AS TO THE ADMISSIBILITY OF

                      Application No. 10942/84

                      by R.Q.

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 8 May 1984

by R.Q. against the Federal Republic of Germany and

registered on 10 May 1984 under file N° 10942/84;

        Having regard to:

-       the Commission's decision of 3 October 1984 to bring the

        application to the notice of the respondent Government

        pursuant to Rule 42 (2) (b) of the Rules of Procedure and

        to invite them to submit observations on its admissibility

        and merits with reference to Articles 10 and 11 of the

        Convention;

-       the respondent Government's observations dated 1 March 1985

        and the observations in reply by the applicant

        dated 30 April 1985;

-       the Commission's decision of 18 October 1985 to invite

        the parties to a hearing on the admissibility and merits of

        the application, the timetable of which to be settled subject

        to the outcome of the Glasenapp and Kosiek cases before the

        European Court of Human Rights;

_       the judgments of the European Court of Human Rights of 28 August

        1986 in the Glasenapp and Kosiek cases;

-       the Commission's decision of 11 October 1986 to invite the

        parties to make further written submissions on the

        admissibility and merits of the application pursuant to

        Rule 42 para. 3 subpara. (a) of the Rules of Procedure

-       the respondent Government's observations of 4 February 1987 and

        those of the applicant of 3 February 1987.

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts, apparently not in dispute between the parties, may

be summarised as follows:

        The applicant, a German national born in 1942 and living in

Ehweiher in the Federal Republic of Germany, is represented by

Mr.  G. Schumacher, a Rechtsanwalt practising in Mainz, and

Mr.  W. Rothley, a Rechtsanwalt practising at Rochenhausen.

        The applicant was a teacher in a secondary school teaching

German and gym, who studied at the Universities of Heidelberg, Mainz

and Paris.  In 1970 and 1971 he passed the examinations for a secondary

school teaching post and was given permission by the Ministry of

Culture of the Rhineland Palatinate to begin service in preparation

for a grammar school teaching post on 1 September 1972.  He was

appointed as a trainee teacher with temporary civil service status.

He took an oath of loyalty to the Constitution which was required for

this appointment and spent his one year's preparatory service in Bad

Kreuzenach during which he passed the relevant examination for a

grammar school teaching post as assistant teacher.  On 7 March 1973

the applicant applied to the Land civil service of the Rhineland

Palatinate as a grammar school teacher with probationary civil service

status.  On 1 September 1973 the applicant was appointed as a teacher

in a secondary school in Kaiserslautern with civil service status on a

probationary basis.  On his appointment he took a further loyalty

oath in the following terms:

        "I swear allegiance to the Basic Law of the Federal Republic

        of Germany and to the Constitution of the Land Rhineland

        Palatinate, obedience to the law, and conscientious

        fulfilment of my official duties - so help me God."

        In autumn 1975 doubts had arisen as to the applicant's loyalty

to the constitutional order in the light of his political attitude and

activities since October 1973, and in particular because of his

involvement in meetings in which the Communist League of West Germany

(Kommunistischer Bund West Deutschland - "KBW") and other Communist

groups had been involved.  The applicant was therefore summoned by

the District Government of the Rhinehesse Palatinate for the

question of his preparedness to defend and advocate the principles of

the Basic Law, as is required of civil servants, to be examined.  Two

hearings were held, on 22 October and 4 November 1975.  The applicant

was reproached with having participated in several meetings in which

the KBW had taken part which had concerned, inter alia, Portuguese

migrant workers, the formation of a Chile Committee and a Committee

against Section 218 of the Criminal Code, which was concerned with

abortion, and the establishment of an "armed people's force"

(Bewaffnete Volksmacht).  Furthermore the applicant had been involved

in demonstrations against the reduction in travel expenses for pupils

and was associated with a meeting of the right-wing National

Democratic Party of Germany (NPD) which had been accompanied by violence.

In the latter connection, the applicant was suspected of having

been a member of one of the KBW's "raiding squads".

        At the first interview, the applicant requested that the

reproaches against him should be set out in writing.  On receiving

them, he declined to make any comment on them.  At the second

interview the applicant stated that he could only reply to the

detailed charges after having an opportunity to consider them in detail.

        The applicant replied to these allegations concerning his

preparedness to defend and advocate the principles of the Basic Law in

writing in November 1975.  In his comments he did not dispute the

factual basis of the charges made but stated that, notwithstanding

that he was a civil servant, he had the right to be present at meetings

which were publicly announced and open to the participation of

anyone, both to inform himself, and with a view to expressing his own

opinion.  Thus he contended that he had only exercised his democratic

fundamental rights in favour of movements which pursued righteous aims.

        On 7 November 1975, despite the confidentiality of the

proceedings about which he had been reminded, the applicant published

the contents of the hearings, together with the allegations made

against him at a party held for the upper part of the school at which

he taught.  The applicant stated that his actions were in response to

the duty to create political pressure against the District Government's

measures against him, a view which was reported by the university

students committee, the technical college students committee, the KBW

of Kaiserslautern, the Socialist Workers Group of Kaiserslautern, the

Communist Group of Pupils, the Pupils Representation at the School of

Administration and several other groups.

        On 19 December 1975 the applicant was given notice that he was

prohibited from performing his duties as a teacher with effect from 23

December 1975 by the District Government pursuant to Section 69 of the

Rhineland Palatinate Regional Civil Service Law (Landesbeamtengesetz

Rheinland-Pfalz (LBG)) in view of his failure to respect the

confidentiality of the hearings and due to the resultant unrest which

had been caused at the school where he taught and in other schools in

Kaiserslautern.  This order was expressed to have been made to secure

good order at the school.  In accordance with Section 80 para. 2 No. 4

of the Code of Administrative Procedure, this prohibition was given

immediate effect.  The applicant's appeal to the Administrative Court

(Verwaltungsgericht) against the immediate operation of this order was

allowed on 14 January 1976 on the grounds that there was no particular

pressing public interest which required immediate enforcement.  In

addition the Court held that the applicant had been given insufficient

opportunity to be heard before the prohibition had been imposed.

