LAHR v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
The applicant, Mr Timo Lahr, is a German national who was born in 1977 and lives in Welzheim. He was represented before the Court by Ms G. Pahl, a lawyer practising in Hamburg. The applicant is an electrical engineering technician and a member of the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, hereafter, “the NPD”). In 1998 he was a local chairperson of that party. The NPD was considered right-wing extremist and populist and was under scrutiny by the Federal Office for the Protection of the Constitution and those of various German States (Länder). The NPD has not been declared unconstitutional by the Federal Constitutional Court in accordance with Article 21 § 2 of the Basic Law. On 1 March 1998 the applicant commenced his compulsory military service, which was to end on 31 December 1998. To serve one’s compulsory military service is an obligation imposed by the Basic Law without conferring a right to the conscript to be enlisted. A conscript receives approximately EUR 300 net allowance a month. On 21 April 1998 the applicant’s superior notified the Military Counter-Intelligence Service of his membership of and functions in the NPD. On 1 June 1998 he was appointed as a Private First Class. The applicant performed his duties within the army conscientiously and without any disciplinary reprimand. He did not carry out any political activities within the army. On 27 August 1998 the applicant’s military service was terminated with effect from 31 August 1998. His presence in the army was found to endanger its integrity and order within the meaning of section 29 § 1 No. 6 of the Compulsory Military Service Act (Wehrpflichtgesetz) on account of his membership of and functions in the NPD, a party considered to be right-wing extremist and populist. Moreover, the toleration of an NPD functionary within the army would harm its reputation. On 1 October 1998 the objection he filed was rejected on the ground that his membership of and functions in the NPD were in breach of a soldier’s special duty of loyalty to the Constitution. His membership of and functions in the NPD, a party that pursued unconstitutional aims, manifested his lack of readiness to defend the free democratic order within the meaning of the Basic Law, which posed a danger to military order. On 12 November 2002 the Augsburg Administrative Court rejected a claim lodged by the applicant, finding that the order of 27 August 1998 gave sufficient reasons to consider that his continuing military service would pose a serious danger to military order. Section 29 § 1 No. 6 of the Compulsory Military Service Act gave the authorities no discretion where conduct posing a serious danger to military order was established. Military order within the meaning of that provision embraced the readiness to defence which was guaranteed, inter alia, by the army’s bond to the constitutional order of which it was a guarantor. Relying on the 1998 annual reports on the protection of the Constitution of the Federal Ministry of the Interior and the Bavarian State Ministry of the Interior the court established that at the relevant time the NPD aimed at the – if need be violent – subversion of the democratic order. It referred to several statements by the party leader who pursued the political aim to “install the NPD in absolute power”. Moreover it referred to the speech given by a convicted neo-Nazi at the party congress, who appealed for a “revolution which could not be achieved without blood and victims”. The court found that the above statements by party functionaries had to be attributed to the applicant in his function as a local chairperson at the relevant time. Therefore, his further presence in the German army posed in itself a danger to military order even though his behaviour within the army did not give rise to any complaints. The court clarified that his dismissal did not result in the loss of his rank. On 7 July 2004 the Federal Administrative Court rejected an appeal lodged by the applicant. It endorsed the reasons given by the lower instances and observed that the applicant’s holding of functions in the NPD during his military service was in breach of a soldier’s special duty of loyalty to the Constitution, which was manifested in section 8 of the Soldiers’ Act and was a requisite for the functioning of the army. The NPD’s anti-constitutional attitude, which was expressed by the party leader, had to be attributed to the applicant, who held functions in the party and failed to dissociate himself from those statements. The court referred to the Federal Constitutional Court’s settled case-law that it was not contrary to Article 21 of the Basic Law that the German army drew consequences from the applicant’s membership of a party which had not been declared unconstitutional, as that provision merely protected the political activity of the party members. On 21 January 2005 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant. It found the arguments given by the lower instances sufficient to justify the termination of his military service, which was therefore in line with the German Constitution and particularly with the prohibition of discrimination. “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.” §1 [...] Furthermore [military service] shall be terminated, if [...] No.5. based on his previous conduct [the conscript’s] continued presence in the army would pose a serious danger to military order or to the security of the troops, [...] “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.”