In the case of Vogt v. Germany (1),

      The European Court of Human Rights, sitting, in accordance with
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:

      Mr R. Ryssdal, President,
      Mr R. Bernhardt,
      Mr F. Gölcüklü,
      Mr F. Matscher,
      Mr L.-E. Pettiti,
      Mr R. Macdonald,
      Mr A. Spielmann,
      Mr J. De Meyer,
      Mr S.K. Martens,
      Mrs E. Palm,
      Mr I. Foighel,
      Mr A.N. Loizou,
      Mr J.M. Morenilla,
      Mr M.A. Lopes Rocha,
      Mr G. Mifsud Bonnici,
      Mr D. Gotchev,
      Mr P. Jambrek,
      Mr K. Jungwiert,
      Mr P. Kuris,

and also of Mr H. Petzold, Registrar,

      Having deliberated in private on 25 February and
2 September 1995,

      Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar

1.  The case is numbered 7/1994/454/535.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.

2.  Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9).  They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________

PROCEDURE

1.    The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 11 March 1994 and by the German
Government ("the Government") on 29 March 1994, within the three-month
period laid down by Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention").  It originated in an
application (no. 17851/91) against the Federal Republic of Germany
lodged with the Commission under Article 25 (art. 25) by a German
national, Mrs Dorothea Vogt, on 13 February 1991.

      The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Germany recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Article 48 (art. 48).  The object
of the request and of the application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 10 and 11 (art. 10, art. 11)
of the Convention and also, in the case of the Commission's request,
of Article 14 (art. 14).

2.    In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that she wished
to take part in the proceedings and designated the lawyers who would
represent her (Rule 30); the President gave her lawyers leave to use
the German language (Rule 27 para. 3).

3.    The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)).  On 24 March 1994, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr S.K. Martens,
Mr J.M. Morenilla, Mr G. Mifsud Bonnici, Mr P. Jambrek and
Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).

4.    As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant's lawyers and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant
to the order made in consequence, the Registrar received the
applicant's observations on 9 and 11 August 1994 and the Government's
memorial on 17 August 1994.

      On 19 August 1994 the Commission produced various documents, as
requested by the Registrar on the President's instructions.

5.    By a letter of 4 November 1994 the Agent of the Government sought
leave to submit an additional memorial and requested that the hearing
initially set down for 23 November be postponed.  After once again
consulting - through the Registrar - the Agent of the Government, the
applicant's lawyers and the Delegate of the Commission on the
organisation of the proceedings (Rule 38), Mr Ryssdal granted these
requests.  Pursuant to the order made on 16 November 1994, the
Registrar received the Government's additional memorial on
5 January 1995 and the applicant's observations in reply on
3 February 1995.  On 15 February 1995 the Secretary to the Commission
informed the Registrar that the Delegate would make his submissions at
the hearing.

6.    On 26 January 1995 the Chamber decided to relinquish jurisdiction
forthwith in favour of a Grand Chamber (Rule 51).  The Grand Chamber
comprised as ex officio members the President and the Vice-President,
Mr Bernhardt, who in this case was already sitting as national judge,
together with the other members of the Chamber.  The names of the
remaining ten judges were drawn by lot by the President in the presence
of the Registrar on 27 January 1995, namely Mr F. Gölcüklü,
Mr R. Macdonald, Mr A. Spielmann, Mr J. De Meyer, Mr I. Foighel,
Mr A.N. Loizou, Mr F. Bigi, Mr M.A. Lopes Rocha, Mr D. Gotchev and
Mr P. Kuris (Rule 51 para. 2 (a) to (c)).  Subsequently, Mrs E. Palm
replaced Mr Bigi, who was unable to take part in the further
consideration of the case.

7.    In accordance with the decision of the President, who had given
the Agent of the Government too leave to use the German language
(Rule 27 para. 2), the hearing took place in public in the Human Rights
Building, Strasbourg, on 22 February 1995.  The Court had held a
preparatory meeting beforehand.

      There appeared before the Court:

(a) for the Government

Mr J. Meyer-Ladewig, Ministerialdirigent,
      Federal Ministry of Justice,                             Agent,
Mr H. Wurm, Ministerialrat,
      Federal Ministry of the Interior,
Mr B. Feuerherm, Ministerialrat, Ministry for
      Cultural Affairs of the Land of Lower Saxony,         Advisers;

(b) for the Commission

Mr S. Trechsel,                                             Delegate;

(c) for the applicant

Mr K. Damman,
Mr P. Becker,
Mr O. Jäckel, Rechtsanwälte,                                 Counsel.

      The Court heard addresses by Mr Trechsel, Mr Becker, Mr Jäckel,
Mr Damman and Mr Meyer-Ladewig, and replies to a question put by it.

AS TO THE FACTS

I.    Particular circumstances of the case

8.    Mrs Dorothea Vogt, a German national born in 1949, lives in Jever
in the Land of Lower Saxony.

9.    After studying literature and languages at the University of
Marburg/Lahn for six years, during which time she became a member of
the German Communist Party (Deutsche Kommunistische Partei - "DKP"),
in November 1975 she sat the examination to become a secondary-school
teacher (wissenschaftliche Prüfung für das Lehramt an Gymnasien).  She
did her teaching practice (Vorbereitungsdienst für das Lehramt) from
February 1976 to June 1977 at Fulda in the Land of Hesse.  In June 1977
she sat the second State examination to become a secondary-school
teacher (zweite Staatsprüfung für das Lehramt an Gymnasien) and
obtained a post from 1 August 1977 as a teacher (Studienrätin), with
the status of probationary civil servant (Beamtenverhältnis auf Probe),
in a State secondary school in Jever.  On 1 February 1979, before the
end of her probationary period, she was appointed a permanent civil
servant (Beamtin auf Lebenszeit).

10.   Mrs Vogt taught German and French.  In an assessment report drawn
up in March 1981 her capabilities and work were described as entirely
satisfactory and it was stated that she was held in high regard by her
pupils and their parents and by her colleagues.

A.    Disciplinary proceedings

      1.  Before the Weser-Ems regional council

11.   After a preliminary investigation, the Weser-Ems regional council
(Bezirksregierung Weser-Ems) issued an order (Verfügung) on
13 July 1982 instituting disciplinary proceedings against the applicant
on the ground that she had failed to comply with the duty of loyalty
to the Constitution ("duty of political loyalty" - politische
Treuepflicht) that she owed as a civil servant under section 61 (2) of
the Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz -
see paragraph 28 below).  She had, it was said, engaged in various
political activities on behalf of the DKP since the autumn of 1980 and
in particular had stood as the DKP candidate in the 1982 elections to
the Parliament (Landtag) of the Land of Lower Saxony.

12.   The "indictment" (Anschuldigungsschrift) of 22 November 1983,
drawn up in connection with the disciplinary proceedings, specified
eleven public, political activities that the applicant had engaged in
for the DKP, such as distributing pamphlets, representing the DKP at
political meetings, being a party official in a constituency and
standing in the federal elections of 6 March 1983.

13.   On 15 July 1985 the proceedings were stayed in order to widen the
investigations to include further instances of the applicant's
political activity that had come to light in the meantime.

14.   In a supplementary "indictment" of 5 February 1986 Mrs Vogt was
accused of also failing to comply with her duties as a civil servant
in that:

      (a) she had been a member of the "Executive Committee" (Vorstand)
of the Bremen/North Lower Saxony regional branch (Bezirksorganisation)
of the DKP since the end of 1983; and

      (b) she had taken part in and addressed the DKP's 7th party
congress, held from 6 to 8 January 1984 in Nuremberg, as Chairperson
(Kreisvorsitzende) of the Wilhelmshaven/Friesland local branch of the
party.

15.   After a further stay of proceedings on 23 June 1986, a second
supplementary "indictment" was drawn up on 2 December 1986, which
specified four other political activities considered incompatible with
the applicant's civil-servant status, namely:

      (a) her candidature for the DKP in the elections to the
Parliament of the Land of Lower Saxony on 15 June 1986;

      (b) the fact that she was still a member of the "Executive
Committee" of the Bremen/North Lower Saxony regional branch of the DKP;

      (c) the fact that she was still Chairperson of the
Wilhemshaven/Friesland local branch of the DKP; and

      (d) her participation in the DKP's 8th party congress from 2 to
4 May 1986 in Hamburg as a party delegate.

16.   By an order of 12 August 1986 the Weser-Ems regional council
notified the applicant that she had been temporarily suspended from her
post, stating in particular as follows:

      "Although you knew the views of your superiors and the case-law
      of the disciplinary courts you have nevertheless, over a
      considerable period of time, deliberately violated your duty of
      loyalty.  For a permanent civil servant that is an
      extraordinarily serious breach of duty.  Civil servants, whose
      status is founded on a special relationship of trust with the
      State and who, by taking the oath, have vowed to uphold the law
      and freedom, destroy this basis of trust, which is essential for
      the continuation of their relationship with their employer
      [Dienstverhältnis], if they deliberately support a party whose
      aims are incompatible with the free democratic constitutional
      system.  This is the position in the present case."

