CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1987

.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 }                         AS TO THE ADMISSIBILITY OF                         Application No. 10942/84                       by R.Q.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 8 May 1984 by R.Q. against the Federal Republic of Germany and registered on 10 May 1984 under file N° 10942/84;           Having regard to:   -        the Commission's decision of 3 October 1984 to bring the         application to the notice of the respondent Government           pursuant to Rule 42 (2) (b) of the Rules of Procedure and         to invite them to submit observations on its admissibility         and merits with reference to Articles 10 and 11 of the         Convention;   -        the respondent Government's observations dated 1 March 1985         and the observations in reply by the applicant         dated 30 April 1985;   -        the Commission's decision of 18 October 1985 to invite         the parties to a hearing on the admissibility and merits of         the application, the timetable of which to be settled subject         to the outcome of the Glasenapp and Kosiek cases before the         European Court of Human Rights;   _        the judgments of the European Court of Human Rights of 28 August         1986 in the Glasenapp and Kosiek cases;   -        the Commission's decision of 11 October 1986 to invite the         parties to make further written submissions on the         admissibility and merits of the application pursuant to         Rule 42 para. 3 subpara. (a) of the Rules of Procedure   -        the respondent Government's observations of 4 February 1987 and         those of the applicant of 3 February 1987.           Having deliberated;           Decides as follows:   THE FACTS           The facts, apparently not in dispute between the parties, may be summarised as follows:           The applicant, a German national born in 1942 and living in Ehweiher in the Federal Republic of Germany, is represented by Mr.   G. Schumacher, a Rechtsanwalt practising in Mainz, and Mr.   W. Rothley, a Rechtsanwalt practising at Rochenhausen.           The applicant was a teacher in a secondary school teaching German and gym, who studied at the Universities of Heidelberg, Mainz and Paris.   In 1970 and 1971 he passed the examinations for a secondary school teaching post and was given permission by the Ministry of Culture of the Rhineland Palatinate to begin service in preparation for a grammar school teaching post on 1 September 1972.   He was appointed as a trainee teacher with temporary civil service status. He took an oath of loyalty to the Constitution which was required for this appointment and spent his one year's preparatory service in Bad Kreuzenach during which he passed the relevant examination for a grammar school teaching post as assistant teacher.   On 7 March 1973 the applicant applied to the Land civil service of the Rhineland Palatinate as a grammar school teacher with probationary civil service status.   On 1 September 1973 the applicant was appointed as a teacher in a secondary school in Kaiserslautern with civil service status on a probationary basis.   On his appointment he took a further loyalty oath in the following terms:           "I swear allegiance to the Basic Law of the Federal Republic         of Germany and to the Constitution of the Land Rhineland         Palatinate, obedience to the law, and conscientious         fulfilment of my official duties - so help me God."           In autumn 1975 doubts had arisen as to the applicant's loyalty to the constitutional order in the light of his political attitude and activities since October 1973, and in particular because of his involvement in meetings in which the Communist League of West Germany (Kommunistischer Bund West Deutschland - "KBW") and other Communist groups had been involved.   The applicant was therefore summoned by the District Government of the Rhinehesse Palatinate for the question of his preparedness to defend and advocate the principles of the Basic Law, as is required of civil servants, to be examined.   Two hearings were held, on 22 October and 4 November 1975.   The applicant was reproached with having participated in several meetings in which the KBW had taken part which had concerned, inter alia, Portuguese migrant workers, the formation of a Chile Committee and a Committee against Section 218 of the Criminal Code, which was concerned with abortion, and the establishment of an "armed people's force" (Bewaffnete Volksmacht).   Furthermore the applicant had been involved in demonstrations against the reduction in travel expenses for pupils and was associated with a meeting of the right-wing National Democratic Party of Germany (NPD) which had been accompanied by violence. In the latter connection, the applicant was suspected of having been a member of one of the KBW's "raiding squads".           At the first interview, the applicant requested that the reproaches against him should be set out in writing.   On receiving them, he declined to make any comment on them.   At the second interview the applicant stated that he could only reply to the detailed charges after having an opportunity to consider them in detail.           