Information Note on the Court’s case-law 36

November 2001

Petersen v. Germany (dec.) - 39793/98

Decision 22.11.2001 [Section III]

Article 10

Article 10-1

Freedom of expression

Dismissal of professor of modern history from the former GDR for lack of professional qualifications, in particular due to the tenor of his two theses: inadmissible

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Proceedings concerning the exclusion of a university professor from the civil service: Article 6 applicable

The applicant, who had obtained a history degree in 1971, had been a modern history professor at Humboldt University in Berlin, in the former GDR, since 1988. He obtained his teaching certificate and his Doctor Scientiae after completing two theses, the fi rst in 1978 on the links between civil research and its military use in the FRG during the 1950s, and the second in 1986 on the CDU and the conception of the social market economy in 1945-1949. After the reunification of Germany the applicant was first pro visionally integrated into the civil service of the FGR, before being assessed by the Restructuring and Appointments Board set up to assess university professors from the former GDR. In 1992 a history professor at the Faculty of Historical Sciences at Boch um, who was a member of that board, handed in an expert report concluding that the applicant could not continue to be employed in the civil service because he lacked the requisite professional qualifications. The report noted that the applicant’s first the sis was more political than historical, that the second one did not put forward any fresh evidence, that the requirements of an academic work had not been met and, lastly, that the applicant had not published anything in the meantime. The board heard submi ssions from the applicant and decided, by four votes to two, to dismiss him from his post. It confirmed its decision in January 1993. In April 1993 the Dean of Humboldt University accordingly dismissed the applicant. In December 1993 the Labour Court uphel d the applicant’s appeal on the ground, inter alia , that the Restructuring and Appointments Board had not complied with the procedural requirements. In June 1994 the Berlin Regional Labour Court set that judgment aside, holding that the dismissal was justi fied both in substance and in form because even if there had been procedural flaws in the proceedings before the board, they had been of no effect because the board played a merely consultative role and the proceedings before it had been internal and admin istrative in nature. The Federal Labour Court dismissed an appeal by the applicant for a review of that decision, whereupon the applicant lodged an appeal with the Federal Constitutional Court. In a judgment of July 1997, the Constitutional Court dismissed the applicant’s appeal. It held, inter alia , that the Regional Court had properly considered that a teacher’s qualifications were determined on the basis of his or her academic publications and had properly based its decision on the expert report and on t he lack of any subsequent academic publication to make up for the shortcomings of the applicant’s theses.

Inadmissible under Article 10: The applicant had been dismissed from the civil service after the reunification of Germany on account of his lack of pr ofessional qualifications. The decision to dismiss him had been based on an assessment by the relevant authorities of two theses he had written prior to reunification.

Even considering that measure to have been an “interference” with the exercise of the a pplicant’s right to freedom of expression, it had been “prescribed by law”. The possibility of dismissing a civil servant for such a reason was expressly provided for by the Law on Protection against Unfair Dismissal, combined with Annex 1 to the German Un ification Treaty; those provisions were precise and accessible so that the applicant must have expected his professional qualifications to be verified; lastly, the courts dealing with this case had not interpreted those provisions arbitrarily, but had clea rly defined the applicable concepts and criteria on each examination. With regard to the purpose of the dismissal, it had pursued a general-interest aim: the FRG could legitimately verify a posteriori the professional qualifications of persons who, after unification, had been integrated into the civil service, and who had previously worked in totally different conditions, for the purpose of guaranteeing to the public the quality of its staff. The impug ned measure had thus pursued the legitimate aims of preventing disorder and protecting the rights of others. As to whether or not it had been proportionate, it should be noted that the theses written by the applicant at the time of the GDR had necessarily borne the mark of the ideological climate imposed by the official line but it was also legitimate that in verifying the professional qualifications of a university lecturer employed to teach students in the FRG, the relevant authorities should base their d ecision on his former publications as a historian. On appeal by the applicant against the decision, the German courts had re-examined his professional qualifications in the light of the relevant legislation in force and had arrived at their conclusion not only on the basis of the two theses he had written, but especially on the lack of any subsequent academic publication, even after reunification, which might have made up for the shortcomings of those theses. Furthermore, the Constitutional Court had examin ed in detail whether the interference in question had breached his fundamental rights relating to freedom of work and academic freedom. The penalty imposed on him, although heavy, had thus to be seen against the general interest of German society, having r egard to the exceptional historical context in which he had been integrated into the FRG civil service and the conditions set forth in the German Unification Treaty, of which he must have been aware. Having regard, inter alia , to the exceptional circumstan ces linked to German reunification, in so far as there had been interference, having regard to the margin of appreciation of States in the area, that interference had not been disproportionate to the legitimate aim pursued: manifestly ill-founded.

Inadmiss ible under Article 6 § 1 (fair trial): That provision was applicable to teachers and therefore a fortiori to university professors, as was the case here. The national proceedings examined overall had been fair: manifestly ill-founded.

© Council of Europe/ European Court of Human Rights This summary by the Registry does not bind the Court.

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