17.   From October 1986 Mrs Vogt was paid only 60 per cent of her
salary (Dienstbezüge).

      2.   Before the Disciplinary Division of the Oldenburg
           Administrative Court

18.   Before the Disciplinary Division of the Oldenburg Administrative
Court (Disziplinarkammer des Verwaltungsgerichts) the applicant, who
by her own account has been a member of the DKP since 1972, argued that
her conduct could not amount to a failure to fulfil her duties as a
civil servant.  By being a member of the party and carrying out
activities on its behalf she had availed herself of the right of all
citizens to engage in political activity.  She had always carried out
such activity within the law and within the limits laid down in the
Constitution.  Her action to promote peace within the Federal Republic
of Germany and in its external relations and her combat against
neo-fascism were in no way indicative of an anti-constitutional stance.
The DKP, whose aims had always been wrongly alleged (but never proven)
to be anti-constitutional, took part lawfully in the process of forming
political opinion in the Federal Republic of Germany.  Lastly,
according to a report issued by a Commission of Inquiry of the
International Labour Office on 20 February 1987, the institution of
disciplinary proceedings against civil servants on account of their
political activities on behalf of a party that had not been banned
breached International Labour Organisation (ILO) Convention No. 111
concerning discrimination in respect of employment and occupation.  It
also violated Article 10 (art. 10) of the European Convention on Human
Rights.

19.   In its judgment of 15 October 1987 the Disciplinary Division
dismissed applications by Mrs Vogt to have the proceedings stayed and
witnesses examined.  The division ordered that all the "charges"
against Mrs Vogt be dropped except those concerning her membership, as
such, of the DKP and of the "Executive Committee" of the Bremen/North
Lower Saxony regional branch, her chairing of the Wilhelmshaven branch
of the DKP and her candidature in the elections to the Lower Saxony
Land Parliament on 15 June 1986.

20.   On the merits, the Disciplinary Division held that the applicant
had failed to comply with her duty of political loyalty and ordered her
dismissal as a disciplinary measure.  It granted her a sum equivalent
to 75 per cent of her pension entitlement at that date, to be paid for
a six-month period.

      The division found in the first place that neither ILO
Convention No. 111 nor the recommendations made in the Commission of
Inquiry's report of 20 February 1987 constituted a bar to the opening
of disciplinary proceedings.

      It considered that active membership of a political party that
pursued anti-constitutional aims was incompatible with a civil
servant's duty of political loyalty.  The DKP's aims, as described in
the Mannheim programme of 21 October 1978 (see paragraph 22 below),
were clearly opposed to the free democratic constitutional system of
the Federal Republic of Germany.  A party could be held to be
anti-constitutional even if it had not been banned by the Federal
Constitutional Court (Bundesverfassungsgericht) under Article 21
para. 2 of the Basic Law (Grundgesetz - see paragraph 25 below).
Through the active role which she played within the DKP the applicant
had therefore clearly supported aims that were contrary to the
Constitution.

      The Disciplinary Division added that the rule, laid down in the
first sentence of Article 48 para. 2 of the Basic Law (see
paragraph 25 below), according to which no one may be prevented from
taking office as a member of parliament, could not justify the
applicant's standing as the DKP candidate in regional elections.  This
rule did not apply to measures, such as disciplinary proceedings, which
initially had a different purpose and restricted the freedom to stand
for election to, and to sit as a member of, parliament only as an
indirect and unavoidable consequence of their implementation.

      The duty of political loyalty, which admittedly restricted civil
servants' fundamental rights, was one of the traditional principles of
the civil service and had constitutional status by virtue of
Article 33 para. 5 of the Basic Law (see paragraph 25 below).  It
followed that this duty took precedence over the provisions of
international instruments such as the European Convention.

      The applicant had moreover carried out her political activities
despite being familiar with the case-law establishing that active
membership of the DKP was incompatible with the duty of political
loyalty.  She must have been aware, at the latest once the Lower Saxony
Disciplinary Court (Niedersächsischer Disziplinarhof) had delivered its
judgment of 24 June 1985, which was published in an official
education-authority circular and was brought to the attention of the
applicant in person, that her conduct was in breach of her duties
(pflichtwidriges Verhalten).  Mrs Vogt had accordingly to be dismissed
for having betrayed the relationship of trust between herself and her
employer.  Throughout the disciplinary proceedings she had moreover
repeatedly indicated that she intended to continue her political
activities for the DKP despite the warnings she had received.  The fact
that she had done her work satisfactorily for many years and that she
had been held in high regard by her pupils and their parents alike was
immaterial.

      The Disciplinary Division finally ordered that Mrs Vogt should
be paid 75 per cent of her pension allowance for a period of six
months.  It did so in recognition of the fact that apart from her
breach of the duty of loyalty Mrs Vogt had always performed her duties
unexceptionably and enthusiastically and needed some income to be
protected from immediate hardship.

      3.  In the Lower Saxony Disciplinary Court

21.   On 18 March 1988 the applicant lodged an appeal against the above
judgment with the Lower Saxony Disciplinary Court, reiterating her
previous arguments (see paragraph 18 above).

22.   In a judgment of 31 October 1989 the Disciplinary Court dismissed
Mrs Vogt's appeal and upheld the Administrative Court's judgment in all
respects.

      It pointed out that, by carrying out activities on behalf of the
DKP, the applicant had breached the duty of political loyalty that she
owed in accordance with Article 33 para. 5 of the Basic Law, taken
together with section 61 (2) of the Lower Saxony Civil Service Act.
Under those provisions, civil servants must at all times bear witness
to the free democratic constitutional system within the meaning of the
Basic Law and uphold that system.  They must unequivocally dissociate
themselves from groups who criticise, campaign against and cast
aspersions on the State, its institutions and the existing
constitutional system.  As a result of her activities as a member of
the DKP the applicant had failed to satisfy these requirements.  The
DKP's political aims were incompatible with that system.

      The fact that the Constitutional Court had not banned the DKP did
not prevent other courts from finding that the party was
anti-constitutional, as the Federal Administrative Court and the
Disciplinary Court itself had done convincingly in judgments of
1 February 1989 and 20 July 1989.  An analysis of the still current
Mannheim programme made by Mies and Gerns in their book on the DKP's
methods and objectives (Weg und Ziel der DKP, 2nd edition, 1981) showed
that the party, which aimed to establish a regime similar to that
existing in the communist countries around 1980, continued to be guided
by the principles of Marx, Engels and Lenin.

      Article 48 para. 2 of the Basic Law and the corresponding
legislation of the Land of Lower Saxony securing the right to take
office as a member of parliament did not set limits on the duty of
political loyalty, since those provisions were not applicable to
impediments resulting from disciplinary proceedings.

      The court held that the applicant's reference to Article 5
para. 1 of the Basic Law, which secured the right to freedom of
expression, was not relevant as the provisions governing the civil
service mentioned in Article 33 para. 5 of the Basic Law had to be
regarded as general laws within the meaning of Article 5 para. 2 of the
Basic Law (see paragraph 25 below).  Similarly, the European Court of
Human Rights had ruled that a decision by a competent authority
relating to admission to the civil service did not amount to an
interference with freedom of expression.  The same approach applied in
cases where a person had already been appointed to a permanent civil
service post.

      Mrs Vogt's conduct had been unlawful.  By holding such a senior
political post within the DKP, she necessarily espoused
anti-constitutional aims and had therefore to be considered to be
opposed to the Constitution herself, although she proclaimed her
attachment to the Basic Law.  It was not possible to support both
systems at the same time.

      Even though Mrs Vogt sought above all to achieve some of the
DKP's short-term objectives such as reducing unemployment, promoting
peace and eliminating so-called Berufsverbote (prohibitions on pursuing
various occupations), this did not mean that her conduct was not
culpable.  The DKP's aims were admittedly not all anti-constitutional;
some of them were compatible with the Basic Law.  However, civil
servants could not, as a means of furthering their own political
objectives, make use of a party with anti-constitutional aims and help
it to come to power.  In this connection the Disciplinary Court
referred to the following observations made by the Federal
Administrative Court (Bundesverwaltungsgericht) in a judgment of
20 January 1987, adding that it adopted them as it was convinced that
exactly the same reasoning applied to the case before it:

      "It is admittedly possible to accept the view of the Federal
      Disciplinary Court [Bundesdisziplinargericht] that the official
      in question does not seek to change the system of government of
      the Federal Republic of Germany by the use of force and that this
      declaration cannot be dismissed as mere 'lip-service'.  It is
      also possible to accept his claim that he is mainly concerned
      with correcting what he perceives to be a discrepancy between the
      principles laid down in the Constitution and their application
      in practice in the Federal Republic of Germany and that he is
      profoundly sincere in his wish to establish a society that is
      more just, particularly in the economic sphere.  However,
      contrary to the view taken by the Federal Disciplinary Court,
      this does not mean that he is entitled to see in the DKP the
      political grouping through which he believes he can achieve his
      ideal political order.  It appears doubtful whether the view of
      the Constitution espoused by the official and described above
      reflects accurately the principles enshrined in the Basic Law.
      It is not necessary to resolve that question here.  In its
      judgment banning the former Communist Party (KPD) (BVerfGE 5,
      p. 85), the Federal Constitutional Court held that not only the
      'tactics of conflict' employed by the former KPD but also the
      different phases of the process leading to attainment of its
      final objective of 'socialist rule' [sozialistische Herrschaft],
      namely proletarian revolution by peaceful or violent means and
      the triumph of the working class ..., were incompatible with the
      free democratic constitutional system.  [It] also stated that
      intensive propaganda and persistent unrest aimed at establishing
      - even if this was not to be achieved in the near future - a
      political regime that was clearly contrary to the free democratic
      constitutional system inevitably caused direct and immediate harm
      to that system ...  The Federal Constitutional Court thus also
      unquestionably held that the transitional stages of this process,
      which were of indefinite duration [and which the party sought to
      impose] through intensive propaganda and persistent unrest were
      incompatible with the free democratic constitutional system
      (BVerwGE 47, pp. 365 and 374).  Hence, contrary to the view taken
      by the Federal Disciplinary Court, the civil servant's assertion
      that he did not intend to change the Federal Republic of
      Germany's political system by violent means, which is moreover
      consistent with many statements made by his party, is of no legal
      significance (BVerwGE 76, p. 157)."

