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COURT (GRAND CHAMBER)
CASE OF VOGT v. GERMANY
(Application no. 17851/91)
26 September 1995
In the case of Vogt v. Germany1,
The European Court of Human Rights, sitting, in accordance with Rule 51 of Rules of Court A2, as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
Mr P. Jambrek,
Mr K. Jungwiert,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 25 February and 2 September 1995,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Germany recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government's application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 10 and 11 (art. 10, art. 11) of the Convention and also, in the case of the Commission's request, of Article 14 (art. 14).
On 19 August 1994 the Commission produced various documents, as requested by the Registrar on the President's instructions.
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr H. Wurm, Ministerialrat,
Federal Ministry of the Interior,
Mr B. Feuerherm, Ministerialrat, Ministry for
Cultural Affairs of the Land of Lower Saxony, Advisers;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr K. Damman,
Mr P. Becker,
Mr O. Jäckel, Rechtsanwälte, Counsel.
The Court heard addresses by Mr Trechsel, Mr Becker, Mr Jäckel, Mr Damman and Mr Meyer-Ladewig, and replies to a question put by it.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. Disciplinary proceedings
1. Before the Weser-Ems regional council
(a) she had been a member of the "Executive Committee" (Vorstand) of the Bremen/North Lower Saxony regional branch (Bezirksorganisation) of the DKP since the end of 1983; and
(b) she had taken part in and addressed the DKP's 7th party congress, held from 6 to 8 January 1984 in Nuremberg, as Chairperson (Kreisvorsitzende) of the Wilhelmshaven/Friesland local branch of the party.
(a) her candidature for the DKP in the elections to the Parliament of the Land of Lower Saxony on 15 June 1986;
(b) the fact that she was still a member of the "Executive Committee" of the Bremen/North Lower Saxony regional branch of the DKP;
(c) the fact that she was still Chairperson of the Wilhemshaven/Friesland local branch of the DKP; and
(d) her participation in the DKP's 8th party congress from 2 to 4 May 1986 in Hamburg as a party delegate.
"Although you knew the views of your superiors and the case-law of the disciplinary courts you have nevertheless, over a considerable period of time, deliberately violated your duty of oyalty. For a permanent civil servant that is anextraordinarily serious breach of duty. Civil servants, whosestatus is founded on a special relationship of trust with theState and who, by taking the oath, have vowed to uphold the lawand freedom, destroy this basis of trust, which is essential forthe continuation of their relationship with their employer[Dienstverhältnis], if they deliberately support a party whoseaims are incompatible with the free democratic constitutionalsystem. This is the position in the present case."
2. Before the Disciplinary Division of the Oldenburg Administrative Court
The division found in the first place that neither ILO Convention No. 111 nor the recommendations made in the Commission of Inquiry's report of 20 February 1987 constituted a bar to the opening of disciplinary proceedings.
It considered that active membership of a political party that pursued anti-constitutional aims was incompatible with a civil servant's duty of political loyalty. The DKP's aims, as described in the Mannheim programme of 21 October 1978 (see paragraph 22 below), were clearly opposed to the free democratic constitutional system of the Federal Republic of Germany. A party could be held to be anti-constitutional even if it had not been banned by the Federal Constitutional Court (Bundesverfassungsgericht) under Article 21 para. 2 of the Basic Law (Grundgesetz - see paragraph 25 below). Through the active role which she played within the DKP the applicant had therefore clearly supported aims that were contrary to the Constitution.
The Disciplinary Division added that the rule, laid down in the first sentence of Article 48 para. 2 of the Basic Law (see paragraph 25 below), according to which no one may be prevented from taking office as a member of parliament, could not justify the applicant's standing as the DKP candidate in regional elections. This rule did not apply to measures, such as disciplinary proceedings, which initially had a different purpose and restricted the freedom to stand for election to, and to sit as a member of, parliament only as an indirect and unavoidable consequence of their implementation.
The duty of political loyalty, which admittedly restricted civil servants' fundamental rights, was one of the traditional principles of the civil service and had constitutional status by virtue of Article 33 para. 5 of the Basic Law (see paragraph 25 below). It followed that this duty took precedence over the provisions of international instruments such as the European Convention.
The applicant had moreover carried out her political activities despite being familiar with the case-law establishing that active membership of the DKP was incompatible with the duty of political loyalty. She must have been aware, at the latest once the Lower Saxony Disciplinary Court (Niedersächsischer Disziplinarhof) had delivered its judgment of 24 June 1985, which was published in an official education-authority circular and was brought to the attention of the applicant in person, that her conduct was in breach of her duties (pflichtwidriges Verhalten). Mrs Vogt had accordingly to be dismissed for having betrayed the relationship of trust between herself and her employer. Throughout the disciplinary proceedings she had moreover repeatedly indicated that she intended to continue her political activities for the DKP despite the warnings she had received. The fact that she had done her work satisfactorily for many years and that she had been held in high regard by her pupils and their parents alike was immaterial.
