CONCURRING OPINION OF JUDGE CREMONA

While agreeing with the finding of no violation in the judgment, I am unable to agree with the essential reasoning behind it.

The applicant was dismissed from a civil service post which she held in a probationary capacity. The legal fiction of a retrospective cancellation of her appointment cannot alter this fact. Now the crucial question is: why was she dismissed? And here I agree with what is stated in paragraph 51 of the judgment: the intervention of the responsible Land authority was in fact prompted by two actions on the applicant ’ s part, namely the expression of a particular opinion and the subsequent refusal to express another one. Essentially everything revolves around the applicant ’ s letter published in the Rote Fahne . The net result was that she lost her job because of her political opinions, thus suffering a serious prejudice.

This in my view discloses an interference with freedom of expression. The majority, on the other hand, taking the view that access to the civil service lies at the heart of the issue, fail to see any such interference because, in their view, in dismissing the applicant the Land authority took account of her opinions and attitude merely in order to satisfy itself as to whether she possessed one of the necessary personal qualifications for the post in question.

But the fact remains that the essential basis of that decision, which indeed resulted in the applicant ’ s dismissal, was undoubtedly the holding and expression of certain opinions. To say, as is done in the judgment, that in dismissing the applicant the relevant authority merely took account of such opinions is an understatement. Indeed, the whole decision was based on them.

In this case, therefore, as in a picture, civil service status provides no more than the general background, whereas the dominant feature in the foreground is a prejudice suffered because of the holding and expression of opinions.

This to my mind brings the case squarely under Article 10 para. 1 (art. 10-1) of the Convention.

Having said that, I would add briefly that in my view the interference in question was justified under paragraph 2 of that Article (art. 10-2) in that, on the established facts, it met the requirements of that paragraph, with the consequence that there was no violation of that Article (art. 10).

JOINT CONCURRING OPINION OF JUDGES BINDSCHEDLER-ROBERT, PINHEIRO FARINHA, PETTITI, WALSH, RUSSO AND BERNHARDT

(Translation)

We held with the majority that there had been no violation of Article 10 (art. 10) because, in our view, Article 10 (art. 10) is not applicable in the instant case.

As is set out in this judgment, neither the Convention nor any of its Protocols expressly recognises a right of access to the civil service, unlike the 1948 Universal Declaration of Human Rights (Article 21 para. 2) and the 1966 International Covenant on Civil and Political Rights (Article 25(c)).

The reason why the Contracting States did not want the right of access to the civil service to be secured in the Convention or its Protocols (and it must be stressed that this was no chance omission but a deliberate one) lies in the great difficulty of bringing before an international court the problem of recruitment and the arrangements for selection and access, which by their very nature differ considerably in Council of Europe member States according to national tradition and the system governing the civil service.

This does not preclude the possibility that Article 10 (art. 10) might apply even to the civil service where all freedom of expression was de jure or de facto non-existent under domestic law.