      The court also considered that the applicant's commitment to
changing the DKP's policies could not exculpate her.  The political
loyalty owed by civil servants entailed a duty for them to dissociate
themselves unequivocally from groups which criticised or cast
aspersions on the State and the existing constitutional system.  The
attitude of civil servants who, even if they campaigned within the DKP
for the renunciation of aims that were contrary to the Constitution,
showed outside the party, through the political offices they held, that
they unreservedly supported its programme and policy, was incompatible
with such a duty.  For as long as the DKP had not abandoned its
anti-constitutional aims, civil servants' duty of political loyalty
prevented them from actively working for it.  This remained valid even
where it was their intention to bring the party closer to democratic
values.  Moreover, during the disciplinary proceedings the applicant
had declared her unconditional support for the DKP's aims, as set out
in the Mannheim programme.

      Like the Administrative Court, the Disciplinary Court found that
Mrs Vogt had knowingly breached her professional obligations.  Although
she was aware of the case-law and her superiors' views on the subject,
she had continued and even stepped up her activities on behalf of the
DKP.  Her dismissal had therefore been justified, since a civil servant
who thus persisted in breaching her duties and refusing to see reason
(unbelehrbar) was no longer capable of serving the State, which must
be able to rely on its servants' loyalty to the Constitution.  The
court added that such a breach of duty was especially serious in the
case of a teacher, who was supposed to teach the children entrusted to
her care the fundamental values of the Constitution.  Parents, who
because of compulsory education had to send their children to State
schools, were entitled to expect the State to employ only those
teachers who unreservedly supported the free democratic constitutional
system.  The State was under a duty to dismiss teachers who played an
active role in an anti-constitutional organisation.

      The court added that a radical change in a civil servant's
attitude could affect its assessment of the seriousness of professional
misconduct.  However, throughout the disciplinary proceedings, far from
cutting down on her activities on behalf of the DKP, the applicant had
in fact increased them.  It followed that a more lenient disciplinary
measure, aimed at persuading her to abandon her political activities
within the DKP, was bound to fail.  Accordingly, it was impossible to
continue to employ her as a civil servant and her dismissal was
inevitable.  Her otherwise blameless conduct in carrying out her
teaching tasks did not change the situation in any way, since the basis
of trust that was essential for her to continue as a civil servant was
lacking.

B.    Proceedings in the Federal Constitutional Court

23.   On 22 December 1989 the applicant lodged a constitutional
complaint (Verfassungsbeschwerde) with the Federal Constitutional
Court.

      Sitting as a panel of three judges, the court decided on
7 August 1990 not to entertain the constitutional complaint, on the
ground that it had insufficient prospects of success.

      In the Constitutional Court's view, the competent courts'
analysis was based on the conviction that, by her membership of the DKP
and her active role within that party, the applicant had breached her
duties as a civil servant.  This conclusion was well-founded and in no
way arbitrary.  After the commencement of the disciplinary proceedings,
Mrs Vogt had herself stated that there was no point, section or part
of the DKP's programme of which she disapproved, thus endorsing
unconditionally the party's aims set out in the Mannheim programme.
The disciplinary tribunals had been entitled to find that the DKP's
aims were anti-constitutional, notwithstanding the provisions of
Article 21 para. 2 of the Basic Law.  Regard being had to the
applicant's intractability in respect of her political loyalty, the
disciplinary courts had rightly considered that the basis of trust
necessary for Mrs Vogt to continue to work as a civil servant was
lacking, despite the fact that she had declared herself to be in favour
of a change in the party's policy and had otherwise carried out her
teaching tasks in a way that was irreproachable.  The applicant's
dismissal had therefore not amounted to a breach of the principle of
proportionality as regards her constitutional rights.  Accordingly,
there had been no violation of Article 33 paras. 2, 3 and 5 of the
Basic Law.

C.    Subsequent developments

24.   From 1987 to 1991 the applicant worked as a playwright and drama
teacher at the North Lower Saxony regional theatre (Landesbühne) in
Wilhelmshaven.

      From 1 February 1991 she was reinstated in her post as a teacher
for the Lower Saxony education authority.  The Land government had
beforehand repealed the decree on the employment of extremists in the
Lower Saxony civil service (Ministerpräsidentenbeschluß - also known
as the Radikalenerlaß - see paragraph 32 below) and had published
regulations for dealing with "earlier cases" (see paragraph 33 below).

II.   Relevant domestic law

A.    The Basic Law

25.   The following provisions of the Basic Law (Grundgesetz) are
relevant to the instant case:

                               Article 5

      "(1) Everyone shall have the right freely to express and
      disseminate his or her opinions in speech, writing and pictures
      and freely to obtain information from generally accessible
      sources.  Freedom of the press and freedom of reporting on the
      radio and in films shall be guaranteed.  There shall be no
      censorship.

      (2) These rights shall be subject to the limitations laid down
      by the provisions of the general laws and by statutory provisions
      aimed at protecting young people and to the obligation to respect
      personal honour.

      (3) There shall be freedom of art, science, research and
      teaching.  Freedom of teaching shall not release citizens from
      their duty of loyalty to the Constitution."

                              Article 21

      "(1) Political parties shall take part in forming the political
      opinion of the people.  They may be freely set up.  Their
      internal organisation must comply with democratic principles.
      They must render public account of the origin of their income and
      their assets and of their expenditure.

      (2) Parties which, through their aims or the conduct of their
      members, seek to damage or overthrow the free democratic
      constitutional system or to endanger the existence of the Federal
      Republic of Germany shall be held to be anti-constitutional.  The
      Federal Constitutional Court shall determine the question of
      anti-constitutionality.

      (3) Detailed rules shall be laid down by federal laws."

                              Article 33

      "...

      (2) All Germans shall have an equal right of admission to the
      civil service according to their suitability, capabilities and
      professional qualifications.

      (3) Enjoyment of civil and political rights, admission to the
      civil service and the rights acquired within the civil service
      shall not be contingent on religious belief.  No one shall be
      placed at a disadvantage on account of his or her 'adherence or
      non-adherence' to a religious persuasion [Bekenntnis] or to an
      'ideology' [Weltanschauung].

      ...

      (5) The provisions governing the civil service must take into
      account its traditional principles."

                          Article 48 para. 2

      "No one shall be prevented from taking office as a member of
      parliament or from performing the duties attaching thereto.  No
      employment contract may be terminated and no one may be dismissed
      from employment on this ground."

B.    Legislation governing the civil service

26.   By virtue of section 7 (1) (2) of the Federal Civil Service Act
(Bundesbeamtengesetz) and section 4 (1) (2) of the Civil Service
(General Principles) Act (Beamtenrechtsrahmengesetz) for the Länder,
appointments to the civil service are subject to the requirement that
the persons concerned "satisfy the authorities that they will at all
times uphold the free democratic constitutional system within the
meaning of the Basic Law".

27.   According to section 52 (2) of the Federal Civil Service Act and
section 35 (1), third sentence, of the Civil Service (General
Principles) Act for the Länder, "civil servants must by their entire
conduct bear witness to the free democratic constitutional system
within the meaning of the Basic Law and act to uphold it".

28.   These provisions have been reproduced in the civil service
legislation of the Länder, and in particular in section 61 (2) of the
Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz), which
likewise provides that "civil servants must by their entire conduct
bear witness to the free democratic constitutional system within the
meaning of the Basic Law and act to uphold it".

29.   The Lower Saxony Disciplinary Code (Niedersächsische
Disziplinarordnung) contains the following relevant provisions:

                           Article 2 para. 1

      "Under this law, measures may be taken against:

      (1) officials who have breached their professional duty while
      having the status of a civil servant ..."

                           Article 5 para. 1

      "The disciplinary measures shall be: ... dismissal ..."

                          Article 11 para. 1

      "Dismissal shall also entail loss of the right to a salary and
      of pension rights ..."

C.    Decree on employment of extremists in the civil service

30.   On 28 January 1972 the Federal Chancellor and the Prime Ministers
of the Länder adopted the decree on employment of extremists in the
civil service (Ministerpräsidentenbeschluß) (Bulletin of the Government
of the Federal Republic of Germany no. 15 of 3 February 1972, p. 142),
which reiterated civil servants' duty of loyalty to the free democratic
constitutional system and provided as follows:

      "... civil servants' membership of parties or organisations that
      oppose the constitutional system - and any support given to such
      parties or organisations - shall ... as a general rule lead to
      a conflict of loyalty.  If this results in a breach of duty
      [Pflichtverstoß], it shall be for the employer to decide in each
      case what measures are to be taken."

31.   In order to implement the decree, the Government of the Land of
Lower Saxony adopted, in particular on 10 July 1972, provisions on
"political activity by applicants for civil-service posts and by civil
servants directed against the free democratic constitutional system".

32.   Similar legislation was initially adopted in all the Länder.
However, from 1979 it was no longer or only partially applied; in some
Länder the relevant legislation was even repealed.

      In 1990, as part of their coalition agreement on the formation
of a new Government for the Land of Lower Saxony, the Social Democrat
and "Green" parties decided to repeal the decree on employment of
extremists in the civil service; the decree was repealed by a
ministerial decision of 26 June 1990.