The Disciplinary Division finally ordered that Mrs Vogt should be paid 75 per cent of her pension allowance for a period of six months. It did so in recognition of the fact that apart from her breach of the duty of loyalty Mrs Vogt had always performed her duties unexceptionably and enthusiastically and needed some income to be protected from immediate hardship.
3. In the Lower Saxony Disciplinary Court
It pointed out that, by carrying out activities on behalf of the DKP, the applicant had breached the duty of political loyalty that she owed in accordance with Article 33 para. 5 of the Basic Law, taken together with section 61 (2) of the Lower Saxony Civil Service Act. Under those provisions, civil servants must at all times bear witness to the free democratic constitutional system within the meaning of the Basic Law and uphold that system. They must unequivocally dissociate themselves from groups who criticise, campaign against and cast aspersions on the State, its institutions and the existing constitutional system. As a result of her activities as a member of the DKP the applicant had failed to satisfy these requirements. The DKP's political aims were incompatible with that system.
The fact that the Constitutional Court had not banned the DKP did not prevent other courts from finding that the party was anti-constitutional, as the Federal Administrative Court and the Disciplinary Court itself had done convincingly in judgments of 1 February 1989 and 20 July 1989. An analysis of the still current Mannheim programme made by Mies and Gerns in their book on the DKP's methods and objectives (Weg und Ziel der DKP, 2nd edition, 1981) showed that the party, which aimed to establish a regime similar to that existing in the communist countries around 1980, continued to be guided by the principles of Marx, Engels and Lenin. Article 48 para. 2 of the Basic Law and the corresponding legislation of the Land of Lower Saxony securing the right to take office as a member of parliament did not set limits on the duty of political loyalty, since those provisions were not applicable to impediments resulting from disciplinary proceedings. The court held that the applicant's reference to Article 5 para. 1 of the Basic Law, which secured the right to freedom of expression, was not relevant as the provisions governing the civil service mentioned in Article 33 para. 5 of the Basic Law had to be regarded as general laws within the meaning of Article 5 para. 2 of the Basic Law (see paragraph 25 below). Similarly, the European Court of Human Rights had ruled that a decision by a competent authority relating to admission to the civil service did not amount to an interference with freedom of expression. The same approach applied in cases where a person had already been appointed to a permanent civil service post.
Mrs Vogt's conduct had been unlawful. By holding such a senior political post within the DKP, she necessarily espoused anti-constitutional aims and had therefore to be considered to be opposed to the Constitution herself, although she proclaimed her attachment to the Basic Law. It was not possible to support both systems at the same time.
Even though Mrs Vogt sought above all to achieve some of the DKP's short-term objectives such as reducing unemployment, promoting peace and eliminating so-called Berufsverbote (prohibitions on pursuing various occupations), this did not mean that her conduct was not culpable. The DKP's aims were admittedly not all anti-constitutional; some of them were compatible with the Basic Law. However, civil servants could not, as a means of furthering their own political objectives, make use of a party with anti-constitutional aims and help it to come to power. In this connection the Disciplinary Court referred to the following observations made by the Federal Administrative Court (Bundesverwaltungsgericht) in a judgment of 20 January 1987, adding that it adopted them as it was convinced that exactly the same reasoning applied to the case before it:
"It is admittedly possible to accept the view of the Federal Disciplinary Court [Bundesdisziplinargericht] that the official in question does not seek to change the system of government of the Federal Republic of Germany by the use of force and that this declaration cannot be dismissed as mere 'lip-service'. It is also possible to accept his claim that he is mainly concerned with correcting what he perceives to be a discrepancy between the principles laid down in the Constitution and their application in practice in the Federal Republic of Germany and that he is profoundly sincere in his wish to establish a society that is more just, particularly in the economic sphere. However, contrary to the view taken by the Federal Disciplinary Court, this does not mean that he is entitled to see in the DKP the political grouping through which he believes he can achieve his ideal political order. It appears doubtful whether the view of the Constitution espoused by the official and described above reflects accurately the principles enshrined in the Basic Law. It is not necessary to resolve that question here. In its judgment banning the former Communist Party (KPD) (BVerfGE 5, p. 85), the Federal Constitutional Court held that not only the 'tactics of conflict' employed by the former KPD but also the different phases of the process leading to attainment of its final objective of 'socialist rule' [sozialistische Herrschaft], namely proletarian revolution by peaceful or violent means and the triumph of the working class ..., were incompatible with the free democratic constitutional system. [It] also stated that intensive propaganda and persistent unrest aimed at establishing - even if this was not to be achieved in the near future - a political regime that was clearly contrary to the free democratic constitutional system inevitably caused direct and immediate harm to that system ... The Federal Constitutional Court thus also unquestionably held that the transitional stages of this process, which were of indefinite duration [and which the party sought to impose] through intensive propaganda and persistent unrest were incompatible with the free democratic constitutional system (BVerwGE 47, pp. 365 and 374). Hence, contrary to the view taken by the Federal Disciplinary Court, the civil servant's assertion that he did not intend to change the Federal Republic of Germany's political system by violent means, which is moreover consistent with many statements made by his party, is of no legal significance (BVerwGE 76, p. 157)."
