Erdel v Germany (decision), 13 February 2007 [ECtHR]

Case no 30067/04

1. The applicant complained that the revocation of his call-up order violated his right to freedom expression. He relied on Article 10 of the Convention. (...)

The applicant alleged that the revocation of his call-up order amounted to a disproportionate interference with his right to freedom of expression. As the Court had found in the case of Vogt v. Germany that there had been a violation of Article 10 with regard to a political party that had been declared unconstitutional by the Federal Constitutional Court pursuant to Article 21(2) of the German Basic Law, the present situation a fortiori amounted to a violation because Die Republikaner had not been declared unconstitutional pursuant to that provision. The applicant further submitted that the revocation of his call-up order for service in the German army had been unforeseeable and infringed the principles set forth in section 3 of the Soldiers Act. The German army had been aware of his membership for several years. The administrative courts had wrongly assumed an initial suspicion of disloyalty of his party to the Constitution and had failed to gather any evidence in this respect. Several courts in Germany, including the Federal Administrative Court in a judgment of 18 May 2001, had ruled that Die Republikaner did not pursue unconstitutional goals. The scrutiny of a party by the Office for the Protection of the Constitution was a political decision by the Minister of the Interior, who would regularly pursue his own interests. The applicant also submitted that, during his service in the German army, there had never been any complaint that he pursued extremist convictions.

The Court notes that the applicant’s call-up order was revoked because of his membership of and activities for a political party, Die Republikaner. The Court will assume, as did the national courts, that there was 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.

The German military authorities and administrative courts based their decisions that the revocation was lawful on Article 49 of the Code of Administrative Procedure in conjunction with section 8 of the Soldiers Act which provides that a soldier must recognise the free democratic order within the meaning of the Basic Law and act at all times in such a way as to uphold it. In the circumstances of the present case, the Court is satisfied that the domestic legislation laid down with sufficient precision the conditions for revoking the applicant’s call-up order for service in the armed forces. Consequently, the measure was prescribed by law.

The applicant’s call-up order was revoked because of his activities within a party that was under scrutiny by the offices for the protection of the Constitution. The Defence Area Command and the German administrative courts reasoned that the revocation was necessary in order to prevent any future criminal offences with a right-wing extremist background being committed from within the German army, which was founded on the notion that it was the guarantor of the Constitution and democracy.

The Court notes that this notion has a special importance in Germany because of the country’s experience during the Third Reich and that the Federal Republic’s Constitution was based on the principle of a “democracy capable of defending itself” (wehrhafte Demokratie) (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, §51; Otto v. Germany (dec.), no. 27574/02; and, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, § 100, ECHR 2006‑...). Bearing in mind the role of the army in society, the Court recognises that it is a legitimate aim in any democratic society to have a politically neutral army (see, mutatis mutandis, Rekvényi v. Hungary ([GC], no. 25390/94, § 46, Reports of Judgments and Decisions 1999-III). The Court therefore concludes that the decision pursued legitimate aims “in the interests of national security” and “for the prevention of disorder or crime” within the meaning of paragraph 2 of Article 10.

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 army properly furthers the purposes enumerated in Article 10 § 2. In doing so, the Court will bear in mind that whenever a soldier’s 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 (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 100, and, mutatis mutandis, Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, judgment of 19 December 1994, Series A no. 302, § 36).

In connection with the above, the Court considers that the measure in question differs significantly from the very severe measure in the Vogt v. Germany case, which concerned the dismissal of a secondary-school teacher. The applicant is not a professional soldier, but a practising lawyer. Unlike Mrs Vogt, he was therefore not threatened with losing his livelihood by the revocation of his call-up order as a reserve officer. The Court further notes the Defence Area Command’s reasoning that the revocation of the call-up order would not result in the applicant’s loss of his rank as a reserve officer, but merely meant that he would not be considered for future military trainings.

Furthermore, the Court considers that a Contracting State does not overstep its margin of appreciation when deciding on whether or not to consider a reserve officer for future military trainings and thereby taking into account his active membership of a party which is considered 

right-wing and populist and which has been under scrutiny by the offices for the protection of the Constitution. 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 he held the position of lieutenant on the reserve list, namely, a senior post within the German army. The German courts also based their decisions on the fact that several criminal offences with a right-wing extremist background had been committed by members of the German army, attracting widespread publicity and considerably damaging the reputation of the German army, which, according to the Constitution, was anchored in the democratic State. Against this background, they found it sufficient to establish an initial suspicion that Die Republikaner were disloyal to the Constitution. They based that finding on facts established in a report by the Federal Office for the Protection of the Constitution. In this connection the Court notes that the Federal Administrative Court carefully examined why a ban on 

Die Republikaner by the Federal Constitutional Court had not been a prerequisite to taking the applicant’s membership into account when revoking his call-up order. The Federal Administrative Court referred in that connection to the Federal Constitutional Court’s settled case-law.

In these circumstances it cannot be said that the revocation 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. (...)
The Court notes that the complaints raised by the applicant under Article 11 of the Convention are in essence the same as those already examined under Article 10 of the Convention. Therefore, no separate issues arise under Article 11.

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.

3. The applicant further alleged that he had been discriminated against as compared with other German soldiers who were members of different political parties. (...) As regards the complaint under Article 14, the Court, having regard to its conclusion concerning Article 10, finds that no separate issue arises under Article 14 in conjunction with Article 10.

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

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