        On 10 February 1976 the applicant was dismissed from civil

service status on probation with effect from 31 March 1976 by an order

of the District Government, after the Staff Committee's opinion had

been obtained.  The reason given for his dismissal was his failure to

fulfil the necessary requirements as a civil servant during the

probationary period in accordance with Section 41 para. 1 No. 2 of the

LBG.  The District Government further referred to Section 63 (1) of

the LBG, which specifies that civil servants' duties include the

requirement of their personal preparedness to protect and advocate the

basic constitutional order.  The dismissal referred to the applicant's

activities which had been the subject of the hearings on 22 October

and 4 November 1975, as well as to the KBW's programme, which

advocates the armed struggle and the destruction of the bourgeois

State as a declared aim of the socialist revolution.  The dismissal

stated that, even if in individual cases participation at meetings was

covered by the basic right to freedom of assembly, the applicant's

support for the KBW could be inferred by this one-sided preference for

this group.  The District Government concluded that in view of these

associations the applicant did not show an adequate preparedness to

protect and advocate the fundamental constitutional order.

        The applicant objected to this dismissal on 16 February 1976,

substantiating his grounds on 15 March 1976.  On 23 October 1976 the

applicant's objection was rejected by the Ministry of Culture of the

Rhineland-Palatinate, which confirmed the grounds for his dismissal.

The Ministry referred to an additional ground justifying the

applicant's dismissal, namely the fact that he had signed a

sponsorship paper for the KBW prior to the elections for the Federal

Parliament (Bundestag) in 1976.  Neither the dismissal order, nor the

ruling on the applicant's objection was made immediately enforceable.

Accordingly the applicant continued in his post as a teacher pending

the outcome of the administrative court proceedings which he commenced.

        On 22 November 1976 the applicant appealed from this decision

to the Administrative Court of Neustadt/Weinstrasse alleging breaches

of procedure and of substantive law.  The applicant stated again that

in attending meetings with which the KBW was associated he had merely

exercised his constitutionally guaranteed rights.  He also pointed out

in addition that there had never been any complaints concerning his

work at school.  On 14 February 1978 the applicant's dismissal was

quashed on the formal ground that it had not been signed by the

appropriate person.  The District Government appealed against this

decision to the Administrative Court of Appeal (Oberverwaltungsgericht)

in Koblenz, which, on 11 April 1979, quashed the judgment of first

instance and recommitted the matter for a fresh hearing and decision

to the Administrative Court of Neustadt/Weinstrasse.

        In the subsequent proceedings before the Administrative Court

the applicant expressly confirmed that he stood up for and supported

the fundamental constitutional order.  He stated that he had never

been a member of the KBW, nor intended to become such a member, and

that he was not and is not a communist at all.  He asserted that

during the whole of the period of his holding probationary civil

service status he had never infringed the provisions of the Basic Law

and none of his activities could suggest that he was inclined so to

do.  He contended that only his conduct at work could be taken into

account in assessing his fitness to be a civil servant, and not that

in which he indulged during his leisure time, or prior to his

appointment.  He concluded therefore that his dismissal had been

arbitrary.  In addition he stressed that his acts in publicising the

questions raised at the hearings in October and November 1975 had been

intended to draw public attention to his case, as a reaction to the

District Government's unjustified investigations against him.  He also

pointed out that he had not merely attended meetings at which

communist parties or groups had been represented, but many meetings in

which trade unions and parties represented in the German Federal

Parliament had been involved.

        An oral hearing was held on 4 September 1979 before the

Administrative Court of Neustadt/Weinstrasse, when the applicant was

heard relating to the above issues as also in relation to various

allegations concerning activities which postdated the administrative

decision on the applicant's objection of 23 October 1976.  On 10

November 1979 the applicant made a further statement, inter alia, to

the effect that:

        "... 2.  I repeat once again that I support the Basic

        Constitutional Law of the Federal Republic of Germany and the

        Constitution of the Rhineland-Palatinate and that I respect the

        civil service law.

        3.  Finally, I declare ... that I am neither a KBW sympathiser,

        nor a communist.

        ...  Therefore I hope to have expressed clearly once again that

        my lawyer's statements are correct and true when he affirms my

        positive attitude towards the Basic Law and legal order."

        On 6 December 1979 the Administrative Court rejected the

applicant's appeal in a decision which was served on 23 January 1980.

The Court held that it was not relevant whether the applicant was or

was not a member of the KBW, but whether or not the defendant

authority had reasons for doubts as to his loyalty to the

constitutional basic order.  The Court ruled that the evidence as to

the applicant's attitude relating to events after 23 October 1976

could be taken into account since it provided further indications of

the basis for the applicant's dismissal and further evidence of his

attitude towards the fundamental principles of the Basic Law.  The

Court added that it was not appropriate to merely take into account

the applicant's conduct during working hours.

        The applicant appealed from this decision on 15 February 1980

to the Administrative Court of Appeal of the Rhineland-Palatinate,

inter alia on the grounds that the KBW required a clear confession

from its members and sympathisers as to their support for its

programme and that the applicant had never provided such a statement,

but had even distanced himself from the party.  The applicant also

contended that only the factual situation prior to 23 October 1976

could be taken into account in relation to the decision of the court.

Any alternative approach would circumvent the Staff Committee's role

in the dismissal question.  He alleged in addition that the references

to his attendance at meetings in which the KBW had been involved had

been relied upon to establish his lack of adequate loyalty without

sufficient proof.  He stressed that the majority of the meetings which

he had attended  were of trade unions, churches, or political groups

which had no particular connection with the KBW and at which meetings

the KBW had not played a dominant role.

        With regard to a specific complaint that he was involved in

the sale of Communist literature from an information desk in

connection with the campaign against Section 218 of the Criminal Code

(relating to abortion) the applicant pointed out that he had supported

the initiative against the amendment of this provision of the

Criminal Code in a lawful manner which was beyond reproach.  Unlawful

objectives could not be imputed to him in this connection.

        Furthermore, in relation to the allegation of his

participation in the disruption of the NPD meeting, the applicant

contended that there had merely been a legal and legitimate protest

against the NPD, whose aims were anti-constitutional, which served to

illustrate the degree to which the applicant stood up for the

fundamental order of the Constitution.  He added that the majority of

the protesters involved had not been members, or sympathisers, of the

KBW, and that even if a small minority of the protesters had belonged

to Communist parties or groups it was legitimate for non-sympathisers

with those views to have attended as well.  Any alternative view would

prevent civil servants from taking part in any protest if any small

group of Communist or anti-Constitutional parties were in any way

involved in the protest rally.  Such a view would be a serious

infringement of their freedom of political involvement and

association.

        Finally, in respect of the signature on the election

sponsorship form for the KBW, the applicant submitted that his

signature should be seen as seeking to give the opportunity to smaller

parties to take part in the election proceedings, for which a minimum

number of signatures is required, in accordance with German electoral

law.  The applicant further referred to a favourable petition signed by

43 colleagues and addressed to the Minister of Culture of the

Rhineland-Palatinate which referred to the quality of the applicant's

work at school.  He also contended that all the previous proceedings

that had been instituted against teachers who had been members of

Communist groups had been quashed or terminated on the basis that such

persons were permitted to remain in the civil service, whereas he was

merely accused of failing to keep sufficient distance from such

groups.  Lastly, the applicant referred to his clear and unequivocal

distancing from Communist activities, which included a publication in

a local newspaper.

        On 19 August 1981 the applicant's appeal was rejected by the

Administrative Court of Appeal of the Rhineland-Palatinate, which held

that the applicant's interpretation of his political activities, that

they were merely orientated towards the content of the particular

issue involved, and not in any way connected with the KBW, could not

be sustained.  The Court noted that the applicant had been actively

engaged in the activities of the Chile Committee and the Committee

against Section 218 of the Criminal Code, as well as in a large number

of activities in groups in which the KBW had also been involved and

that the KBW, which was a strongly organised group, must have had a

dominant position in relation to these various initiatives.  Without

having to decide whether the applicant was in fact a member of the

KBW, the Court found that his behaviour could not be regarded as that

of an interested, but a detached, observer and must be characterised

as showing common cause with the KBW.  This close identification with

the party was further illustrated by the evidence that the applicant

had sold copies of the KBW's newspaper.  The Court of Appeal recalled

the importance of a civil servant maintaining a distance from the

activities of such extremist groups and movements and held that the

applicant's failure to maintain his clear commitment to the principles

of the Basic Law was established.

        This decision was served on 1 September 1981 and the applicant

applied on 29 September 1981 for a declaration that an appeal on a

point of law was admissible (Revisionszulassungsbeschwerde) to the

Federal Administrative Court (Bundesverwaltungsgericht).  The

applicant's grounds of appeal raised the question how far a civil

servant on probation must keep his distance from political activities

connected with anti-constitutional organisations, and in particular

the borderline between imprudent behaviour and political activities

which could ground doubts as to a civil servant's loyalty.  He

challenged whether the requirement of distancing himself as applied by

the Administrative Court of Appeal was not an unwarranted restriction

on his freedom of expression contrary to Article 3 para. 3 of the

Basic Law.  The applicant also challenged the acceptance of evidence

relating to his activities following the administrative decision of 23

October 1976.

        On 1 July 1983 the Federal Administrative Court rejected this

application as ill-founded.  In so doing it recognised that the

principles applicable to the requirement of constitutional loyalty of

civil servants were already clearly established in the case-law of the

higher courts, as was the question as to whether a civil servant's

actions arising after his initial dismissal may be taken into account

in assessing his overall attitude to the Basic Law.  As a result of

this decision the applicant's appointment as a teacher was terminated

and his dismissal of 10 February 1976 became effective.

        Thereupon the applicant lodged a constitutional complaint to

the Federal Constitutional Court, invoking Articles 3, 5, 8 and 33 of

the Basic Law, guaranteeing the right to freedom from arbitrary

treatment, the right to freedom of expression, the right to freedom of

peaceful assembly, and the equality of rights for all Germans,

including the right of eligibility for public employment.  The

applicant contended that he had only exercised his political rights

guaranteed by the Constitution and that the Administrative Courts had

failed to balance the requirements of civil service law on the one

hand with the provisions of the Constitution contained in Articles 5,

8 and 33 on the other.

        The Applicant's complaint was rejected on 27 October 1983 as

being unfit for decision on the grounds that it had insufficient

prospects of success.  The Federal Constitutional Court held that the

Administrative Courts' conclusions from the applicant's political activities

had shown that, on balance, the applicant was not prepared to stand up

for the fundamental constitutional order.  In reaching these

conclusions the Administrative Court of Appeal had not failed to take

due account of constitutional law and the Court recalled the

requirement of Article 33 para. 5 of the Basic Law that civil servants

must always stand up for the fundamental provisions of the

Constitution.  The Court recognised that the exercise of the right of

freedom of expression within the scope of Article 5 of the Basic Law

was limited for civil servants by the duties flowing from the judicial

principles governing employment in the permanent civil service.  Hence

the Court concluded that the decisions based on doubts as to the

applicant's preparedness to defend the basic constitutional order had

been justified and that the Administrative Courts had not failed to

appreciate the interaction between the applicant's fundamental rights

and his duty to abstain from unconstitutional activities.

        This decision was served on the applicant's lawyer on 10

November 1983.

COMPLAINTS

        The applicant complains that his dismissal from his post as a

teacher at a secondary school on the grounds of his political

activities and their alleged incompatibility with loyalty to the

Federal Constitution infringes Articles 10, 11, 14 and 18 of the

Convention.

        In particular he complains that his dismissal from a

provisional appointment as a teacher, as a result of his participation

in political meetings, restricted his right to freedom of expression.

He points out that there was no reason for the restriction on his

right which accorded with the requirements of Article 10 para. 2 of

the Convention.  He contends that the national courts have not even

affirmed the necessity of the restrictions which were applied to him,

and failed to take any account of his proper conduct as a

schoolteacher.  Hence the reasons invoked by the domestic courts to

justify doubts as to the applicant's loyalty to the Constitution were

not "necessary" reasons, as required by Article 10  para. 2 of the

Convention, for restricting his freedom of expression.