The court also considered that the applicant's commitment to changing the DKP's policies could not exculpate her. The political loyalty owed by civil servants entailed a duty for them to dissociate themselves unequivocally from groups which criticised or cast aspersions on the State and the existing constitutional system. The attitude of civil servants who, even if they campaigned within the DKP for the renunciation of aims that were contrary to the Constitution, showed outside the party, through the political offices they held, that they unreservedly supported its programme and policy, was incompatible with such a duty. For as long as the DKP had not abandoned its anti-constitutional aims, civil servants' duty of political loyalty prevented them from actively working for it. This remained valid even where it was their intention to bring the party closer to democratic values. Moreover, during the disciplinary proceedings the applicant had declared her unconditional support for the DKP's aims, as set out in the Mannheim programme.
Like the Administrative Court, the Disciplinary Court found that Mrs Vogt had knowingly breached her professional obligations. Although she was aware of the case-law and her superiors' views on the subject, she had continued and even stepped up her activities on behalf of the DKP. Her dismissal had therefore been justified, since a civil servant who thus persisted in breaching her duties and refusing to see reason (unbelehrbar) was no longer capable of serving the State, which must be able to rely on its servants' loyalty to the Constitution. The court added that such a breach of duty was especially serious in the case of a teacher, who was supposed to teach the children entrusted to her care the fundamental values of the Constitution. Parents, who because of compulsory education had to send their children to State schools, were entitled to expect the State to employ only those teachers who unreservedly supported the free democratic constitutional system. The State was under a duty to dismiss teachers who played an active role in an anti-constitutional organisation.
The court added that a radical change in a civil servant's attitude could affect its assessment of the seriousness of professional misconduct. However, throughout the disciplinary proceedings, far from cutting down on her activities on behalf of the DKP, the applicant had in fact increased them. It followed that a more lenient disciplinary measure, aimed at persuading her to abandon her political activities within the DKP, was bound to fail. Accordingly, it was impossible to continue to employ her as a civil servant and her dismissal was inevitable. Her otherwise blameless conduct in carrying out her teaching tasks did not change the situation in any way, since the basis of trust that was essential for her to continue as a civil servant was lacking.
B. Proceedings in the Federal Constitutional Court
Sitting as a panel of three judges, the court decided on 7 August 1990 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success.
In the Constitutional Court's view, the competent courts' analysis was based on the conviction that, by her membership of the DKP and her active role within that party, the applicant had breached her duties as a civil servant. This conclusion was well-founded and in no way arbitrary. After the commencement of the disciplinary proceedings, Mrs Vogt had herself stated that there was no point, section or part of the DKP's programme of which she disapproved, thus endorsing unconditionally the party's aims set out in the Mannheim programme. The disciplinary tribunals had been entitled to find that the DKP's aims were anti-constitutional, notwithstanding the provisions of Article 21 para. 2 of the Basic Law. Regard being had to the applicant's intractability in respect of her political loyalty, the disciplinary courts had rightly considered that the basis of trust necessary for Mrs Vogt to continue to work as a civil servant was lacking, despite the fact that she had declared herself to be in favour of a change in the party's policy and had otherwise carried out her teaching tasks in a way that was irreproachable. The applicant's dismissal had therefore not amounted to a breach of the principle of proportionality as regards her constitutional rights. Accordingly, there had been no violation of Article 33 paras. 2, 3 and 5 of the Basic Law.
C. Subsequent developments
From 1 February 1991 she was reinstated in her post as a teacher for the Lower Saxony education authority. The Land government had beforehand repealed the decree on the employment of extremists in the Lower Saxony civil service (Ministerpräsidentenbeschluß - also known as the Radikalenerlaß - see paragraph 32 below) and had published regulations for dealing with "earlier cases" (see paragraph 33 below).
II. RELEVANT DOMESTIC LAW
A. The Basic Law
"(1) Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.
(2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour.
(3) There shall be freedom of art, science, research and teaching. Freedom of teaching shall not release citizens from their duty of loyalty to the Constitution."
