CEDH · CASELAW;REPORTS;ENG — 30 novembre 1993

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 17851/91                            Dorothea Vogt                               against                               Germany                      REPORT OF THE COMMISSION                    (adopted on 30 November 1993)   TABLE OF CONTENTS                                                             Page   I.         INTRODUCTION           (paras. 1 - 15) . . . . . . . . . . . . . . . . . .1             A.    The application                (paras. 2 - 4) . . . . . . . . . . . . . . . .1             B.    The proceedings                (paras. 5 - 10). . . . . . . . . . . . . . . .1             C.    The present Report                (paras. 11 - 15) . . . . . . . . . . . . . . .2   II.        ESTABLISHMENT OF THE FACTS           (paras. 16 - 44). . . . . . . . . . . . . . . . . .3             A.    The particular circumstances of the case                (paras. 16 - 40) . . . . . . . . . . . . . . .3             B.    Relevant domestic law and practice                (paras. 41 - 44) . . . . . . . . . . . . . . .9   III.       OPINION OF THE COMMISSION           (paras. 45   - 97) . . . . . . . . . . . . . . . . 13             A.    Complaints declared admissible                (para. 45) . . . . . . . . . . . . . . . . . 13             B.     Points at issue                (para. 46) . . . . . . . . . . . . . . . . . 13             C.    Article 10 of the Convention                (paras. 47 - 83) . . . . . . . . . . . . . . 13                  CONCLUSION                (para. 83) . . . . . . . . . . . . . . . . . 19             D.    Article 11 of the Convention                (paras. 84 - 90) . . . . . . . . . . . . . . 19                  CONCLUSION                (para. 90) . . . . . . . . . . . . . . . . . 20             E.    Article 14 of the Convention                (paras. 91 - 94) . . . . . . . . . . . . . . 20                  CONCLUSION                (para. 94) . . . . . . . . . . . . . . . . . 20             F.    Recapitulation                (paras. 95 - 97) . . . . . . . . . . . . . . 21   DISSENTING OPINION OF MR. J.-C. SOYER . . . . . . . . . . . 22   APPENDIX I      : HISTORY OF THE PROCEEDINGS . . . . . . . . 23   APPENDIX II     : DECISION ON THE ADMISSIBILITY   . . . . . . 24   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a German citizen, born in 1949 and living in Jever.   She is a teacher by profession.   She is represented before the Commission by Mr. P. Becker, a lawyer practising in Marburg, Mr. O. Jäckel, a lawyer practising in Wiesbaden, and Mr. K. Dammann, a lawyer practising in Hamburg.   3.    The application is directed against Germany.   The Government are represented by their agent, Mr. J. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of Justice.   4.    The case relates to the applicant's dismissal from the civil service on account of her political activities as a member of the German Communist Party (Deutsche Kommunistische Partei - DKP).   The applicant invokes Articles 10, 11 and 14 of the Convention.   B.    The proceedings   5.    The application was introduced on 13 February 1991 and registered on 27 February 1991.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility on 7 October 1991.   It decided to give notice of the application to the Respondent Government and to invite the parties to submit written observations on admissibility and merits.   6.    The Government submitted their observations on 30 January 1992. The applicant replied on 2 May 1992.   7.    On 19 October 1992 the Commission declared the application admissible and further decided, in accordance with Rule 50 (b) of the Rules of Procedure, to obtain the parties' oral submissions on the merits of the case.   8.    On 18 November 1992 the text of the Commission's decision on admissibility was sent to the parties.   9.    On 11 February 1993 a hearing was held in Strasbourg.   The Government were represented by Mr. J. Meyer-Ladewig, agent, and by Mrs. E. Chwolik-Lanfermann, Appellate Court judge, Federal Ministry of Justice, and Mr. S. Mehrens, Ministerialrat, Ministry for Culture of Lower Saxony, as advisers.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the parties' disposal with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes in Plenary Session, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                A. WEITZEL                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS                C.L. ROZAKIS                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI   12.   The text of this Report was adopted on 30 November 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)    to establish the facts;   ii)   to state an opinion as to whether the facts found disclose a      breach by the State concerned of its obligations under the      Convention.   14.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   In 1976 the applicant was admitted to the preparatory service for teachers (Vorbereitungsdienst) and worked as a trainee in Hesse.   