33.   On 28 August 1990 the Land government took a number of measures
relating to the treatment of "earlier cases", that is to say cases of
persons who had been excluded from the civil service or refused
admission to it on account of their political activities.  The decision
made it possible - and this happened in the present case (see
paragraph 24 above) - for civil servants who had been dismissed
following disciplinary proceedings to be reinstated in their posts,
provided that they satisfied the recruitment and qualification
requirements, without, however, entitling them to compensation or to
arrears of salary.

D.    Case-law on the civil service

34.   In a leading case of 22 May 1975 the Federal Constitutional Court
clarified the special duty of loyalty owed by German civil servants to
the State and its Constitution:

      "...

      The tasks of a modern State administration are as varied as they
      are complex and they must be accomplished in an adequate,
      effective and prompt manner if the political and social system
      is to function and groups, minorities and individuals are to be
      able to lead a decent life.  That administration must be able to
      count on a body of civil servants which is united and loyal,
      which faithfully performs its duties and is thoroughly dedicated
      to the State and the Constitution.  If civil servants cannot be
      relied upon, society and State have no chance in situations of
      crisis.

      ...

      It is sufficient to observe that the duty of political loyalty
      owed by civil servants is the core of civil servants' duty of
      loyalty.  It does not mean a duty to identify with the aims or
      a particular policy of the Government in power.  It means being
      prepared to identify with the idea of the State which the
      official has to serve and with the free democratic constitutional
      order of that State based on the rule of law and social justice.

      ...

      It cannot be in the interests of the State and society to have
      civil servants who are entirely uncritical.  It is, however,
      essential that a civil servant approves the State -
      notwithstanding its defects - and the existing constitutional
      order as it is in force and that he or she recognises that they
      merit protection, bears witness to them accordingly and is active
      on their behalf.

      ...

      The duty of political loyalty - loyalty to the State and to the
      Constitution - requires more than an attitude which while
      formally correct is in fact uninterested, indifferent and, at
      heart, distant in relation to the State and the Constitution.
      It entails, inter alia, the duty for civil servants to dissociate
      themselves unequivocally from groups and movements that
      criticise, campaign against and cast aspersions on that State,
      its institutions and the existing constitutional system.

      ...

      [The duty of loyalty owed by a civil servant] applies to every
      type of appointment in the civil service, an appointment of fixed
      duration, an appointment on probation and an appointment subject
      to revocation as well as an appointment to a permanent post.  Nor
      can there be any difference of treatment in this respect
      according to the nature of the civil servant's duties.

      ...

      The fact that the Federal Constitutional Court has not exercised
      its power to declare a party anti-constitutional does not mean
      that it is impossible to have the conviction - and to express
      that conviction - that the party in question pursues
      anti-constitutional aims and must therefore be challenged in the
      political arena.  A party which for instance advocates in its
      manifesto the dictatorship of the proletariat or approves
      recourse to force in order to overthrow the constitutional system
      if the conditions are right, pursues anti-constitutional aims ...

      ..."

35.   In judgments of 29 October 1981 and 10 May 1984 the Federal
Administrative Court held that civil servants who played an active role
in the DKP, for example by holding a post in the party or by standing
as its candidate in elections, would be in breach of their duty of
political loyalty, because they would necessarily be identifying with
the anti-constitutional aims of that party.  It followed the same line
of reasoning in a judgment of 20 January 1987 (see paragraph 22 above).

E.    Report of the Commission of Inquiry of the International Labour
      Office

36.   In its report of 20 February 1987 the majority of the Commission
of Inquiry of the International Labour Office concluded that "the
measures taken in application of the duty of faithfulness to the free
democratic basic order have in various respects not remained within the
limits of the restrictions authorised by Article 1, paragraph 2, of
[the Discrimination (Employment and Occupation)] Convention No. 111".
It also formulated a number of recommendations.

      In reply to this report, the German Government maintained that
the measures taken to ensure that civil servants remained loyal to the
Constitution were not contrary to the relevant provisions of
Convention No. 111 and that in any case the recommendations made by the
Commission of Inquiry were not binding on the German State for the
purposes of domestic law.

PROCEEDINGS BEFORE THE COMMISSION

37.   Mrs Vogt's application was lodged with the Commission on
13 February 1991.  Relying on Articles 10 and 11 (art. 10, art. 11) of
the Convention, and on Article 14 taken together with Article 10
(art. 14+10), she complained that her right to freedom of expression
and to freedom of association had been infringed.

38.   The Commission declared the application (no. 17851/91) admissible
on 19 October 1992.  In its report of 30 November 1993 (Article 31)
(art. 31), it expressed the opinion by thirteen votes to one that there
had been a violation of Articles 10 and 11 (art. 10, art. 11) of the
Convention and that it was unnecessary to examine the application also
under Article 14 (art. 14) of the Convention.  The full text of the
Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment (1).
_______________
1.  Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 323 of Series A
of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________

FINAL SUBMISSIONS TO THE COURT

39.   In their memorial the Government requested the Court to find

      "that in this case the Federal Republic of Germany did not
      violate Articles 10 and 11 (art. 10, art. 11) of the Convention,
      [or] Article 14 taken together with Article 10 (art. 14+10)".

40.   The applicant asked the Court

      "to find that there has been a violation of Articles 10 and 11
      (art. 10, art. 11) of the Convention".

AS TO THE LAW

I.    ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION

41.   Mrs Vogt maintained that her dismissal from the civil service on
account of her political activities as a member of the DKP had
infringed her right to freedom of expression secured under Article 10
(art. 10) of the Convention, which is worded as follows:

      "1.  Everyone has the right to freedom of expression.  This right
      shall include freedom to hold opinions and to receive and impart
      information and ideas without interference by public authority
      and regardless of frontiers.  This Article (art. 10) shall not
      prevent States from requiring the licensing of broadcasting,
      television or cinema enterprises.

      2.  The exercise of these freedoms, since it carries with it
      duties and responsibilities, may be subject to such formalities,
      conditions, restrictions or penalties as are prescribed by law
      and are necessary in a democratic society, in the interests of
      national security, territorial integrity or public safety, for
      the prevention of disorder or crime, for the protection of health
      or morals, for the protection of the reputation or rights of
      others, for preventing the disclosure of information received in
      confidence, or for maintaining the authority and impartiality of
      the judiciary."

A.    Whether there was an interference

42.   The Government did not dispute the applicability of Article 10
(art. 10).  However, at the hearing they requested the Court to
re-examine this issue carefully.

43.   The Court reiterates 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 been appointed as a civil servant
cannot complain on being dismissed if that dismissal violates one of
his or her rights under the Convention.  Civil servants do not fall
outside the scope of the Convention.  In Articles 1 and 14 (art. 1,
art. 14), the Convention stipulates that "everyone within [the]
jurisdiction" of the Contracting States must enjoy the rights and
freedoms in Section I "without discrimination on any ground".  Moreover
Article 11 para. 2 (art. 11-2) in fine, which allows States to impose
special restrictions on the exercise of the freedoms of assembly and
association by "members of the armed forces, of the police or of the
administration of the State", confirms that as a general rule the
guarantees in the Convention extend to civil servants (see the
Glasenapp and Kosiek v. Germany judgments of 28 August 1986, Series A
nos. 104, p. 26, para. 49, and 105, p. 20, para. 35).  Accordingly, the
status of permanent civil servant that Mrs Vogt had obtained when she
was appointed a secondary-school teacher did not deprive her of the
protection of Article 10 (art. 10).

44.   The Court considers, like the Commission, that the present case
is to be distinguished from the cases of Glasenapp and Kosiek.  In
those cases the Court analysed the authorities' action 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.  Access to
the civil service had therefore been at the heart of the issue
submitted to the Court, which accordingly concluded that there had been
no interference with the right protected under paragraph 1 of
Article 10 (art. 10-1) (see the previously cited Glasenapp and Kosiek
judgments, p. 27, para. 53, and p. 21, para. 39).

      Mrs Vogt, for her part, had been a permanent civil servant since
February 1979.  She was suspended in August 1986 and dismissed in 1987
(see paragraphs 16 and 20 above), as a disciplinary penalty, for
allegedly having failed to comply with the duty owed by every civil
servant to uphold the free democratic system within the meaning of the
Basic Law.  According to the authorities, she had by her activities on
behalf of the DKP and by her refusal to dissociate herself from that
party expressed views inimical to the above-mentioned system.  It
follows that there was indeed an interference with the exercise of the
right protected by Article 10 (art. 10) of the Convention.

B.    Whether the interference was justified

45.   Such interference constitutes a breach of Article 10 (art. 10)
unless it was "prescribed by law", pursued one or more legitimate aim
or aims as defined in paragraph 2 (art. 10-2) and was "necessary in a
democratic society" to attain them.

      1.  "Prescribed by law"

46.   The Government agreed with the Commission that the interference
had been based on section 61 (2) of the Lower Saxony Civil Service Act
(see paragraph 28 above), as construed in the case-law of the relevant
courts and had therefore been prescribed by law.

