VOLKMER v. GERMANY
Inadmissible
Ireneu Cabral Barreto
The applicant, Mr Roland Volkmer, is a German national, who was born in 1941 and lives in Berlin. He was represented before the Court by Mr Meyer-Dulheuer, a lawyer practising in Berlin. The facts of the case, as submitted by the parties, may be summarised as follows. From 1966 until 1977, and from 1981 until 1993, the applicant taught German, Latin and, from 1968 onwards civic education (Staatsbürgerkunde) in secondary schools, first in the German Democratic Republic (“the GDR”), and as from 1990 in the Federal Republic of Germany (FRG). From 1970 to 1977 and from 1983 to 1989 he also served as honorary secretary (ehrenamtlicher Parteisekretär) of the East German Socialist Unity Party (Sozialistische Einheitspartei Deutschlands - “the SED”) at his school. Between 1 March 1977 and 1 August 1981 the applicant, instead of teaching at school, was employed on a full-time basis in the executive committee of the district administration of the SED (hauptamtlicher politischer Mitarbeiter der Kreisleitung der SED). After the German reunification the applicant became a teacher in the public service of the State of Berlin. Subsequent to the publication of a book containing statements of a former pupil of the applicant, alleging that the latter, in his capacity as SED representative, had asked him to attend a church conference on ecology about which he had later been interrogated by an official of the district council, the applicant was interviewed on this incident by the district councillor for education and culture (Bezirkstadträtin der Abteilung Bildung und Kultur) of Berlin-Friedrichshain on 29 August 1991. The applicant confirmed that he had asked his pupil, a secretary of the SED’s youth organisation (FDJ), to attend the conference, yet without being aware of any conspiratorial context or a later interrogation of the pupil. As a consequence of the interview, the district councillor decided to assign the applicant to another school within BerlinFriedrichshain and reserved the right to take further steps. In a letter to the district councillor, dated 29 September 1991, the applicant stated that the participation of his former pupil in the church conference had occurred on a voluntary basis without any abuse of the teacher-student relationship. The aim of this action had been to confront the pupil with opinions contrary to his own. In any event, he had not been aware of any such purpose as the observation of political opponents. On 7 April 1992 the applicant signed a new contract with the State of Berlin adjusting the terms of his employment to the new political situation in Germany. On 5 November 1992, the Special Commissioner of the Government for « person-related » documents of the former State Security of the GDR (Sonderbeauftragter der Bundesregierung für die personenbezogenen Unterlagen des ehemaligen DDR-Staatsicherheitsdienstes), acting on a request by the State of Berlin, informed the authorities that the applicant had been registered as contact person since 1970 in files of the Ministry of State Security (Ministerium für Staatssicherheit, “the MSS”). After having signed a declaration of confidentiality, he had been interviewed on five occasions about certain persons by MSS-officials. However, the applicant had not prepared any reports on individuals. In June 1971 the MSS had decided to cease cooperation with the applicant after only a few meetings due to a lack of willingness to cooperate on his part. On 25 January 1993 the applicant was heard once again by the district council (Bezirksamt) of Berlin-Friedrichshain in order to clarify why, in an official questionnaire handed out to him in January 1991, he had replied “no” to the questions whether he had carried out any activity for the MSS and whether he had signed a declaration to that effect. The applicant stated that his answers had been correct since his contacts with the MSS had led to nothing. Moreover, he had never signed a declaration that he had not worked for the MSS but merely a declaration of confidentiality. An offer by the district council to cancel his contract of employment by means of a friendly settlement was rejected by the applicant. On 29 January 1993, the applicant was suspended from his teaching functions. After the main staff council for public employees (Hauptpersonalrat) had indicated that it would only accept an “ordinary dismissal” (ordentliche Kündigung) within the delays prescribed by law, the applicant was served with a notice of termination of his employment contract dated 26 May 1993, and taking effect on 1 August 1993. The dismissal was based on Chapter XIX, Topic A, section III, no 1, § 4, of Annex I to the Unification Treaty (see relevant domestic law and practice below). The notice of termination stated as the reason for the dismissal that the public employer could not reasonably be expected to continue the applicant’s employment. Firstly, the applicant had failed to rebut the charge that he had been active for the MSS. Moreover, as a full-time member of the executive committee of the district administration of the SED, and an active supporter of and collaborator with the former East German one-party system, he could not be considered suited to uphold the free democratic constitutional system in front of his pupils. This was also reflected by the fact that he had used at least one pupil for spying on political opponents and by the lack of awareness of guilt he had shown during the interview of 25 January 1993. Finally, the applicant had failed to indicate his contacts with the MSS in the official questionnaire. By a judgment of 6 October 1993, the Berlin Labour Court (Arbeitsgericht Berlin) held that the applicant’s employment had not been terminated by the dismissal of 26 May 1993, in the absence of any valid grounds for dismissal. In particular, the applicant could not be considered unsuited to teach German and Latin because of his former functions within the SED. Furthermore, the State of Berlin had forfeited its right to terminate the applicant’s employment after