        The applicant further complains that his dismissal is contrary

to his right to freedom of association and peaceful assembly, in

association with others even where some of these persons were, in the

administration's and courts' views, persons who held unconstitutional

views.  He contends that the measures against him were not foreseen by

Article 11 para. 2 of the Convention, and notes in particular that he

does not, as a teacher, belong to the "administration of the State".

        The applicant also invokes Article 14 of the Convention on the

grounds that his dismissal from his post as a teacher was based on his

supposed and not his real political views.

        Finally the applicant complains that the restrictions on his

right to freedom of expression and the right to peaceful assembly were

made by the domestic authorities for the purposes of eliminating

criticism and in particular to isolate particular political groups.  In

this respect the applicant invokes Article 18 of the Convention and

recalls that he has been in the school service for 12 years, and that

there has never been any reason to complain about him in that

capacity, or any genuine reason for doubt as to his preparedness to

defend the fundamental constitutional order.  The ruling of the

Federal Constitutional Court, to the effect that an individual civil

servant must dissociate himself from groups and movements which

combat the State, its constitutional organs and its fundamental order,

signifies, in the applicant's opinion, a compulsion to express certain

opinions and an abuse of the specific nature of the restrictions

envisaged by this provision.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 8 May 1984 and registered on

10 May 1984.

        On 3 October 1984 the Commission examined the question of the

admissibility of the application and decided, in accordance with Rule

42 para. 2 subpara.(b) of the Rules of Procedure, to give notice of

the application to the respondent Government and to invite them to

submit before 21 December 1984 their observations in writing on the

admissibility and merits of the application.

        On 19 December 1984 the respondent Government requested an

extension of this time-limit until 8 February 1985, which request was

granted by the President on 4 January 1984.

        On 11 February 1985 the respondent Government requested a

further extension of the time-limit for the submission of their

observations on admissibility and merits and indicated that the

observations would be submitted before 4 March 1985.  The observations

of the respondent Government are dated 1 March 1985.

        The applicant's representative was invited, on 18 March 1985,

to submit such observations in reply as he may wish to make before 3

May 1985.

        On 30 April 1985 the applicant's representatives submitted

preliminary observations in reply and requested an extension of the

time-limit so that the applicant's second representative, Mr.  W.

Rothley, Rechtsanwalt of Rockenhausen, of whose appointment the

Commission was implicitly notified by the same letter, could also

file his observations.  The applicant's representatives were informed

that any such further observations should be filed before 28 June 1985.

        On 28 June 1985 the applicant's second representative

requested an extension of the time-limit for the submission of his

further reply, which was granted until 31 August 1985.  Subsequently,

on 2 September 1985 the applicant's second representative requested a

further extension of this time-limit until 20 September 1985, which

was granted on 13 September 1985.  By letter of 19 September 1985 the

same representative requested a further extension until 1 October 1985.

        On 18 October 1985 the Commission resumed its examination of

the application and decided, pursuant to Rule 42 para. 3 subpara. (b)

of the Rules of Procedure to invite the parties to make further

submissions orally on the admissibility and merits of the application.

The parties were informed that the implementation of this decision

would take account of the proceedings before the European Court of

Human Rights in the cases of Glasenapp and Kosiek, which raised

similar issues to the present application.

        On 28 August 1986 the European Court of Human Rights gave

judgment in the above mentioned cases (Eur.  Court H.R., Glasenapp

judgment, Series A No. 104, Eur.  Court H.R., Kosiek judgment, Series A

No. 105).

        On 11 October 1986 the Commission decided pursuant to Rule 42

para. 3 subpara. (a) of the Rules of Procedure to invite the parties

to submit further written observations on the admissibility and merits

of the application before 23 January 1987.

        The applicant's first representative requested an extension

of this time-limit until 6 February 1987 which was granted by the

President on 29 January 1987.  His observations were filed on 3

February 1987.

        The respondent Government's observations were filed on 4

February 1987.

SUBMISSIONS OF THE PARTIES

The respondent Government

With regard to the factual circumstances of the application

        The respondent Government point out that the applicant was

actively involved in a number of meetings, demonstrations and

campaigns initiated by the KBW and other groups of its sympathisers.

The applicant's involvement in these activities was for a considerable

period, as it is recorded in the judgment of the Administrative Court

of Neustadt/Weinstrasse of 6 December 1979, which referred to a

variety of activities both in the period from October 1973 to

September 1976, which preceded the ruling on the objection which

concluded the administrative proceedings concerning the applicant's

dismissal, and a further group of activities in the period up to May

1977.  The applicant frequented meetings in which the KBW were

involved, took part in KBW committee work directed towards various

specific campaigns, such as the position in Chile and the campaign

against Section 218 of the Criminal Code, and in 1976 signed an

election sponsorship paper supporting the KBW in the Federal elections

of 1976.  Furthermore, in 1976, the applicant was seen selling the

KBW's central party organ, the People's Communist Newspaper

("Kommunistische Volkszeitung").  From 1976 onwards he also took part

in the campaign against the "Radikalenerlass" which was the

administrative agreement on the interpretation and application of the

constitutional loyalty of members of the civil service, and the

"Berufsverbot", the debarment from pursuing one's profession or occupation.

        In this connection the respondent Government refer to the

public image of the KBW during the period between 1973 and 1977.  The

organisation was formed in 1973 from a variety of left-wing groups and

commenced public action in 1973.  Its organisation was both public and

clandestine, the latter in order to avoid any possible ban on its

activities.  The work of the KBW was characterised by the formation of

committees or initiatives to support popular demands, which were given

an interpretation in the terms of the "class war".  The KBW, which has

a Marxist/Leninist orientation, became the Marxist/Leninist

organisation of the New Left with the largest number of members.

According to its programme it pursued the ultimate goal of introducing

a classless society into the Federal Republic of Germany, which would

only materialise through the proletarian revolution.  The destruction

of the bourgeois state-machinery and the establishment of the

dictatorship of the proletariat would be a precondition for this

step.  As such, the KBW recognised the legitimacy of the use of armed

force in achieving its goals, which included "accountability and the

possibility of voting representatives of the people out of office at

any time, remuneration for their work at a level not to exceed the

average wage of a skilled worker ... (and the)... election of judges

and all higher civil servants by the people (with the) possibility of

removal at any time by decision of the majority of the voters ...".