"(1) Political parties shall take part in forming the political opinion of the people. They may be freely set up. Their internal organisation must comply with democratic principles. They must render public account of the origin of their income and their assets and of their expenditure.
(2) Parties which, through their aims or the conduct of their members, seek to damage or overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.
(3) Detailed rules shall be laid down by federal laws."
(2) All Germans shall have an equal right of admission to the civil service according to their suitability, capabilities and professional qualifications.
(3) Enjoyment of civil and political rights, admission to the civil service and the rights acquired within the civil service shall not be contingent on religious belief. No one shall be placed at a disadvantage on account of his or her 'adherence or non-adherence' to a religious persuasion [Bekenntnis] or to an 'ideology' [Weltanschauung].
(5) The provisions governing the civil service must take into account its traditional principles."
Article 48 para. 2
"No one shall be prevented from taking office as a member of parliament or from performing the duties attaching thereto. No employment contract may be terminated and no one may be dismissed from employment on this ground."
B. Legislation governing the civil service
Article 2 para. 1
"Under this law, measures may be taken against:
(1) officials who have breached their professional duty while having the status of a civil servant ..."
Article 5 para. 1
"The disciplinary measures shall be: ... dismissal ..."
Article 11 para. 1
"Dismissal shall also entail loss of the right to a salary and of pension rights ..."
C. Decree on employment of extremists in the civil service
"... civil servants' membership of parties or organisations that oppose the constitutional system - and any support given to such parties or organisations - shall ... as a general rule lead to a conflict of loyalty. If this results in a breach of duty [Pflichtverstoß], it shall be for the employer to decide in each case what measures are to be taken."
In 1990, as part of their coalition agreement on the formation of a new Government for the Land of Lower Saxony, the Social Democrat and "Green" parties decided to repeal the decree on employment of extremists in the civil service; the decree was repealed by a ministerial decision of 26 June 1990.
D. Case-law on the civil service
The tasks of a modern State administration are as varied as they are complex and they must be accomplished in an adequate, effective and prompt manner if the political and social system is to function and groups, minorities and individuals are to be able to lead a decent life. That administration must be able to count on a body of civil servants which is united and loyal, which faithfully performs its duties and is thoroughly dedicated to the State and the Constitution. If civil servants cannot be relied upon, society and State have no chance in situations of crisis.
It is sufficient to observe that the duty of political loyalty owed by civil servants is the core of civil servants' duty of loyalty. It does not mean a duty to identify with the aims or a particular policy of the Government in power. It means being prepared to identify with the idea of the State which the official has to serve and with the free democratic constitutional order of that State based on the rule of law and social justice.
It cannot be in the interests of the State and society to have civil servants who are entirely uncritical. It is, however, essential that a civil servant approves the State - notwithstanding its defects - and the existing constitutional order as it is in force and that he or she recognises that they merit protection, bears witness to them accordingly and is active on their behalf.
The duty of political loyalty - loyalty to the State and to the Constitution - requires more than an attitude which while formally correct is in fact uninterested, indifferent and, at heart, distant in relation to the State and the Constitution.
It entails, inter alia, the duty for civil servants to dissociate themselves unequivocally from groups and movements that criticise, campaign against and cast aspersions on that State, its institutions and the existing constitutional system.
[The duty of loyalty owed by a civil servant] applies to every type of appointment in the civil service, an appointment of fixed duration, an appointment on probation and an appointment subject to revocation as well as an appointment to a permanent post. Nor can there be any difference of treatment in this respect according to the nature of the civil servant's duties.
The fact that the Federal Constitutional Court has not exercised its power to declare a party anti-constitutional does not mean that it is impossible to have the conviction - and to express that conviction - that the party in question pursues anti-constitutional aims and must therefore be challenged in the political arena. A party which for instance advocates in its manifesto the dictatorship of the proletariat or approves recourse to force in order to overthrow the constitutional system if the conditions are right, pursues anti-constitutional aims ...
E. Report of the Commission of Inquiry of the International Labour Office
In reply to this report, the German Government maintained that the measures taken to ensure that civil servants remained loyal to the Constitution were not contrary to the relevant provisions of Convention No. 111 and that in any case the recommendations made by the Commission of Inquiry were not binding on the German State for the purposes of domestic law.
PROCEEDINGS BEFORE THE COMMISSION
FINAL SUBMISSIONS TO THE COURT
"to find that there has been a violation of Articles 10 and 11 (art. 10, art. 11) of the Convention".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
"1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article (art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. 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."