The applicant replied to these allegations concerning his preparedness to defend and advocate the principles of the Basic Law in writing in November 1975.   In his comments he did not dispute the factual basis of the charges made but stated that, notwithstanding that he was a civil servant, he had the right to be present at meetings which were publicly announced and open to the participation of anyone, both to inform himself, and with a view to expressing his own opinion.   Thus he contended that he had only exercised his democratic fundamental rights in favour of movements which pursued righteous aims.           On 7 November 1975, despite the confidentiality of the proceedings about which he had been reminded, the applicant published the contents of the hearings, together with the allegations made against him at a party held for the upper part of the school at which he taught.   The applicant stated that his actions were in response to the duty to create political pressure against the District Government's measures against him, a view which was reported by the university students committee, the technical college students committee, the KBW of Kaiserslautern, the Socialist Workers Group of Kaiserslautern, the Communist Group of Pupils, the Pupils Representation at the School of Administration and several other groups.           On 19 December 1975 the applicant was given notice that he was prohibited from performing his duties as a teacher with effect from 23 December 1975 by the District Government pursuant to Section 69 of the Rhineland Palatinate Regional Civil Service Law (Landesbeamtengesetz Rheinland-Pfalz (LBG)) in view of his failure to respect the confidentiality of the hearings and due to the resultant unrest which had been caused at the school where he taught and in other schools in Kaiserslautern.   This order was expressed to have been made to secure good order at the school.   In accordance with Section 80 para. 2 No. 4 of the Code of Administrative Procedure, this prohibition was given immediate effect.   The applicant's appeal to the Administrative Court (Verwaltungsgericht) against the immediate operation of this order was allowed on 14 January 1976 on the grounds that there was no particular pressing public interest which required immediate enforcement.   In addition the Court held that the applicant had been given insufficient opportunity to be heard before the prohibition had been imposed.           On 10 February 1976 the applicant was dismissed from civil service status on probation with effect from 31 March 1976 by an order of the District Government, after the Staff Committee's opinion had been obtained.   The reason given for his dismissal was his failure to fulfil the necessary requirements as a civil servant during the probationary period in accordance with Section 41 para. 1 No. 2 of the LBG.   The District Government further referred to Section 63 (1) of the LBG, which specifies that civil servants' duties include the requirement of their personal preparedness to protect and advocate the basic constitutional order.   The dismissal referred to the applicant's activities which had been the subject of the hearings on 22 October and 4 November 1975, as well as to the KBW's programme, which advocates the armed struggle and the destruction of the bourgeois State as a declared aim of the socialist revolution.   The dismissal stated that, even if in individual cases participation at meetings was covered by the basic right to freedom of assembly, the applicant's support for the KBW could be inferred by this one-sided preference for this group.   The District Government concluded that in view of these associations the applicant did not show an adequate preparedness to protect and advocate the fundamental constitutional order.           The applicant objected to this dismissal on 16 February 1976, substantiating his grounds on 15 March 1976.   On 23 October 1976 the applicant's objection was rejected by the Ministry of Culture of the Rhineland-Palatinate, which confirmed the grounds for his dismissal. The Ministry referred to an additional ground justifying the applicant's dismissal, namely the fact that he had signed a sponsorship paper for the KBW prior to the elections for the Federal Parliament (Bundestag) in 1976.   Neither the dismissal order, nor the ruling on the applicant's objection was made immediately enforceable. Accordingly the applicant continued in his post as a teacher pending the outcome of the administrative court proceedings which he commenced.           On 22 November 1976 the applicant appealed from this decision to the Administrative Court of Neustadt/Weinstrasse alleging breaches of procedure and of substantive law.   The applicant stated again that in attending meetings with which the KBW was associated he had merely exercised his constitutionally guaranteed rights.   He also pointed out in addition that there had never been any complaints concerning his work at school.   On 14 February 1978 the applicant's dismissal was quashed on the formal ground that it had not been signed by the appropriate person.   