OTTO v. GERMANY
Inadmissible
The applicant, Mr Detlef Otto, is a German national who lives in Kusterdingen (Baden-Wuerttemberg). He was represented before the Court by Mr R. Schlierer, a lawyer practising in Stuttgart. The applicant is a member of the political party “the Republicans” (Partei der Republikaner, in the following Die Republikaner). The party is considered as populist and right-wing and has therefore been under scrutiny by the offices for the protection of the constitution (Verfassungsschutzämter) in various German States (Länder). In the general elections in September 2005, Die Republikaner achieved 0.6 % of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court in accordance with Section 21 (2) of the German Basic Law. The applicant stood for the party as a candidate in local elections in 1994 and as a substitute candidate in regional elections in the State (Land) Baden-Wuerttemberg in 1996. Moreover, he contributed to activities of the party’s county association on a regular basis. The applicant had been employed as a civil servant with the BadenWuerttemberg police since 1968. He was promoted several times, lastly in 1993 to the position of detective superintendent (Kriminalkommissar). He retired in 2002. Although the applicant received above-average appraisals at work, he was not considered for a further promotion to chief inspector (Kriminaloberkommissar) despite the fact that there were such openings as from 1 July 1994. Following his inquiry about the reasons for not having been promoted, the Tübingen Regional Council informed the applicant in a letter dated 7 February 1995 that promotions were generally based on suitability, capabilities and professional qualifications. Regarding his suitability, the Regional Council expressed severe doubts due to his active membership of Die Republikaner, a party which was suspected to pursue anti-constitutional goals. Therefore, his promotion process had been stayed until further instructions by the Baden-Wuerttemberg Ministry of the interior would be received regarding the matter. The applicant subsequently instituted proceedings against the lack of promotion to the position of chief inspector. On 12 December 1996, the Sigmaringen Administrative Court dismissed the applicant’s claim, finding that the decision not to promote the applicant had been lawful. The court noted that public servants were generally not entitled to a promotion which was subject to the employer’s discretion with regard to suitability, capabilities and professional qualifications. The employer enjoyed a margin of appreciation in this respect. That margin had not been overstepped by basing unsuitability for promotion of a public servant on active membership in a political party seeking to undermine the free democratic constitutional system. Having regard to a judgment by the Baden-Wuerttemberg Administrative Court of Appeal of 11 March 1994, the court considered Die Republikaner as a party with unconstitutional goals. Both before and during the proceedings, the applicant had failed to dissociate himself from right-wing fundamentalist utterances of party officials. Moreover, the fact that only the Federal Constitutional Court could declare a prohibition of a political party with unconstitutional goals (and had not yet done so with regard to Die Republikaner) was no obstacle. Whereas the German constitution granted every citizen the right to work the free democratic constitutional system as a member of a party which is not prohibited, the duty of loyalty required from public servants (which is laid down in Section 33 (4) of the German Basic Law) would demand that every public servant defend this order. Lastly, the court found that the judgment of the European Court of Human Rights in the case of Vogt v. Germany (judgment of 26 September 1995, Series A no. 323) would not require a different ruling. That case concerned the dismissal of a public servant as opposed to non-promotion in the present case. Hence the question of proportionality had to be considered differently. On 4 October 1999, the Baden-Wuerttemberg Administrative Court of Appeal dismissed the applicant’s appeal and refused to grant leave to appeal on points of law. The court found that the applicant’s employer had not overstepped his margin of appreciation as the suitability of public servants could lawfully be assessed with regard to their duty of loyalty. Membership in a party which pursued goals which were not in accordance with the free democratic constitutional system was sufficient to cast doubt on whether a public servant was a suitable candidate for promotion. Since the party in question had been scrutinised by various offices for the protection of the constitution in Germany, and this scrutiny had been found lawful by numerous Administrative Courts of Appeal in Germany, the court did not itself have to establish whether or not the activities of Die Republikaner were unconstitutional. With regard to the proportionality of the decision not to promote the applicant, the court found that the judgment in the case of Vogt v. Germany (above-mentioned) did not demand a different ruling since the applicant in the present case had already been promoted several times and had not been deprived of his professional and economic basis by the decision not to promote him further. The applicant’s appeal against the refusal to grant leave to appeal on points of law was dismissed by the Federal Administrative Court on 19 May 2000. On 17 December 2001, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It held that the administrative courts’ assessment concerning the unconstitutional goals of Die Republikaner was in line with the jurisprudence of various Administrative Courts of Appeal in different German States (Länder). The courts had rightly granted the employer a margin of appreciation when assessing the applicant’s suitability for promotion. The Federal Constitutional Court found that the domestic authorities and courts had lawfully taken into account the applicant’s political activities even though it had not yet itself declared Die Republikaner an unconstitutional party in accordance with Section 21 (2) of the German Basic Law. The relevant provisions of the Basic Law are worded as follows: Section 21 “2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anticonstitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.” Section 33 “2. All Germans shall have an equal right of admission to the civil service according to their suitability, capabilities and professional qualifications. 4. The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law.” The relevant provision of the Baden Wuerttemberg Public Servant Act is worded as follows: Section 11 (1) “Nominations shall be carried out on the basis of suitability, capabilities and professional qualifications regardless of sex, race, religious or political beliefs, origin or relationships.”