AS TO THE ADMISSIBILITY OF

                      Application No. 23576/94

                      by E. S.

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 23 February 1994

by E. S. against Germany and registered on 4 March 1994 under file

No. 23576/94;

     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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

     The applicant, born in 1937, is a German national and resides in

Ennsdorf.  In the proceedings before the Commission, he is represented

by M. P. Becker, a lawyer practising in Marburg.

     The applicant was a professional soldier in the service of the

Federal Republic of Germany since 1960.  In 1982 he was appointed as

fleet admiral.  Since 1984 he was the Head of the Bergisch Gladbach

Office for Research and Training (Amt für Studien und Übungen) of the

Federal Armed Forces (Bundeswehr).

     On 21 December 1989 the Federal Minister of Defence (Bundes-

minister der Verteidigung) went to see the Federal President

(Bundespräsident) with a view to requesting the applicant's suspension

(Versetzung in den einstweiligen Ruhestand) and explaining the reasons

therefor.  These reasons, listed in a memorandum, concerned the

disciplinary punishment (disziplinare Maßregelung) of the applicant in

view of his critical remarks about the Federal Chancellor

(Bundeskanzler) and the Federal Minister of Defence, contained in a

press communique on a conference of commanding officers of the Federal

Armed Forces of December 1988, as well as his three interviews on

television in November 1989 on military and military policy questions.

     On 12 January 1990 the Federal President suspended the applicant.

The applicant was informed accordingly on 16 January 1990.

     On 15 February 1990 the applicant, assisted by counsel, filed an

action with the Cologne Administrative Court (Verwaltungsgericht)

against his suspension.  He complained that he had not been heard by

the Federal President prior to his suspension, that no reasons were

mentioned in the decision and that, should the decision be based upon

his critical remarks in public, it would amount to a violation of his

right to freedom of expression.

     On 2 July 1990 the Cologne Administrative Court dismissed the

applicant's action.  The Administrative Court, referring to S. 50

para. 1 of the Soldiers Act, found that his suspension was lawful.

     In its decision, the Administrative Court recalled that according

to this provision the Federal President was entitled to suspend, at any

time, professional soldiers from the rank of a brigade commander up.

Referring to the case-law of the Federal Constitutional Court

(Bundesverfassungsgericht) and the Federal Administrative Court

(Bundesverwaltungsgericht), the Administrative Court observed that this

provision of the Soldiers Act, like the similar provision of the

Federal Civil Service Act (Bundesbeamtengesetz), envisaged that high-

ranking, so-called "political" civil servants and soldiers would be

expected, in view of their prominent position, to support government

policy at all times.  Accordingly, the Federal President enjoyed a very

wide margin of appreciation, limited only by the prohibition on

arbitrariness, and was not required to give any reasons for the

suspension.

     The Administrative Court, applying these principles to the

applicant's case, considered that, taking into account the disturbance

in the relationship of confidence between the applicant and the

defendant, his suspension could not be objected to.  The Court

considered that the decision on the suspension as such did not require

any further reasoning, the reasons having been set out in the course

of the administrative court proceedings.  As regards the question of

whether the applicant's suspension had been arbitrary, the

Administrative Court noted that the applicant had already received the

disciplinary punishment of a warning, confirmed by the Federal

Administrative Court in October 1989, in respect of his critical

remarks of December 1988.  Taking into account these disciplinary

proceedings which had only terminated shortly before the applicant's

suspension, there was no necessity to hear him again on the matter.

     On 1 October 1991 the North-Rhine Westphalia Administrative Court

of Appeal (Oberverwaltungsgericht) dismissed the applicant's appeal

(Berufung).  It confirmed the Administrative Court's finding that the

applicant's suspension was lawful.

