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 35 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 on the application of Article 10 (art. 10)

7.   In paragraph 36 of its judgment, the Court states that "the status of probationary civil servant that Mr. Kosiek had acquired through his appointment as a lecturer ... did not deprive him of the protection afforded by Article 10 (art. 10)".

8.   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 39 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.

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

10. I should also 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 Mr. Kosiek ’ 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

11. 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

12. I do not share the opinion of the majority of the Court, who state (at paragraph 36 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.

13. 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).

14. 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

15. The majority of the Court holds that there was no violation of Article 10 (art. 10) (paragraph 39).

16. 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 Mr. Kosiek such access - belated though the decision was -, the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his probationary period and whether he 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)."

17. 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 Mr. Kosiek by virtue of the provisions of the Convention.

18. 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

19. In paragraph 37 of the judgment it is noted:

"The Ministry of Education and Culture gave as its reason for dismissing Mr. Kosiek his activities on behalf of the NPD ...; during the court proceedings, the Ministry also relied on the two books that the applicant had published .... Its decision was therefore based on the political stances the applicant had adopted."

20. As stated earlier (paragraph 16 above), the majority of the Court, after considering the national legislation on civil servants in paragraph 38 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).

21. I follow the majority of the Commission in thinking that the reaction of the competent Ministry of the Land must be regarded 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 Mr. Kosiek.

(b) Necessary in a democratic society

22. If one accepts that there was interference in Mr. Kosiek ’ 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.

23. 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."

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

25. 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 in the Glasenapp case.

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."

26. 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 .

27. 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."

28. 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.

29. 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 Mr. Kosiek was clearly disproportionate to the aim pursued.

30. 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 and his applications for other posts;

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

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

31. Contrary to what the majority of the Commission thought, I think that the disputed measure was unnecessary in a democratic society for any of the purposes listed in Article 10 para. 2 (art. 10-2) of the Convention.

Here I entirely concur with Mr. Fawcett when he says in his dissenting opinion:

"However, I do not find it shown that the imposition of the penalty of dismissal on the applicant was, in all the circumstances, ‘ necessary in a democratic society ’ , as required by Article 10 para. 2 (art. 10-2). ... in any case a public servant cannot both be said to be a danger to national security, or public safety, or the maintenance of order, under Article 10 para. 2 (art. 10-2), and be also allowed to hold his post for over six years from that finding." (my emphasis)

32. I am accordingly of the opinion that in the Kosiek case there was a violation of Article 10 (art. 10) of the Convention, although I would point out that obviously I do not at all share the applicant ’ s views; such views remind me of events in the still too recent past, which we hope the community of the Council of Europe ’ s member States has put behind it forever.

IV. Final remarks

33. 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.

34. 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 Mr. Kosiek ’ 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 5/1984/77/121.  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.