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Otto v Germany (decision), 24 November 2005 [ECtHR]

Case no 27574/02

1. The applicant complains that the refusal to promote him violated his rights to freedom expression. He relies on Articles 10 of the Convention. (...)

As to the applicability of Article 10 and the existence of an interference, the Court points out 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 already been appointed as a civil servant cannot complain of not being further promoted if that omission violates one of his or her rights under the Convention. Civil servants do not fall outside the scope of the Convention (see Wille v. Liechtenstein, 28 October 1999, ECHR 1999‑VII § 41, Glasenapp and Kosiek v. Germany, judgments of 28 August 1986, Series A nos. 104, § 49, and 105, § 35, and Vogt, cited above, § 43).

Accordingly, the status of civil servant obtained by the applicant when he was appointed by the Baden-Wuerttemberg police in 1968 did not deprive him of the protection of Article 10.

In order to determine whether this provision was infringed it must first be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression or whether it lay within the sphere of the right of access to the civil service, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see Glasenapp and Kosiek cited above, § 50, and § 36). In the Glasenapp and Kosiek cases, the Court analysed the action of the authorities 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. In the Vogt v. Germany case, the Court found that Mrs Vogt, for her part, had been a permanent civil servant who was suspended and dismissed on account of her membership and activities with the German Communist Party (Deutsche Kommunistische Partei- “DKP”). It concluded that there was indeed an interference with the exercise of the right protected by Article 10 of the Convention (see Vogt, cited above, § 44). In the instant case, the Court considers likewise that recruitment to the civil service does not lie at the heart of the issue submitted to it. Even though the applicant complains about the omission to further promote him to the position of a chief inspector, he was informed that the reason he had not been considered suitable for promotion was because of his membership and activities for a political party, Die Republikaner. It follows that there was indeed an interference with the exercise of the right protected by Article 10 of the Convention.

Such an interference gives rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.

a) Prescribed by law

In its letter dated 7 February 1995, the Tübingen Regional Council informed the applicant that it would not consider him suitable for promotion on account of his political activities for Die Republikaner which was not compatible with the applicant’s duty of loyalty. It based its decision on Section 11 (1) of the Baden-Wuerttemberg Public Servant Act, according to which nominations shall be carried out on the basis of, inter alia, suitability. The measure had therefore been prescribed by law.

b) Legitimate aim

Like in the Vogt v. Germany case, the present restriction of freedom of expression ultimately derived from civil servants’ duty of political loyalty. In the Vogt v. Germany case, the Court noted that a number of Contracting States impose a duty of discretion on their civil servants, founded on the notion that the civil service is the guarantor of the constitution and democracy. The Court found that this notion has a special importance in Germany because of the 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) (see Vogt, cited above, § 51). Moreover, the Court has noted in the case of Rekvényi v. Hungary ([GC], no. 25390/94, § 41, Reports of Judgments and Decisions 1999-III), which concerned an obligation imposed on certain categories of public officials including police officers to refrain from political activities, that a number of Contracting States restrict certain political activities on the part of their police. Bearing in mind the role of the police in society, the Court recognised that it is a legitimate aim in any democratic society to have a politically neutral police force (see the Rekvényi v. Hungary judgment, cited above, § 46). Against this background the Court concludes that the decision not to promote the applicant pursued a legitimate aim within the meaning of paragraph 2 of Article 10.

c) "Necessary in a democratic society"

While having regard to the circumstances of the case, the Court has 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 § 2. In doing so, 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 § 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.
In connection with the above, the Court considers that a Contracting State does not overstep its margin of appreciation when assessing the suitability for promotion of a civil servant with regard to active membership in a party that pursues anti-constitutional goals. Even though no criticism had been levelled at the way the applicant actually performed his duties, the Court notes that the applicant bore a special responsibility as a senior civil servant with the police. That responsibility which, in the eyes of the public, requires police officers to have particular balanced views removed from party politics would even increase upon the applicant’s promotion.
The applicant argued that, because the political party in the Vogt v. Germany case had been banned by the Federal Constitutional Court, there would be a violation a fortiori in the present case since such a ban had not been issued by the Federal Constitutional Court regarding Die Republikaner. In this connection the Court notes that only the Communist Party of Germany (Kommunistische Partei Deutschlands – KPD), which was the predecessor to Mrs Vogt’s party, had been banned by the Federal Constitutional Court in 1956. Mrs Vogt had been a member of the German Communist Party which had never been found anti‑constitutional by the Federal Constitutional Court. Therefore, it cannot be said that the non-promotion of the applicant in the present case constituted a fortiori a violation of his right to freedom of expression. Moreover, the German courts have carefully and comprehensively examined why a ban on Die Republikaner by the Federal Constitutional Court had not been a prerequisite to take the applicant’s membership into account when assessing his suitability for promotion.
The Court notes that the measure in question, which is the refusal to promote the applicant to the position of chief inspector, differs significantly from the very severe measure in the Vogt v. Germany case, which concerned the dismissal of a secondary-school teacher. Unlike Mrs Vogt, the applicant was not threatened with losing his livelihood by not receiving further promotion. The Court also considers the measure in question to be less severe than the interference in the case of Wille v. Liechtenstein (cited above), in which the President of the Liechtenstein Administrative Court had been informed that never again would he be appointed to public office due to his opinions expressed in public. The Court further notes that the applicant has already been promoted several times during his professional career with the Baden-Wuerttemberg police, the last promotion dating back to 1993, which was only a year before his employer learned about his political activities and hence decided not to promote him further. The Court also notes that the applicant’s non-promotion occurred in 1995, that is, at a very advanced stage of his career, which ended in 2002.
In these circumstances, the Tübingen Regional Council’s refusal to promote the applicant and its subsequent confirmation by the domestic courts cannot be said to have amounted to a disproportionate and hence unjustified restriction of the applicant’s right to freedom of expression.

It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complained of a breach of his right to the freedom of association guaranteed under Article 11 of the Convention. (...)
With reference to the principles set forth in respect of Article 10, the applicant, as a permanent civil servant, also qualifies for protection under Article 11. The applicant was not promoted on account of his activities for and membership of a political party. There has accordingly been an interference with the exercise of the right protected by Article 11 § 1.
Such interference constitutes a breach of Article 11 unless it satisfies the requirements of paragraph 2, which are identical to those laid down in Article 10 § 2, the only exception being where the last sentence of Article 11 § 2 is applicable. As a member of the police, the applicant falls within the last sentence of Article 11 § 2. The decision not to promote him was, for the reasons given in relation to Article 10, proportionate to the legitimate aim pursued.

It follows that this part of the application must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention

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