The District Government appealed against this decision to the Administrative Court of Appeal (Oberverwaltungsgericht) in Koblenz, which, on 11 April 1979, quashed the judgment of first instance and recommitted the matter for a fresh hearing and decision to the Administrative Court of Neustadt/Weinstrasse.           In the subsequent proceedings before the Administrative Court the applicant expressly confirmed that he stood up for and supported the fundamental constitutional order.   He stated that he had never been a member of the KBW, nor intended to become such a member, and that he was not and is not a communist at all.   He asserted that during the whole of the period of his holding probationary civil service status he had never infringed the provisions of the Basic Law and none of his activities could suggest that he was inclined so to do.   He contended that only his conduct at work could be taken into account in assessing his fitness to be a civil servant, and not that in which he indulged during his leisure time, or prior to his appointment.   He concluded therefore that his dismissal had been arbitrary.   In addition he stressed that his acts in publicising the questions raised at the hearings in October and November 1975 had been intended to draw public attention to his case, as a reaction to the District Government's unjustified investigations against him.   He also pointed out that he had not merely attended meetings at which communist parties or groups had been represented, but many meetings in which trade unions and parties represented in the German Federal Parliament had been involved.           An oral hearing was held on 4 September 1979 before the Administrative Court of Neustadt/Weinstrasse, when the applicant was heard relating to the above issues as also in relation to various allegations concerning activities which postdated the administrative decision on the applicant's objection of 23 October 1976.   On 10 November 1979 the applicant made a further statement, inter alia, to the effect that:           "... 2.   I repeat once again that I support the Basic         Constitutional Law of the Federal Republic of Germany and the         Constitution of the Rhineland-Palatinate and that I respect the         civil service law.             3.   Finally, I declare ... that I am neither a KBW sympathiser,         nor a communist.           ...   Therefore I hope to have expressed clearly once again that         my lawyer's statements are correct and true when he affirms my         positive attitude towards the Basic Law and legal order."           On 6 December 1979 the Administrative Court rejected the applicant's appeal in a decision which was served on 23 January 1980. The Court held that it was not relevant whether the applicant was or was not a member of the KBW, but whether or not the defendant authority had reasons for doubts as to his loyalty to the constitutional basic order.   The Court ruled that the evidence as to the applicant's attitude relating to events after 23 October 1976 could be taken into account since it provided further indications of the basis for the applicant's dismissal and further evidence of his attitude towards the fundamental principles of the Basic Law.   The Court added that it was not appropriate to merely take into account the applicant's conduct during working hours.           The applicant appealed from this decision on 15 February 1980 to the Administrative Court of Appeal of the Rhineland-Palatinate, inter alia on the grounds that the KBW required a clear confession from its members and sympathisers as to their support for its programme and that the applicant had never provided such a statement, but had even distanced himself from the party.   The applicant also contended that only the factual situation prior to 23 October 1976 could be taken into account in relation to the decision of the court. Any alternative approach would circumvent the Staff Committee's role in the dismissal question.   He alleged in addition that the references to his attendance at meetings in which the KBW had been involved had been relied upon to establish his lack of adequate loyalty without sufficient proof.   He stressed that the majority of the meetings which he had attended   were of trade unions, churches, or political groups which had no particular connection with the KBW and at which meetings the KBW had not played a dominant role.           With regard to a specific complaint that he was involved in the sale of Communist literature from an information desk in connection with the campaign against Section 218 of the Criminal Code (relating to abortion) the applicant pointed out that he had supported the initiative against the amendment of this provision of the Criminal Code in a lawful manner which was beyond reproach.   Unlawful objectives could not be imputed to him in this connection.           Furthermore, in relation to the allegation of his participation in the disruption of the NPD meeting, the applicant contended that there had merely been a legal and legitimate protest against the NPD, whose aims were anti-constitutional, which served to illustrate the degree to which the applicant stood up for the fundamental order of the Constitution.   He added that the majority of the protesters involved had not been members, or sympathisers, of the KBW, and that even if a small minority of the protesters had belonged to Communist parties or groups it was legitimate for non-sympathisers with those views to have attended as well.   