CEDH · CASELAW;CLIN;ENG — 26 septembre 1995

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Germany (on the merits) - 17851/91 Judgment 26.9.1995 [GC] Article 10 Article 10-1 Freedom of expression Dismissal of a teacher from civil service on account of her political activities on behalf of the German Communist Party: violation [This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.] I.   ARTICLE 10 OF THE CONVENTION A.   Whether there was an interference Convention guarantees in principle extend to civil servants - instant case (applicant appointed a permanent civil servant) distinguished from Glasenapp and Kosiek cases (recruitment to civil service at heart of issue submitted to the Court). Dismissal: disciplinary penalty for failure to comply with duty of political loyalty - interference with exercise of right to freedom of expression. B.   Whether interference was justified 1.   "Prescribed by law" Legal basis of interference: relevant provisions of federal legislation and legislation of Länder, including section 61 (2) of Lower Saxony Civil Service Act - case-law of Federal Constitutional Court and Federal Administrative Court defined duty of political loyalty. 2.   Legitimate aim In Germany special importance of duty of political loyalty - intention in 1949 to establish "democracy capable of defending itself" - dismissal pursued legitimate aim for the purposes of Article 10 § 2. 3.   "Necessary in a democratic society" Freedom of expression: one of the essential foundations of democratic society and one of the basic conditions for its progress - applicable not only to information and ideas that are favourably received or regarded as a matter of indifference, but also to those that shock. Principles apply to civil servants: need to strike fair balance between individual's fundamental right to freedom of expression and legitimate interest of a democratic State in ensuring that its civil service properly furthers purposes enumerated in Article 10 § 2 -certain margin of appreciation left to national authorities in determining whether interference is proportionate. Democratic State entitled to require civil servants to be loyal to Constitution - in that connection account taken of Germany's experience under Weimar Republic and of its position in political context of the time - however, strict nature of that duty of loyalty unique in Europe - even in Germany requirement construed and implemented differently in the different Länder. Dismissal of teacher: very severe sanction because of effect on reputation, loss of livelihood and virtual impossibility of obtaining equivalent post in Germany. No indoctrination by applicant of pupils: on the contrary, unanimous approval of her work - indeed suspension from duties four years after institution of disciplinary proceedings showed lack of pressing need to remove pupils from applicant's influence.   Applicant made no anti-constitutional statements and did not adopt anti‑constitutional attitude.   DKP not banned by Constitutional Court, applicant's activities on its behalf were therefore lawful. Reasons put forward by Government not sufficient to establish convincingly necessity of dismissing applicant - measure disproportionate to legitimate aim pursued. Conclusion : violation (ten votes to nine). II.   ARTICLE 11 OF THE CONVENTION A.   Whether there was an interference Protection of personal opinions: one of the objectives of freedoms of assembly and association. Applicant's dismissal: disciplinary penalty for having persistently refused to dissociate herself from DKP - interference with exercise of right to freedom of association. B.   Whether interference was justified "Administration of the State" to be interpreted narrowly: even if teachers fell within that category (question which Court did not consider it necessary to determine in this instance), measure disproportionate to legitimate aim pursued. Conclusion : violation (ten votes to nine). III.   ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE   10 Not necessary for Court to examine complaint of its own motion. Conclusion : unnecessary for Court to rule on issue (unanimously). IV.   ARTICLE 50 OF THE CONVENTION Question not ready for decision. Conclusion : question reserved (seventeen votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes