Information Note on the Court’s case-law 36

November 2001

Volkmer v. Germany (dec.) - 39799/98

Decision 22.11.2001 [Section III]

Article 10

Article 10-1

Freedom of expression

Dismissal of teacher for exerting political influence on pupil in the GDR: inadmissible

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Proceedings concerning the dismissal of a secondary school teacher: Article 6 applic able

The applicant was a schoolteacher in German, Latin and civics in the German Democratic Republic. Between 1970 and 1977 he served as an honorary secretary to the East German Unified Socialist Party (SED) at the school where he taught, and between 1977 and 1 981 was employed on a full-time basis in a district executive committee of the SED. After the reunification of Germany, he was incorporated in the Berlin civil service as a teacher. One of his former pupils declared that the applicant, in his capacity of S ED representative, had asked him to attend a church conference about which he had later been questioned by an official of the East German authorities. In 1992 the special commissioner of the Government for “person-related” documents of the former GDR infor med the authorities that the applicant had been registered as a contact person in the files of the Ministry of State Security. It appeared that he had signed a declaration of confidentiality and had been interviewed on five occasions but that the Ministry had decided not to pursue further co-operation with the applicant. He told the FRG authorities that he had indeed been contacted by the Ministry of State Security but that he had refused to co-operate. He was suspended from his functions soon afterwards an d was finally given notice of termination of his contract. The Labour Court found the dismissal to be unjustified. The Higher Labour Court reversed the judgment, and deemed the applicant to be unsuited to continue teaching. The Federal Labour Court conside red that the applicant’s dismissal was not only based on his SED membership and his political beliefs but also on the professional and honorary functions he had held within that party and the fact that he had used one of his pupils to spy on SED adversarie s. It clearly reflected his commitment to the one-party system of the GDR and demonstrated his unfitness to teach the values of the German free democratic constitutional system. The Federal Constitutional Court declined to entertain the applicant’s constit utional complaint.

Inadmissible under Article 10: The applicant’s dismissal occurred in the general context of scrutiny of the professional qualifications and personal aptitude of civil servants of the GDR who were integrated in the civil service of the FR G after the German reunification. Having regard to the political context, the applicant’s dismissal for lack of personal aptitude was also based on an analysis of his political opinions and activities within the SED. Assuming that the impugned measure cons tituted an interference with the applicant’s freedom of expression, it was prescribed by the German Unification Treaty which provided expressly that a civil servant could be dismissed for lack of personal aptitude. It pursued a legitimate aim, that is to e nsure that holders of public authority who had abused their authority within the political system of the former GDR be prevented from exercising their authority in an arbitrary manner contrary to the free democratic constitutional system. As to whether the measure was necessary in a democratic society, a democratic State is entitled to require civil servants to be loyal to the constitutional principles on which it is founded. Germany’s determination to avoid the repetition of the numerous instances of abuse of public authority which had occurred within the system of the GDR prompted the requirement of political loyalty imposed on civil servants being transferred into the constitutional order of the FRG. In their judgments the domestic courts not only took in to account the applicant’s functions as secretary of the SED but also the fact that he had used one of his pupils for the purposes of political spying. Teachers being figures of authority to their pupils, the special duties and responsibilities incumbent o n them to a certain extent also apply to their activities outside school. Accordingly, an abuse of this authority gives rise to substantial doubts regarding a teacher’s personal capacity to assume his educational responsibilities. In the present case, the Court accepted the reasoning of the Higher Labour Court whereby the use of a pupil as an instrument to spy on political opponents was incompatible with a teacher’s duty to educate his pupils so as to ensure their respect for the principles of freedom of ex pression and tolerance for other opinions. Such a finding was within the margin of appreciation. In view of these elements and the particular circumstances of German reunification, even assuming that there was an interference with the applicant’s freedom o f expression, it was proportionate to the legitimate aim pursued: manifestly ill-founded.

Inadmissible under Article 6 § 1: The post of secondary-school teacher does not entail direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. Moreover, it does not belong to the categories of activities and posts listed by the European Commission in its communication of 18 March 1988 and by th e Court of Justice of the European Communities which the Court uses as guidance in its assessments in respect of the applicability of the present provision. Accordingly, Article 6 § 1 applied to the proceedings in issue. In the present case, the applicant had an opportunity to contest the decision of the authorities before the German courts in adversarial proceedings and to submit all the arguments which he considered relevant to his case. Moreover, the domestic courts carefully stated the reasons why the a pplicant lacked the personal aptitude required for a teacher in the public service. Finally, the domestic courts did not disclose any appearance of arbitrariness or omission with respect to the applicant’s arguments: manifestly ill-founded.

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

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