47.   The applicant took the contrary view.  She argued that it was in
no way implicit in the duty of political loyalty required by
section 61 (2) of the Lower Saxony Civil Service Act that civil
servants could be dismissed, as she had been, on account of political
activities.  Neither the case-law nor the legislation was sufficiently
clear and foreseeable on this point.  As regards the case-law, the
applicant sought to show that the Constitutional Court's judgment of
22 May 1975 (see paragraph 34 above) had by no means established the
necessary clarity for those concerned since that judgment had been
construed quite differently by the Federal Administrative Court and the
Federal Labour Court.  As to the legislation, the mere fact that,
although the law had not been changed, she had been reinstated in 1991
(see paragraph 24 above) while still a member of the DKP showed that
the formulation of the legislation was far from attaining a sufficient
degree of precision.  Her dismissal had in reality been based on a
political decision taken by the Federal Chancellor and the Prime
Ministers of the Länder in the form of the Decree of 28 January 1972
on the employment of extremists in the civil service (see paragraph 30
above).

48.   The Court reiterates that the level of precision required of
domestic legislation - which cannot in any case provide for every
eventuality - depends to a considerable degree on the content of the
instrument in question, the field it is designed to cover and the
number and status of those to whom it is addressed.  It is moreover
primarily for the national authorities to interpret and apply domestic
law (see the Chorherr v. Austria judgment of 25 August 1993, Series A
no. 266-B, pp. 35-36, para. 25).  In this instance the Federal
Constitutional Court and the Federal Administrative Court had clearly
defined the duty of political loyalty imposed on all civil servants by
the relevant provisions of federal legislation and the legislation of
the Länder, including section 61 (2) of the Lower Saxony Civil Service
Act (see paragraphs 26 to 28 above).  They had held, inter alia, that
any active commitment on the part of a civil servant to a political
party with anti-constitutional aims such as the DKP was incompatible
with that duty.  At the material time - that is during the disciplinary
proceedings at the latest - Mrs Vogt must have been aware of that
case-law.  She was therefore in a position to foresee the risks that
she was running as a result of her political activities on behalf of
the DKP and her refusal to dissociate herself from that party.  Even
if there was, as alleged, a divergence of opinion between the Federal
Administrative Court and the Federal Labour Court - a divergence,
moreover, whose existence the Court has not been able to establish -
it would not have been material since the disciplinary courts had to
follow and demonstrably followed the Federal Administrative Court's
case-law.  As to Mrs Vogt's argument based on her reinstatement, the
latter measure does not warrant the conclusion that she seeks to draw
from it, as the mere fact that a legal provision is capable of more
than one construction does not mean that it does not meet the
requirement implied in the notion "prescribed by law".

      The Court accordingly shares the view of the Government and the
Commission that the interference was "prescribed by law".

      2.  Legitimate aim

49.   Like the Commission, the Government were of the opinion that the
interference pursued a legitimate aim.  The Government contended that
the restriction on the freedom of expression deriving from civil
servants' duty of political loyalty was aimed at protecting national
security, preventing disorder and protecting the rights of others.

50.   The applicant did not express an opinion on this point.

51.   The Court notes that a number of Contracting States impose a duty
of discretion on their civil servants.  In this case the obligation
imposed on German civil servants to bear witness to and actively uphold
at all times the free democratic constitutional system within the
meaning of the Basic Law (see paragraphs 26-28 above) is founded on the
notion that the civil service is the guarantor of the Constitution and
democracy.  This notion has a special importance in Germany because of
that 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).  Against this background the
Court cannot but conclude that the applicant's dismissal pursued a
legitimate aim within the meaning of paragraph 2 of Article 10
(art. 10-2).

      3.  "Necessary in a democratic society"

      (a)  General principles

52.   The Court reiterates the basic principles laid down in its
judgments concerning Article 10 (art. 10):

      (i) Freedom of expression constitutes one of the essential
foundations of a democratic society and one of the basic conditions for
its progress and each individual's self-fulfilment.  Subject to
paragraph 2 of Article 10 (art. 10-2), it is applicable not only to
"information" or "ideas" that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb; such are the demands of that pluralism,
tolerance and broadmindedness without which there is no "democratic
society".  Freedom of expression, as enshrined in Article 10 (art. 10),
is subject to a number of exceptions which, however, must be narrowly
interpreted and the necessity for any restrictions must be convincingly
established (see the following judgments: Handyside v. the United
Kingdom, 7 December 1976, Series A no. 24, p. 23, para. 49; Lingens v.
Austria, 8 July 1986, Series A no. 103, p. 26, para. 41; and Jersild
v. Denmark, 23 September 1994, Series A no. 298, p. 26, para. 37).

      (ii) The adjective "necessary", within the meaning of Article 10
para. 2 (art. 10-2), implies the existence of a "pressing social need".
The Contracting States have a certain margin of appreciation in
assessing whether such a need exists, but it goes hand in hand with a
European supervision, embracing both the law and the decisions applying
it, even those given by independent courts.  The Court is therefore
empowered to give the final ruling on whether a "restriction" is
reconcilable with freedom of expression as protected by Article 10
(art. 10).

      (iii) The Court's task, in exercising its supervisory
jurisdiction, is not to take the place of the competent national
authorities but rather to review under Article 10 (art. 10) the
decisions they delivered pursuant to their power of appreciation.  This
does not mean that the supervision is limited to ascertaining whether
the respondent State exercised its discretion reasonably, carefully and
in good faith; what the Court has to do is to look at the interference
complained of in the light of the case as a whole and determine whether
it was "proportionate to the legitimate aim pursued" and whether the
reasons adduced by the national authorities to justify it are "relevant
and sufficient" (see the Sunday Times v. the United Kingdom (no. 2)
judgment of 26 November 1991, Series A no. 217, p. 29, para. 50).  In
so doing, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied
in Article 10 (art. 10) and, moreover, that they based their decisions
on an acceptable assessment of the relevant facts (see the
above-mentioned Jersild judgment, p. 26, para. 31).

53.   These principles apply also to civil servants.  Although it is
legitimate for a State to impose on civil servants, on account of their
status, a duty of discretion, civil servants are individuals and, as
such, qualify for the protection of Article 10 (art. 10) of the
Convention.  It therefore falls to the Court, having regard to the
circumstances of each case, 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 para. 2 (art. 10-2).  In carrying out this
review, 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 para. 2 (art. 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.

      (b)  Application in the present case of the above-mentioned
           principles

54.   According to the Government, the breadth of the margin of
appreciation enjoyed by the State in the present case must be assessed
with reference to the deliberate intention on the part of the
Contracting States not to recognise in the Convention or its Protocols
a right of recruitment to the civil service.  They maintained that the
conditions which a candidate for the civil service had to satisfy were
closely linked to those applying to a civil servant who had already
been appointed to a permanent post.  The Federal Republic of Germany
had a special responsibility in the fight against all forms of
extremism, whether right-wing or left-wing.  It was precisely for that
reason and in the light of the experience of the Weimar Republic that
the duty of political loyalty had been introduced for civil servants.
The civil service was the cornerstone of a "democracy capable of
defending itself".  Its members could not therefore play an active role
in parties, such as the DKP, that pursued anti-constitutional aims.
Mrs Vogt had held senior posts in this party, whose objective at the
material time had been the overthrow of the free democratic order in
the Federal Republic of Germany and which received its instructions
from the East German and Soviet communist parties.  Even though no
criticism had been levelled at the way she actually performed her
duties, she had had, nevertheless, as a teacher, a special
responsibility in the transmission of the fundamental values of
democracy.  Despite the warnings she had been given, the applicant had
continually stepped up her activities within the DKP.  That was why the
German authorities had had no choice but to suspend her from her
duties.

55.   The applicant disputed the necessity of the interference.  Since
the DKP had not been banned by the Federal Constitutional Court, her
activities on behalf of that party, which had been the basis of the
"charges" brought against her (see paragraph 19 above), had been lawful
political activities for a lawful party and could not therefore amount
to a failure to fulfil her duty of political loyalty.  Compliance with
that obligation had to be assessed not in terms of the abstract aims
of a party, but with reference to individual conduct.  From this point
of view she had always been beyond reproach, both in the performance
of her duties, in the course of which she had never sought to
indoctrinate her pupils, and outside her professional activities, where
she had never made any statement that could have been considered
anti-constitutional.  On the contrary, her activity within the DKP
reflected her desire to work for peace both inside and outside the
Federal Republic of Germany and to fight neo-fascism.  She was firmly
convinced that she could best serve the cause of democracy and human
rights by her political activities on behalf of the DKP; requiring her
to renounce that conviction on the ground that the State authorities
held otherwise went against the very core of the freedom to hold
opinions and to express them.  In any event, the imposition of the
heaviest sanction had been totally disproportionate.  Moreover, the
very protracted nature of the disciplinary proceedings in this case and
significant differences in the way the provisions concerning civil
servants' duty of political loyalty had been applied from Land to Land
showed that it could not be said that there were pressing reasons for
dismissing her.

56.   The Commission essentially took the same view as the applicant.
In its view what should have been decisive was whether the personal
conduct and personal statements of the applicant were contrary to the
constitutional order.  Disciplinary punishment of such severity as
dismissal had to be justified with reference to the personal attitude
of the civil servant concerned.

57.   In the present case the Court's task is to determine whether
Mrs Vogt's dismissal corresponded to a "pressing social need" and
whether it was "proportionate to the legitimate aim pursued".  To this
end, the Court will examine the circumstances of the case in the light
of the situation existing in the Federal Republic of Germany at the
material time.

58.   Mrs Vogt became a member of the DKP in 1972.  It has not been
disputed that this was known to the authorities when, in 1979, even
before the end of her probationary period, she was appointed a
permanent civil servant.  However, after investigations into her
political activities, disciplinary proceedings were opened against her
in 1982 (see paragraph 11 above).  These proceedings were suspended
several times pending further investigations, but Mrs Vogt was
eventually dismissed on 15 October 1987 for breach of her duty of
political loyalty.  The criticisms levelled against her concerned her
various political activities within the DKP, the posts she had held in
that party and her candidature in the elections for the Parliament of
the Land (see paragraph 19 above).

      The duty of political loyalty to which German civil servants are
subject, as it was defined by the Federal Constitutional Court in its
judgment of 22 May 1975, entails for all civil servants the duty to
dissociate themselves unequivocally from groups that attack and cast
aspersions on the State and the existing constitutional system.  At the
material time the German courts had held - on the basis of the DKP's
own official programme - that its aims were the overthrow of the social
structures and the constitutional order of the Federal Republic of
Germany and the establishment of a political system similar to that of
the German Democratic Republic.

59.   The Court proceeds on the basis that a democratic State is
entitled to require civil servants to be loyal to the constitutional
principles on which it is founded.  In this connection it takes into
account Germany's experience under the Weimar Republic and during the
bitter period that followed the collapse of that regime up to the
adoption of the Basic Law in 1949.  Germany wished to avoid a
repetition of those experiences by founding its new State on the idea
that it should be a "democracy capable of defending itself".  Nor
should Germany's position in the political context of the time be
forgotten.  These circumstances understandably lent extra weight to
this underlying notion and to the corresponding duty of political
loyalty imposed on civil servants.

      Even so, the absolute nature of that duty as construed by the
German courts is striking.  It is owed equally by every civil servant,
regardless of his or her function and rank.  It implies that every
civil servant, whatever his or her own opinion on the matter, must
unambiguously renounce all groups and movements which the competent
authorities hold to be inimical to the Constitution.  It does not allow
for distinctions between service and private life; the duty is always
owed, in every context.

      Another relevant consideration is that at the material time a
similarly strict duty of loyalty does not seem to have been imposed in
any other member State of the Council of Europe, whilst even within
Germany the duty was not construed and implemented in the same manner
throughout the country; a considerable number of Länder did not
consider activities such as are in issue here incompatible with that
duty.

60.   However, the Court is not called upon to assess the system as
such.  It will accordingly concentrate on Mrs Vogt's dismissal.

      In this connection it notes at the outset that there are several
reasons for considering dismissal of a secondary-school teacher by way
of disciplinary sanction for breach of duty to be a very severe
measure.  This is firstly because of the effect that such a measure has
on the reputation of the person concerned and secondly because
secondary-school teachers dismissed in this way lose their livelihood,
at least in principle, as the disciplinary court may allow them to keep
part of their salary.  Finally, secondary-school teachers in this
situation may find it well nigh impossible to find another job as a
teacher, since in Germany teaching posts outside the civil service are
scarce.  Consequently, they will almost certainly be deprived of the
opportunity to exercise the sole profession for which they have a
calling, for which they have been trained and in which they have
acquired skills and experience.

      A second aspect that should be noted is that Mrs Vogt was a
teacher of German and French in a secondary school, a post which did
not intrinsically involve any security risks.

      The risk lay in the possibility that, contrary to the special
duties and responsibilities incumbent on teachers, she would take
advantage of her position to indoctrinate or exert improper influence
in another way on her pupils during lessons.  Yet no criticism was
levelled at her on this point.  On the contrary, the applicant's work
at school had been considered wholly satisfactory by her superiors and
she was held in high regard by her pupils and their parents and also
by her colleagues (see paragraph 10 above); the disciplinary courts
recognised that she had always carried out her duties in a way that was
beyond reproach (see paragraphs 20 and 22 above).  Indeed the
authorities only suspended the applicant more than four years after
instituting disciplinary proceedings (see paragraphs 11 to 16 above),
thereby showing that they did not consider the need to remove the
pupils from her influence to be a very pressing one.

      Since teachers are figures of authority to their pupils, their
special duties and responsibilities to a certain extent also apply to
their activities outside school.  However, there is no evidence that
Mrs Vogt herself, even outside her work at school, actually made
anti-constitutional statements or personally adopted an
anti-constitutional stance.  The only criticisms retained against her
concerned her active membership of the DKP, the posts she had held in
that party and her candidature in the elections for the Parliament of
the Land.  Mrs Vogt consistently maintained her personal conviction
that these activities were compatible with upholding the principles of
the German constitutional order.  The disciplinary courts recognised
that her conviction was genuine and sincere, while considering it to
be of no legal significance (see paragraph 22 above), and indeed not
even the prolonged investigations lasting several years were apparently
capable of yielding any instance where Mrs Vogt had actually made
specific pronouncements belying her emphatic assertion that she upheld
the values of the German constitutional order.

      A final consideration to be borne in mind is that the DKP had not
been banned by the Federal Constitutional Court and that, consequently,
the applicant's activities on its behalf were entirely lawful.

61.   In the light of all the foregoing, the Court concludes that,
although the reasons put forward by the Government in order to justify
their interference with Mrs Vogt's right to freedom of expression are
certainly relevant, they are not sufficient to establish convincingly
that it was necessary in a democratic society to dismiss her.  Even
allowing for a certain margin of appreciation, the conclusion must be
that to dismiss Mrs Vogt by way of disciplinary sanction from her post
as secondary-school teacher was disproportionate to the legitimate aim
pursued.  There has accordingly been a violation of Article 10
(art. 10).

II.   ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE CONVENTION

62.   The applicant also complained of a breach of her right to the
freedom of association guaranteed under Article 11 (art. 11) of the
Convention, which is worded as follows:

      "1.  Everyone has the right to freedom of peaceful assembly and
      to freedom of association with others, including the right to
      form and to join trade unions for the protection of his
      interests.

      2.  No restrictions shall be placed on the exercise of these
      rights other than such as are prescribed by law and are necessary
      in a democratic society in the interests of national security or
      public safety, for the prevention of disorder or crime, for the
      protection of health or morals or for the protection of the
      rights and freedoms of others.  This Article (art. 11) shall not
      prevent the imposition of lawful restrictions on the exercise of
      these rights by members of the armed forces, of the police or of
      the administration of the State."

A.    Whether there was an interference

63.   As was the case with Article 10 (art. 10), the Government did not
contest the applicability of Article 11 (art. 11), although at the
hearing they requested the Court to re-examine this issue carefully.

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

65.   With reference to the principles set forth in respect of
Article 10 (art. 10) (see paragraphs 43 and 44 above), Mrs Vogt, as a
permanent civil servant, also qualified for the protection of
Article 11 (art. 11).

      The applicant was dismissed from her post as a civil servant for
having persistently refused to dissociate herself from the DKP on the
ground that in her personal opinion membership of that party was not
incompatible with her duty of loyalty.

      There has accordingly been an interference with the exercise of
the right protected by paragraph 1 of Article 11 (art. 11-1).

B.    Whether the interference was justified

66.   Such interference constitutes a breach of Article 11 (art. 11)
unless it satisfies the requirements of paragraph 2 (art. 11-2), which
are identical to those laid down in paragraph 2 of Article 10
(art. 10-2), the only exception being where the last sentence of
paragraph 2 of Article 11 (art. 11-2) is applicable.

67.   In this respect the Court agrees with the Commission that the
notion of "administration of the State" should be interpreted narrowly,
in the light of the post held by the official concerned.

68.   However, even if teachers are to be regarded as being part of the
"administration of the State" for the purposes of Article 11 para. 2
(art. 11-2) - a question which the Court does not consider it necessary
to determine in the instant case -, Mrs Vogt's dismissal was, for the
reasons previously given in relation to Article 10 (art. 10) (see
paragraphs 51 to 60 above), disproportionate to the legitimate aim
pursued.

      There has accordingly also been a violation of Article 11
(art. 11).

III.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
      CONJUNCTION WITH ARTICLE 10 (art. 14+10)

69.   Before the Commission the applicant complained of a violation of
Article 14 of the Convention taken in conjunction with Article 10
(art. 14+10), but she did not raise this complaint before the Court.

70.   The Court does not consider it necessary to examine the question
of its own motion.

IV.   APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

71.   Under Article 50 (art. 50) of the Convention,

      "If the Court finds that a decision or a measure taken by a legal
      authority or any other authority of a High Contracting Party is
      completely or partially in conflict with the obligations arising
      from the ... Convention, and if the internal law of the said
      Party allows only partial reparation to be made for the
      consequences of this decision or measure, the decision of the
      Court shall, if necessary, afford just satisfaction to the
      injured party."

72.   Mrs Vogt submitted claims for compensation in respect of
pecuniary and non-pecuniary damage and for the reimbursement of her
costs and expenses.

73.   The Government and the Delegate of the Commission regarded most
of the sums claimed as excessive.

74.   In the Court's opinion, the question is not ready for decision.
It is accordingly necessary to reserve it and to fix the further
procedure, account being taken of the possibility of an agreement
between the respondent State and the applicant (Rule 54 paras. 1
and 4 of Rules of Court A).

FOR THESE REASONS, THE COURT

1.    Holds by seventeen votes to two that Article 10 (art. 10) of the
      Convention is applicable in the present case;

2.    Holds by ten votes to nine that there has been a violation of
      Article 10 (art. 10);

3.    Holds unanimously that Article 11 (art. 11) of the Convention is
      applicable in the present case;

4.    Holds by ten votes to nine that there has been a violation of
      Article 11 (art. 11);

5.    Holds unanimously that it is not necessary to examine the case
      under Article 14 of the Convention taken in conjunction with
      Article 10 (art. 14+10);

6.    Holds by seventeen votes to two that the question of the
      application of Article 50 (art. 50) of the Convention is not
      ready for decision; and

      consequently,

      (a) reserves the said question;

      (b) invites the Government and the applicant to submit, within
      the forthcoming six months, their written observations on the
      matter and, in particular, to notify the Court of any agreement
      they may reach;

      (c) reserves the further procedure and delegates to the President
      the power to fix the same if need be.

      Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 26 September 1995.

Signed: Rolv RYSSDAL
        President

Signed: Herbert PETZOLD
        Registrar

      In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:

      (a)  joint dissenting opinion of Mr Bernhardt, Mr Gölcüklü,
      Mr Matscher, Mr Loizou, Mr Mifsud Bonnici, Mr Gotchev,
      Mr Jungwiert and Mr Kuris;

      (b)  supplementary dissenting opinion of Mr Gotchev;

      (c)  dissenting opinion of Mr Jambrek.

      A statement by Mr Mifsud Bonnici is also appended.

Initialled: R. R.

Initialled: H. P.

   JOINT DISSENTING OPINION OF JUDGES BERNHARDT, GÖLCÜKLÜ, MATSCHER,
         LOIZOU, MIFSUD BONNICI, GOTCHEV, JUNGWIERT AND KURIS

      We are of the opinion that the disciplinary measures against
Mrs Vogt, taken or approved by all the German authorities and courts
concerned, do not violate Article 10 or Article 11 (art. 10, art. 11)
of the Convention.  Her dismissal as a teacher in public service was
not only prescribed by law and ordered in pursuit of a legitimate aim;
it was also proportionate and could be considered necessary in a
democratic society.  It falls within the margin of appreciation which
must be left to the national authorities.

1.    The circumstances surrounding the dismissal call, in our view,
for a different emphasis from that contained in the present judgment
of the Grand Chamber.  Mrs Vogt had been a member of the Communist
Party (DKP) since 1972, but she was nevertheless appointed to a
permanent post in 1979.  This can be easily explained by the German
practice according to which formal membership of an extremist party is
in itself in general not an obstacle to becoming or remaining a civil
servant.  It was only after her appointment was made permanent that
Mrs Vogt intensified her activities on behalf of the DKP (see
paragraphs 11-23 of the judgment).  It is obvious that activities of
this kind are bound to become known in a school and among the pupils
even if the teacher concerned does not disseminate his or her political
convictions in the classroom.

      It is in our view equally beyond doubt that the programme of the
DKP and the constitutional order of the Federal Republic of Germany as
enshrined in the Basic Law were incompatible with each other.  If a
person like Mrs Vogt professes to support all the points of the DKP's
programme and affirms at the same time his or her respect for the
constitutional order, these assertions are equally incompatible with
each other.

2.    Throughout the period from the institution of the disciplinary
proceedings against Mrs Vogt until her final dismissal, the DKP was
supported by the communist regime and its governing party in East
Germany (at the time the German Democratic Republic), and the DKP
itself always considered the East German constitutional and political
order to be fundamentally different from and superior to that of the
Federal Republic.  It can also hardly be denied that at the relevant
time the East-West confrontation and the antagonism between the
communist regime on the one side and the West German democratic order
on the other made it necessary to strengthen the democratic order and
not to allow it to be undermined.

      In such a situation and bearing in mind Germany's special
history, in particular the destruction of the democratic Constitution
of Weimar, the State must be entitled to dismiss civil servants,
including school teachers, who are actively engaged in activities on
behalf of anti-democratic parties.  This must be valid for all
extremist parties whether they belong to the left or the right of the
political spectrum.

3.    Mrs Vogt's dismissal could therefore be considered by the German
authorities to be necessary in a democratic society in conformity with
Articles 10 and 11 (art. 10, art. 11).  The civil service is of the
utmost importance in nearly all States for a proper functioning of the
democratic order, and States must accordingly enjoy a considerable
margin of appreciation when recruiting or dismissing public servants.
States must be entitled to require their officials either to renounce
their active and prominent support for an extremist party or to leave
the civil service.

           SUPPLEMENTARY DISSENTING OPINION OF JUDGE GOTCHEV

      I voted for no violation because it is my firm opinion that
Article 10 (art. 10) of the Convention was not applicable.

      The judgment (paragraph 43) confirms that access to the civil
service is not one of the rights protected under the Convention.
However, according to the Court's case-law, if denial of access to the
civil service results in a breach of some other provision of the
Convention, that provision (art. 10) is applicable, so where, as in
this case, the refusal of access to, or dismissal from, the civil
service constitutes at the same time a violation of Article 10
(art. 10), that Article (art. 10) will be applicable.

      I cannot agree with this reasoning.  Mrs Vogt was not dismissed
from her post as a teacher because she expressed an opinion or an idea.
According to the court's decision she was in fact dismissed because of
her membership of the DKP, her membership of the regional branch
executive committee, being Chairperson of the local branch and her
candidacy in the parliamentary election as a DKP candidate.  No mention
was made of any declaration or publication or any other kind of
expression of opinion.

      In both the cases cited in the judgment - Glasenapp and Kosiek -
the dismissal was the consequence of the expression of an opinion - a
letter sent by the applicant to a newspaper in the first case and two
books published by the applicant in the second.

      Even so in both cases our Court took the view that there had been
no violation of Article 10 (art. 10).

                  DISSENTING OPINION OF JUDGE JAMBREK

1.    I agree with the majority that both Articles 10 and 11 (art. 10,
art. 11) of the Convention apply to the instant case and that there was
an interference.  I came to a different conclusion from the majority,
however, when considering whether the impugned interference was
necessary in a democratic society and whether it was proportionate to
the legitimate aim pursued.  As a consequence I found that the
restriction was reconcilable with the respective freedoms.  I also
fully agree with the joint dissenting opinion of my colleagues, but
wish to add to their reasoning the following points.

2.    In order to strike a fair balance between the rights of Mrs Vogt
and the duty of the Federal Republic of Germany at the material time
to ensure that its State schools in addition to their normal functions
also properly furthered the legitimate interests of national security,
territorial integrity or public safety and the protection of rights of
others, I will examine the circumstances of the case firstly in the
light of the situation existing in the Federal Republic of Germany, and
then in the light of the choices available to Mrs Vogt, in both cases
at the material time.

3.    The majority took account of Germany`s "bitter period that
followed the collapse of" the Weimar Republic, and also its "position
in the political context of the time".  It also noted that "the
nightmare of nazism ... led to its constitution being based on the
principle of `a democracy capable of defending itself`".  May I add
that this constitutional principle also represented at the time
material for the present case a legitimate aim justifying the duty
imposed on civil servants of loyalty to the values of democracy and the
rule of law.

      The situation of the Federal Republic of Germany in Western
Europe from 1945 to 1990 was specific and unique in comparison with
other member States of the Council of Europe.  It was an amputated
State with a divided people, in the front line facing the countries of
the former Communist Bloc.  Therefore it was inevitably more vulnerable
and exposed in terms of its national security, territorial integrity
and public safety; in particular it was exposed to the risk of
infiltration by agents and to political propaganda inimical to its
constitutional order.  I have no reason to doubt in this respect the
facts supplied in the Government's memorial and in the oral
presentation by their Agent.

      Nor do I see any reason to doubt the facts provided and
assessments made by the Agent of the Government as to the character and
the role of the German Communist Party (DKP), of which Mrs Vogt was an
active member and official.  It is in my view correct to presume that
this party at the material time aimed to overthrow the democratic
constitutional order of the Federal Republic of Germany in order to
introduce there a communist system fashioned after the model of the
former German Democratic Republic.  Moreover, the DKP had the means at
its disposal to implement its political goals: it was financed by its
East German counterpart (SED), DKP members were trained by the SED,
while about 200 members of the DKP received instruction from the SED
in sabotage and terrorism; it was only in 1989 that this group was
dissolved.  Mr P. Becker, who spoke on the applicant's behalf, stated
at the hearing that "It was not State repression which caused the DKP
to fail to attract people but rather the collapse of the socialist
regimes".

4.    Mrs Vogt had been a member of the German Communist Party since
1972.  She was appointed a permanent civil servant on 1 February 1979.
Only subsequently, from the autumn of 1980, did she take an active role
in the DKP and began engaging in the various political activities
recorded in the file of the case.  And on 13 June 1982 disciplinary
proceedings were instituted against her on the ground that she had
failed to comply with the duty of loyalty to the Constitution.  On
31 October 1989 the Disciplinary Court of Lower Saxony rejected
Mrs Vogt's appeal against the disciplinary sanction of dismissal
imposed upon her by the Disciplinary Division of the Oldenburg
Administrative Court.  Thereafter various other proceedings took place
and finally the Federal Constitutional Court rejected her
constitutional complaint on 7 August 1990.

      I refer to the above facts in order to place in their proper
context the following points:

- Mrs Vogt was appointed a permanent civil servant according to the
established practice that mere membership of the DKP did not constitute
a breach of loyalty;
- disciplinary proceedings against her were only instituted after she
engaged in more prominent political activities;
- it is wrong to assume that the length of the proceedings, during
which Mrs Vogt was permitted to continue teaching, indicated an absence
of a "pressing social need" to halt her unconstitutional activities;
- on the contrary, the German courts made it clear that they expected
her to abandon her activities within the DKP; see, inter alia, the
Lower Saxony Disciplinary Court's opinion, "that a radical change in
a civil servant's attitude could affect its assessment of the
seriousness of professional misconduct" (paragraph 22 in fine);
- after the institution of proceedings against her, Mrs Vogt had ample
time to make at least two other choices in order to meet official
requirements: she could either continue with her active involvement in
the DKP and seek other employment outside the German civil service, or
else she could retain her job there and remain a member of the DKP
while lowering the intensity of her activities in the party to the
pre-1979 level.

5.    The next key point is whether Mrs Vogt's dismissal (the
"interference") was really necessary in the sense that it represented
"a pressing social need", in view of the relationship between the way
she performed her job and her political activities.  In this respect,
two opposing hypotheses may be defined and defended.

      According to the first, Mrs Vogt's work was apolitical and purely
academic in substance and could be performed in a way that did not
involve the expression of values.  The distinction between professional
and private (including political) life thus eliminated the danger that
Mrs Vogt's political role would have such consequences for her teaching
role as to justify the pressing social need to dismiss her from her
job.

      The German authorities gave the alternative assessment.  Using
a different wording, they claimed that the connection between the two
roles was strong enough to justify the interference.  In this respect
the notion of the general "role model" of a teacher to her pupils may
also be considered, the various "subtle" and "hidden" ways in which
political and moral values "creep into" academic language and logic,
the possibilities for extra-curricular communication between teacher
and pupils, the expectation of professional loyalty to the civil
service, reflected by adherence to the ethics and esprit de corps of
the professional community, etc.  Mrs Vogt, in her address to the Court
herself stated that she always tried to communicate her fundamental
beliefs "as a teacher and a human being.  I have tried to do so within
school and outside".

      In my view, the picture is blurred and even in a concrete
situation it is difficult to give a "yes or no answer".  Therefore, I
came to the conclusion that the German authorities and judges in this
respect of the case were in a better position to assess whether the
interference was necessary in defence of democracy, that being one of
the main reasons justifying restrictions in the interests of national
security, and should therefore be given a wider discretion within their
margin of appreciation than that recognised by the majority.

6.    The majority in the Chamber depicted the system of the duty of
political loyalty to which German civil servants are subject as
"absolute in nature".  (Mr Trechsel, speaking on behalf of the
Commission in this connection, referred to "the famous Deutsche
Gründlichkeit".)  This is, in my view, a distorted description, quite
far from the reality revealed by the facts in the file of the present
case.

      Mr Becker informed the Court that only 1 to 1.5% of officially
known extreme left-wing civil servants had actually been dismissed.
If the system were really "absolute", then the relevant proportion
would have to be approximately 100%.

      Secondly, the threshold for breaching the minimal duty of loyalty
was set relatively high and even then rather flexibly, to be
ascertained on a case by case basis.  Again, if the system were
"absolute", mere membership of the DKP would probably imply a breach.

      Thirdly, as the Vogt case itself indicates, the final sanction
was only imposed after active and repetitious conduct classified as
disloyal.  It may even be inferred from the disciplinary and judicial
proceedings against Mrs Vogt, that "the system" acted with great
restraint.  It seemed to issue a number of "advance warnings" to the
accused, to the point of aiming "[to persuade] her to abandon her
political activities within the DKP" (paragraph 22 in fine).  Dismissal
in my view was a sanction of last resort, after it became clear that
all other measures were bound to fail.

      Fourthly, "the system" appears flexible from the time
perspective.  It was changing to adapt to new political circumstances,
of which one of the most dramatic was the fall of the Berlin wall: in
the Land of Lower Saxony, the decree on employment of extremists in the
civil service was repealed by a ministerial decision of 26 June 1990
and on 1 February 1991 the applicant was reinstated in her post as a
teacher at the Lower Saxony educational authority.

      And fifthly, the disputed regional differences in the
implementation in my view do not testify to the "absolute" or
"thorough" nature of "the system".

      The misperception on the part of the majority of the nature of
the disputed system and its implementation in my view seriously
influenced the degree of discretion allowed to the German authorities,
including the courts, in this sphere.

      The majority in my view probably fell into the following fallacy:
given that German authorities acted within a narrowly defined and rigid
system, the application of that system in the form of interference with
human rights protected under the Convention must be considered
predetermined, unreasoned, and lacking the necessary discretion.
Therefore, control by the European Court appears ever more desirable.

      I drew the opposite conclusion from the facts of the case: "the
system", as derived from the broad constitutional principle and as
defined by the German Constitutional Court, rests on a broad legal
doctrine and has its roots in German political history.  It is also
capable of responding to present-day exigencies and is implemented in
a rational and flexible way.  The Vogt case does not represent a
departure from this approach.

7.    In the Kosiek case, whose facts come closest of the Article 10
(art. 10) cases, to the present one, the applicant complained of
dismissal from a lectureship - to which he had been appointed with the
status of probationary civil servant - on account of his political
activities for the Nationaldemokratische Partei Deutschlands (NPD) and
of the content of the two books he had written; he claimed to be the
victim of a breach of Article 10 (art. 10) of the Convention.  In order
to decide the case, the Court inquired first whether the disputed
dismissal amounted to an "interference" with the exercise of the
applicant's freedom of expression as protected by Article 10 (art. 10)
- in the form of a formality, condition, restriction or penalty - or
whether the measure lay within the sphere of the right of access to the
civil service, a right that is not secured in the Convention.

      The Court noted that one of the personal qualifications required
by anyone seeking a post as a civil servant in the Federal Republic of
Germany is to prove himself by being prepared to consistently uphold
the free democratic system within the meaning of the Basic Law.  The
Court further found that "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" (Kosiek v. Germany judgment of 28 August 1986, Series A
no. 105, p. 21, para. 38).  The European Court noted that the Ministry
dismissed him because he was "a prominent NPD official", the aims of
that party "were inimical to the Constitution" and that the domestic
courts had adopted essentially the same approach, and added: "It is not
for the European Court to review the correctness of their findings".

      The Court then decided, that "access to the civil service [lay]
at the heart of the issue submitted to the Court" and for this reason
found no breach of Article 10 (art. 10).

      I voted in favour of the applicability of Article 10 (art. 10)
in the present case, being aware that this decision implies a departure
from the Court`s established case-law, inter alia, the Kosiek case.
Therefore I wish by way of a concurring opinion to state that I do not
agree with the majority's reason for distinguishing the cases of
Glasenapp (1) and Kosiek (paragraph 44 of the present judgment), where
they state that in the previous cases "the Court analysed the
authorities' action as a refusal to grant the applicants access to the
civil service", while Mrs Vogt was dismissed after being appointed a
permanent civil servant.  In addition, in the former cases the
necessary qualification for access was to be prepared "to uphold the
free democratic system within the meaning of the Basic Law", while the
present applicant`s dismissal was a disciplinary penalty for having
breached the duty owed by everyone already appointed.
_______________
1.  Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104.
_______________

      The distinction is not persuasive.  For the purposes of
Article 10 (art. 10) the Court must answer two questions:

      First, did the applicant exercise any of the freedoms protected
by Article 10 para. 1 (art. 10-1) or not?  In all three cases
(Glasenapp, Kosiek, Vogt) the answer is affirmative.

      Second, was the exercise of the said freedoms subject to any
formalities, conditions, restrictions or penalties? In my view, the
acts of the authorities in all three cases fall under the same heading
of either a condition, restriction or penalty to which the exercise of
the respective freedoms was subjected.  Mr Kosiek was dismissed from
his post as a probationary civil servant, while Mrs Vogt was dismissed
from her post as a permanent civil servant - for the same reasons,
while it must be of no consequence for the Court that in the former
case the views expressed were of the extreme right, and in the latter
of the extreme left persuasion.

      It would in my view be more appropriate if the Court acknowledged
in a straightforward manner the change in judicial policy that occurred
between the Kosiek and the Vogt cases, instead of arguing, in my view
with little success, that it maintained the same principle with
different results due to differences in the factual situations.

      It would then be the duty of the Court to retain in the latter
judgment the relevant substantive arguments of the former, at least in
the modified form to fit them to the reasoning of the present case: if
access to the civil service no longer "lies at the heart of the issue",
then it should at least be given extra weight in the balancing
exercise.  And if the radical position that "it is not for the European
Court to review the correctness of (the domestic courts`) findings" may
no longer be maintained, than, at least their extra wide margin of
appreciation should be recognised in matters of recruitment to the
civil service, including access and dismissal.

8.    In conclusion, I attributed different weight from that attributed
by the majority to the following key ingredients in the necessity and
the proportionality tests carried out in the instant case:

- specific situation of Germany in Western Europe from 1945-1990 with
a divided people, facing countries of the former Communist Bloc, which
made it vulnerable and exposed in terms of its national security
(including defence of democratic values), territorial integrity and
public safety;
- the role of the DKP as a means of infiltration and dissemination of
communist propaganda in Germany;
- the applicant's active political involvement on behalf of that party
from autumn 1980 onwards;
- the restrained and flexible way in which the duty of political
loyalty was implemented by the German authorities;
- complicated links between private life in politics and professional
life in the civil service;
- the importance of the wide margin of appreciation to be afforded to
domestic courts when dealing with matters of recruitment to the civil
service.

      I therefore find that the disciplinary measures taken against
Mrs Vogt were proportionate and could be considered necessary in a
democratic society.

                   STATEMENT BY JUDGE MIFSUD BONNICI

      I voted against finding Article 10 (art. 10) applicable in this
case, but the majority took the opposite view.  In my opinion only
Article 11 (art. 11) is applicable.  I joined the joint dissenting
opinion because it covers that Article (art. 11) as well.