Freedom of Association and Assembly / Protests, National Security, Political Expression
ECODEFENCE v. Russia
Closed Expands Expression
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On 26 September 1995, the Grand Chamber of the European Court of Human Rights held by 10 votes to 9 that a school teacher’s dismissal from the civil service due to her political activities on behalf of the German Communist Party (“DKP”) had breached Article 10 and Article 11 of the European Convention on Human Rights (“ECHR”). Mrs. Vogt was an active member of the DKP and even stood as the DKP candidate in elections after she had been appointed as a permanent public servant and was teaching at a public secondary school. She was dismissed from her position on the ground that her political activities were in violation of a law that banned employment of extremists in the civil service and hence she failed to comply with her duty of political loyalty. The Grand Chamber found that while her dismissal was a lawful interference with her freedom of expression and served a legitimate aim, it was disproportionate to that aim. The Court observed that there was 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 Court found a violation of Article 11 as well, by treating the interference with the applicant’s right to free association in the light of Article 10, as a subset of the interference with her right to freedom of expression.
The applicant in this case was Mrs. Dorothea Vogt (“applicant”), a German national who in November 1975 sat the examination to become a secondary-school teacher. Following her teaching practice and second State examination, she was appointed a permanent civil servant in February 1, 1979 as a teacher of German and French.
During her student years the applicant had joined the German Communist Party (“DKP”). After a preliminary investigation, the Weser-Ems regional council instituted disciplinary proceedings against her on 13 July 1982 on the ground that she had violated her obligation of political loyalty as a result of the various political activities in which she had engaged since the autumn of 1980, 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. In particular, she had also stood as the DKP candidate in the 1982 elections to the Parliament (Landtag) of the Land of Lower Saxony. She was also accused of failing to comply with her duties of civil servant as she had been a member of the executive committee of DKP since the end of 1983 and had also addressed DKP’s 7th party congress, held from January 6-8, 1984 as chairperson of the local branch of the party.
On August 12, 1986, the Weser-Ems regional council provisionally dismissed Mrs. Vogt and from October of that year, 40% of her salary was withheld. Subsequently, Mrs. Vogt applied before the Disciplinary Division of the Oldenburg Administrative Court to have the proceedings stayed. Before the Court, she argued that by being a member of the party, she was availing the right of all citizens to engage in political activity. Her actions were in no way indicative of an anti-constitutional stance and violated Article 10 of the ECHR.
On October 15, 1987, the Oldenburg Administrative Court, however, held that the applicant had failed to comply with her duty of political loyalty in that she had played an active role in a party that pursued anti-constitutional aims and ordered her dismissal as a disciplinary measure. The Court found that active membership of a political party that pursued anti-constitutional aims was incompatible with a civil servant’s duty of political loyalty. It also held that the duty of political loyalty, while admittedly restricted civil servants’ fundamental rights, had constitutional status and therefore, took precedence over the provisions of international instruments such as the European Convention. The Court ordered Mrs. Vogt to be paid 75% of her pension allowance however, in recognition of her exceptional performance of duties.
On March 18, 1988 Mrs. Vogt appealed against the judgment of the Oldenburg Administrative Court to the Lower Saxony Disciplinary Court, which upheld the lower court’s decision in all respects and rejected the appeal by a judgment of October 31, 1989.
The applicant then lodged a complaint with the Federal Constitutional Court, which on August 7, 1990 declined to accept her complaint as offering no prospects of success. In its decision, the Federal Constitutional Court found the reasoning of the lower court – that by her membership of the DKP and her active role within that party, she had breached her duties as a civil servant – to be well founded and not arbitrary.
With effect from February 1, 1991, Mrs. Vogt was re-employed as a teacher in the school education service of the Land of Lower Saxony, after the decree on the employment of extremists in the civil service was repealed.
Mrs. Vogt’s application was lodged with the European Commission of Human Rights on 13 February 1991. By relying on Articles 10 and 11 of the ECHR, and on Article 14 taken together with Article 10, she complained that her right to freedom of expression and to freedom of association had been infringed. Her application was admitted on October 19, 1992. In its report of November 30, 1993, the Commission expressed the opinion by thirteen votes to one that there had been a violation of Articles 10 and 11 of the Convention and it was unnecessary to examine the application also under Article 14 of the Convention.
The Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered the judgment of the Court. The primary issue before the ECtHR was to consider if there has been an interference with the exercise of the rights enshrined in Articles 10 and 11 of the Convention.
Article 10 of the Convention prescribes the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Section 2 of the provision restricts the scope of such rights, inter alia, to the extent necessary in a democratic society, in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime. Article 11, on the other hand, prescribes the right to freedom of peaceful assembly and to freedom of association with others, subject to certain restrictions.
The ECtHR began by considering whether Article 10 applies to civil servants and whether Mrs. Vogt dismissal for having failed to comply with her duty of political loyalty constituted an interference with the exercise of the right to freedom of expression. While declaring that civil servants do not fall outside the ambit of ECHR and upholding Mrs. Vogt’s right to be protected, the Court also found that there was an interference with the exercise of her right under Article 10 since she was suspended and later dismissed for having failed to comply with her duty to uphold free democratic system.
The Court then went on to apply the three-part test to determine whether the interference was justified. An interference, under Article 10, constitutes a breach unless it is (i) prescribed by law, (ii) pursue a legitimate aim and (iii) is necessary in a democratic society, as required under Article 10(2) of the Convention.
