PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

(Translation)

1.   My opinion is divided into four parts:

- concurring opinion,

- diverging opinion,

- dissenting opinion,

- final remarks.

I.   Concurring opinion as to the applicability of Article 10 (art. 10)

2.   I agree with the majority of the Court when it states in paragraph 49 of its judgment:

- "it does not follow that in other respects civil servants fall outside the scope of the Convention"; and

- "Article 11 para. 2 (art. 11-2) in fine, which allows States to impose special restrictions on the exercise of the freedoms of assembly and association by ‘ members of the armed forces, of the police or of the administration of the State ’ , confirms that as a general rule the guarantees in the Convention extend to civil servants".

3.   The present judgment could, however, have brought out more clearly the principle that even in the case of access to the civil service, Article 10 (art. 10) of the Convention obviously may apply.

4.   In this way the Court would have made its interpretation clearer.

5.   This would have served as a reminder that, in the Court ’ s view, pluralism, tolerance and broadmindedness are the best guarantees of survival for a true democratic State, which can only be strong when it is democratic.

6.   The Court pointed this out in its Handyside judgment in the following terms:

"The Court ’ s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘ democratic society ’ . Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’ . This means, amongst other things, that every ‘ formality ’ , ‘ condition ’ , ‘ restriction ’ or ‘ penalty ’ imposed in this sphere must be proportionate to the legitimate aim pursued." (judgment of 7 December 1976 , Series A no. 24, p. 23, para. 49)

II. Diverging opinion

A. In general

7.   The Glasenapp case brings to mind a case which arose in Luxembourg in 1934.

It may seem surprising that one should be mentioning a 1934 decision in 1986.

There is no cause for surprise, however, particularly not as the Government of the Federal Republic of Germany themselves cite the Weimar Republic - a period earlier than 1934 - to justify, at least partly, their " Radikalenerlass ".

8.   The decision taken by the Government of Luxembourg in 1934 - at a time, then, when the Star of David had already been introduced in Germany and when the first concentration camp, at Dachau , was already operating full time to silence those who exercised the rights which are today enshrined in Articles 9 and 10 (art. 9, art. 10) of the Convention - deserves to be mentioned.

9.   It is all the more worthy of mention as there are points of curious similarity between it and the Glasenapp case, as if History was refusing not to repeat itself.

The case was as follows.

10. On 2 July 1934, the Luxemburger Wort informed its readers that with effect from that same day two teachers, J. Kill and D. Urbany , had been dismissed on account of their being members of the Luxembourg Communist Party (which was not a prohibited one).

11. In its edition of 7 July 1934 , the aforementioned journal commented on the decision as follows:

"Two dismissals

...

The Government ’ s arguments are well-known and can be briefly summarised: the Education Act requires primary-school teachers to impart to children a knowledge of the Christian, civic and social virtues.

It also requires them to avoid, even when off duty, anything which may discredit them or offend social conventions. As sections 22 and 43 of the Education Act are quite categorical on this, the Government were right to hold that it is impossible for a Communist teacher to be able to comply.

One clarification is called for. For children to be given an education which is Christian - in the fullest sense of the word -, civic and social, it is not enough not to teach exactly the opposite in schools, i.e. Communism; it is essential to present the Christian and civic order to children as an ideal. This really does not mean that the current system is the best possible one, but in order to comply with the Education Act, i.e. in order for a teacher to accomplish his or her duty, it is essential to teach the children Christian and civic values. Any teacher who does not do so is not following the spirit of the Act in his or her teaching.

...

That is why this dismissal has absolutely nothing to do with the Constitution, and the fuss being made about a breach of the Constitution is wholly without foundation. As regards the reasons, nothing could be clearer. The Constitution only lays down general rules for the legislation which governs the various spheres of life and which is accordingly of necessity more specific and restrictive. In other words, the law defines and even, quite often, interprets the general meaning of the Constitution. This is the case with the Education Act. Article 24 of the Constitution may well secure freedom of opinion, but the Education Act lays down how it is to be applied in educational matters, while stipulating that primary-school teachers shall give children a positive Christian and civic education and not merely that they should not be opposed to the Christian and civic order. The Federation of Primary-School Teachers itself recently interpreted the Act in this way - the same Federation that has already inveighed against disciplinary education and which the Communists are expecting to endorse their protests again.