     The Administrative Court of Appeal rejected the applicant's

arguments as to the alleged procedural errors.  In particular, it

considered that, according to the S. 50 para. 1 of the Soldiers Act,

there had been no necessity to hear the applicant prior to his

suspension.  This was in line with the aim and purpose of S. 50 para. 1

of the Soldiers Act, as well as of the analogous provision of the

Federal Civil Service Act, namely to ensure that high-ranking civil

servants and military commanders were in constant agreement with the

Government policy.  The civil servants and soldiers covered by the said

provisions held key positions in ensuring an effective implementation

of Government policies.  They should not only refrain from hindering

the Government policy, but were obliged always actively to support it,

and they, therefore, required the full confidence of the Government at

all times.  There was a lack of confidence if the political views of

the person concerned deviated from the Government policy.  However, the

necessary full confidence was also lacking if the Government only had

doubts as to whether his professional or personal qualifications, his

discharge of official duties or even the conduct of his private life

guaranteed to the highest possible degree his efficient cooperation

implementing Government policy.  Such doubts could arise on the basis

of "imponderables".  A hearing on these matters did not appear

meaningful.  Moreover, the persons covered by S. 50 para. 1 of the

Soldiers Act and the relevant provision of the Federal Civil Service

Act knew about the risk inherent in their post when taking up their

duties and about the fact that, in case of a suspension, they had a

considerably better entitlement to maintenance and pension benefits

than other suspended civil servants.

     The Administrative Court of Appeal found that, for the same

considerations, the decision on the suspension did not require any

reasoning.  However, under the rule of law, the person concerned should

be informed about the reasons for his suspension in the context of any

administrative court proceedings with a view enabling him effectively

to argue his case.  In the course of the proceedings brought by the

applicant, the defendant Government had plausibly explained that,

taking into account the relevant events, a relationship of full

confidence between the Government, notably the Federal Minister of

Defence, and the applicant had ceased to exist.

     Furthermore, the Administrative Court of Appeal found that, to

the extent that the events relied upon related to the meeting in

December 1988, the defendant had not been prevented from attending the

outcome of the above-mentioned disciplinary proceedings.  It considered

that the decision on the applicant's suspension for loss of confidence

was facilitated by the fact that, in the context of administrative

court proceedings, the disciplinary punishment of the applicant for

having disparaged the Federal Chancellor and the Federal Minister of

Defence had been confirmed.  In this respect, the Administrative Court

of Appeal referred in detail to the findings of the Federal

Administrative Court in its decision of October 1989.  The

Administrative Court of Appeal recalled that the Federal Administrative

Court had considered the applicant's aim to create a private lobby for

his ideas as to the command of the Federal Armed Forces to be a serious

breach of the applicant's duty of loyalty, which was at the core of his

guilt of the disciplinary offence.  Thus, he had in a contentious and

tendentious manner imparted his criticism regarding a military meeting

and the statements made by the Federal Chancellor and the Federal

Minister of Defence on that occasion without considering that his

disparaging statements, made in reliance on his rank, offered

themselves to abuse and questionable emotionalism.

     Moreover, in a television interview, the applicant, upon the

question of whether, even in case of emergency, he would not shoot, had

answered that he thought that this was so.  He had thereby given rise

to doubts as to his obligation under the Soldiers Act, namely truly to

serve the Federal Republic of Germany.  In a further television

interview he had made statements to the effect that any soldier could

become a potential murderer, taking into account the effects of modern

weapons of mass destructions, and had not made any difference between

having recourse to such weapons in the context of a war of aggression

or a defensive war.  Such statements not only justified the assumption

of a loss of confidence, but also affected soldiers in general and

called the applicant's authority as a superior into question.  Finally,

the applicant had, in the context of a television broadcast,

contradicted statements of a State Secretary on the question of the

stationing of parts of the US Air Force in Germany and, in criticising

the "secret-mongering" ("Geheimniskrämerei") regarding matters of

modernisation, nuclear arms and the NATO strategy, discredited the

information policy of the Federal Government.

     The Administrative Court of Appeal finally observed that a

soldier was free to engage in political activities and to express his

opinions in public.  However, his commitments and statements were only

protected to the extent that they were compatible with the special duty

of self-restraint flowing from the position of a soldier, and necessary

to ensure the functioning of the Federal Armed Forces.  The Court,

having regard to the above events, concluded that the applicant had not

displayed such self-restraint.

     On 26 May 1992 the Federal Administrative Court dismissed the

applicant's request for leave to appeal on points of law (Beschwerde

gegen die Nichtzulassung der Revision) on the ground that his case was

not of fundamental importance within the meaning of the relevant

procedural provisions.