First, the ECtHR determined if the interference was, in fact, “prescribed by law.” Though the government had contested that the interference was prescribed by section 61(2) of the Lower Saxony Civil Service Act (which 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”) [p. 14], the applicant had contested that it was not implicit in the duty of political loyalty under section 61(2) that civil servants could be dismissed on account of political activities. The Court found that prior rulings from the Federal Constitutional Court and the Federal Administrative Court clearly defined the duty of political loyalty imposed on all civil servants by the provisions of federal legislation and the legislation of Länder.
Next, the Court considered if the interference pursued a legitimate aim. Since in this case, the obligation imposed on German civil servants to actively uphold the free democratic constitutional system was founded on the notion that the civil service is the guarantor of the Constitution and democracy, the Court concluded that applicant’s dismissal pursued a legitimate aim.
In determining whether the interference was “necessary in a democratic society”, the Court reiterated the basic principles concerning Article 10, holding that the adjective “necessary” implies existence of a pressing social need and that the Court’s role in exercising its supervisory jurisdiction is to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10. According to the Court, it was also its duty to determine whether a fair balance had been struck between the individual’s fundamental right to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthered the purposes enumerated in Article 10(2). As far as the freedom of expression of civil servants was concerned, the “duties and responsibilities” referred to in Article 10(2) assumed special significance, which justified leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference was proportionate to the above aim.
In the present case, the Court’s task was to determine whether Mrs. Vogt’s dismissal corresponded to a “pressing social need” and whether it was “proportionate to the legitimate aim pursued”. The government argued that the duty of political loyalty was introduced for civil servants as the Federal Republic of Germany had a special responsibility to fight against all forms of extremism. This duty was, thus, the cornerstone of a “democracy capable of defending itself” (p. 23) and its members could not, therefore, play an active role in parties, such as the DKP, that pursued anti-constitutional aims. The applicant refuted these claims by arguing that DKP was not constitutionally banned and her activities on behalf of that party were, thus, lawful political activities for a lawful party and could not therefore amount to a failure to fulfil her duty of political loyalty. She also claimed that her activity within the DKP reflected her genuine desire to work for peace both inside and outside the Federal Republic of Germany and to fight neo-fascism. In this respect, the imposition of heavy sanctions against her were disproportionate.
In response to the arguments of both parties, the Court examined the circumstances of the case in the light of the situation existing in the Federal Republic of Germany at the material time and understood that a democratic State is entitled to require civil servants to be loyal to the constitutional principles in which it is founded. However, since the Court was not called upon to assess the system as such, it instead concentrated on the applicant’s dismissal. The ECtHR found that there were several reasons for considering dismissal to be a very severe measure, including the effect on the reputation of the person concerned, the loss of livelihood and the virtual impossibility in Germany of finding another job as a teacher.
Another aspect that the Court took into account was 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 she would take advantage of her position to indoctrinate or exert improper influence in another way on her pupils during lessons. Yet the disciplinary courts recognized that she had always carried out her duties in a way that was beyond reproach.
Moreover, there was no evidence that Mrs. Vogt herself, even outside her work at school, actually made anti-constitutional statements or personally adopted an anti-constitutional stance. Finally, the fact that the DKP had not been banned by the Federal Constitutional Court meant that the applicant’s activities within that party had been entirely lawful. In conclusion, the Court held that her dismissal had been disproportionate to the legitimate aim pursued and there had accordingly been a violation of Article 10.
The Court found a violation of Article 11 as well, by treating the interference with the applicant’s right to free association in the light of Article 10, as a subset of the interference with her right to freedom of expression.
Judges Jambrek, Matscher, Bernhardt, Gölcüklü, Loizou, Mifsud Bonnici, Gotchev, Jungwiert and Kūris filed dissenting opinions. According to them, Articles 10 and 11 were not violated in the present case as Mrs. Vogt’s dismissal was not only prescribed by law and pursued a legitimate aim, it was also proportionate and necessary in a democratic society and within the margins of appreciation which is left to national authorities. In the supplementary dissenting opinion, Judge Gotchev argued that the applicability of Article 10 to the present case was based on flawed reasoning, as Mrs. Vogt was not dismissed from her post because she expressed an opinion or idea, but because of her membership of the DKP. Whereas, while Judge Jambrek in his dissenting opinion found that Article 10 and 11 applied and that there was an interference with those rights, he declared that the interference was necessary and proportionate given the circumstances of the case (more specifically, the situation of Germany in Western Europe from 1945-1990, which made it vulnerable and exposed in terms of its national security, 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 and the restrained and flexible way in which the duty of political loyalty was implemented by the German authorities). Judge Mifsud Bonnici also annexed a statement to the judgment voting against the finding of applicability of Article 10 in the case.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this judgment it was concluded that civil servants do not fall outside the scope of the European Convention and hence are afforded protection under it. The judgment upholds citizens’ right to political participation and political speech, even if it shocks or offends as that is integral to the “pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” [para. 52]
Even though the Court affirmed that the restriction was lawful and pursued a legitimate aim of upholding the “democratic constitutional system within the meaning of the Basic Law,” it noted that the DKP had not been banned by the Federal Constitutional Court. Hence it was recognized as a lawful party and the applicant’s activities within that party had been entirely lawful. The sanction of dismissal was further deemed extreme in light of the fact that no investigation had yielded any evidence that the applicant had advocated for the overthrow of democratic order, and such a dismissal would due irreparable damage to her reputation and ability to continue in her profession. In balancing the applicant’s rights, the Court found the restriction was disproportionate and not necessary in a democratic society.
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