Schreiber v. Germany



AS TO THE ADMISSIBILITY OF

Application No. 11580/85

by Rupert SCHREIBER

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 4 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 April 1985

by Rupert Schreiber against the Federal Republic of Germany and

registered on 17 June 1985 under file No. 11580/85;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they appear from the applicant's

statements and the documents submitted by him may be summarised as

follows:

The applicant is a German citizen, born in 1929, who resides

in Cologne. Together with others he submitted an earlier application

(No. 8387/78) which concerned his activities as trustee for

thalidomide victims. The Commission rejected that application on

4 March 1980 (D.R. 19 p. 233). The present case, which concerns

the applicant's dismissal from a university post, is not related to

his earlier application.

In February 1966 the law faculty of the University of Cologne

accepted the applicant's post-doctoral thesis (Habilitation)

qualifying him as a university lecturer (Dozent) for legal philosophy,

civil and commercial law. On 24 May 1966 he was appointed to a

lecturer's post as temporary civil servant (Beamter auf Widerruf).

He remained in that same post until his dismissal in 1977 of which

he now complains.

During his tenure of the post, the applicant apparently

received only one offer of a professorship in a Hamburg academy in

1969 However, the applicant did not accept it.

Subsequently, the applicant made attempts to change his status

in Cologne. In August 1971 he wrote to the Minister for Science and

Research (Minister für Wissenschaft und Forschung) of North Rhine-

Westphalia asking for an appointment as extraordinary professor

(ausserplanmässiger Professor) at the law faculty. The Minister

replied that such an appointment required a proposal by the

university. The applicant accordingly requested the law faculty to

make such a proposal. However, in January 1972 the faculty rejected

the request, without considering the applicant's scientific

qualification, on the ground that he had insulted the faculty and its

individual members in a letter. In a decision (Widerspruchsbescheid)

of 15 October 1972 the faculty again confirmed the opinion that, when

making a proposal for an appointment as extraordinary professor,

regard must be had not only to the scientific qualification of the

person concerned, but also to his personal aptitude ("Würdigkeit"),

which was denied in this case.

Thereupon the applicant instituted proceedings before the

Administrative Court (Verwaltungsgericht) of Cologne claiming that the

Minister should appoint him as extraordinary professor without a

faculty proposal or that the faculty should propose his appointment.

However, both claims were rejected. The Administrative Court held

on 10 June 1974 that the faculty's opinion was, in principle,

justified but that the negative assessment of the applicant's

personal aptitude did not justify a permanent refusal of his

appointment.

It appears that in the subsequent appeal proceedings before

the Administrative Court of Appeal (Oberverwaltungsgericht) of Münster

attempts were made to reach a settlement of the matter. In this

context the applicant again applied to the faculty in November 1975

that it should propose his appointment as extraordinary professor.

During the proceedings the applicant disclosed his dispute

with the law faculty to the students' representatives (Vertreter der

Studentenschaft). This led to polemic publications of the students in

February 1976. There was also a confrontation between the applicant

and the faculty concerning a ceremony for a criminal law professor on

the occasion of the latter's 70th birthday. In reply to the

invitation to take part in the ceremony, the applicant, in a letter to

all members of the faculty, stated the following:

(German)

"Ich finde es nicht richtig, einen Kommentator

nationalsozialistischer Unrechtsgesetze, mit denen

unschuldige Menschen gemordet und gequält wurden, in

dieser Weise zu ehren und damit als Muster eines

Professors der Rechtswissenschaft vorzustellen."

(English translation)

"I regard it as inappropriate to honour in

this way a person who has published commentaries on

immoral Nazi statutes on the basis of which innocent

people have been murdered and maltreated, and thereby

to set him up as a model law professor."

The applicant alleges that the professor in question had,

inter alia, written a commentary on the National Socialist Act for the

Protection of Aryan Blood (Blutschutzgesetz) and the Ordinance against

People's Parasites (Volksschädlingsverordnung). He had further pleaded

in favour of punishment in accordance with "sound popular opinion"

("gesundes Volksempfinden") even before this concept was introduced

into Nazi legislation. He had finally suggested imposition of the

death penalty on the basis of "guilt by person" ("Täterschuld").

The faculty's dean reported these facts to the Administrative

Court of Appeal in a letter of 11 May 1976. He stated that the

faculty maintained its view that personal aptitude was a criterion to

be considered when making proposals for a university appointment.

Having regard to the Administrative Court's opinion, the faculty had

made a move towards the applicant, inviting him to subscribe an

undertaking that he would, in future, abstain from allegations that

faculty members deliberately sought to cause him damage. The

applicant had refused to do so, and this in itself prejudiced the

necessary co-operation in the faculty. Moreover, the applicant had

not only informed the students of the objective facts of his case, but

had shown them documents containing unjustified allegations against

the faculty. His discriminatory allegations against the criminal law

professor were wholly unjustified as the professor in question had

"shown a markedly reserved attitude vis-à-vis National Socialism and

its legal concepts and had avoided any identification with the

relevant views" ("eine betont distanzierte Haltung gegenüber dem

Nationalsozialismus und dessen Rechtsanschauungen an den Tag gelegt

und jede Identifizierung mit entsprechenden Anschauungen vermieden

hat").