it had continued his employment following the first interview with the applicant in August 1991. The applicant had been justified in denying any activity for the MSS in the official questionnaire because the attempt by the MSS to make him cooperate had remained unsuccessful. By a judgment of 16 March 1994 the Berlin Higher Labour Court of Berlin (Landesarbeitsgericht Berlin) reversed the judgment of the Labour Court. Although the Court held that the applicant had not cooperated with the MSS, and that his answers in the official questionnaire were correct since the inquiry was not whether he had had contact with the MSS but whether he had carried out activities for it, it found the dismissal to be justified on account of the applicant’s unsuitability to continue teaching. It held that his full-time employment as an SED official from 1977 to 1981 gave rise to doubts whether he was in a position to dispense the values of the German Basic Law (Grundgesetz) to his pupils. Similarly, his honorary function as an SED representative at his school from 1970-1977 and again from 1983-1989 reflected his identification with the political system of the GDR. Moreover, the fact that the applicant had asked one of his pupils, on the orders of the executive committee of the district administration of the SED, to attend a church conference in the knowledge that the pupil would subsequently be interrogated about that conference by the East German authorities, constituted an abuse of the teacher-pupil relationship for the purpose of spying on political opponents. The Court considered this behaviour to be incompatible with the educational aims of freedom of opinion and tolerance. The applicant’s argument that his intention had been to confront the pupil with opinions opposite to his own was, in the Court’s view, a mere excuse. Furthermore, the Court found that the public employer had not forfeited the right to dismiss the applicant after it had assigned him to another school because this measure was in the nature of a first and by no means final reaction to the interview with the applicant held on 29 September 1991. At that time the applicant had been explicitly informed that further steps could be taken against him and he could have expected, according to the practice in similar cases, a further consultation of the Special Commissioner of the Government in the matter. Similarly, the renewal of his contract in April 1992 was to be seen in the general context of readjusting the terms of employment of former public servants of the GDR and thus was without prejudice to the process of reviewing the personal involvement of such State employees with the political system of the GDR. By a judgment of 16 November 1995 the Federal Labour Court (Bundesarbeitsgericht) held that the termination of the applicant’s employment was effective as of 1 January 1994 and dismissed the remainder of his appeal against the Higher Labour Court’s judgment of 16 March 1994. It found that the applicant lacked the personal aptitude required for public service. Contrary to the case where a teacher had been dismissed for membership of the German Communist Party, which dismissal had been found to be in violation of Article 10 of the Convention (Vogt v. Germany judgment of 26 September 1995, Series A no. 323), here the applicant’s dismissal was not only based on his SED membership and his political beliefs but on his professional and honorary functions within that party, which reflected his especially strong identification with the SED system and indicated his unfitness to uphold the free democratic constitutional system in front of his pupils. Indeed, as party secretary, it was his duty to implement the ideological aims of the SED at school (“die ideologische Umsetzung der Ziele der SED in der Schule”). His unsuitability was also shown by the fact that he had asked a pupil to spy on meetings of ideological opponents. By a decision of 1 October 1997 the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant’s constitutional complaint against the above judgments. Paragraphs 1 to 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty provide that civil servants of the GDR are integrated into the public service of the FRG by substituting in the existing work relations the Federal authorities and the Länder of the FRG for the authorities of the GDR. As civil servants of the GDR were part of an institution that did not satisfy the criteria of a State governed by the rule of law, special dismissal provisions were inserted in Paragraphs 4 to 6 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the Treaty. Paragraph 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty accordingly provides : “Ordinary dismissal from an employment relationship in the public administration is permissible if 1. the employee does not comply with the requirements on account of a lack of professional qualification or personal aptitude (...)” “Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn 1. der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht (...)” Paragraph 5 of the same Chapter reads as follows: “A valid reason for an extraordinary dismissal exists, in particular, if the employee (...) 2. cooperated with the former Ministry of State Security/Agency for National Security [of the German Democratic Republic] and if the public employer can therefore not reasonably be expected to continue the employment relationship.” “Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer (...) 2. für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint”. According to the case-law of the Federal Constitutional Court, a civil servant has a duty to uphold the free democratic constitutional system in everything he does (BverfG, Constitutional Court Decisions, vol. 2, p. 1). In particular, a school teacher is required to instil the fundamental values of the German Basic Law in his pupils and to ensure loyalty to those values in times of crisis as well as in situations of conflict (BVerfG, decision of 22 May 1975 - Ref. no. 2 BvL 13/73 - BverfG, Constitutional Court Decisions, vol. 39, p. 334).