If there was the slightest violation of the Constitution, it would be the Education Act that was at fault and not the Government decree. This is not the case, however, given that until now the Education Act has been seen as ideal in teaching and educational matters, at least by those who today are complaining of its application to the letter.

They would be entitled to be indignant if the Act did not mention Christian and civic virtues. That is annoying for them, but happily for us it is still the case. The question is therefore whether our Education Act conforms to Article 24 of the Constitution and not whether it has been properly applied, since that is beyond doubt.

...

We shall calmly wait and see. We wonder merely whether the Government are bound to suffer this senseless campaign against their decree. Above all, do they have to allow even pupils to be incited by leaflets to rebel against them? We only regret that the Socialists have joined this cause, but we are not surprised, and we note with the Tageblatt and Arbeiterstimme that the first step towards a united front has been taken. But we revolt at the arrogance of those newspapers which, once again, are protesting in the name of the whole people and are talking about indignation having swept the whole country, when 80 per cent of the population feel the dismissal has had a liberating effect and it has been applauded everywhere. Nor are Catholic parents the only ones to refuse to entrust their children to Communists.

...."

12. As pointed out above (9), this case and the Glasenapp case have features in common.

There is one common feature in particular which is worth emphasising.

In both cases the main criteria which the relevant authorities took as a basis was that of an obligation to perform something, which was difficult for those affected to discharge - or, at least, difficult to prove.

How, in fact, is a primary-school teacher, who is responsible for teaching children to read and write, to prove that he or she has always "presented the Christian and civic order as an ideal"? (It should be noted that by this time, religious instruction was already the responsibility of the clergy.)

How can a drawing teacher, such as Mrs. Glasenapp , whose main task is to teach the art of drawing to young pupils, prove that she has "constantly upheld the free democratic system"?

B. Application of Article 10 (art. 10) in the present case

13. In paragraph 50 of its judgment, the Court states that "the status of probationary civil servant that Mrs. Glasenapp had acquired through her appointment as a secondary-school teacher ... did not deprive her of the protection afforded by Article 10 (art. 10)".

14. I cannot but share this view, particularly as it is noted in the same paragraph of the judgment that "this provision is certainly a material one in the present case, but in order to determine whether it was infringed it must first be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression - in the form, for example, of a ‘ formality, condition, restriction or penalty ’ ...". Nevertheless, in deciding in paragraph 53 that there had been no interference with the exercise of the right protected under paragraph 1 of Article 10 (art. 10-1), has the Court not implicitly decided that paragraph 1 of Article 10 (art. 10-1) of the Convention was applicable in this case? After all, if access to the civil service was to remain outside the ambit of Article 10 (art. 10), it would surely have been unnecessary to consider whether there had been any interference in the instant case or not.

15. I should have preferred the Court to express its view on this more explicitly, however, as I consider the point raised by Mrs. Glasenapp to be of primary importance in a democratic society.

16. I thus entirely share the Commission ’ s opinion on the admissibility of the application, which reads as follows:

"The Commission considers that the fact that the applicant was required to express her opinions about the KPD, arising as it did as a result of an investigation prompted by the publication of the open letter written by the applicant in the "Red Flag" newspaper, brings her present application within Article 10 (art. 10) of the Convention. The mere fact that the applicant was at the time of these events a civil servant on probation does not preclude the Commission from examining her complaint, since under Article 1 (art. 1) of the Convention the High Contracting Parties undertake to ‘ secure to everyone within their jurisdiction ’ the rights and freedoms guaranteed by the Convention. Nor can the fact that the right of access to or employment in the public service is not one of those rights and freedoms restrict the scope of the operation and protection of the Convention in respect of rights which it does guarantee. ..."