        It follows that the KBW's programme and activities were

hostile to the Constitution of the Federal Republic of Germany and

that the organisation wished to do away with the free democratic basic

order of the Basic Law.  This incompatibility of the KBW's activities

with the requirements of the Basic Law was even recognised by the

Secretary of the KBW's central committee in a lecture given 22 May 1974.

Admissibility and merits

a.      Incompatibility (general and Article 10 of the Convention)

        The respondent Government contend that the present complaint

is incompatible with the provisions of the Convention and submit that

the applicant's complaint concerned his dismissal from the civil

service and his ultimate desire to be appointed as a civil servant for

life.  However, although the right of equal access to the public

service is guaranteed by the terms of the German Basic Law, an

equivalent guarantee is not contained in the Convention.

        In accordance with civil service law, the probationary period

for which the applicant was appointed allows an assessment of

aptitude, qualifications and professional achievements prior to

conferring the official status of civil servant on a lifetime basis.

Amongst the relevant aptitudes which are required of a prospective

civil servant on a lifetime basis are the requisite guarantee that the

prospective civil servant will at all times advocate the free

democratic basic order within the meaning of the Basic Law.  The

appointment of the applicant as a civil servant for life foundered on

his failure to fulfil this condition which is set out in Section 11

paragraph 1 read in conjunction with Section 9 paragraph 1 No. 2 LBG.

        This duty of loyalty to the Constitution reflects the fact

that the civil servant exercises, in the various areas of the State's

organisation, the administrative function on behalf of the State and

its authorities.  However, this "political duty of allegiance" is to

be distinguished from any duty to identify with the aim or any given

policy of the Government of the day.  It imposes rather a duty to be

prepared to identify with the idea of the State which the civil

servant is supposed to serve, that is with the free democratic order

of the social State which subscribes the rule of law.  Hence that part

of the application alleging a violation of Article 10 of the

Convention is incompatible with the provisions of the Convention

since, by the very nature of the matter, the applicant was not

criticising an invasion to his right to freedom of expression, because

no such invasion occurred.  The measure taken was and remains without

influence on the applicant's freedom of expression.  The case is

notably distinguishable from the Glasenapp and Kosiek cases

(Applications Nos. 9228/80 and 9704/82 respectively) where the

Commission considered that, on the facts of those cases, those

applicants had been called upon "to express their opinions, make clear

their attitudes and make a formal declaration of their allegiance to

the Constitution", and that accordingly those cases came within the

terms of Article 10 of the Convention.

        In the present case, at no time was the applicant required to

reveal his political views or formally assert his allegiance to the

Constitution.  He was accepted for the preparatory service as a

trainee-teacher, and later as an assistant teacher with provisional

civil service status, without a separate examination of his loyalty to

the Constitution and there was no requirement that he make a

declaration of any sort.  Both these appointments were made without

further ado, there being no known grounds for reservations in respect

of his loyalty to the Constitution, and in both cases he took only the

required service oath referred to in the statement of facts.

        Nor was the applicant questioned as to his allegiance to the

Constitution when he was dismissed from his post on probation.  In the

course of the hearing no declaration was demanded of the applicant and

by contrast the procedure merely involved the granting to him of a

hearing as required by the law in order that he could respond to the

contemplated administrative measure.  The granting of a hearing in

accordance with the law cannot constitute an invasion of freedom of

expression.  On the contrary, it satisfied the right of the person

concerned to fair proceedings.

        It follows in the Government's legal assessment that the fact

that the applicant made declarations on his attitude to the free

democratic basic order during the administrative court proceedings on

10 November 1979 is without significance, since this was done on his

own initiative.  At no time was the applicant called upon by the

authorities and courts to make any such declaration.  Furthermore, the

decisions of the authorities and the courts rest solely upon those

actual facts established in respect of the applicant's activities with

the KBW.  Any attempt by the applicant to dispel the impression

created by those facts was merely his taking advantage of his right to

a hearing in accordance with the law.

        This analysis is confirmed by the administrative court

judgment of first instance of 6 December 1979 which dismissed the

applicant's declaration of 10 November 1979 on the basis that mere lip

service on the applicant's part could not dispel the facts as to his

involvement in actions which contradicted the necessary degree of

loyalty to the Constitution.  For the avoidance of doubt the

Government still dispute the basis upon which the Commission declared

the two above mentioned applications (Nos. 9228/80 and 9704/82)

admissible, and do not consider that the issue arising in any of these

three cases exceeds the boundaries of the question of access to the

civil service, a right not guaranteed by the Convention.  This view is

confirmed by the judgments of the Court in those cases of 28 August 1986.

b.      Manifestly ill-founded (Article 10 of the Convention)

        In the alternative the respondent Government contend that the

applicant's complaints with regard to Article 10 of the Convention are

in any event manifestly ill-founded.  Any alleged invasion of the

right to freedom of expression was in this case prescribed by law,

justified as necessary in the interests of national security and

public safety and for the prevention of disorder in a democratic

society.

        This is evident from the following factors namely:

i.      It must be required of a teacher that he educates children

and young persons entrusted to his care in the spirit of the

Constitution so that they respect basic human rights.

Similarly he must be able to communicate to his pupils in a

credible fashion the basic values of respect for human

dignity and the criteria of pluralism and tolerance.  In

this respect a teacher must satisfy higher than usual

demands in terms of his own character and attitude towards

these questions, in view of the impressionability of his

pupils.  This factor was particularly relevant in relation

to the applicant's subject, German, which might provide many

opportunities for influencing the general development of

young persons.

ii.     Doubts had arisen as to the applicant's allegiance to the

Constitution and thus to his attitude to the teaching

profession as a result of his many political activities with

the KBW extending over a number of years.  The nature of the

KBW is not in doubt, as an organisation dedicated to the

overthrow of the free democratic basic order and this fact

could hardly have been a secret to the applicant in view of

his contact with the organisation and its activities and his

general level of education.  The degree of the applicant's

involvement with the KBW is further illustrated by his

signing of the sponsorship paper for the Federal elections,

which contributed to enabling the KBW to participate in the

elections, although the applicant must have known from the

KBW's programme that the party wished to abolish the

democratic system and thus free elections with it.

