THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27574/02 
by Detlef OTTO 
against Germany

The European Court of Human Rights (Third Section), sitting on 24 November 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr C. Bîrsan
 Mrs A. Gyulumyan
 Mrs R. Jaeger, 
 Mr E. Myjer, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 11 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Detlef Otto, is a German national who lives in Kusterdingen (Baden-Wuerttemberg). He was represented before the Court by Mr R. Schlierer, a lawyer practising in Stuttgart.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a member of the political party “the Republicans” (Partei der Republikaner, in the following Die Republikaner). The party is considered as populist and right-wing and has therefore been under scrutiny by the offices for the protection of the constitution (Verfassungsschutzämter) in various German States (Länder). In the general elections in September 2005, Die Republikaner achieved 0.6 % of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court in accordance with Section 21 (2) of the German Basic Law. The applicant stood for the party as a candidate in local elections in 1994 and as a substitute candidate in regional elections in the State (Land) Baden-Wuerttemberg in 1996. Moreover, he contributed to activities of the party’s county association on a regular basis.

The applicant had been employed as a civil servant with the Baden-Wuerttemberg police since 1968. He was promoted several times, lastly in 1993 to the position of detective superintendent (Kriminalkommissar). He retired in 2002.

Although the applicant received above-average appraisals at work, he was not considered for a further promotion to chief inspector (Kriminaloberkommissar) despite the fact that there were such openings as from 1 July 1994. Following his inquiry about the reasons for not having been promoted, the Tübingen Regional Council informed the applicant in a letter dated 7 February 1995 that promotions were generally based on suitability, capabilities and professional qualifications. Regarding his suitability, the Regional Council expressed severe doubts due to his active membership of Die Republikaner, a party which was suspected to pursue anti-constitutional goals. Therefore, his promotion process had been stayed until further instructions by the Baden-Wuerttemberg Ministry of the interior would be received regarding the matter.

The applicant subsequently instituted proceedings against the lack of promotion to the position of chief inspector. On 12 December 1996, the Sigmaringen Administrative Court dismissed the applicant’s claim, finding that the decision not to promote the applicant had been lawful. The court noted that public servants were generally not entitled to a promotion which was subject to the employer’s discretion with regard to suitability, capabilities and professional qualifications. The employer enjoyed a margin of appreciation in this respect. That margin had not been overstepped by basing unsuitability for promotion of a public servant on active membership in a political party seeking to undermine the free democratic constitutional system. Having regard to a judgment by the Baden-Wuerttemberg Administrative Court of Appeal of 11 March 1994, the court considered Die Republikaner as a party with unconstitutional goals. Both before and during the proceedings, the applicant had failed to dissociate himself from right-wing fundamentalist utterances of party officials. Moreover, the fact that only the Federal Constitutional Court could declare a prohibition of a political party with unconstitutional goals (and had not yet done so with regard to Die Republikaner) was no obstacle. Whereas the German constitution granted every citizen the right to work the free democratic constitutional system as a member of a party which is not prohibited, the duty of loyalty required from public servants (which is laid down in Section 33 (4) of the German Basic Law) would demand that every public servant defend this order. Lastly, the court found that the judgment of the European Court of Human Rights in the case of Vogt v. Germany (judgment of 26 September 1995, Series A no. 323) would not require a different ruling. That case concerned the dismissal of a public servant as opposed to non-promotion in the present case. Hence the question of proportionality had to be considered differently.

On 4 October 1999, the Baden-Wuerttemberg Administrative Court of Appeal dismissed the applicant’s appeal and refused to grant leave to appeal on points of law. The court found that the applicant’s employer had not overstepped his margin of appreciation as the suitability of public servants could lawfully be assessed with regard to their duty of loyalty. Membership in a party which pursued goals which were not in accordance with the free democratic constitutional system was sufficient to cast doubt on whether a public servant was a suitable candidate for promotion. Since the party in question had been scrutinised by various offices for the protection of the constitution in Germany, and this scrutiny had been found lawful by numerous Administrative Courts of Appeal in Germany, the court did not itself have to establish whether or not the activities of Die Republikaner were unconstitutional. With regard to the proportionality of the decision not to promote the applicant, the court found that the judgment in the case of Vogt v. Germany (above-mentioned) did not demand a different ruling since the applicant in the present case had already been promoted several times and had not been deprived of his professional and economic basis by the decision not to promote him further.

The applicant’s appeal against the refusal to grant leave to appeal on points of law was dismissed by the Federal Administrative Court on 19 May 2000.

On 17 December 2001, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It held that the administrative courts’ assessment concerning the unconstitutional goals of Die Republikaner was in line with the jurisprudence of various Administrative Courts of Appeal in different German States (Länder). The courts had rightly granted the employer a margin of appreciation when assessing the applicant’s suitability for promotion. The Federal Constitutional Court found that the domestic authorities and courts had lawfully taken into account the applicant’s political activities even though it had not yet itself declared Die Republikaner an unconstitutional party in accordance with Section 21 (2) of the German Basic Law.

B.      Relevant domestic law

The relevant provisions of the Basic Law are worded as follows:

Section 21

“2. Parties which, through their aims or the conduct of their members, seek to damage or to 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.”

Section 33

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

4. The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law.”

The relevant provision of the Baden Wuerttemberg Public Servant Act is worded as follows:

Section 11 (1)

“Nominations shall be carried out on the basis of suitability, capabilities and professional qualifications regardless of sex, race, religious or political beliefs, origin or relationships.”

COMPLAINT

The applicant complained under Articles 10, 11 and 14 of the Convention about the lack of promotion to the position of a chief inspector due to his activities for the political party Die Republikaner.