A. Whether there was an interference
Mrs Vogt, for her part, had been a permanent civil servant since February 1979. She was suspended in August 1986 and dismissed in 1987 (see paragraphs 16 and 20 above), as a disciplinary penalty, for allegedly having failed to comply with the duty owed by every civil servant to uphold the free democratic system within the meaning of the Basic Law. According to the authorities, she had by her activities on behalf of the DKP and by her refusal to dissociate herself from that party expressed views inimical to the above-mentioned system. It follows that there was indeed an interference with the exercise of the right protected by Article 10 (art. 10) of the Convention.
B. Whether the interference was justified
1. "Prescribed by law"
The Court accordingly shares the view of the Government and the Commission that the interference was "prescribed by law".
2. Legitimate aim
3. "Necessary in a democratic society"
(a) General principles
(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. 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; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see the following judgments: Handyside v. the United Kingdom, 7 December 1976, Series A no. 24, p. 23, para. 49; Lingens v. Austria, 8 July 1986, Series A no. 103, p. 26, para. 41; and Jersild v. Denmark, 23 September 1994, Series A no. 298, p. 26, para. 37).
(ii) The adjective "necessary", within the meaning of Article 10 para. 2 (art. 10-2), implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a "restriction" is reconcilable with freedom of expression as protected by Article 10 (art. 10).
(iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 (art. 10) the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient" (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29, para. 50). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 (art. 10) and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see the above-mentioned Jersild judgment, p. 26, para. 31).
(b) Application in the present case of the above-mentioned principles
The duty of political loyalty to which German civil servants are subject, as it was defined by the Federal Constitutional Court in its judgment of 22 May 1975, entails for all civil servants the duty to dissociate themselves unequivocally from groups that attack and cast aspersions on the State and the existing constitutional system. At the material time the German courts had held - on the basis of the DKP's own official programme - that its aims were the overthrow of the social structures and the constitutional order of the Federal Republic of Germany and the establishment of a political system similar to that of the German Democratic Republic.
Even so, the absolute nature of that duty as construed by the German courts is striking. It is owed equally by every civil servant, regardless of his or her function and rank. It implies that every civil servant, whatever his or her own opinion on the matter, must unambiguously renounce all groups and movements which the competent authorities hold to be inimical to the Constitution. It does not allow for distinctions between service and private life; the duty is always owed, in every context.
Another relevant consideration is that at the material time a similarly strict duty of loyalty does not seem to have been imposed in any other member State of the Council of Europe, whilst even within Germany the duty was not construed and implemented in the same manner throughout the country; a considerable number of Länder did not consider activities such as are in issue here incompatible with that duty.
In this connection it notes at the outset that there are several reasons for considering dismissal of a secondary-school teacher by way of disciplinary sanction for breach of duty to be a very severe measure. This is firstly because of the effect that such a measure has on the reputation of the person concerned and secondly because secondary-school teachers dismissed in this way lose their livelihood, at least in principle, as the disciplinary court may allow them to keep part of their salary. Finally, secondary-school teachers in this situation may find it well nigh impossible to find another job as a teacher, since in Germany teaching posts outside the civil service are scarce. Consequently, they will almost certainly be deprived of the opportunity to exercise the sole profession for which they have a calling, for which they have been trained and in which they have acquired skills and experience.
A second aspect that should be noted is that Mrs Vogt was a teacher of German and French in a secondary school, a post which did not intrinsically involve any security risks.
The risk lay in the possibility that, contrary to the special duties and responsibilities incumbent on teachers, she would take advantage of her position to indoctrinate or exert improper influence in another way on her pupils during lessons. Yet no criticism was levelled at her on this point. On the contrary, the applicant's work at school had been considered wholly satisfactory by her superiors and she was held in high regard by her pupils and their parents and also by her colleagues (see paragraph 10 above); the disciplinary courts recognised that she had always carried out her duties in a way that was beyond reproach (see paragraphs 20 and 22 above). Indeed the authorities only suspended the applicant more than four years after instituting disciplinary proceedings (see paragraphs 11 to 16 above), thereby showing that they did not consider the need to remove the pupils from her influence to be a very pressing one.
Since teachers are figures of authority to their pupils, their special duties and responsibilities to a certain extent also apply to their activities outside school. However, there is no evidence that Mrs Vogt herself, even outside her work at school, actually made anti-constitutional statements or personally adopted an anti-constitutional stance. The only criticisms retained against her concerned her active membership of the DKP, the posts she had held in that party and her candidature in the elections for the Parliament of the Land. Mrs Vogt consistently maintained her personal conviction that these activities were compatible with upholding the principles of the German constitutional order. The disciplinary courts recognised that her conviction was genuine and sincere, while considering it to be of no legal significance (see paragraph 22 above), and indeed not even the prolonged investigations lasting several years were apparently capable of yielding any instance where Mrs Vogt had actually made specific pronouncements belying her emphatic assertion that she upheld the values of the German constitutional order.
