CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 juillet 1970

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the applicant may be summarised as follows:   The applicant is a German citizen, born in 1935 and at present residing at O., Germany.   The applicant, who submits only very little information as to his application, is a civil servant in North-Rhine-Westphalia. It appears that the applicant had controversies with his superior and that he complained by means of two disciplinary complaints (Dienstaufsichtsbeschwerden) directly to the Home Minister of the above German "Land". It appears that he inquired twice as to the development of these proceedings and that he informed the Head of the Provincial Administration of Cologne (Regierungspräsident von Köln) that he would public an article in the news magazine "Spiegel" on subjects connected with his functions in public administration.   Subsequently, the Head of the Local Administration (Oberkreisdirektor) of Bonn, on the Home Minister's instructions, opened disciplinary proceedings against the applicant and, by decision of .. April 1971, the applicant was found guilty of two disciplinary offenses, namely of having failed to observe the official routine (Nichteinhaltung des Dienstweges) when complaining against his superior and of having neglected his duty of honourable behaviour when exercising his functions (Verstoß gegen die Pflicht zu achtungswürdigem Verhalten innerhalb des Dienstes);   he was given a censure (Verweis).   On the applicant's appeal, the Head of the Provincial Administration confirmed this disciplinary measure on .. February 1968, and on his further appeal, the Home Minister also decided that this decision was lawful. The applicant then filed an appeal with the disciplinary chamber of the Administrative Court of Appeal (Disziplinarsenat des Oberverwaltungsgerichtes) but this court also confirmed the lower authorities' decisions.   The applicant then lodged a constitutional appeal (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht). He alleged that he had only used his right to petition, as guaranteed by the German Basic Law (Grundgesetz), when complaining to the Home Minister and that his intention to public an article in an news magazine was also covered by the said Basic Law since he thus only used his right of liberty of expression.   By decision (Beschluss) of .. July 1969, the Constitutional Court dismissed the applicant's appeal for being manifestly ill-founded.   The applicant now complains that he had been held guilty on account of acts which did not constitute an offence under national or international law.   He alleges violations of Article 7 of the Convention.   THE LAW   Whereas the Commission has had regard to the applicant's complaint that, as a result of the disciplinary proceedings opened against him, he was found guilty on account of acts which did not constitute an offence under national or international law, and that Article 7 (Art. 7) of the Convention was thereby violated;   Whereas Article 7 (1) (Art. 7) provides that "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed";   Whereas, however, the subject of the disciplinary proceedings opened against the applicant was not the determination of the applicant's guilt as regards any criminal offense but was in connection with disciplinary offence; whereas the Commission has previously held that the nation of a "criminal offense" as mentioned in Articles 5, paragraph (3), 6 (2) and (3) (Art. 5-3, 6-2, 6-3) of the Convention, does not envisage disciplinary offenses (see Application No. 734/69, Collection of Decisions, No. 6, p. 32); whereas, consequently, the guarantees under this Article are not applicable in the applicant's case; whereas, in this respect the application is incompatible with the provisions of the Convention and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas, further, the Commission has ex officio examined the question whether or not the disciplinary measures taken against the applicant for his having expressed his intention to publish an article in a weekly magazine on shortcomings in the internal organisation and work of the authority where he worked as a civil servant interfered with his right to freedom of expression as is guaranteed under Article 10 (Art. 10) of the Convention; whereas the Commission had regard to the terms of the said Article which provides generally (paragraph 1) (Art. 10-1) that "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";   Whereas, however, (2) of Article 10 (Art. 10-2) provides that "the exercise of these freedoms, since it carried 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 ... for preventing the disclosure of information received in confidence ...";   Whereas the Commission first notes that the disciplinary measures complaint of are provides for by the German disciplinary legislation; secondly, that, according to the information which the applicant himself has submitted, he had the intention to publish an article revealing facts which he knew were qualified as an official secret (Amtsgeheimnis); whereas, consequently, the disciplinary measures against him were fully justified for preventing the disclosure of information, which the applicant had received in confidence, within the meaning of (2) of Article 10 (Art. 10-2);   Whereas, therefore, an examination of the case in the light of Article 10 (Art. 10) of the Convention does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and, in particular, in Article 10 (Art. 10); whereas it follows that the application in this respect is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of the Convention;   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE