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Volkmer v Germany (decision), 22 November 2001 [ECtHR]

Case no 39799/98

2.  The applicant also alleged that his dismissal constituted a sanction for the honorary and professional functions he had exercised within the SED [East German Socialist Unity Party]. That sanction, according to him, had violated his right to freedom of association under Article 11 of the Convention

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The Court reiterates that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10 (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, the Ezelin v. France judgment of 26 April 1991, Series A no. 202, p. 20, § 37, and the Vogt judgment cited above, p. 30, § 64).  The protection of personal opinions, secured by Article 10, is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.

With reference to the principles set forth in respect of Article 10 (see above), the applicant, as a public employee, was also entitled to the protection of Article 11.

The applicant was dismissed from his post as secondary-school teacher because he was considered personally unsuitable for upholding the free democratic constitutional system in front of his pupils. The applicant’s lack of suitability had been partly inferred from his strong identification with the political system of the GDR, which, according to the German courts, was largely reflected by his long-standing honorary and full-time functions within the SED. Thus, the German courts considered the functions which he had exercised within the SED to be incompatible with the duty of loyalty owed by school teachers as civil servants towards the constitution of the FRG.

In this connection, the Court notes that the notion of “administration of the State” should be interpreted narrowly, in the light of the post held by the official concerned. However, regardless of the question of whether school teachers are to be regarded as being part of the “administration of the State” for the purposes of Article 11 § 2 - a question which the Court does not consider necessary to determine in the instant case -, the applicant’s dismissal was, for the reasons previously given in relation to Article 10, and assuming that it amounted to an interference, proportionate to the legitimate aim pursued (see a contrario the Vogt judgment cited above, p. 31, § 68).

It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

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