Any alternative view would prevent civil servants from taking part in any protest if any small group of Communist or anti-Constitutional parties were in any way involved in the protest rally.   Such a view would be a serious infringement of their freedom of political involvement and association.           Finally, in respect of the signature on the election sponsorship form for the KBW, the applicant submitted that his signature should be seen as seeking to give the opportunity to smaller parties to take part in the election proceedings, for which a minimum number of signatures is required, in accordance with German electoral law.   The applicant further referred to a favourable petition signed by 43 colleagues and addressed to the Minister of Culture of the Rhineland-Palatinate which referred to the quality of the applicant's work at school.   He also contended that all the previous proceedings that had been instituted against teachers who had been members of Communist groups had been quashed or terminated on the basis that such persons were permitted to remain in the civil service, whereas he was merely accused of failing to keep sufficient distance from such groups.   Lastly, the applicant referred to his clear and unequivocal distancing from Communist activities, which included a publication in a local newspaper.           On 19 August 1981 the applicant's appeal was rejected by the Administrative Court of Appeal of the Rhineland-Palatinate, which held that the applicant's interpretation of his political activities, that they were merely orientated towards the content of the particular issue involved, and not in any way connected with the KBW, could not be sustained.   The Court noted that the applicant had been actively engaged in the activities of the Chile Committee and the Committee against Section 218 of the Criminal Code, as well as in a large number of activities in groups in which the KBW had also been involved and that the KBW, which was a strongly organised group, must have had a dominant position in relation to these various initiatives.   Without having to decide whether the applicant was in fact a member of the KBW, the Court found that his behaviour could not be regarded as that of an interested, but a detached, observer and must be characterised as showing common cause with the KBW.   This close identification with the party was further illustrated by the evidence that the applicant had sold copies of the KBW's newspaper.   The Court of Appeal recalled the importance of a civil servant maintaining a distance from the activities of such extremist groups and movements and held that the applicant's failure to maintain his clear commitment to the principles of the Basic Law was established.           This decision was served on 1 September 1981 and the applicant applied on 29 September 1981 for a declaration that an appeal on a point of law was admissible (Revisionszulassungsbeschwerde) to the Federal Administrative Court (Bundesverwaltungsgericht).   The applicant's grounds of appeal raised the question how far a civil servant on probation must keep his distance from political activities connected with anti-constitutional organisations, and in particular the borderline between imprudent behaviour and political activities which could ground doubts as to a civil servant's loyalty.   He challenged whether the requirement of distancing himself as applied by the Administrative Court of Appeal was not an unwarranted restriction on his freedom of expression contrary to Article 3 para. 3 of the Basic Law.   The applicant also challenged the acceptance of evidence relating to his activities following the administrative decision of 23 October 1976.           On 1 July 1983 the Federal Administrative Court rejected this application as ill-founded.   In so doing it recognised that the principles applicable to the requirement of constitutional loyalty of civil servants were already clearly established in the case-law of the higher courts, as was the question as to whether a civil servant's actions arising after his initial dismissal may be taken into account in assessing his overall attitude to the Basic Law.   As a result of this decision the applicant's appointment as a teacher was terminated and his dismissal of 10 February 1976 became effective.           Thereupon the applicant lodged a constitutional complaint to the Federal Constitutional Court, invoking Articles 3, 5, 8 and 33 of the Basic Law, guaranteeing the right to freedom from arbitrary treatment, the right to freedom of expression, the right to freedom of peaceful assembly, and the equality of rights for all Germans, including the right of eligibility for public employment.   The applicant contended that he had only exercised his political rights guaranteed by the Constitution and that the Administrative Courts had failed to balance the requirements of civil service law on the one hand with the provisions of the Constitution contained in Articles 5, 8 and 33 on the other.           The Applicant's complaint was rejected on 27 October 1983 as being unfit for decision on the grounds that it had insufficient prospects of success.   