Access to work
PROCEEDINGS BEFORE THE COMMISSION 28. Mr. Kosiek ’ s application (no. 9704/82) was lodged with the Commission on 20 February 1982. He claimed that his dismissal was contrary to Article 10 (art. 10) of the Convention. The Commission declared the application admissible on 16 December 1982. In its report of 11 May 1984 (Article 31) (art. 31), it found, by ten votes to seven, that the Convention had not been violated. The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to the present judgment. FINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT 29. In their memorial and at the hearing on 22 October 1985, the Government requested the Court to find that: "(i) the Court cannot deal with the merits of the case, on the ground that the application was incompatible with the provisions of the Convention; alternatively (ii) the Federal Republic of Germany did not violate the European Convention for the Protection of Human Rights and Fundamental Freedoms." 30. The Delegate of the Commission, at the close of the hearing, asked the Court to rule on the following issues: "Was there in this case an interference with the applicant ’ s rights under Article 10 para. 1 (art. 10-1) of the Convention and, if so, was such interference justified?" AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 31. The Government considered Mr. Kosiek ’ s application incompatible with the provisions of the Convention. They submitted that he was claiming a right that was not secured in the Convention. In their view, the present proceedings concerned issues of access to the civil service - in this case a teaching post - and not the right to freedom of expression relied on by the applicant. At the hearing, the Government stated that they could have submitted their arguments in the form of an objection to jurisdiction, as they had done before the Commission, but that because of "the apparent complexity of the case" they were willing for the problem to be looked at in a wider context, including matters going to the merits. They submitted that Article 10 (art. 10) was inapplicable in the instant case. Mr. Kosiek contended that the admissibility of his application had to be determined on the basis of his complaints, and before the Convention institutions he had never claimed any right of access to the civil service; he was complaining solely of the damage he had suffered on account of having disseminated his opinions in books. The Delegate of the Commission considered the Government ’ s argument to be ambiguous: while submitting that the application was incompatible with the provisions of the Convention, they in fact recognised that the issue to be decided in the proceedings before the Court was whether Article 10 (art. 10) applied or not. The issue of incompatibility as such had been determined by the Commission in its decision on admissibility, while the question of the applicability of Article 10 (art. 10) fell to be dealt with on the merits of the case. 32. Mr. Kosiek complained of dismissal from a lectureship - to which he had been appointed in 1972 with the status of probationary civil servant - on account of his political activities for the NPD and of the content of the two books he had written (see paragraphs 13 and 17-24 above); he claimed to be the victim of a breach of Article 10 (art. 10) of the Convention. Such a complaint does not fall "clearly outside the provisions of the Convention" (see the judgment of 9 February 1967 in the "Belgian Linguistic" case, Series A no. 5, p. 18). It relates to the interpretation and application of the Convention (Article 45) (art. 45): in order to decide the case, the Court must inquire 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). For the Court, this is a question going to the merits, which it cannot try merely as a preliminary issue (see, mutatis mutandis, the aforementioned judgment of 9 February 1967, pp. 18-19; the Airey judgment of 9 October 1979, Series A no. 32, p. 10, para. 18; and the Barthold judgment of 25 March 1985, Series A no. 90, p. 20, para. 41). II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 33. Mr. Kosiek claimed that his dismissal contravened Article 10 (art. 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." The Government contended that this provision was not material in the circumstances; in their submission, the present case concerned the right - not secured in the Convention - of access to a post in the civil service. This contention did not find favour with the Commission. 34. The Universal Declaration of Human Rights of 10 December 1948 and the International Covenant on Civil and Political Rights of 16 December 1966 provide, respectively, that "everyone has the right of equal access to public service in his country" (Article 21 para. 2) and that "every citizen shall have the right and the opportunity ... to have access, on general terms of equality, to public service in his country" (Article 25). In contrast, neither the European Convention nor any of its Protocols sets forth any such right. Moreover, as the Government rightly pointed out, the signatory States deliberately did not include such a right: the drafting history of Protocols Nos. 4 and 7 (P4, P7) shows this unequivocally. In particular, the initial versions of Protocol No. 7 (P7) contained a provision similar to Article 21 para. 2 of the Universal Declaration and Article 25 of the International Covenant; this clause was subsequently deleted. This is not therefore a chance omission from the European instruments; as the Preamble to the Convention states, they are designed to ensure the collective enforcement of "certain" of the rights stated in the Universal Declaration. 35. While this background makes it clear that the Contracting States did not want to commit themselves to the recognition in the Convention or its Protocols of a right of recruitment to the civil service, it does not follow that in other respects civil servants fall outside the scope of the Convention (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 31-32, para. 60). 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" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 23, para. 54). And 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, mutatis mutandis, the Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, p. 14, para. 37; the Schmidt and Dahlström judgment of the same date, Series A no. 21, p. 15, para. 33; and the Engel and Others judgment, loc. cit.). 36. The status of probationary civil servant that Mr. Kosiek had acquired through his appointment as a lecturer accordingly did not deprive him of the protection afforded by Article 10 (art. 10). This provision is certainly a material one in the present case, but in order to determine whether it was infringed it must first be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression - in the form, for example, 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. 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. 37. The Ministry of Education and Culture gave as its reason for dismissing Mr. Kosiek his activities on behalf of the NPD (see paragraphs 17-19 and 21-24 above); during the court proceedings, the Ministry also relied on the two books that the applicant had published (see paragraphs 21-24 above). Its decision was therefore based on the political stances the applicant had adopted. 38. At the time his employer recommended to the Ministry that he should be given tenure, Mr. Kosiek had completed approximately one year of the probationary period he had to serve before he could be given a permanent post (see paragraph 16 above). The Ministry, however, considered that he had not proved himself, because he did not fulfil the condition - as required under sections 6 and 8 of the Land Civil Servants Act (see paragraphs 15 and 16 above) - that he would consistently uphold the free democratic system within the meaning of the Basic Law. This is one of the personal qualifications required of anyone seeking a post as a civil servant - whether temporary or established - in the Federal Republic of Germany. 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. The Minister originally considered that the requirement had been fulfilled, since he had appointed the applicant as a lecturer with the status of probationary civil servant (see paragraph 15 above). After a fresh examination of Mr. Kosiek ’ s political activities and of his publications, however, the Ministry came to the conclusion that Mr. Kosiek - who, as "a prominent NPD official", "had approved of NPD aims which were inimical to the Constitution" (see paragraph 17 above) - did not meet one of the conditions of eligibility laid down in the Act for the post in question, as a result of which it decided not to give him tenure and so dismissed him from his post as a probationary civil servant (sections 38(2), 6 and 8 of the Land Civil Servants Act; see paragraphs 17-18 above); the domestic courts before which proceedings were brought adopted essentially the same approach, except for the Stuttgart Administrative Court (see paragraphs 21, 23, 24 and 26 above). It is not for the European Court to review the correctness of their findings. 39. It follows from the foregoing that access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mr. Kosiek such access - belated though the decision was -, the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his probationary period and whether he possessed one of the necessary personal qualifications for the post in question. That being so, there has been no interference with the exercise of the right protected under paragraph 1 of Article 10 (art. 10-1).
The European Court of Human Rights held that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. It found that, in refusing the applicant’s access to the civil service, the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his probationary period and whether he possessed one of the necessary personal qualifications for the post in question.