A final consideration to be borne in mind is that the DKP had not been banned by the Federal Constitutional Court and that, consequently, the applicant's activities on its behalf were entirely lawful.
II. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE CONVENTION
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
A. Whether there was an interference
The applicant was dismissed from her post as a civil servant for having persistently refused to dissociate herself from the DKP on the ground that in her personal opinion membership of that party was not incompatible with her duty of loyalty.
There has accordingly been an interference with the exercise of the right protected by paragraph 1 of Article 11 (art. 11-1).
B. Whether the interference was justified
There has accordingly also been a violation of Article 11 (art. 11).
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10 (art. 14+10)
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
FOR THESE REASONS, THE COURT
1. Holds by seventeen votes to two that Article 10 (art. 10) of the Convention is applicable in the present case;
2. Holds by ten votes to nine that there has been a violation of Article 10 (art. 10);
3. Holds unanimously that Article 11 (art. 11) of the Convention is applicable in the present case;
4. Holds by ten votes to nine that there has been a violation of Article 11 (art. 11);
5. Holds unanimously that it is not necessary to examine the case under Article 14 of the Convention taken in conjunction with Article 10 (art. 14+10);
6. Holds by seventeen votes to two that the question of the application of Article 50 (art. 50) of the Convention is not ready for decision; and
(a) reserves the said question;
(b) invites the Government and the applicant to submit, within the forthcoming six months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President the power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 September 1995.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Bernhardt, Mr Gölcüklü, Mr Matscher, Mr Loizou, Mr Mifsud Bonnici, Mr Gotchev, Mr Jungwiert and Mr Kuris;
(b) supplementary dissenting opinion of Mr Gotchev;
(c) dissenting opinion of Mr Jambrek.
A statement by Mr Mifsud Bonnici is also appended.
JOINT DISSENTING OPINION OF JUDGES BERNHARDT, GÖLCÜKLÜ, MATSCHER, LOIZOU, MIFSUD BONNICI, GOTCHEV, JUNGWIERT AND KURIS
We are of the opinion that the disciplinary measures against Mrs Vogt, taken or approved by all the German authorities and courts concerned, do not violate Article 10 or Article 11 (art. 10, art. 11) of the Convention. Her dismissal as a teacher in public service was not only prescribed by law and ordered in pursuit of a legitimate aim; it was also proportionate and could be considered necessary in a democratic society. It falls within the margin of appreciation which must be left to the national authorities.
It is in our view equally beyond doubt that the programme of the DKP and the constitutional order of the Federal Republic of Germany as enshrined in the Basic Law were incompatible with each other. If a person like Mrs Vogt professes to support all the points of the DKP's programme and affirms at the same time his or her respect for the constitutional order, these assertions are equally incompatible with each other.
In such a situation and bearing in mind Germany's special history, in particular the destruction of the democratic Constitution of Weimar, the State must be entitled to dismiss civil servants, including school teachers, who are actively engaged in activities on behalf of anti-democratic parties. This must be valid for all extremist parties whether they belong to the left or the right of the political spectrum.
SUPPLEMENTARY DISSENTING OPINION OF JUDGE GOTCHEV
I voted for no violation because it is my firm opinion that Article 10 (art. 10) of the Convention was not applicable.
The judgment (paragraph 43) confirms that access to the civil service is not one of the rights protected under the Convention. However, according to the Court's case-law, if denial of access to the civil service results in a breach of some other provision of the Convention, that provision (art. 10) is applicable, so where, as in this case, the refusal of access to, or dismissal from, the civil service constitutes at the same time a violation of Article 10 (art. 10), that Article (art. 10) will be applicable.
I cannot agree with this reasoning. Mrs Vogt was not dismissed from her post as a teacher because she expressed an opinion or an idea. According to the court's decision she was in fact dismissed because of her membership of the DKP, her membership of the regional branch executive committee, being Chairperson of the local branch and her candidacy in the parliamentary election as a DKP candidate. No mention was made of any declaration or publication or any other kind of expression of opinion.
In both the cases cited in the judgment - Glasenapp and Kosiek - the dismissal was the consequence of the expression of an opinion - a letter sent by the applicant to a newspaper in the first case and two books published by the applicant in the second.
Even so in both cases our Court took the view that there had been no violation of Article 10 (art. 10).
DISSENTING OPINION OF JUDGE JAMBREK
The situation of the Federal Republic of Germany in Western Europe from 1945 to 1990 was specific and unique in comparison with other member States of the Council of Europe. It was an amputated State with a divided people, in the front line facing the countries of the former Communist Bloc. Therefore it was inevitably more vulnerable and exposed in terms of its national security, territorial integrity and public safety; in particular it was exposed to the risk of infiltration by agents and to political propaganda inimical to its constitutional order. I have no reason to doubt in this respect the facts supplied in the Government's memorial and in the oral presentation by their Agent.