17. I should therefore have preferred there to be a separate examination of the relevant issue, namely that the decision on admission to the civil service was dependent on the assessment concerning Mrs. Glasenapp ’ s freedom of expression and that the Court should accordingly have considered under paragraph 2 of Article 10 (art. 10-2) whether or not there had been legitimate interference.

III. Dissenting opinion

18. My dissenting opinion concerns the following points:

- the question of access to the civil service; and

- the violation of Article 10 (art. 10) in the particular circumstances.

A. Access to the civil service

19. I do not share the opinion of the majority of the Court, who state (at paragraph 50 in fine of the judgment) that the right of access to the civil service is not secured in the Convention. That assertion seems to me to be too categorical.

20. While the Contracting States did not wish to commit themselves to recognising a right of access to the civil service in the Convention or its Protocols, the High Contracting Parties nonetheless undertook in Article 1 (art. 1) of the Convention to secure "to everyone within their jurisdiction" the rights and freedoms guaranteed in the Convention.

It follows that access to the civil service must not be impeded on grounds protected by the Convention (for example, freedom of opinion, freedom of expression).

21. Taken to its extreme, the reasoning of the majority of the Court could authorise a State to refuse to admit to the civil service candidates who, while fulfilling all the requirements of nationality, age, health and professional qualifications, did not satisfy certain criteria of race, colour or religion.

Obviously such a situation is unthinkable for all the member States of the Council of Europe.

B. Violation of Article 10 (art. 10) of the Convention

22. The majority of the Court holds that there was no violation of Article 10 (art. 10) (paragraph 53).

23. It does so in the following terms:

"It follows from the foregoing that access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mrs. Glasenapp such access, 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.

That being so, there has been no interference with the exercise of the right protected under paragraph 1 of Article 10 (art. 10-1)."

24. First of all, I should like to state that, in my opinion, access to the civil service was not at all at the heart of the issue submitted to the Court.

Quite on the contrary, at the heart of the issue were the freedoms of expression and opinion enjoyed by Mrs. Glasenapp by virtue of the provisions of the Convention.

25. I accordingly think that the crucial matters in the case are the following:

- was there interference by the State?

- was such interference necessary in a democratic State (the question of proportionality)?

(a) Interference

26. In paragraph 51 of the judgment it is noted:

"The annulment of Mrs. Glasenapp ’ s appointment was consequent upon her refusal to dissociate herself from the policies of the KPD following the publication in the Rote Fahne on 2 October 1974 of her letter to the Westfälische Rundschau ... The intervention of the responsible Land authority was thus prompted by two actions on her part, namely the expression of a particular opinion in her letter and the refusal to express another opinion during the interview proceedings."

27. As stated earlier (paragraph 23 above), the majority of the Court, after considering the national legislation on civil servants in paragraph 52 of the judgment, reached the conclusion that there had not been any interference in the instant case with the exercise of the right protected under paragraph 1 of Article 10 (art. 10-1).

28. I follow the majority of the Commission (paragraphs 66 to 99 of its report) in thinking that the cancellation of the applicant ’ s appointment was due to specific incidents connected directly with expressing her political opinions or with keeping silent about them.

29. The authorities ’ reaction must therefore be considered as a manifest interference with the exercise of the rights secured in Article 10 para. 1 (art. 10-1) to all citizens within the jurisdiction of the member States of the Council of Europe and thus likewise secured to Mrs. Glasenapp .

30. This view is also shared by four members of the minority of the Commission (see Mr. Frowein ’ s opinion, with which Mr. Ermacora, Mr. Carrillo and Mr. Soyer agreed, Commission ’ s report, p. 35, para. 1).

(b) Necessary in a democratic society

31. If one accepts that there was interference in Mrs. Glasenapp ’ s case, the crucial point - which was not examined by the Court, but the principle of which, I think, far transcends the particular facts submitted to it - seems to me to be whether such interference was necessary in a democratic society such as the Federal Republic of Germany.