     The Federal Administrative Court, referring to its own and the

Federal Constitutional Court's case-law, confirmed that the suspension

of high ranking soldiers pursuant to S. 50 of the Soldiers Act aimed

at securing that the professional conduct of those persons was in

constant agreement with Government policy and that, at all times, they

actively supported Government policy and had the Government's full

confidence in their willingness and qualification to do so.  If such

full confidence ceased to exist, the suspension of the person concerned

was possible and in general justified.  Taking into account the

particular nature of the suspension, no explicit reasoning was

required.  The legal protection of the person concerned was ensured in

the context of the administrative court proceedings.  Moreover, in view

of the nature of the suspension, the person concerned did not have to

be heard prior to his suspension.  The Federal Administrative Court

finally observed that the suspension did not presuppose professional

misconduct on the part of the person concerned, but any behaviour,

including behaviour covered by the right to freedom of expression,

could result in a loss of confidence justifying the suspension.

     On 7 July 1993 the 3rd Chamber of the Federal Constitutional

Court refused to admit the applicant's constitutional complaint

(Verfassungsbeschwerde) on the ground that it offered no prospect of

success.

     The Constitutional Court, in its decision, found that the

applicant's suspension, pursuant to S. 50 para. 1 of the Soldiers Act,

did not infringe his right to freedom of expression or his other

constitutional rights.  It confirmed that S. 50 para. 1 was, like the

similar provision of the Federal Civil Service Act, designed to ensure

the smooth functioning of the process of implementation of Government

policy in the military hierarchy.  Doubts as to the capacity or

willingness of a high ranking soldier to guarantee the continued

agreement of his professional conduct with defence policy were

sufficient to justify his suspension.  The loss of confidence between

the Government and a high ranking soldier  however was not limited to

situations of a lack of agreement between Government policy and the

views on defence policy stated by the person concerned, but covered all

elements relevant for the professional and personal qualification of

the soldier to implement Government policy, such as a lack of

flexibility or considerations as to the age structure of the Federal

Armed Forces.  The statement of political views was, therefore, not a

constituent element of such a suspension.

     According to the Federal Constitutional Court, political

statements made by a high ranking soldier could, however, be a relevant

criterion in establishing the Government's loss of confidence.

Nevertheless, in such a situation, the suspension under S. 50 para. 1

of the Soldiers Act was not intended to penalise particular statements

criticising the Government.  The suspension could rather be considered

whenever the respective political statements of the soldier concerned

were at variance with the respective Government policy, irrespective

of the contents or the value of the statement concerned.

     Furthermore, the interpretation and application of S. 50 para. 1

of the Soldiers Act in the circumstances of the applicant's case could

not be objected to.  In this context, the Federal Constitutional Court

noted the wide margin of appreciation enjoyed by the Federal President

to the effect that the administrative courts only had to review whether

his decision had been arbitrary.  There was no arbitrariness as the

political statements made by the applicant in public were of such a

nature as to raise doubts regarding his agreement with defence policy,

and it was irrelevant whether the applicant had made the statements

concerned on duty or in private.  Moreover, in the course of the

administrative court proceedings, the defendant Government had

explained the reasons for the applicant's suspension and the applicant

had sufficient opportunity to comment thereupon.

COMPLAINTS

1.   The applicant complains under Article 6 paras. 1 and 3 (a) of the

Convention that he was not heard prior to his suspension and that no

reasons were given in the decision on his suspension.

2.   The applicant complains under Article 10 of the Convention that

his suspension violated his right to freedom of expression.

3.   The applicant further complains under Article 14, taken together

with Article 10, of the Convention that his suspension amounted to

discrimination on the grounds of his political views and his status of

a high ranking soldier.

THE LAW

1.   The applicant complains under Article 6 (Art. 6) of the

Convention about the alleged unfairness of the proceedings regarding

his suspension from serving as a high ranking soldier in the Federal

Armed Forces.