        All in all these activities, the factual basis of which the

applicant did not dispute, permitted of only one conclusion, that on

account of his activity for the KBW the applicant was unsuitable for

further employment in the teaching profession and his dismissal was

justified as necessary for the prevention of disorder in a

democratic society.

        In addition the applicant's complaint founders on Article 17

of the Convention.

c.      Article 11 of the Convention:

        aa) incompatible as a whole

        The respondent Government point out that the applicant's

complaint to the Federal Constitutional Court raised the issue of the

alleged invasion of his freedom of assembly by virtue of his removal from

public service for taking part in assemblies in which other persons had

participated who, in the view of the Administrative Court, were beyond

the pale of the Constitution, and did not raise the additional alleged

violation of freedom of association or coalition.  This is because the

applicant has up to now denied membership of the KBW.  The respondent

Government submit that the applicant should clarify his position in this

respect.

        The respondent Government contend first that the applicant's

complaint of an invasion of freedom of assembly is equally

incompatible, since the measures taken by the administrative

authorities against the applicant were not justified by reference to

the applicant's participation in assemblies but his participation in

the campaigns for the KBW.  Thus the Government contend that it was

"not peaceful assemblies with members of the KBW for the purposes of

forming or expressing a personal opinion which led to his dismissal,

but rather his active support in various forms for the KBW, an

extreme left-wing organisation hostile to the Constitution".

        The respondent Government point out that the District

Government of the Rhinehesse-Palatinate expressly conceded in the

dismissal order of 10 February 1976 that participation in events might

be covered by the basic right of freedom of assembly.  Thus the mere

fact of participation in assemblies was not the reason for the measure

taken.  The decisive factor was support for the KBW in the

circumstance that the applicant was an "active follower of the KBW".

        The ruling of the Rhineland-Palatinate Ministry of Culture on

the applicant's objection to the decision of the District Government

of the Rhinehesse Palatinate  similarly identified that the mere

holding and supporting of various aims, such as opposition to the

reduction in reimbursement of travel expenses and the proposed reform

of Article 218 of the Criminal Code, could not be criticised as they

were mere expressions of opinion.  However, the basis of the dismissal

was the close association of the applicant with the KBW in respect of

each of these manifestations of his opinion, and the conclusion that

the applicant approved of, and supported, the political aims of the

KBW in a way which was manifest to both his school and the general

public.

        In the respondent Government's view the applicant's

involvement and participation in KBW campaigns, committees and other

KBW initiatives has "nothing to do with taking part in assemblies".

        Similarly, in the judgment of the Administrative Court of

Appeal of the Rhineland Palatinate of 19 August 1981 the applicant was

criticised for having repeatedly taken common cause with the KBW over

a period of years.   The Court said, in relation to the applicant's

participation in an open meeting of the KBW, that it was undoubtedly

clear that the applicant "did not behave like an interested but aloof

observer, and not even simply like a hanger-on pursuing his own

interests on the edge of the event, but was himself involved in it,

like the KBW members and even was ready to carry one of the numerous

banners to be seen".  In the respondent Government's view, it was

clear that mere participation in assemblies and appearing as a

hanger-on were not decisive for the applicant's dismissal; rather it

was the active support which he showed for the KBW which was

significant for the Court's decision.

        The respondent Government's conclusion from these facts, that

the application would be inadmissible as incompatible with the

provisions of Article 11 of the Convention is, in the submission of

the Government, confirmed by the conclusion by the Federal

Constitutional Court in its order of 27 October 1983, when the

applicant's complaint was rejected without specific reference to

Article 8 of the Basic Law (freedom of assembly); the Court merely

stated that there was nothing to indicate a violation of this or any

other basic right.

        Furthermore, in this respect, the respondent Government

contend that the very nature of the matter complained of by the

applicant does not relate to an invasion of freedom of assembly, but

that he claims a right of access to the civil service, a right not

guaranteed by the Convention.

        bb) incompatible by virtue of paragraph 2, second sentence

        In the alternative the respondent Government contend that the

applicant's complaint under Article 11 is incompatible in that, if the

applicant's dismissal constituted an interference with his freedom of

assembly, this interference was covered by the second sentence of

para. 2 of Article 11 of the Convention.  In this context Article 11

para. 1 does not prevent the imposition of lawful restrictions on the

exercise of the right of freedom of assembly by members of the

administration of the State.  To the extent that it is at all possible

to speak of an invasion of freedom of assembly in the present case,

the domestic law of the Federal Republic of Germany provides a

justified lawful restriction in this sense.  The obligation derived

from civil service law to acknowledge allegiance by one's entire

conduct to the free democratic basic order within the meaning of the

Basic Law and of the Constitution of the Rhineland-Palatinate and to

advocate the preservation of the basic order legitimately excludes any

enjoyment of freedom of assembly running counter to this obligation.

        cc) manifestly ill-founded

        Finally, any alleged interference with the applicant's rights

under Article 11 para. 2 first sentence was in any case justified as

necessary in the interests of national security and for the prevention

of disorder in a democratic society.  In this respect the respondent

Government invoke, mutatis mutandis, their arguments submitted in

respect of Article 10 para. 2 of the Convention above.  The democratic

order of the Federal Republic of Germany was affected by the

activities of the KBW thus also by the applicant's activity in active

support thereof.  Despite the slight differences which the

respondent Government acknowledge in the wording of Article 11 para. 2

first sentence as compared with Article 10 para. 2, the point at issue

here is still governed by the same considerations.

       In the further alternative, the applicant's complaint under

Article 11 also founders by reference to Article 17, for the same

reasons as developed in respect of the complaint by reference to

Article 10 of the Convention.

The Applicant

Article 10 of the Convention

        The applicant submits that the respondent Government's

observations cannot alter the fact that he was dismissed from the

public service as a result of his opinions.  Had he not expressed

certain opinions, this particular sanction would not have applied to

him.  It is significant in this respect that not even the respondent

Government suggest that the applicant conducted himself otherwise

than irreproachably as a teacher for many years.  In so doing the

applicant obviously displayed the necessary loyalty to the Constitution.