In June 1977 she passed the second state examination for teachers and on 1 August 1977 she was admitted for a probationary period to a teacher's post (Studienrätin) in the Lower Saxony state school service in Jever. On 1 February 1979 the applicant was appointed as a permanent civil servant with tenure for life (Beamtin auf Lebenzeit).   She is a teacher of the German and French languages.   A report established in March 1981 assessing her professional qualifications described both her qualifications and her performance as fully satisfactory.   17.   The applicant states that, prior to her appointment for life, she had joined the German Communist Party (Deutsche Kommunistische Partei - DKP).   It is not contested that, at the relevant time, it was the aim of the DKP to overthrow the social structure and the constitutional order of the Federal Republic of Germany and to establish a political system like that in the former German Democratic Republic (GDR).   The leading position of the former Socialist Party (SED) of the GDR was referred to in the Mannheim programme of the DKP of 21 October 1978 in the following terms:             "under the guidance of the SED the workers, farmers and all           other citizens of the GDR will develop a socialist society           and strengthen on German soil the real socialism which is           the basic alternative to the capitalist order of           exploitation".   18.   Following preliminary disciplinary investigations formal disciplinary proceedings were instituted against the applicant on 13 July 1982 on the ground that as a civil servant she had violated her obligation of political loyalty through her diverse political activities including her candidature for the DKP in the 1982 Diet (Landtag) elections of Lower Saxony.   On 22 November 1983 an indictment was filed in the disciplinary proceedings listing 11 public political activities for the DKP, such as distributing information pamphlets, representing the DKP in public discussions, being a leading DKP official in a certain district and having stood as a DKP candidate for the Federal elections of 6 March 1983.   19.   On 15 July 1985 the proceedings were adjourned in order to extend the investigations to further political activities which in the meantime had come to light.   20.   On 2 December 1986 a supplementary indictment was filed according to which the applicant had further violated her obligations as a civil servant by: -        a.    having been a candidate for the DKP in the Diet elections      on 15 June 1986;        b.    still being member of the executive council of the DKP's      regional organisation in Bremen-Lower Saxony;        c.    still being the chairman in the DKP's local representation      in Wilhelmshaven-Friesland;        d.    having participated as a delegate at the DKP's convention      held from 2-4 May 1986 in Hamburg.   21.   On 12 August 1986 the applicant was provisionally dismissed from service.   As from October 1986, 40 per cent of her salary (Dienstbezüge) was withheld.   22.   On 16 October 1987 the disciplinary chamber of the Oldenburg Administrative Court (Verwaltungsgericht) decided that the applicant had violated her duty of political loyalty, due under Section 61 (2) of the Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz), and imposed the disciplinary sanction of dismissal. The court granted the applicant payment of 75 per cent of the pension rights acquired at the relevant time for a period of 6 months.   23.   The disciplinary court considered that the applicant had seriously violated her duty of political loyalty in that she was an active member of the DKP which pursued aims that were contrary to the constitution of the Federal Republic of Germany.   This finding was not dependent on a prohibition of the DKP by the Federal Constitutional Court (Bundesverfassungsgericht).   The anti-constitutional aims of the DKP followed from its Mannheim programme.   By her activities as a DKP member the applicant had obviously supported the DKP's anti- constitutional aims.   24.   The court further observed that the principle of political loyalty restricted the constitutional rights of civil servants. However, this restriction or limitation was compatible with the German constitution and also with international treaties.   25.   As to the subjective aspect of the charges, the court referred to a judgment of 24 June 1985 from which it followed that membership in the DKP was incompatible with the civil servants' duty to observe political loyalty; this judgment had been published in an official publication and had also been communicated to the applicant personally. Consequently, the applicant knew, at least from that day onwards, that by being an active member of the DKP she violated this duty.   As she had manifested her intention to pursue her political activities, she had definitely destroyed the relationship of mutual trust and confidence.   