     The Commission recalls that disputes relating to the recruitment,

employment and retirement or dismissal of civil servants are as a

general rule outside the scope of Article 6 (Art. 6) (Eur. Court H.R.,

Francesco Lombardo judgment of 26 November 1992, Series A no. 249-B,

pp. 26-27, para. 17; Giancarlo Lombardo judgment of 26 November 1992,

Series A no. 249-C, p. 42, para. 16)

     The Commission notes that the applicant, a fleet admiral, was

suspended by the Federal President pursuant to S. 50 para. 1 of the

German Soldiers Act, according to which the Federal President was

entitled to suspend, at any time, professional soldiers from the rank

of a brigade commander up.  In applying this legal provision, the

Federal President exercised discretionary powers, his wide margin of

appreciation regarding the question of loss of confidence by the

Government in a high ranking soldier being confirmed by the domestic

courts.

     Consequently, in this area, the State acts in the field of public

law and no determination of the applicant's "civil rights" was at issue

in the administrative court proceedings concerned.

     Furthermore, the applicant's suspension did not involve a

determination of any "criminal charge" against him.

     Article 6 (Art. 6) of the Convention is, therefore, not

applicable in the present case.

     It follows that this part of the application is incompatible with

the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

2.   The applicant complains under Article 10 (Art. 10) of the

Convention that his suspension by the Federal President on 12 January

1990 infringed his right to freedom of expression.

     Article 10 (Art. 10) of the Convention, as far as relevant,

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 ...

     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

     the reputation or rights of others, for preventing the disclosure

     of information received in confidence, ..."

     The Commission notes that the applicant, a fleet admiral, was

suspended by the Federal President pursuant to S. 50 para. 1 of the

Soldiers Act.  As established in the course of the ensuing

administrative court proceedings, the suspension was based upon the

Government's loss of confidence that, having regard to various public

statements, the applicant was in agreement with and fully supported the

Government policy, in particular its defence policy.

     As regards the question whether there was an interference with

the applicant's right under Article 10 (Art. 10), the Commission

recalls that the right of recruitment to the civil service was

deliberately omitted from the Convention.  However, as a general rule

the guarantees in the Convention extend to civil servants and a person

who has been appointed to the civil service, or who is a professional

soldier in the armed forces, can complain on being dismissed that the

dismissal violates one of his or her rights under the Convention (cf.

Eur. Court H.R., Vogt judgment of 26 September 1995, Series A no. 323,

paras. 43-44, with further references).

     The applicant was a professional soldier in the service of the

Federal Republic of Germany since 1960, and he was appointed as fleet

admiral in 1982.  On 12 January 1990 the Federal President, upon the

request of the Federal Minister of Defence in view of the applicant's

disciplinary punishment for critical remarks about the Federal

Chancellor and the Federal Minister of Defence, contained in a press

communique on a conference of commanding officers of the Federal Armed

Forces of December 1988, as well as in three interviews on television

on military and military policy questions in 1989, ordered the

applicant's suspension pursuant to a special provision of the Soldiers

Act relating to high ranking soldiers.

     The Commission finds that in these circumstances there was an

interference with the exercise of the applicant's freedom of

expression. Such interference is in breach of Article 10 (Art. 10) ,

unless it is justified under paragraph 2 of Article 10 (Art. 10-2),

i.e. it must be "prescribed by law", have an aim or aims that is or are

legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in

a democratic society".

     The legal basis of the interference under consideration was S. 50

para. 1 of the Soldiers Act.  The applicant's suspension was,

therefore, "prescribed by law" for the purposes of Article 10 para. 2

(Art. 10-2).

     Moreover, the interference in question aimed at securing

efficiency in implementing Government policy, in particular defence

policy, by requiring that high ranking soldiers should be in constant

agreement with the actual Government policy and should support it.

Such an obligation on high ranking officials, in particular in the

armed forces, can reasonably be regarded as pursuing legitimate aims

under Article 10 para. 2 (Art. 10-2), namely the protection of national

security, the prevention of disorder and the protection of the rights

of others.

     It remains to be determined whether the interference complained

of was "necessary in a democratic society" and proportionate to the

legitimate aims pursued.