It was only his expressions of opinion outside his work activities

which gave rise to the alleged doubts as to his loyalty and this in

itself illustrates that his freedom of expression was sanctioned.  In

this respect the present case is to be distinguished from Application

No. 9228/80 Glasenapp v. the Federal Republic of Germany and

Application No. 9704/82 Kosiek v. the Federal Republic of Germany.

The applicant's long and unreproached service as a teacher underlines

that his dismissal was an attack on the unpopular views he held, even

though they never affected his work.

        Nor can the restrictions on the applicant's freedom of

expression be justified under the terms of Article 10 para. 2 of the

Convention.  The reliance on the ground of national security is

scarcely credible, bearing in mind the applicant's satisfactory school

service for a period of a number of years.  In these circumstances it

cannot seriously be alleged that the applicant could have been a

negative influence on the pupils.  This is particularly illustrated by

the fact that it was his out of school activities, unconnected with the

school, which were the alleged justification for the applicant's dismissal.

That the applicant's dismissal was a response to his unpopular opinions,

rather than to his suitability for employment, is reinforced by the

fact that, when the applicant appealed successfully to the

Administrative Court of Neustadt/Weinstrasse against the decision

that he be suspended from teaching immediately on 23 December 1975,

the authorities did not challenge the Administrative Court's decision

by a further appeal.  They thereby accepted that the applicant's

teaching was not open to criticism and he continued in his job for a

further seven years.

        As to the necessity in a democratic society of the dismissal

of the applicant in view of his opinions, a comparison of the

situation in other Western European countries is sufficient to

illustrate that the practice of loyalty control to which the applicant

was subject is unique to the Federal Republic of Germany.  In these

circumstances the dismissal was not "necessary in a democratic

society".  In this respect the respondent Government give no reasons

to explain why it is only the Federal Republic of Germany which

requires such measures to defend its national security and democratic

structure.

        Furthermore, the respondent Government are no more able to

produce convincing arguments based on Article 17 of the Convention.

The applicant has never expressed opinions which were aimed at the

destruction of rights guaranteed by the Convention.  The respondent

Government cite the example of the applicant's involvement in the

committee concerned with the reform of Section 218 of the Criminal

Code.  However, as the applicant points out, in the meetings

concerning this issue no discussion was held about the Constitution,

still less about the KBW.  The discussion concerned the plight of

women in need, and the fact that the so-called KBW expressed an

interest in such discussions, cannot convert the applicant's

involvement in this topic into support for the KBW.  In the

applicant's view, every communal activity results in consequences

which various individuals can turn to their own private advantage.

Such involvement permitted the expression of opinion to a wider

audience and the applicant stresses that the domestic courts did not

find support for the KBW to have been expressed in this particular

way.  By contrast with the position of the respondent Government in

their observations, where the applicant is alleged to have worked in

the activities of the KBW, the Rhineland-Palatinate Administrative

Court of Appeal, as the final instance of fact, found merely that the

applicant had made common cause with the KBW.  The applicant was

therefore criticised, not for the way in which he expressed himself,

and in particular not for expressing himself in a way which might

attack the rights protected by the Convention, but for taking part in

meetings at which persons from the KBW circle also took part.

        In this respect, it must be remembered that all the meetings

held were public meetings, to which anyone could have access.  In

addition, the applicant took part in a large number of other meetings,

which were inspired by other organisations, including parties

represented in the Federal Parliament.

Article 11 of the Convention

        Freedom of assembly

        Contrary to the respondent Government's submissions, the

applicant was discriminated against in his participation in meetings

through a cumulative effect.  This finding, of the applicant's

repeated involvement in various meetings, was the whole basis for the

applicant's dismissal, since the Rhineland Palatinate Administrative

Court of Appeal accepted as a fact that the applicant's membership of

the KBW was not established and that the applicant had indeed

expressly dissociated himself from that movement.

        In this respect the applicant also seeks to distinguish

between the decisions reached by the administrative authorities, and

those reached by the courts.  The final court instance of fact found

that it was not established that the applicant was a member of the KBW

and hence no contrary conclusion can be drawn from the previous

opinion of either the District Government or of the Ministry of

Culture.

        With regard to the applicant's involvement in the various

meetings and initiatives for which he was criticised, none of these

was an initiative of the KBW; they were initiatives which had a specific

goal, such as the Section 218 repeal initiative, but the respondent

Government fail to acknowledge this.  Nevertheless the Administrative

Court's decision is based upon the applicant's involvement in just

these meetings and initiatives.  Thus, in summary, the factual kernel

of the criticisms made of the applicant's behaviour was his

participation in various "assemblies".  This was what led to the

decision which the applicant now seeks to challenge.  Had he not taken

part in these various forms of assembly no reproach could have been

made against him.

        The respondent Government attempt to argue that the applicant

was not affected in the exercise of his freedom of assembly.  This

view cannot be accepted, since the applicant was indeed affected in

the most direct possible way, in that his opportunity to earn his

living was totally removed.  This obviously also had an effect in

respect of his future participation in meetings and assemblies.

Similarly other persons were influenced in a comparable way.

        Freedom of association

        In as much as the applicant had provided a sponsorship

signature for the KBW for its participation in the Federal elections,

an issue arises as to the protection of freedom of association.  The

same is true for the criticisms made of his actions together with

supporters of the KBW.  The applicant's association with members of

the KBW, by working alongside them, even without being a member of the

organisation, is sufficient to enjoy the protection of Article 11 of

the Convention.  This provision protects all forms of co-operative

work, association and assocations, providing that they were involved,

as here, in lawful activities.