Nor do I see any reason to doubt the facts provided and assessments made by the Agent of the Government as to the character and the role of the German Communist Party (DKP), of which Mrs Vogt was an active member and official. It is in my view correct to presume that this party at the material time aimed to overthrow the democratic constitutional order of the Federal Republic of Germany in order to introduce there a communist system fashioned after the model of the former German Democratic Republic. Moreover, the DKP had the means at its disposal to implement its political goals: it was financed by its East German counterpart (SED), DKP members were trained by the SED, while about 200 members of the DKP received instruction from the SED in sabotage and terrorism; it was only in 1989 that this group was dissolved. Mr P. Becker, who spoke on the applicant's behalf, stated at the hearing that
"It was not State repression which caused the DKP to fail to attract people but rather the collapse of the socialist regimes".
I refer to the above facts in order to place in their proper context the following points:
- Mrs Vogt was appointed a permanent civil servant according to the established practice that mere membership of the DKP did not constitute a breach of loyalty; - disciplinary proceedings against her were only instituted after she engaged in more prominent political activities;
- it is wrong to assume that the length of the proceedings, during which Mrs Vogt was permitted to continue teaching, indicated an absence of a "pressing social need" to halt her unconstitutional activities;
- on the contrary, the German courts made it clear that they expected her to abandon her activities within the DKP; see, inter alia, the Lower Saxony Disciplinary Court's opinion, "that a radical change in a civil servant's attitude could affect its assessment of the seriousness of professional misconduct" (paragraph 22 in fine);
- after the institution of proceedings against her, Mrs Vogt had ample time to make at least two other choices in order to meet official requirements: she could either continue with her active involvement in the DKP and seek other employment outside the German civil service, or else she could retain her job there and remain a member of the DKP while lowering the intensity of her activities in the party to the pre-1979 level.
According to the first, Mrs Vogt's work was apolitical and purely academic in substance and could be performed in a way that did not involve the expression of values. The distinction between professional and private (including political) life thus eliminated the danger that Mrs Vogt's political role would have such consequences for her teaching role as to justify the pressing social need to dismiss her from her job.
The German authorities gave the alternative assessment. Using a different wording, they claimed that the connection between the two roles was strong enough to justify the interference. In this respect the notion of the general "role model" of a teacher to her pupils may also be considered, the various "subtle" and "hidden" ways in which political and moral values "creep into" academic language and logic, the possibilities for extra-curricular communication between teacher and pupils, the expectation of professional loyalty to the civil service, reflected by adherence to the ethics and esprit de corps of the professional community, etc. Mrs Vogt, in her address to the Court herself stated that she always tried to communicate her fundamental beliefs
"as a teacher and a human being. I have tried to do so within school and outside".
In my view, the picture is blurred and even in a concrete situation it is difficult to give a "yes or no answer". Therefore, I came to the conclusion that the German authorities and judges in this respect of the case were in a better position to assess whether the interference was necessary in defence of democracy, that being one of the main reasons justifying restrictions in the interests of national security, and should therefore be given a wider discretion within their margin of appreciation than that recognised by the majority.
Mr Becker informed the Court that only 1 to 1.5% of officially known extreme left-wing civil servants had actually been dismissed. If the system were really "absolute", then the relevant proportion would have to be approximately 100%.
Secondly, the threshold for breaching the minimal duty of loyalty was set relatively high and even then rather flexibly, to be ascertained on a case by case basis. Again, if the system were "absolute", mere membership of the DKP would probably imply a breach.
Thirdly, as the Vogt case itself indicates, the final sanction was only imposed after active and repetitious conduct classified as disloyal. It may even be inferred from the disciplinary and judicial proceedings against Mrs Vogt, that "the system" acted with great restraint. It seemed to issue a number of "advance warnings" to the accused, to the point of aiming "[to persuade] her to abandon her political activities within the DKP" (paragraph 22 in fine). Dismissal in my view was a sanction of last resort, after it became clear that all other measures were bound to fail.
Fourthly, "the system" appears flexible from the time perspective. It was changing to adapt to new political circumstances, of which one of the most dramatic was the fall of the Berlin wall: in the Land of Lower Saxony, the decree on employment of extremists in the civil service was repealed by a ministerial decision of 26 June 1990 and on 1 February 1991 the applicant was reinstated in her post as a teacher at the Lower Saxony educational authority.
And fifthly, the disputed regional differences in the implementation in my view do not testify to the "absolute" or "thorough" nature of "the system".
The misperception on the part of the majority of the nature of the disputed system and its implementation in my view seriously influenced the degree of discretion allowed to the German authorities, including the courts, in this sphere.
