), declaring the DKP unconstitutional.

CONCLUSION

90. The Commission concludes by 13 votes to 1 that there has been a

violation of Article 11 (Art. 11) of the Convention.

E. Article 14 (Art. 14) of the Convention

91. Article 14 (Art. 14) of the Convention provides:

"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."

92. The applicant claims to have been the victim of discrimination

on the ground of her political opinion contrary to Article 14 (Art. 14)

of the Convention.

93. The Commission, having found a violation of Article 10 (Art. 10)

of the Convention (at para. 83 above), does not consider that a

separate issue arises under Article 14 (Art. 14) of the Convention.

CONCLUSION

94. The Commission concludes by 13 votes to 1 that it is not

necessary to examine the application also in relation to Article 14

(Art. 14) of the Convention.

F. Recapitulation

95. The Commission concludes by 13 votes to 1 that there has been a

violation of Article 10 (Art. 10) of the Convention (para. 83).

96. The Commission concludes by 13 votes to 1 that there has been a

violation of Article 11 (Art. 11) of the Convention (para. 90).

97. The Commission concludes by 13 votes to 1 that it is not

necessary to examine the application also in relation to Article 14

(Art. 14) of the Convention (para. 94).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. French)

DISSENTING OPINION OF MR. J.-C. SOYER

Unlike the majority of the Commission, I consider that the

measure taken against the applicant was justified, under both

Article 10 para. 2 and Article 11 para. 2. The reasons for my opinion

are set out below.

1. The declared aim of the DKP was to overthrow the constitutional

order of the Federal Republic and undermine the bases of democracy, and

it was a matter of public knowledge that the applicant was an active

member of the DKP (paras. 17 and 20 of the Article 31 report).

2. Consequently, for the defence of democracy, the measure taken

against the applicant was "useful", "reasonable" and "desirable"; it

therefore satisfied the criteria of necessity set out in the Sunday

Times judgment (para. 59 of the Article 31 report).

3. Accordingly, it is of little importance that the applicant did

not conduct herself as a political activist while actually teaching

(para. 76 of the Article 31 report). A teacher's influence is often

exerted more effectively through the model of her personality, which

sets up an imitative reflex, than through direct indoctrination. This

was, moreover, one of the known techniques of "hidden persuasion", the

basis of agit-prop.

4. Nor is it of any greater importance that at the time when the

disciplinary penalty was imposed the results obtained by communist

parties in elections had already declined considerably (para. 81 of the

Article 31 report), since Marxism, in general, did not supplant

democracy through free elections.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

13 February 1991 Introduction of the application

27 February 1991 Registration of the application

Examination of Admissibility

7 October 1991 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

30 January 1992 Government's observations

2 May 1992 Applicant's observations in reply

19 October 1992 Commission's deliberations and

decision on admissibility

Examination of the merits

11 February 1993 Oral hearing on the merits

30 November 1993 Commission's deliberations on the

merits, final vote and adoption of

the Report

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VOGT v. GERMANY

VOGT v. GERMANY

LEXI