Therefore she had to be dismissed in spite of the fact that she had rendered for many years her services without giving rise to objections, that her teaching qualifications were uncontested and that both parents and pupils appreciated her.   26.   The applicant lodged an appeal (Berufung) which was rejected on 31 October 1989 by the Disciplinary Court of Lower Saxony (Niedersächsischer Disziplinarhof).   27.   The appellate court agreed with the lower court that although the DKP had not been declared anti-constitutional by the Federal Constitutional Court this did not prevent other courts from finding that the aims of the DKP were inimical to the democratic constitutional order.   Referring to an analysis of the Mannheim programme by Mies and Garns published under the title "Direction and Aim of the DKP" ("Weg und Ziel der DKP"), 2nd edition 1981, the appellate court found that the policies of Marx and Lenin were still the guidelines for the DKP and its aim was the establishment of situations similar to those prevailing in Communist states around 1980.   28.   The appellate court considered that Article 48 (2) of the Basic Law (Grundgesetz) and the corresponding constitutional provisions of Lower Saxony protecting the political activities of parliamentarians and of candidates for parliament were not incompatible with the demands flowing from civil servants' duty of political loyalty.   This principle also lawfully limited civil servants' freedom of expression.   29.   By standing as a candidate in the elections of the "Land" Parliament and by accepting executive functions for the DKP, at both district and regional level, the applicant had breached her duty towards her employer, deriving from Section 61 (2) of the Lower Saxony Civil Service Act (Beamtengesetz) to show through all her actions her support for, and observance of, the free democratic basic order within the meaning of the Basic Law.   This duty related to both the actions of a civil servant in the performance of his/her duties and those engaged while not on duty.   By actively engaging in work for the DKP, a civil servant gave strong support to its anti-constitutional objectives, thus breaching to a considerable extent his/her duty of political loyalty.   By assuming party functions and standing as a candidate the applicant declared to others, while demonstrating at the same time that she was a civil servant, that she was a spokeswoman for the DKP and solicited support for its policies.   The mere fact of a civil servant taking on party functions and standing as a candidate in elections for a party with anti-constitutional objectives, giving active support to that party publicly, meant that he/she acted contrary to his/her duty of political loyalty.   References were made in this context to the jurisprudence of the Federal Constitutional Court (Bundesverfassungsgericht).        Thus, by her actions the applicant had identified herself with the anti-constitutional objectives of the DKP.   Anyone who as a civil servant supported a party with anti-constitutional objectives had himself/herself to be treated as an enemy, even if he/she asserted to be personally upholding the Basic Law.   Declarations in support of two opposites were irreconcilable.   A declaration in support of a totalitarian party was tantamount to identifying with its objectives. A declaration made at the same time in support of the free democratic basic order lacked credibility.   30.   It was true that the DKP pursued not only political objectives which conflicted with the constitutional order but also objectives which were compatible with the Basic Law.   However, a civil servant ought not to realise his/her political aims by making use of a party which inter alia pursued anti-constitutional objectives and attempt to bring it to power.   In this respect, the appellate court relied on the following passages of an earlier decision of the Federal Administrative Court (Bundesverwaltungsgericht):        "One may, it is true, agree with the Federal Disciplinary Court      (Bundesdisziplinarhof) that the civil servant does not wish to      change the system of government of the Federal Republic of      Germany by violent means and that this declaration can not merely      be judged to be "lip-service".   The civil servant may also be      believed when he says that he is mainly concerned with      compensating for what he feels to be a discrepancy between the      principles laid down in the constitution and constitutional      reality in the Federal Republic of Germany and that he is      profoundly sincere in his idea of a society in which there is      more justice, especially in the economic sphere.   However, this      does not permit him to see in the DKP, contrary to the view held      by the Federal Disciplinary Court, a political grouping in which      he believes he can carry through his idea of optimum political      order.   It appears to be doubtful whether this perception of the      constitution which the civil servant voices here is indeed the      way the Basic Law is intended to be understood.   This question      does not need to be answered here.   