The majority in my view probably fell into the following fallacy: given that German authorities acted within a narrowly defined and rigid system, the application of that system in the form of interference with human rights protected under the Convention must be considered predetermined, unreasoned, and lacking the necessary discretion. Therefore, control by the European Court appears ever more desirable.
I drew the opposite conclusion from the facts of the case: "the system", as derived from the broad constitutional principle and as defined by the German Constitutional Court, rests on a broad legal doctrine and has its roots in German political history. It is also capable of responding to present-day exigencies and is implemented in a rational and flexible way. The Vogt case does not represent a departure from this approach.
The Court noted that one of the personal qualifications required by anyone seeking a post as a civil servant in the Federal Republic of Germany is to prove himself by being prepared to consistently uphold the free democratic system within the meaning of the Basic Law. The Court further found that "this requirement applies to recruitment to the civil service, a matter that was deliberately omitted from the Convention, and it cannot in itself be considered incompatible with the Convention" (Kosiek v. Germany judgment of 28 August 1986, Series A no. 105, p. 21, para. 38). The European Court noted that the Ministry dismissed him because he was "a prominent NPD official", the aims of that party "were inimical to the Constitution" and that the domestic courts had adopted essentially the same approach, and added: "It is not for the European Court to review the correctness of their findings".
The Court then decided, that "access to the civil service [lay] at the heart of the issue submitted to the Court" and for this reason found no breach of Article 10 (art. 10).
I voted in favour of the applicability of Article 10 (art. 10) in the present case, being aware that this decision implies a departure from the Court`s established case-law, inter alia, the Kosiek case. Therefore I wish by way of a concurring opinion to state that I do not agree with the majority's reason for distinguishing the cases of Glasenapp 1 and Kosiek (paragraph 44 of the present judgment), where they state that in the previous cases "the Court analysed the authorities' action as a refusal to grant the applicants access to the civil service", while Mrs Vogt was dismissed after being appointed a permanent civil servant. In addition, in the former cases the necessary qualification for access was to be prepared "to uphold the free democratic system within the meaning of the Basic Law", while the present applicant`s dismissal was a disciplinary penalty for having breached the duty owed by everyone already appointed.
The distinction is not persuasive. For the purposes of Article 10 (art. 10) the Court must answer two questions:
First, did the applicant exercise any of the freedoms protected by Article 10 para. 1 (art. 10-1) or not? In all three cases (Glasenapp, Kosiek, Vogt) the answer is affirmative.
Second, was the exercise of the said freedoms subject to any formalities, conditions, restrictions or penalties? In my view, the acts of the authorities in all three cases fall under the same heading of either a condition, restriction or penalty to which the exercise of the respective freedoms was subjected. Mr Kosiek was dismissed from his post as a probationary civil servant, while Mrs Vogt was dismissed from her post as a permanent civil servant - for the same reasons, while it must be of no consequence for the Court that in the former case the views expressed were of the extreme right, and in the latter of the extreme left persuasion.
It would in my view be more appropriate if the Court acknowledged in a straightforward manner the change in judicial policy that occurred between the Kosiek and the Vogt cases, instead of arguing, in my view with little success, that it maintained the same principle with different results due to differences in the factual situations.
It would then be the duty of the Court to retain in the latter judgment the relevant substantive arguments of the former, at least in the modified form to fit them to the reasoning of the present case: if access to the civil service no longer "lies at the heart of the issue", then it should at least be given extra weight in the balancing exercise. And if the radical position that "it is not for the European Court to review the correctness of (the domestic courts`) findings" may no longer be maintained, than, at least their extra wide margin of appreciation should be recognised in matters of recruitment to the civil service, including access and dismissal.
- specific situation of Germany in Western Europe from 1945-1990 with a divided people, facing countries of the former Communist Bloc, which made it vulnerable and exposed in terms of its national security (including defence of democratic values), territorial integrity and public safety;
- the role of the DKP as a means of infiltration and dissemination of communist propaganda in Germany;
- the applicant's active political involvement on behalf of that party from autumn 1980 onwards;
- the restrained and flexible way in which the duty of political loyalty was implemented by the German authorities;
- complicated links between private life in politics and professional life in the civil service;
- the importance of the wide margin of appreciation to be afforded to domestic courts when dealing with matters of recruitment to the civil service.
I therefore find that the disciplinary measures taken against Mrs Vogt were proportionate and could be considered necessary in a democratic society.
STATEMENT BY JUDGE MIFSUD BONNICI
I voted against finding Article 10 (art. 10) applicable in this case, but the majority took the opposite view. In my opinion only Article 11 (art. 11) is applicable. I joined the joint dissenting opinion because it covers that Article (art. 11) as well.
1 The case is numbered 7/1994/454/535. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
1 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 323 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.
1 Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104.