ERDEL v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Eike Erdel, is a German national who was born in 1971 and lives in Homberg. The applicant is a practising lawyer and a member of the political party called the Republicans (Partei der Republikaner – hereafter referred to as Die Republikaner). As the party is generally considered to be populist and right-wing, it has 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 won less than one percent of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court pursuant to Article 21(2) of the German Basic Law. The applicant held the position of lieutenant on the reserve list (Oberleutnant der Reserve) and was called up for service in the German army (Bundeswehr) in a tank battalion (Panzerbatallion) on 5 May 1997. By order of the Ministry of Defence, the Wetzlar District Recruiting Office (Kreiswehrersatzamt) revoked the applicant’s call-up order (Einberufung) on 6 November 1997. An objection by the applicant was dismissed on 16 March 1998 by the Defence Area Command (Wehrbereichsverwaltung). It reasoned that the revocation of the call-up order released the applicant from an obligation and therefore constituted an administrative act which resulted in a benefit (begünstigender Verwaltungsakt). Moreover, the revocation did not mean that the applicant was generally excluded from all future military exercises, but that he would no longer be considered for regular reserve trainings. The applicant would however keep his rank as a reserve officer. Because of incidents that had occurred against an extremist background, which had remained few but were taken seriously, the German army currently used its discretion regarding call-ups (Einberufungsermessen) in such way that it would only choose command personnel (Führungspersonal) for army reserve trainings (Reserveübungen) who were not only free from any suspicion of supporting anti-constitutional movements, but were also expected to take immediate action against such movements. Even though it could not be presumed that every member of Die Republikaner opposed the free democratic order, the 1996 annual report of the Federal Office for the Protection of the Constitution (Verfassungsschutz) had concluded that certain groups and wings within the party did so. On 29 October 2002 the Giessen Administrative Court dismissed an action brought by the applicant, finding that the revocation was permissible under Article 49 of the Code of Administrative Procedure (Verwaltungsverfahrensgesetz). It considered the revocation to be an administrative act which resulted in a disadvantage (belastender Verwaltungsakt) as the applicant considered the revocation discriminatory. The Giessen Administrative Court further held that the Defence Area Command had not overstepped its discretion when asserting that the German army, as an institution which relied heavily on security, expected its personnel not only to step in to protect the free democratic order but also to take immediate action against anti-democratic activities. The Defence Area Command’s conclusion that the applicant did not fulfil those requirements was not subject to legal challenge. Even though the applicant had never given cause for complaint while serving in the German army, the authorities had acted reasonably in basing their decisions on the fact that, since offences attributable to right-wing elements had been committed in the German army attracting publicity and severely harming the army’s reputation, reserve officers who had a right-wing background would no longer be chosen for army reserve training in order to prevent further offences. On 17 September 2003 the Federal Administrative Court dismissed an appeal by the applicant on points of law. It found that the revocation had been lawfully based on Article 49 of the Code of Administrative Procedure in conjunction with section 8 of the Soldiers Act which provided that a soldier must recognise the free democratic order within the meaning of the Basic Law and act at all times in such a way as to uphold it. The German army was not prevented from taking into account the applicant’s membership of Die Republikaner when deciding upon his status as a reserve officer despite the fact that the Federal Constitutional Court had not itself declared the party unconstitutional pursuant to Article 21 of the Basic Law. The Federal Administrative Court referred to the Federal Constitutional Court’s settled case-law in that connection. Until the Federal Constitutional Court declared a political party unconstitutional pursuant to Article 21 of the Basic Law, a party and its members and functionaries could not be hampered in their political activities. While that provision would therefore protect a reserve officer’s political activities for his party independently of his military status, it could not prevent the German army from drawing consequences from his membership of that party for his status in the army. Moreover, the above decisions had not violated the applicant’s fundamental rights. The German army was conceived as an army in a democratic State. It could only serve its purpose if its integrity as a part of the democratic order was beyond doubt. Consequently, it could not allow this order to be undermined by its soldiers or tolerate any criminal offences with an extremist background. Section 8 of the Soldiers Act provided that every soldier had to defend the free democratic order. It was therefore compatible with the Basic Law for a reserve officer to have his call-up order revoked on grounds of his party membership provided that there were sufficient reasons to believe that the party’s loyalty to the Constitution was in doubt. The Federal Administrative Court stated that such reasons were made out if a party was under scrutiny by the offices for the protection of the Constitution. However, both the authorities and the administrative courts had to satisfy themselves that such reasons really existed. As the respective decisions in the present case had referred to the 1996 report of the Federal Office for the Protection of the Constitution, this had been the case. As the German army enjoyed a certain margin of appreciation with regard to decisions concerning its human resources, it was sufficient to establish an initial suspicion (Anfangsverdacht) that the party was disloyal to the Constitution. On 5 May 2004 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant. It reasoned that the assertion that the applicant’s membership of Die Republikaner precluded him from being called up for service in the Germany army could not be challenged from a constitutional point of view. The Federal Constitutional Court took note of the fact that the Defence Area Command had had regard to the 1996 report of the Federal Office for the Protection of the Constitution which had stated concerns about some of the party members’ loyalty to the Constitution. At the same time several criminal offences with a right-wing extremist background which had been committed by members of the German army had attracted widespread publicity and had considerably damaged the German army’s reputation. The Federal Constitutional Court found these considerations reasonable and not extraneous. It had therefore not been necessary to determine whether or not the applicant himself was attracted to right-wing ideas or had participated in anti-constitutional activities. The relevant provision of the Basic Law is worded as follows:- “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 anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.” The relevant provisions of the Code of Administrative Procedure (Verwaltungsverfahrensgesetz) read as follows:- “1. A lawful, non-beneficial administrative act may, even after it has become non-appealable, be revoked wholly or in part with effect for the future, except when an administrative act of like content would have to be issued or when revocation is not permissible for other reasons. 2. A lawful, beneficial administrative act may, even when it has become non-appealable, be revoked wholly or in part with effect for the future only when: ... ... 3. the authority would be entitled, as a result of a subsequent change in circumstances, not to issue the administrative act and if failure to revoke it would be contrary to the public interest. ...” The relevant provisions of the Soldiers Act (Soldatengesetz) read as follows:- “Soldiers shall be appointed and employed on the basis of their suitability, qualification and capabilities regardless of sex, origin, race, religious or political beliefs or relationships.” “A soldier must recognise the free democratic order within the meaning of the Basic Law and must act at all times in such a way as to uphold it.”