In its judgment concerning      its ban on the former Communist Party (KPD), the Federal      Constitutional Court (Decisions of the Federal Constitutional      Court - BVerfGE 5, 85) declared to be incompatible with the free      democratic basic order not only the "fighting methods" of the      then KPD but also the stages to be passed through in order to      achieve the final aim of "the rule of socialism", namely the      proletarian revolution (by peaceful or violent means) and the      rule of the working class.   It also argued that a person's      intensive propaganda and agitation for a political order which      he seeks to bring about - albeit not in the foreseeable future -      and which simply conflicts with the free democratic basic order,      must be directly detrimental to the basic order now.   The Federal      Constitutional Court thus quite clearly also declared      incompatible with the free democratic basic order the transition      stages of unlimited duration which the party is steering towards      by means of intensive propaganda and agitation (BVerfGE 47, 365      et seq., at 374).   Therefore, in contrast to the view of the      Federal Disciplinary Court, the civil servant's declaration that      he did not wish to change the political system in the Federal      Republic of Germany by violent means, declaration which,      incidentally, accords with many statements made by this party,      is of no legal significance (BVerfGE 76, 157)."   31.   As regards the applicant, the appellate court considered that in view of her top-level positions in the DKP she necessarily identified herself with its objectives which were incompatible with the constitution.   She fully adopted the DKP's aims at least in public. Her actions had therefore to be seen as the expression of her own anti- constitutional attitudes.   The mere fact that a civil servant is supporting a party in public whose aims conflict with the constitution meant that he/she acts contrary to his/her duty of political loyalty, it being unimportant whether he/she profoundly approved of the party's aim in its entirety or only partly.   Moreover, during the investigation proceedings the applicant had declared her unqualified support for the aims of the DKP as laid out in the Mannheim programme.   32.   The appellate court further agreed with the lower court that the applicant had violated her professional duties intentionally.   Since the decision of the Federal Constitutional Court of 22 May 1975 (BVerfGE 39, 334) was published, no civil servant could any longer believe that political activities in an anti-democratic political party were unobjectionable as long as the party was not banned by the Federal Constitutional Court.   The applicant had been informed by her superiors about this jurisprudence and had been given warnings.   Nevertheless she had continued with her activities for the DKP with unabated enthusiasm and even increased her activities.   Consequently, she deliberately took the risk of being in breach of her duties.   Finally, as far as the sanction was concerned, the appellate court again referred to the Federal Administrative Court and its own jurisprudence according to which a civil servant had to be dismissed from service if he persistently breached his/her duty of political loyalty and showed that in this respect he/she would not listen to reason.   Such a civil servant could not be tolerated by the state, which must be able to rely on the loyalty to the constitution of its civil servants.   33.   This breach of duty was especially serious in the applicant's case as in her role as a teacher she was supposed to teach the children confided to her the fundamental values of the constitution.   If a teacher had no positive relationship with the free democratic basic order within the meaning of the Basic Law, he/she could not provide the children with the knowledge and the conviction that the current democratic order was an asset worth defending.   Moreover, there was the danger that such a teacher would influence the pupils in such a way that they adopt his/her own views which conflict with the basic principles of the constitution.   Experience had shown that pupils can do little to counter such influence.   Parents, who must place their children in the care of the state schools because school attendance is compulsory, have the right to expect the state only to appoint or to retain in school service those teachers who affirm without reservation the free democratic order and impress it upon their pupils in their teaching.   Therefore the state could not tolerate teachers who openly engaged in activities for an anti-constitutional organisation.   34.   In assessing the seriousness of the disciplinary offence and the sentence it required, a possible fundamental change in the applicant's attitude would have to be taken into account.   Renewed trust might be placed in her if she distanced herself from the unconstitutional activities she had engaged in formerly and dissociated herself from the party which pursued such objectives.   This presupposed that at the time the court gave its decision the applicant offered a guarantee that she would in future fulfil her duty of political loyalty.   35.   However, the appellate court was not satisfied that the applicant would in future offer the guarantee that she would support at all times the free democratic order.   Although it had been pointed out several times to her during the disciplinary proceedings, which had lasted a number of years, that her commitment to the DKP was incompatible with her duty as a civil servant, she did not restrict her activities but even extended them.   Still at the last oral hearing before the appellate court she had supported the DKP's objectives and reaffirmed her intention to continue to play an active role in the party.   36.   The fact that the applicant supported the "new cause" within the DKP and welcomed the changes in the Soviet Union, East Germany and Eastern Europe did not lessen the gravity of her disciplinary offence. As long as the DKP pursued, as it did, anti-constitutional objectives civil servants were not allowed to play a role in its work.   They had to distance themselves from such a party.   37.   As the highest courts had stressed in their decisions again and again, a serious disciplinary offence destroying the relationship of trust between a civil servant and his employer had also been committed when the civil servant made use of an anti-constitutional party in order to realise aims which are in conformity with the constitution and are as such to be welcomed, for example the maintenance of peace, democratisation, the creation of social justice, the fight against fascism etc.   A declaration of the intention to pursue only such aims could not preserve from the harshest disciplinary sanction possible. Only where a civil servant convincingly changed his attitude and clearly turned away from a party which was - still - anti- constitutional could a disciplinary sanction be avoided.   The applicant however had not given any signs of a change in her views.   In these circumstances any less severe disciplinary measure which aimed at persuading the applicant to give up her commitment to the DKP would serve no purpose.   The applicant's attitude rendered it impossible to tolerate her as a civil servant and made her dismissal necessary.   Her otherwise irreproachable behaviour in fulfilling her duties as a teacher could not alter this in any way because the basis of trust necessary for the continuation of her employment as a civil servant was lacking.   38.   The applicant then lodged a constitutional complaint which was rejected by a panel of three judges of the Federal Constitutional Court on 7 August 1990 (served on 14 August 1990) as offering no prospects of success.   With regard to the right to freedom of expression as guaranteed by Article 5 of the Basic Law, the Constitutional Court stated that political loyalty was a traditional principle of the civil service.   It required that a civil servant always distance himself/herself from groups and endeavours that fight against, combat and defame the state, its constitutional organs and constitutional order.   Dismissal of a civil servant for violation of the principle of loyalty required that the disciplinary court was convinced he/she no longer offered the guarantee that he/she would at any time support and advocate the free democratic order.   The findings of the disciplinary courts in this respect were unobjectionable and in no way arbitrary. The applicant had already at a hearing of 9 March 1983 declared that "there are no items, passages, paragraphs in the DKP programme which I do not accept".   Regardless of the resolution in Article 21 (2) 2nd sentence of the Basic Law (see below para. 41) the disciplinary courts were free to decide themselves that the DKP and its aims were inimical to the constitution.   Undoubtedly the applicant had done more than simply paying lip service to her political conviction.   In view of her stubbornness (Belehrungsunwilligkeit) the disciplinary courts had correctly assumed that the necessary basis of trust (Vertrauensgrundlage) had been destroyed.   39.   From 1987 to 1991 the applicant worked as artistic director and theatre educationalist at the North Lower Saxony "Landesbühne" in Wilhelmshaven.   40.   With effect from 1 February 1991 the applicant was reemployed as a teacher (Studienrat) in the school education service of the Land of Lower Saxony.   Prior to this, the so-called "Radikalenerlaß" had been abolished in Lower Saxony and was followed by regulations passed by the Land Government applying to so-called "old cases" (cf. para. 44 below).   B.    Relevant domestic law and practice   41.   Basic Law (Grundgesetz)        Article 5   (German)             "(1) Jeder hat das Recht, seine Meinung in Wort, Schrift           und Bild frei zu äußern und zu verbreiten und sich aus           allgemein zugänglichen Quellen ungehindert zu unterrichten.           Die Pressefreiheit und die Freiheit der Berichterstattung           durch Rundfunk und Film werden gewährleistet.   