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Vogt v Germany, 26 September 1995 [ECtHR]

Case no 17851/91

I.    ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION

41. Mrs Vogt maintained that her dismissal from the civil service on account of her political activities as a member of the DKP had infringed her right to freedom of expression secured under Article 10

(art. 10) of the Convention ...

 

A.    Whether there was an interference

 

42. The Government did not dispute the applicability of Article 10 (art. 10).  However, at the hearing they requested the Court to re-examine this issue carefully.

43. The Court reiterates that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot as such provide the basis for a complaint under the Convention. This does not mean, however, that a person who has been appointed as a civil servant cannot complain on being dismissed if that dismissal violates one of his or her rights under the Convention. Civil servants do not fall outside the scope of the Convention.  In Articles 1 and 14 (art. 1, art. 14), the Convention stipulates that "everyone within [the] jurisdiction" of the Contracting States must enjoy the rights and freedoms in Section I "without discrimination on any ground". Moreover 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 (see the Glasenapp and Kosiek v. Germany judgments of 28 August 1986, Series A nos. 104, p. 26, para. 49, and 105, p. 20, para. 35). Accordingly, the status of permanent civil servant that Mrs Vogt had obtained when she was appointed a secondary-school teacher did not deprive her of the protection of Article 10 (art. 10).

44. The Court considers, like the Commission, that the present case is to be distinguished from the cases of Glasenapp and Kosiek. In those cases the Court analysed the authorities' action as a refusal to grant the applicants access to the civil service on the ground that they did not possess one of the necessary qualifications. Access to the civil service had therefore been at the heart of the issue submitted to the Court, which accordingly concluded that there had been no interference with the right protected under paragraph 1 of Article 10 (art. 10-1) (see the previously cited Glasenapp and Kosiek judgments, p. 27, para. 53, and p. 21, para. 39).

      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

 

45.   Such interference constitutes a breach of Article 10 (art. 10) unless it was "prescribed by law", pursued one or more legitimate aim or aims as defined in paragraph 2 (art. 10-2) and was "necessary in a democratic society" to attain them.

 

1.  "Prescribed by law"

...

48. The Court reiterates that the level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. It is moreover primarily for the national authorities to interpret and apply domestic law (see the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B, pp. 35-36, para. 25).  In this instance the Federal Constitutional Court and the Federal Administrative Court had clearly defined the duty of political loyalty imposed on all civil servants by the relevant provisions of federal legislation and the legislation of the Länder, including section 61 (2) of the Lower Saxony Civil Service Act (see paragraphs 26 to 28 above). They had held, inter alia, that any active commitment on the part of a civil servant to a political party with anti-constitutional aims such as the DKP was incompatible with that duty. At the material time - that is during the disciplinary proceedings at the latest - Mrs Vogt must have been aware of that case-law. She was therefore in a position to foresee the risks that she was running as a result of her political activities on behalf of the DKP and her refusal to dissociate herself from that party. Even if there was, as alleged, a divergence of opinion between the Federal Administrative Court and the Federal Labour Court - a divergence, moreover, whose existence the Court has not been able to establish - it would not have been material since the disciplinary courts had to follow and demonstrably followed the Federal Administrative Court's case-law. As to Mrs Vogt's argument based on her reinstatement, the latter measure does not warrant the conclusion that she seeks to draw from it, as the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion "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

...

51. The Court notes that a number of Contracting States impose a duty of discretion on their civil servants. In this case the obligation imposed on German civil servants to bear witness to and actively uphold at all times the free democratic constitutional system within the meaning of the Basic Law (see paragraphs 26-28 above) is founded on the notion that the civil service is the guarantor of the Constitution and democracy. This notion has a special importance in Germany because of that country's experience under the Weimar Republic, which, when the Federal Republic was founded after the nightmare of nazism, led to its constitution being based on the principle of a "democracy capable of defending itself" (wehrhafte Demokratie). Against this background the Court cannot but conclude that the applicant's dismissal pursued a legitimate aim within the meaning of paragraph 2 of Article 10

(art. 10-2).

 

3.  "Necessary in a democratic society"

 

(a)  General principles

 

52. The Court reiterates the basic principles laid down in its judgments concerning Article 10 (art. 10):

      (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).

