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R Q v Federal Republic of Germany (decision), 9 December 1987 [ECtHR]

Case no 10942/84

The applicant complains that the termination of his appointment as a civil servant on probation was contrary to Articles 10 and 11 (Art. 10, 11) of the Convention since it was based upon the opinions which he held, or manifested and his political activities in association with others. The respondent Government contend that the termination of the applicant's appointment reflected his failure to satisfy one of the criteria for his continuing appointment as a civil servant on probation namely the requirement that he show a positive attitude to the fundamental principles of the Basic Law and the Constitution of the Rhineland Palatinate.

The Commission recalls that it has held that in certain cases the reactions of the authorities to the opinions held or expressed by individuals, including those employed in public service, may raise issues under Articles 10 and 11 (Art. 10, 11) of the Convention (No. 9228/80, Comm. Rep. 11.5.84; No. 10293/83, Dec. 12.12.85 (to be published in DR 45); No. 11603/85, Dec 20.1.87 (to be published)).

In this respect the respondent Government have contended that the application is incompatible with the Convention ratione materiae. The Commission recalls its analysis of similar cases relating to loyalty control for civil servants. Where the operation of loyalty control impinges on an individual's freedom of expression an issue arises under Article 10 (Art. 10) of the Convention notwithstanding that the individual concerned is or would wish to be a civil servant (No.9228/80 Comm. Report 11.5.84, paras. 67-77;  No. 9704/82 Comm. Report 11.5.84, paras. 60-70). This approach was specifically confirmed by the Court in its judgments in those two cases in which it declined the respondent Government's renewed invitation to find those applicants' complaints incompatible with the Convention (Glasenapp judgment of 28 August 1986, Series A no. 104, paras. 49-50; Kosiek judgment of 28 August 1986, Series A no. 105, paras. 35-36).

Nevertheless, in view of the fact that the right to employment in the public service is not guaranteed by the Convention, the Commission must first establish whether the matters about which the applicant complains amounted to an interference with the exercise of freedom of expression or association or whether these matters lie within the sphere of the right of access to the civil service. In order to answer this question, the scope of the measure complained of must be determined by putting it in the context of the facts of the case and of the relevant legislation (see mutatis mutandis, Kosiek judgment loc. cit. para. 36).

The District Government of the Rhinehesse Palatinate gave as its reason for dismissing the applicant his activities for the benefit of the KBW;  the applicant was reproached with having continually and actively taken part in meetings, demonstrations and activities steered by the KBW and other Communist groups. The Government considered that his involvement far exceeded that of a detached observer and he had in practice closely identified with a variety of KBW initiatives. Its decision was therefore based on the activities in which the applicant was involved. The Commission notes in particular in this respect that the applicant was suspected inter alia of participating in KBW 'raiding squads' which had deliberately disrupted a meeting of the NPD with violent consequences.

The District Government considered that the applicant had not proved himself, because he did not fulfil the condition - as required under Section 63 (1) LBG - that he would consistently uphold the free democratic system within the meaning of the Basic Law. This is one of the personal qualifications required of anyone seeking a post as a civil servant ("Beamter") - whether temporary or established - in the Federal Republic of Germany. 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. The District Government originally assumed, in the absence of evidence to the contrary, that the requirement had been fulfilled, since the applicant was appointed as a teacher with the status of probationary civil servant. After an examination of the applicant's political activities, however, the District Government came to the conclusion that the applicant did not meet one of the conditions of eligibility laid down for the post in question, as a result of which it decided to terminate his appointment as a probationary civil servant (Sections 41(1) No. 2 and 63(1) LBG). The applicant was afforded the opportunity of a hearing but was not required to state his opinion nor was he interrogated about his views.

It follows from the foregoing that the question of the applicant's eligibility for employment in the public service lies at the heart of the present application. There was a substantial quantity of largely undisputed evidence available to the administrative authorities and the domestic courts from which the extent and nature of the applicant's activities could be judged and their implications for his suitability as a public employee assessed. The authorities did not seek to establish the applicant's unexpressed attitudes or opinions by questioning, nor require him to adopt a particular opinion in order for their enquiries to be concluded.

In terminating the applicant's probationary appointment, the responsible authorities took account of his opinions and activities merely in order to determine whether he possessed one of the necessary personal qualifications for continued appointment in the post in question.

That being so, there has been no interference with the exercise of the rights protected under Articles 10 or 11 (Art. 10, 11) of the Convention and no issue arises under Articles 14 or 18 (Art. 14, 18) thereof. It follows that the present application is manifestly ill-founded within the meaning of Article 27 para.2 (Art. 27-2) of the Convention.

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