Eine Zensur           findet nicht statt.             (2)   Diese Rechte finden ihre Schranken in den Vorschriften           der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum           Schutze der Jugend und in dem Recht der persönlichen Ehre.             (3)   Kunst und Wissenschaft, Forschung und Lehre sind frei.           Die Freiheit der Lehre entbindet nicht von der Treue zur           Verfassung."   (Translation)             "(1) Everyone shall have the right freely to express and           disseminate his opinion by speech, writing and pictures and           freely to inform himself from generally accessible sources.           Freedom of the press and freedom of reporting by means of           broadcasts and films are guaranteed.   There shall be no           censorship.             (2)   These rights are limited by the provisions of the           general laws, the provisions of law for the protection of           youth, and by the right to inviolability of personal           honour.             (3)   Art and science, research and teaching, shall be free.           Freedom of teaching shall not absolve from loyalty to the           constitution."        Article 21   (German)             "(1) Die Parteien wirken bei der politischen Willensbildung           des Volkes mit.   Ihre Gründung ist frei.   Ihre innere           Ordnung muß demokratischen Grundsätzen entsprechen.   Sie           müssen über die Herkunft ihrer Mittel öffentlich           Rechenschaft geben.             (2)   Parteien, die nach ihren Zielen oder nach dem           Verhalten ihrer Anhänger darauf ausgehen, die freiheitliche           demokratische Grundordnung zu beeinträchtigen oder zu           beseitigen oder den Bestand der Bundesrepublik Deutschland           zu gefährden, sind verfassungswidrig.   Über die Frage der           Verfassungswidrigkeit entscheidet das Bundesverfassungs-           gericht.             (3)   Das Nähere regeln Bundesgesetze."   (Translation)             "(1) The political parties shall participate in the forming           of the political will of the people.   They may be freely           established.   Their internal organization must conform to           democratic principles.   They must publicly account for the           sources of their funds.             (2)   Parties which, by reason of their aims or the           behaviour of their adherents, seek to impair or abolish the           free democratic basic order or to endanger the existence of           the Federal Republic of Germany, shall be unconstitutional.           The Federal Constitutional Court shall decide on the           question of unconstitutionality.             (3)   Details shall be regulated by federal laws."        Article 33 para. 5   (German)             "Das Recht des öffentlichen Dienstes ist unter           Berücksichtigung der hergebrachten Grundsätze des           Berufsbeamtentums zu regeln."   (Translation)             "The law of the public service shall be regulated with due           regard to the traditional principles of the professional           civil service."        Article 48 para. 2   (German)             "Niemand darf gehindert werden, das Amt eines Abgeordneten           zu übernehmen und auszuüben. Eine Kündigung oder Entlassung           aus diesem Grunde is unzulässig."   (Translation)             "No one may be prevented from accepting and exercising the           office of deputy.   No one may be given notice of dismissal           nor dismissed from employment on this ground."   42.   Niedersächsisches Beamtengesetz (Civil Service Act of Lower      Saxony):         Section 61 para. 2 :   (German)             "Der Beamte muß sich durch sein gesamtes Verhalten zu der           freiheitlich demokratischen Grundordnung im Sinne des           Grundgesetzes bekennen und für deren Einhaltung eintreten."   (Translation)             "The civil servant shall, through his conduct as a whole,           acknowledge and uphold observance of the free democratic           basic order within the meaning of the Basic Law."   43.   Niedersächsische Disziplinarordnung (Disciplinary Code of Lower      Saxony):        Section 2 para. 1:   (German)             "Nach diesem Gesetz kann verfolgt werden             1.    ein Beamter wegen eines während seines                Beamtenverhältnisses begangenen Dienstvergehens..."   (Translation)             "Under this Act may be prosecuted             1.    a civil servant who has committed a disciplinary           offence during the course of his civil service           relationship..."        Section 5 para. 1:   (German)             "Disziplinarmaßnahmen sind:...           Entfernung aus dem Dienst...."   (Translation)             "Disciplinary measures are: ....           dismissal from service.........."        Section 11 para. 1:   (German)             "Die Entfernung aus dem Dienst bewirkt auch den Verlust des           Anspruches auf Bezüge und Versorgung..."   (Translation)             "Dismissal from service shall also entail the loss of           remuneration and pension rights......"   