The Federal Constitutional Court held that the Administrative Courts' conclusions from the applicant's political activities had shown that, on balance, the applicant was not prepared to stand up for the fundamental constitutional order.   In reaching these conclusions the Administrative Court of Appeal had not failed to take due account of constitutional law and the Court recalled the requirement of Article 33 para. 5 of the Basic Law that civil servants must always stand up for the fundamental provisions of the Constitution.   The Court recognised that the exercise of the right of freedom of expression within the scope of Article 5 of the Basic Law was limited for civil servants by the duties flowing from the judicial principles governing employment in the permanent civil service.   Hence the Court concluded that the decisions based on doubts as to the applicant's preparedness to defend the basic constitutional order had been justified and that the Administrative Courts had not failed to appreciate the interaction between the applicant's fundamental rights and his duty to abstain from unconstitutional activities.           This decision was served on the applicant's lawyer on 10 November 1983.   COMPLAINTS           The applicant complains that his dismissal from his post as a teacher at a secondary school on the grounds of his political activities and their alleged incompatibility with loyalty to the Federal Constitution infringes Articles 10, 11, 14 and 18 of the Convention.           In particular he complains that his dismissal from a provisional appointment as a teacher, as a result of his participation in political meetings, restricted his right to freedom of expression. He points out that there was no reason for the restriction on his right which accorded with the requirements of Article 10 para. 2 of the Convention.   He contends that the national courts have not even affirmed the necessity of the restrictions which were applied to him, and failed to take any account of his proper conduct as a schoolteacher.   Hence the reasons invoked by the domestic courts to justify doubts as to the applicant's loyalty to the Constitution were not "necessary" reasons, as required by Article 10   para. 2 of the Convention, for restricting his freedom of expression.           The applicant further complains that his dismissal is contrary to his right to freedom of association and peaceful assembly, in association with others even where some of these persons were, in the administration's and courts' views, persons who held unconstitutional views.   He contends that the measures against him were not foreseen by Article 11 para. 2 of the Convention, and notes in particular that he does not, as a teacher, belong to the "administration of the State".           The applicant also invokes Article 14 of the Convention on the grounds that his dismissal from his post as a teacher was based on his supposed and not his real political views.           Finally the applicant complains that the restrictions on his right to freedom of expression and the right to peaceful assembly were made by the domestic authorities for the purposes of eliminating criticism and in particular to isolate particular political groups.   In this respect the applicant invokes Article 18 of the Convention and recalls that he has been in the school service for 12 years, and that there has never been any reason to complain about him in that capacity, or any genuine reason for doubt as to his preparedness to defend the fundamental constitutional order.   The ruling of the Federal Constitutional Court, to the effect that an individual civil servant must dissociate himself from groups and movements which combat the State, its constitutional organs and its fundamental order, signifies, in the applicant's opinion, a compulsion to express certain opinions and an abuse of the specific nature of the restrictions envisaged by this provision.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 8 May 1984 and registered on 10 May 1984.           On 3 October 1984 the Commission examined the question of the admissibility of the application and decided, in accordance with Rule 42 para. 2 subpara.(b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite them to submit before 21 December 1984 their observations in writing on the admissibility and merits of the application.           On 19 December 1984 the respondent Government requested an extension of this time-limit until 8 February 1985, which request was granted by the President on 4 January 1984.           On 11 February 1985 the respondent Government requested a further extension of the time-limit for the submission of their observations on admissibility and merits and indicated that the observations would be submitted before 4 March 1985.   The observations of the respondent Government are dated 1 March 1985.           The applicant's representative was invited, on 18 March 1985, to submit such observations in reply as he may wish to make before 3 May 1985.           On 30 April 1985 the applicant's representatives submitted preliminary observations in reply and requested an extension of the time-limit so that the applicant's second representative, Mr.   