53. These principles apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 (art. 10) of the Convention. It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 para. 2 (art. 10-2). In carrying out this review, the Court will bear in mind that whenever civil servants' right to freedom of expression is in issue the "duties and responsibilities" referred to in Article 10 para. 2 (art. 10-2) assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.

 

(b)  Application in the present case of the above-mentioned principles

...

57. In the present case the Court's task is to determine whether Mrs Vogt's dismissal corresponded to a "pressing social need" and whether it was "proportionate to the legitimate aim pursued". To this end, the Court will examine the circumstances of the case in the light of the situation existing in the Federal Republic of Germany at the material time.

58.   Mrs Vogt became a member of the DKP in 1972. It has not been disputed that this was known to the authorities when, in 1979, even before the end of her probationary period, she was appointed a permanent civil servant. However, after investigations into her political activities, disciplinary proceedings were opened against her in 1982 (see paragraph 11 above). These proceedings were suspended several times pending further investigations, but Mrs Vogt was eventually dismissed on 15 October 1987 for breach of her duty of political loyalty. The criticisms levelled against her concerned her various political activities within the DKP, the posts she had held in that party and her candidature in the elections for the Parliament of the Land (see paragraph 19 above).

      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.

59.   The Court proceeds on the basis that a democratic State is entitled to require civil servants to be loyal to the constitutional principles on which it is founded. In this connection it takes into account Germany's experience under the Weimar Republic and during the bitter period that followed the collapse of that regime up to the adoption of the Basic Law in 1949. Germany wished to avoid a repetition of those experiences by founding its new State on the idea that it should be a "democracy capable of defending itself". Nor should Germany's position in the political context of the time be forgotten. These circumstances understandably lent extra weight to this underlying notion and to the corresponding duty of political loyalty imposed on civil servants.

      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. 

60.   However, the Court is not called upon to assess the system as such. It will accordingly concentrate on Mrs Vogt's dismissal. 

      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.

 

61. In the light of all the foregoing, the Court concludes that, although the reasons put forward by the Government in order to justify their interference with Mrs Vogt's right to freedom of expression are certainly relevant, they are not sufficient to establish convincingly that it was necessary in a democratic society to dismiss her. Even allowing for a certain margin of appreciation, the conclusion must be that to dismiss Mrs Vogt by way of disciplinary sanction from her post as secondary-school teacher was disproportionate to the legitimate aim pursued. There has accordingly been a violation of Article 10 (art. 10).

...

II.   ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE CONVENTION

62. The applicant also complained of a breach of her right to the freedom of association guaranteed under Article 11 (art. 11) of the Convention ...

 

A.    Whether there was an interference

 

63. As was the case with Article 10 (art. 10), the Government did not contest the applicability of Article 11 (art. 11), although at the hearing they requested the Court to re-examine this issue carefully.

64. Notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must in the present case also be considered in the light of Article 10 (art. 10) (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, para. 57, and the Ezelin v. France judgment of 26 April 1991, Series A no. 202, p. 20, para. 37). The protection of personal opinions, secured by Article 10 (art. 10), is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (art. 11).

65. With reference to the principles set forth in respect of Article 10 (art. 10) (see paragraphs 43 and 44 above), Mrs Vogt, as a permanent civil servant, also qualified for the protection of Article 11 (art. 11).

      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

 

66. Such interference constitutes a breach of Article 11 (art. 11) unless it satisfies the requirements of paragraph 2 (art. 11-2), which are identical to those laid down in paragraph 2 of Article 10 (art. 10-2), the only exception being where the last sentence of paragraph 2 of Article 11 (art. 11-2) is applicable.

67. In this respect the Court agrees with the Commission that the notion of "administration of the State" should be interpreted narrowly, in the light of the post held by the official concerned.

68. However, even if teachers are to be regarded as being part of the "administration of the State" for the purposes of Article 11 para. 2 (art. 11-2) - a question which the Court does not consider it necessary

to determine in the instant case -, Mrs Vogt's dismissal was, for the reasons previously given in relation to Article 10 (art. 10) (see paragraphs 51 to 60 above), disproportionate to the legitimate aim pursued.

      There has accordingly also been a violation of Article 11 (art. 11).

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