32. It should be remembered that paragraph 2 of Article 10 (art. 10-2) provides:

"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 health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

33. It follows from this text that many factors may justify interference by the State with the right to freedom of expression.

34. In this connection, it is of interest to bear in mind the position taken up by the Government of the Federal Republic of Germany at the public hearing on 21 October 1985 .

The Agent of the Government said (translation from the German):

"The fall of the Weimar Republic was due among other things to the fact that the State took too little interest in the political views of its civil servants, judges and soldiers as a result of a misunderstanding of liberal principles. The officials of the Weimar Republic thus included those whose sympathies lay more with the former monarchy or with movements of the far right or far left and who, in the economic recession of the 1920s and the many political conflicts of that period, did not uphold the democratic Constitution, or the State based on the rule of law. That was a crucial contributing factor in the repeal of the democratic Weimar Constitution, which had established a State based on the rule of law, and in the emergence of the National Socialist dictatorship. The lessons from this historical experience were learned, and special provisions were included in the Basic Law of the Federal Republic of Germany, covering among other things the organisation of the civil service, which was thus constitutionally safeguarded. That is why, in the Federal Republic of Germany, no one can become a civil servant who does not afford a guarantee of constant loyalty to the order established in the Basic Law."

35. I cannot share this excessively generalised view. History has shown beyond any doubt that the Weimar Republic did not collapse on account of a few civil servants "whose sympathies lay more with the former monarchy or with movements of the far right or far left", but for infinitely more complex and more deep-seated reasons.

In this respect the Federal Republic of Germany is not comparable with the Weimar Republic .

36. A second argument expounded by the Agent of the Government to justify current legislation in the Federal Republic of Germany was the following (translation from the German):

"... Germany is a divided nation whose position bordering on the Communist States of the Warsaw Pact exposes it to special dangers. This requires us to take additional precautions to safeguard our free democracy and makes us different from other Council of Europe States."

37. Without wishing to enter into a debate on that argument, I consider nonetheless that the Federal Republic of Germany is not the only country in such a geographical position.

Yet it is the only country to have the legislation complained of.

38. However that may be, I think that in the particular case before the Court both the historical and the geographical arguments advanced show sufficiently in law that the measure taken in respect of Mrs. Glasenapp was clearly disproportionate to the aim pursued.

39. The same conclusion is reached, in my opinion, if one looks, as the Commission did, at the factors which are relevant to the question of justification, namely:

( i ) the nature of the post occupied by the applicant;

(ii) the applicant ’ s behaviour in the post;

(iii) the circumstances in which the disputed opinion was expressed; and

(iv) the nature of the opinions attributed to the applicant.

40. In this connection I wholly endorse the Commission ’ s analysis (paragraphs 102 to 127 of its report) and I conclude with the majority of the Commission that the disputed measure was "not necessary in a democratic society for any of the purposes referred to in Article 10 para. 2 (art. 10-2) of the Convention" (paragraph 128 in fine of the report).

41. I am accordingly of the opinion that in the Glasenapp case there was a violation of Article 10 (art. 10) of the Convention.

IV. Final remarks

42. Looking at the matter generally, I wonder whether in 1986 - nearly sixty years after the Weimar Republic and more than forty years after the end of the Second World War - the impugned practice of the Federal Republic of Germany really is necessary in order to safeguard democracy.

I wonder this all the more as I consider the Federal Republic to be a true democracy. Was it not the first country in postwar Europe to abolish the death penalty in its Constitution?

Is it not also the case that in Saarland the impugned practice has been abolished?

It is desirable that the other Länder and the Federation should follow this example.

43. In particular, while not overlooking that it is not part of the Court ’ s function to seek settlements, I think it would be in the interests of all the parties if a satisfactory solution to Mrs. Glasenapp ’ s case could be found at national level.

This would also be in the spirit of the European Convention on Human Rights.

DECLARATION BY JUDGE PETTITI

(Translation)

I agree with paragraphs 2 to 6 of Judge Spielmann ’ s separate opinion set out above.

[*]  Note by the Registrar: The case is numbered 4/1984/76/120.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.