W. Rothley, Rechtsanwalt of Rockenhausen, of whose appointment the Commission was implicitly notified by the same letter, could also file his observations.   The applicant's representatives were informed that any such further observations should be filed before 28 June 1985.           On 28 June 1985 the applicant's second representative requested an extension of the time-limit for the submission of his further reply, which was granted until 31 August 1985.   Subsequently, on 2 September 1985 the applicant's second representative requested a further extension of this time-limit until 20 September 1985, which was granted on 13 September 1985.   By letter of 19 September 1985 the same representative requested a further extension until 1 October 1985.           On 18 October 1985 the Commission resumed its examination of the application and decided, pursuant to Rule 42 para. 3 subpara. (b) of the Rules of Procedure to invite the parties to make further submissions orally on the admissibility and merits of the application. The parties were informed that the implementation of this decision would take account of the proceedings before the European Court of Human Rights in the cases of Glasenapp and Kosiek, which raised similar issues to the present application.           On 28 August 1986 the European Court of Human Rights gave judgment in the above mentioned cases (Eur.   Court H.R., Glasenapp judgment, Series A No. 104, Eur.   Court H.R., Kosiek judgment, Series A No. 105).           On 11 October 1986 the Commission decided pursuant to Rule 42 para. 3 subpara. (a) of the Rules of Procedure to invite the parties to submit further written observations on the admissibility and merits of the application before 23 January 1987.           The applicant's first representative requested an extension of this time-limit until 6 February 1987 which was granted by the President on 29 January 1987.   His observations were filed on 3 February 1987.           The respondent Government's observations were filed on 4 February 1987.   SUBMISSIONS OF THE PARTIES   The respondent Government   With regard to the factual circumstances of the application           The respondent Government point out that the applicant was actively involved in a number of meetings, demonstrations and campaigns initiated by the KBW and other groups of its sympathisers. The applicant's involvement in these activities was for a considerable period, as it is recorded in the judgment of the Administrative Court of Neustadt/Weinstrasse of 6 December 1979, which referred to a variety of activities both in the period from October 1973 to September 1976, which preceded the ruling on the objection which concluded the administrative proceedings concerning the applicant's dismissal, and a further group of activities in the period up to May 1977.   The applicant frequented meetings in which the KBW were involved, took part in KBW committee work directed towards various specific campaigns, such as the position in Chile and the campaign against Section 218 of the Criminal Code, and in 1976 signed an election sponsorship paper supporting the KBW in the Federal elections of 1976.   Furthermore, in 1976, the applicant was seen selling the KBW's central party organ, the People's Communist Newspaper ("Kommunistische Volkszeitung").   From 1976 onwards he also took part in the campaign against the "Radikalenerlass" which was the administrative agreement on the interpretation and application of the constitutional loyalty of members of the civil service, and the "Berufsverbot", the debarment from pursuing one's profession or occupation.           In this connection the respondent Government refer to the public image of the KBW during the period between 1973 and 1977.   The organisation was formed in 1973 from a variety of left-wing groups and commenced public action in 1973.   Its organisation was both public and clandestine, the latter in order to avoid any possible ban on its activities.   The work of the KBW was characterised by the formation of committees or initiatives to support popular demands, which were given an interpretation in the terms of the "class war".   The KBW, which has a Marxist/Leninist orientation, became the Marxist/Leninist organisation of the New Left with the largest number of members. According to its programme it pursued the ultimate goal of introducing a classless society into the Federal Republic of Germany, which would only materialise through the proletarian revolution.   The destruction of the bourgeois state-machinery and the establishment of the dictatorship of the proletariat would be a precondition for this step.   As such, the KBW recognised the legitimacy of the use of armed force in achieving its goals, which included "accountability and the possibility of voting representatives of the people out of office at any time, remuneration for their work at a level not to exceed the average wage of a skilled worker ... (and the)... election of judges and all higher civil servants by the people (with the) possibility of removal at any time by decision of the majority of the voters ...".           It follows that the KBW's programme and activities were hostile to the Constitution of the Federal Republic of Germany and that the organisation wished to do away with the free democratic basic order of the Basic Law.   