        The State interference with the applicant's rights under

Article 11 cannot be justified under the second sentence of para. 2,

which must be read in conjunction with the first sentence of that

paragraph.  It is clear from the whole context of the second paragraph

of Article 11 that not every interference with a civil servant's

freedom of association is automatically justified under the terms of

the second paragraph of the Article.  The reference to the words

"armed forces" and "the police" in conjunction with the

"administration of the State" must clearly result in the words

"administration of the State" being narrowly construed, ejusdem

generis with the terms "armed forces" and "police".  Hence not

every person employed in the public service can be regarded as

included within the concept of "members of the administration of the

State", and it is clear that, giving those words their natural

meaning, teachers do not administer their pupils or exercise any other

administrative function on behalf of the State.  Nevertheless, in

accordance with the legal position in the Federal Republic of Germany,

all civil servants are subject to the same rigid restrictions

concerning their participation in assemblies and freedom of

association.  This state of affairs is irreconcilable with the terms

of Article 11.

        Nor can a justification for the interference in the present

case be found in the first sentence of para. 2 of Article 11.  There

is no evidence of any necessity for the interference, and a mere

reference to the KBW will not suffice in this respect if a comparison

is made to the practice in other democratic countries.  It is

illustrative of the unnecessary nature of these restrictions that they

are not required in any other democratic country apart from the

Federal Republic of Germany.  Nor can any persuasive reason be found

why they should be required in the Federal Republic of Germany and not

elsewhere.

        Nor have the applicant's activities under Article 11 of the

Convention been aimed at the destruction of the rights contained in

the Convention.  The respondent Government do not explain how any of

the applicant's activities has such an aim, nor even how such a

submission could be reconciled with the findings of fact of the

administrative courts.

THE LAW

        The applicant complains that the termination of his

appointment as a civil servant on probation was contrary to Articles 10 and 11

(Art. 10, 11) of the Convention since it was based upon the opinions which he

held, or manifested and his political activities in association with others.

The respondent Government contend that the termination of the applicant's

appointment reflected his failure to satisfy one of the criteria for his

continuing appointment as a civil servant on probation namely the requirement

that he show a positive attitude to the fundamental principles of the Basic Law

and the Constitution of the Rhineland Palatinate.

        The Commission recalls that it has held that in certain cases

the reactions of the authorities to the opinions held or expressed by

individuals, including those employed in public service, may raise issues under

Articles 10 and 11 (Art. 10, 11) of the Convention (No. 9228/80, Comm. Rep.

11.5.84;  No. 10293/83, Dec. 12.12.85 (to be published in DR 45); No. 11603/85,

Dec 20.1.87 (to be published)).

        In this respect the respondent Government have contended that

the application is incompatible with the Convention ratione materiae.

The Commission recalls its analysis of similar cases relating to

loyalty control for civil servants.  Where the operation of loyalty

control impinges on an individual's freedom of expression an issue

arises under Article 10 (Art. 10) of the Convention notwithstanding that the

individual concerned is or would wish to be a civil servant (No.

9228/80 Comm.  Report 11.5.84, paras. 67-77;  No. 9704/82 Comm.  Report

11.5.84, paras. 60-70).  This approach was specifically confirmed by

the Court in its judgments in those two cases in which it declined the

respondent Government's renewed invitation to find those applicants'

complaints incompatible with the Convention (Glasenapp judgment of

28 August 1986, Series A no. 104, paras. 49-50;  Kosiek judgment of

28 August 1986, Series A no. 105, paras. 35-36).

        Nevertheless, in view of the fact that the right to employment

in the public service is not guaranteed by the Convention,  the

Commission must first establish whether the matters about which the

applicant complains amounted to an interference with the exercise of

freedom of expression or association or whether these matters lie

within the sphere of the right of access to the civil service.  In

order to answer this question, the scope of the measure complained of

must be determined by putting it in the context of the facts of the

case and of the relevant legislation (see mutatis mutandis, Kosiek

judgment loc. cit. para. 36).

        The District Government of the Rhinehesse Palatinate gave as

its reason for dismissing the applicant his activities for the benefit

of the KBW;  the applicant was reproached with having continually and

actively taken part in meetings, demonstrations and activities steered

by the KBW and other Communist groups.  The Government considered that

his involvement far exceeded that of a detached observer and he had in

practice closely identified with a variety of KBW initiatives.  Its

decision was therefore based on the activities in which the applicant

was involved.  The Commission notes in particular in this respect that

the applicant was suspected inter alia of participating in KBW

'raiding squads' which had deliberately disrupted a meeting of the NPD

with violent consequences.

        The District Government considered that the applicant had not

proved himself, because he did not fulfil the condition - as required

under Section 63 (1) LBG - that he would consistently uphold the free

democratic system within the meaning of the Basic Law.  This is one of

the personal qualifications required of anyone seeking a post as a

civil servant ("Beamter") - whether temporary or established - in the

Federal Republic of Germany.  This requirement applies to recruitment

to the civil service, a matter that was deliberately omitted from the

Convention, and it cannot in itself be considered incompatible with

the Convention.  The District Government originally assumed, in the

absence of evidence to the contrary, that the requirement had been

fulfilled, since the applicant was appointed as a teacher with the

status of probationary civil servant.  After an examination of the

applicant's political activities, however, the District Government

came to the conclusion that the applicant did not meet one of the

conditions of eligibility laid down for the post in question, as a

result of which it decided to terminate his appointment as a

probationary civil servant (Sections 41(1) No. 2 and 63(1) LBG).  The

applicant was afforded the opportunity of a hearing but was not

required to state his opinion nor was he interrogated about his views.

        It follows from the foregoing that the question of the

applicant's eligibility for employment in the public service lies at the

heart of the present application.  There was a substantial quantity of

largely undisputed evidence available to the administrative

authorities and the domestic courts from which the extent and nature

of the applicant's activities could be judged and their implications

for his suitability as a public employee assessed.  The authorities

did not seek to establish the applicant's unexpressed attitudes or

opinions by questioning, nor require him to adopt a particular opinion in

order for their enquiries to be concluded.

        In terminating the applicant's probationary appointment, the

responsible authorities took account of his opinions and activities

merely in order to determine whether he possessed one of the necessary

personal qualifications for continued appointment in the post in

question.

        That being so, there has been no interference with the

exercise of the rights protected under Articles 10 or 11 (Art. 10, 11) of the

Convention and no issue arises under Articles 14 or 18 (Art. 14, 18) thereof.

It follows that the present application is manifestly ill-founded

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

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)