     The Commission recalls that the adjective "necessary" within the

meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a

"pressing social need".  The Contracting States have a certain margin

of appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision.  In carrying out the review

whether a fair balance has been struck between the right of the

individual to freedom of expression and the legitimate interests of the

respondent State, the Commission will bear in mind that whenever civil

servants', or soldiers', rights to freedom of expression are in issue,

the "duties and responsibilities" referred to in Article 10 para. 2

(Art. 10-2) may assume a special significance (cf. Eur. Court H.R.,

Vogt judgment, loc. cit., para. 52).

     The Commission notes that the applicant, a professional soldier

in the Federal Armed Forces for many years and appointed fleet admiral

in 1982, had worked as Head of an Office for Research and Training of

the Federal Armed Forces since 1984.  As regards his critical remarks

in the press communique of December 1988, the applicant received the

disciplinary punishment of a warning, confirmed by the Federal

Administrative Court in October 1989.  On 21 December 1989 the Federal

Minister of Defence requested the applicant's suspension in view of his

disciplinary punishment for critical remarks in the press communique

of December 1988, as well as in his three interviews on television in

November 1989 on military and military policy questions.  The Federal

President suspended the applicant on 12 January 1990.

     The applicant's suspension was ordered pursuant to S. 50 para. 1

of the Soldiers Act which entitles the Federal President to suspend,

at any time, professional soldiers from the rank of a brigade commander

up.  According to the relevant case-law of the Federal Constitutional

Court and the Federal Administrative Court, this provision related,

like the similar provision of the Federal Civil Service Act, to the

high-ranking, so-called "political" civil servants and soldiers who are

expected, in view of their prominent position, to support the

government policy at any time.  The domestic law therefore accorded the

Federal President a very wide margin of appreciation, limited only by

the prohibition on arbitrariness.

     The administrative courts, applying these principles to the

applicant's case, considered that there was such a disturbance in the

relationship between the applicant and the respondent Government that

his suspension could not be objected to.  The German courts, examining

the reasons advanced by the respondent Government in the course of the

proceedings before them, noted the disciplinary punishment imposed upon

the applicant for having disparaged the Federal Chancellor and the

Federal Minister of Defence in the press communique of December 1988

for the purpose of creating, in breach of his duty to loyalty, a

private lobby for his ideas as to the command of the Federal Armed

Forces.  On the occasion of three television broadcasts in November

1989, the applicant's further comments on questions of military policy

had given rise to doubts whether, in case of emergency, he would fulfil

his obligation under the Soldiers Act truly to serve the Federal

Republic of Germany; he had condemned modern warfare without exception

and called all soldiers "potential murderers" and had also discredited

the information policy of the Federal Government.

     The Commission finds that, balancing the applicant's interest in

criticising the Government policy and stating his above-mentioned views

on essential military matters and the Government's interest in the

proper functioning of the Armed Forces, there were relevant and

sufficient reasons for the applicant's suspension.

     Moreover, considering all circumstances and in particular the

applicant's entitlement to continuing maintenance payments, the

Commission finds that the interference in question does not appear

disproportionate to the legitimate aims pursued.

     The interference complained of can, therefore, be regarded as

"necessary in a democratic society" within the meaning of Article 10

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

     Accordingly, there is no appearance of a violation of the

applicant's right under Article 10 (Art. 10) of the Convention.

     It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant further complains under Article 14, taken together

with Article 10 (Art. 14+10), of the Convention that his suspension

amounted to discrimination on the grounds of his political views and

his status of a high ranking soldier.

     Article 14 (Art. 14) reads 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."

     Article 14(Art. 14)  affords protection against different

treatment, without an objective and reasonable justification, of

persons in similar situations (cf. Eur. Court H.R., Hoffmann judgment

of 23 June 1993, Series A no. 255-C, p. 58, para. 31; The Sunday Times

(no. 2) judgment of 26 November 1991, Series A no. 217, p. 32, para.

58).

     To the extent that S. 50 para. 1 of the Soldiers Act subjected

the applicant to a particular regime on the ground of his high ranking

post in the Federal Armed Forces, he was not in a situation comparable

to other soldiers of lower grades.  Moreover, having regard to the

reasons advanced by the Government for the applicant's suspension,

there is no appearance that there has been any difference in treatment

on account of the applicant's political opinion.

     Consequently, there is no appearance of a violation of Article 14

taken in conjunction with Article 10 (Art. 14+10).

     It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)