This incompatibility of the KBW's activities with the requirements of the Basic Law was even recognised by the Secretary of the KBW's central committee in a lecture given 22 May 1974.   Admissibility and merits   a.       Incompatibility (general and Article 10 of the Convention)           The respondent Government contend that the present complaint is incompatible with the provisions of the Convention and submit that the applicant's complaint concerned his dismissal from the civil service and his ultimate desire to be appointed as a civil servant for life.   However, although the right of equal access to the public service is guaranteed by the terms of the German Basic Law, an equivalent guarantee is not contained in the Convention.           In accordance with civil service law, the probationary period for which the applicant was appointed allows an assessment of aptitude, qualifications and professional achievements prior to conferring the official status of civil servant on a lifetime basis. Amongst the relevant aptitudes which are required of a prospective civil servant on a lifetime basis are the requisite guarantee that the prospective civil servant will at all times advocate the free democratic basic order within the meaning of the Basic Law.   The appointment of the applicant as a civil servant for life foundered on his failure to fulfil this condition which is set out in Section 11 paragraph 1 read in conjunction with Section 9 paragraph 1 No. 2 LBG.           This duty of loyalty to the Constitution reflects the fact that the civil servant exercises, in the various areas of the State's organisation, the administrative function on behalf of the State and its authorities.   However, this "political duty of allegiance" is to be distinguished from any duty to identify with the aim or any given policy of the Government of the day.   It imposes rather a duty to be prepared to identify with the idea of the State which the civil servant is supposed to serve, that is with the free democratic order of the social State which subscribes the rule of law.   Hence that part of the application alleging a violation of Article 10 of the Convention is incompatible with the provisions of the Convention since, by the very nature of the matter, the applicant was not criticising an invasion to his right to freedom of expression, because no such invasion occurred.   The measure taken was and remains without influence on the applicant's freedom of expression.   The case is notably distinguishable from the Glasenapp and Kosiek cases (Applications Nos. 9228/80 and 9704/82 respectively) where the Commission considered that, on the facts of those cases, those applicants had been called upon "to express their opinions, make clear their attitudes and make a formal declaration of their allegiance to the Constitution", and that accordingly those cases came within the terms of Article 10 of the Convention.           In the present case, at no time was the applicant required to reveal his political views or formally assert his allegiance to the Constitution.   He was accepted for the preparatory service as a trainee-teacher, and later as an assistant teacher with provisional civil service status, without a separate examination of his loyalty to the Constitution and there was no requirement that he make a declaration of any sort.   Both these appointments were made without further ado, there being no known grounds for reservations in respect of his loyalty to the Constitution, and in both cases he took only the required service oath referred to in the statement of facts.           Nor was the applicant questioned as to his allegiance to the Constitution when he was dismissed from his post on probation.   In the course of the hearing no declaration was demanded of the applicant and by contrast the procedure merely involved the granting to him of a hearing as required by the law in order that he could respond to the contemplated administrative measure.   The granting of a hearing in accordance with the law cannot constitute an invasion of freedom of expression.   On the contrary, it satisfied the right of the person concerned to fair proceedings.           It follows in the Government's legal assessment that the fact that the applicant made declarations on his attitude to the free democratic basic order during the administrative court proceedings on 10 November 1979 is without significance, since this was done on his own initiative.   At no time was the applicant called upon by the authorities and courts to make any such declaration.   Furthermore, the decisions of the authorities and the courts rest solely upon those actual facts established in respect of the applicant's activities with the KBW.   Any attempt by the applicant to dispel the impression created by those facts was merely his taking advantage of his right to a hearing in accordance with the law.           This analysis is confirmed by the administrative court judgment of first instance of 6 December 1979 which dismissed the applicant's declaration of 10 November 1979 on the basis that mere lip service on the applicant's part could not dispel the facts as to his involvement in actions which contradicted the necessary degree of loyalty to the Constitution.   