He alleges that the decision not to promote him amounted to a disproportionate interference with his rights to freedom of expression and assembly. If the Court in the case of Vogt v. Germany (above-mentioned) had found that there had been a violation of Articles 10 and 11 with regard to a political party that had been declared unconstitutional by the Federal Constitutional Court in accordance with Section 21 (2) of the German Basic Law, the present situation would a fortiori amount to a violation because Die Republikaner had not been declared unconstitutional with regard to this provision. The applicant points out that numerous representatives of Die Republikaner had been sitting in the Baden-Wuerttemberg parliament between 1992 and 2001. He submits that the Federal Administrative Court had ruled on 18 May 2001 that Die Republikaner would not pursue unconstitutional goals. Moreover, the applicant’s tasks at work were of a mere technical kind without any responsibilities that could be abused politically. Upon his retirement, his superior had expressly noted that the applicant had always separated his professional life from private political views and activities. The applicant alleges that, because of political bias of his employer, he had been discriminated against in relation to his equally qualified colleagues who had been promoted to the position of chief inspector in 1994. He invokes several international treaties which prohibit discrimination at work on the basis of political beliefs.

THE LAW

1. The applicant complains that the refusal to promote him violated his rights to freedom expression. He relies on Articles 10 of the Convention, which provides:

“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 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.”

As to the applicability of Article 10 and the existence of an interference, the Court points out that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot as such provide the basis for a complaint under the Convention. This does not mean, however, that a person who has already been appointed as a civil servant cannot complain of not being further promoted if that omission violates one of his or her rights under the Convention. Civil servants do not fall outside the scope of the Convention (see Wille v. Liechtenstein, 28 October 1999, ECHR 1999-VII § 41, Glasenapp and Kosiek v. Germany, judgments of 28 August 1986, Series A nos. 104, § 49, and 105, § 35, and Vogt, cited above, § 43).

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

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

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

a) Prescribed by law

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

b) Legitimate aim

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

c) Necessary in a democratic society”

While having regard to the circumstances of the case, the Court has to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2. In doing so, the Court will bear in mind that whenever civil servants’ right to freedom of expression is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.

In connection with the above, the Court considers that a Contracting State does not overstep its margin of appreciation when assessing the suitability for promotion of a civil servant with regard to active membership in a party that pursues anti-constitutional goals. Even though no criticism had been levelled at the way the applicant actually performed his duties, the Court notes that the applicant bore a special responsibility as a senior civil servant with the police. That responsibility which, in the eyes of the public, requires police officers to have particular balanced views removed from party politics would even increase upon the applicant’s promotion.

The applicant argued that, because the political party in the Vogt v. Germany case had been banned by the Federal Constitutional Court, there would be a violation a fortiori in the present case since such a ban had not been issued by the Federal Constitutional Court regarding Die Republikaner. In this connection the Court notes that only the Communist Party of Germany (Kommunistische Partei Deutschlands  
– KPD
), which was the predecessor to Mrs Vogt’s party, had been banned by the Federal Constitutional Court in 1956. Mrs Vogt had been a member of the German Communist Party which had never been found anti-constitutional by the Federal Constitutional Court. Therefore, it cannot be said that the non-promotion of the applicant in the present case constituted a fortiori a violation of his right to freedom of expression. Moreover, the German courts have carefully and comprehensively examined why a ban on Die Republikaner by the Federal Constitutional Court had not been a prerequisite to take the applicant’s membership into account when assessing his suitability for promotion.

The Court notes that the measure in question, which is the refusal to promote the applicant to the position of chief inspector, differs significantly from the very severe measure in the Vogt v. Germany case, which concerned the dismissal of a secondary-school teacher. Unlike Mrs Vogt, the applicant was not threatened with losing his livelihood by not receiving further promotion. The Court also considers the measure in question to be less severe than the interference in the case of Wille v. Liechtenstein (cited above), in which the President of the Liechtenstein Administrative Court had been informed that never again would he be appointed to public office due to his opinions expressed in public. The Court further notes that the applicant has already been promoted several times during his professional career with the Baden-Wuerttemberg police, the last promotion dating back to 1993, which was only a year before his employer learned about his political activities and hence decided not to promote him further. The Court also notes that the applicant’s non-promotion occurred in 1995, that is, at a very advanced stage of his career, which ended in 2002.

In these circumstances, the Tübingen Regional Council’s refusal to promote the applicant and its subsequent confirmation by the domestic courts cannot be said to have amounted to a disproportionate and hence unjustified restriction of the applicant’s right to freedom of expression.

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

2. The applicant also complained of a breach of his right to the freedom of association guaranteed under Article 11 of the Convention, 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 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.”

With reference to the principles set forth in respect of Article 10, the applicant, as a permanent civil servant, also qualifies for protection under Article 11. The applicant was not promoted on account of his activities for and membership of a political party. There has accordingly been an interference with the exercise of the right protected by Article 11 § 1.

Such interference constitutes a breach of Article 11 unless it satisfies the requirements of paragraph 2, which are identical to those laid down in Article 10 § 2, the only exception being where the last sentence of Article 11 § 2 is applicable. As a member of the police, the applicant falls within the last sentence of Article 11 § 2. The decision not to promote him was, for the reasons given in relation to Article 10, proportionate to the legitimate aim pursued.

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

3. The applicant further alleged that, because of political bias of his employer, he was discriminated against vis-à-vis his equally qualified colleagues who had been promoted to the position of a chief inspector in 1994. Article 14 of the Convention states:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As regards the complaint under Article 14, the Court, having regard to its conclusion concerning Article 10, finds that no separate issue arises under Article 14 in conjunction with Article 10.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

OTTO v. GERMANY DECISION


OTTO v. GERMANY DECISION