44.   Decree on the employment of extremists in the civil service      ("Radikalenerlaß")             On 28 January 1972 the Federal Chancellor and the Laender heads of government agreed in the so-called "Radikalenerlaß" (Bulletin No. 15 of 3 February 1972, p. 142) that the membership of public service staff in parties or organisations opposed to the constitutional order would, as a rule, lead to a conflict of loyalty.   On the basis of this agreement several sets of regulations were issued in Lower Saxony - in particular the Land Government's decision, dated 10 July 1972, concerning "political activity of candidates and members of the public service directed against the free democratic basic order".        In 1990 the Social Democratic Party and the "Greens" agreed to abolish the "Radikalenerlaß" in their coalition agreement on the formation of a new Land Government in Lower Saxony.   This was done in a decision rendered by the Lower Saxony Land Ministry.        In another decision rendered on 28 August 1990 this Ministry issued regulations on the treatment of so-called "old cases", i.e. those cases where the persons concerned had been dismissed from the civil service because of their political activity or where they were not recruited as civil servants.   This decision made it possible for a new civil service relationship to be established for the group of civil servants that had been dismissed from the service in disciplinary proceedings provided that the recruitment and aptitude requirements were fulfilled.   Renewed recruitment was not linked with any back payments or compensation payments.   III.   OPINION OF THE COMMISSION   A.    Complaints declared admissible   45.   The Commission has declared admissible the applicant's complaints that her dismissal from the Lower Saxony civil service, on account of her political activities in the DKP, violated her rights to freedom of expression and association and discriminated against her in respect of these rights.   B.    Points at issue   46.   Accordingly, the points at issue are;        -     whether there has been a violation of Article 10 (Art. 10)      of the Convention;        -     whether there has been a violation of Article 11 (Art. 11)      of the Convention; and        -     whether there has been a violation of Article 14 of the      Convention, read in conjunction with Article 10 and/or Article 11      (Art. 14+10, 14+11) of the Convention.   C.    Article 10 (Art. 10) of the Convention   47.   Article 10 (Art. 10) of the Convention 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."        1.    Interference   48.   The applicant submits that her dismissal from civil service, on account of her political activities in the DKP, interfered with her freedom of expression as guaranteed by Article 10 (Art. 10) of the Convention.   The Government do not contest that there has been such an interference. 49.   The Commission recalls that, at the time of her dismissal, the applicant was a permanent civil servant with tenure for life (cf. paras. 16 and 22 above).   It considers that the present case must therefore be distinguished from the cases of Glasenapp and Kosiek, which concerned dismissals of probationary civil servants (see Eur. Court H.R., Glasenapp judgment of 28 August 1986, Series A no. 104, p. 9, para. 12 and p. 14, para. 24; Kosiek judgment of 28 August 1986, Series A, no. 105, p. 11, paras. 15 and 17).   In those cases the Court, holding "that access to civil service lies at the heart of the issue", found no interference with the exercise of the freedom of expression protected by Article 10 (Art. 10) (Glasenapp judgment loc. cit. p. 27, para. 53; Kosiek judgment loc. cit. p. 21, para. 39).        The Commission does not consider that in the present case, concerning the dismissal of a permanent civil servant, "access to civil service lies at the heart of the matter".   It finds, with the parties, that the dismissal of the present applicant, on account of her political activities in the DKP, interfered with the exercise of her freedom of expression.        2.    Justification under Article 10 para. 2 (Art. 10-2)           of the Convention.   50.   The above interference contravenes the Convention if it does not satisfy the requirements of para. 2 of Article 10 (Art. 10-2).   It therefore falls to be determined whether, at the relevant time, the interference was "prescribed by law", had an aim or aims legitimate under Article 10 para. 2 (Art. 10-2) and was "necessary in a democratic society" for the aforesaid aim or aims.        a.    "Prescribed by law"   51.   The applicant submits that her dismissal is the consequence of the "Radikalenerlaß" (cf. para. 44 above), which provided that civil servants who were members of organisations inimical to the constitution should be dismissed.   The term inimical to the constitution cannot be found in the Basic Law.   The Basic Law only speaks of "unconstitutional parties" and the unconstitutionality has to be established by the Federal Constituti