For the avoidance of doubt the Government still dispute the basis upon which the Commission declared the two above mentioned applications (Nos. 9228/80 and 9704/82) admissible, and do not consider that the issue arising in any of these three cases exceeds the boundaries of the question of access to the civil service, a right not guaranteed by the Convention.   This view is confirmed by the judgments of the Court in those cases of 28 August 1986.   b.       Manifestly ill-founded (Article 10 of the Convention)           In the alternative the respondent Government contend that the applicant's complaints with regard to Article 10 of the Convention are in any event manifestly ill-founded.   Any alleged invasion of the right to freedom of expression was in this case prescribed by law, justified as necessary in the interests of national security and public safety and for the prevention of disorder in a democratic society.           This is evident from the following factors namely:   i.       It must be required of a teacher that he educates children and young persons entrusted to his care in the spirit of the Constitution so that they respect basic human rights. Similarly he must be able to communicate to his pupils in a credible fashion the basic values of respect for human dignity and the criteria of pluralism and tolerance.   In this respect a teacher must satisfy higher than usual demands in terms of his own character and attitude towards these questions, in view of the impressionability of his pupils.   This factor was particularly relevant in relation to the applicant's subject, German, which might provide many opportunities for influencing the general development of young persons.   ii.      Doubts had arisen as to the applicant's allegiance to the Constitution and thus to his attitude to the teaching profession as a result of his many political activities with the KBW extending over a number of years.   The nature of the KBW is not in doubt, as an organisation dedicated to the overthrow of the free democratic basic order and this fact could hardly have been a secret to the applicant in view of his contact with the organisation and its activities and his general level of education.   The degree of the applicant's involvement with the KBW is further illustrated by his signing of the sponsorship paper for the Federal elections, which contributed to enabling the KBW to participate in the elections, although the applicant must have known from the KBW's programme that the party wished to abolish the democratic system and thus free elections with it.           All in all these activities, the factual basis of which the applicant did not dispute, permitted of only one conclusion, that on account of his activity for the KBW the applicant was unsuitable for further employment in the teaching profession and his dismissal was justified as necessary for the prevention of disorder in a democratic society.           In addition the applicant's complaint founders on Article 17 of the Convention.   c.       Article 11 of the Convention:           aa) incompatible as a whole           The respondent Government point out that the applicant's complaint to the Federal Constitutional Court raised the issue of the alleged invasion of his freedom of assembly by virtue of his removal from public service for taking part in assemblies in which other persons had participated who, in the view of the Administrative Court, were beyond the pale of the Constitution, and did not raise the additional alleged violation of freedom of association or coalition.   This is because the applicant has up to now denied membership of the KBW.   The respondent Government submit that the applicant should clarify his position in this respect.           The respondent Government contend first that the applicant's complaint of an invasion of freedom of assembly is equally incompatible, since the measures taken by the administrative authorities against the applicant were not justified by reference to the applicant's participation in assemblies but his participation in the campaigns for the KBW.   Thus the Government contend that it was "not peaceful assemblies with members of the KBW for the purposes of forming or expressing a personal opinion which led to his dismissal, but rather his active support in various forms for the KBW, an extreme left-wing organisation hostile to the Constitution".           The respondent Government point out that the District Government of the Rhinehesse-Palatinate expressly conceded in the dismissal order of 10 February 1976 that participation in events might be covered by the basic right of freedom of assembly.   Thus the mere fact of participation in assemblies was not the reason for the measure taken.   The decisive factor was support for the KBW in the circumstance that the applicant was an "active follower of the KBW".           The ruling of the Rhineland-Palatinate Ministry of Culture on the applicant's objection to the decision of the District Government of the Rhinehesse Palatinate   similarly identified that the mere holding and supporting of various aims, such as opposition to the reduction in reimbursement of travel expenses and the proposed reform of Article 218 of the Criminal Code, could