Defamatory behaviour of this kind was absolutely intolerable

in a corporate body requiring a sense of collegiality. Aptitude for

teamwork was an essential requirement for appointment as extraordinary

professor. If appointed, the applicant would, by virtue of Section 211

of the Civil Servants Act (Landesbeamtengesetz), become a permanent

university teacher exercising his main professional function within

the faculty, in which case his activities would have to be

co-ordinated with other colleagues on a much larger scale than if he

were dismissed from his temporary civil servant's post and became a

private lecturer (Privatdozent) with a weekly teaching obligation of

two hours. Moreover, a proposal to appoint the applicant as

extraordinary professor would signal to the public that the faculty

considered him apt in every respect to perform the functions of a

university professor ("Lehrstuhlreife"). This involved a guarantee to

other scientific institutions that the faculty considered him as

qualified not only from the scientific, but also the personal point of

view. Accordingly such a decision was of importance for the reputation

of the faculty as a whole.

In May 1976 the faculty decided also to examine the

applicant's scientific qualification. For this purpose it sought

expert advice from four university teachers in the applicant's

disciplines who were not attached to the university of Cologne.

Only one recommended the applicant's appointment while the others

expressed doubts that the applicant had sufficiently proved his

scientific qualification since the submission of his post-doctoral

thesis. In November 1976 the faculty unanimously decided not to

propose the applicant's appointment as extraordinary professor.

On 27 January 1977 the faculty further decided not to propose

the applicant for any permanent post which might become vacant in

future.

The attempts for settlement thus having failed, the

Administrative Court of Appeal rejected the applicant's appeals in

the proceedings against the Minister on 28 March 1980 and in the

proceedings against the faculty on 20 January 1981. Both judgments

were subsequently confirmed by the Federal Administrative Court

(Bundesverwaltungsgericht) which did not grant the applicant leave to

appeal on points of law (Nichtzulassung der Revision). The applicant

did not lodge a constitutional complaint.

The University of Cologne, acting through its chancellor

(Rektor), had in the meantime on 27 July 1977 terminated the applicant's

appointment as temporary civil servant with effect from 30 September 1977.

The decision was based on the ground that such appointments were by

their nature of a temporary character and aimed at securing a

livelihood to lecturers during an interim period until they found

a permanent teaching post in a university. They could not be

transformed into permanent employment. The applicant had occupied

the post for eleven years, but had been unable to achieve the aim of

a permanent appointment in another university although sufficient

vacancies had existed in his disciplines. A permanent appointment in

Cologne was excluded because of the faculty's above decision of

27 January 1977 and because the applicant's attempts to be appointed

or to be proposed for appointment as extraordinary professor had also

failed. In these circumstances it was not justified that the

advantages connected with the post be reserved for the applicant and

withheld from the many other qualified private lecturers for whom

vacant lecturer posts were not available.

The applicant filed an objection (Widerspruch) claiming

essentially that the termination of his appointment to the temporary

civil servant's post in question lacked a legal basis. It could be

inferred from Section 212 of the Civil Servants Act that tenure of

such a post was possible until reaching the age of retirement.

Furthermore Section 211 provided that lecturers appointed as

extraordinary professors could not be dismissed except under certain

circumstances. As he claimed to be entitled to an appointment as

extraordinary professor, Section 211 should be applied in his case.

The applicant finally complained that the real ground for dismissal -

namely his refusal to participate in the celebration for the

above-mentioned criminal law professor - had not been mentioned in

the chancellor's decision nor discussed at the hearing (Anhörung)

preceding his dismissal.

However, these objections were rejected by a decision

(Widerspruchsbescheid) of the chancellor of 22 February 1978.

The applicant now challenged his dismissal before the

Administrative Court. He repeated his earlier submissions and further

claimed that the (Federal) Act on Principles concerning the

Organisation of Universities (Hochschulrahmengesetz) which had

entered into force on 27 January 1976 had removed the earlier

distinction betweeen university professors and lecturers, introducing

a life tenure as professors for both. The transitional provisions

regulated the appointment of lecturers to new professorships.

Nevertheless the chancellor had justified the applicant's dismissal by

referring to his eleven years of tenure. The dismissal constituted a

serious abuse of discretionary powers by the chancellor. The true

ground was the applicant's justified refusal to participate in a

ceremony in honour of a criminal law professor who had written

commentaries on immoral Nazi statutes. The chancellor had told the

applicant it was irrelevant that the law faculty might also have been

prompted by this incident to seek the applicant's dismissal. He had

further told the applicant that the dismissal was based on general

considerations related to the temporary nature of his post, and not

on personal grounds. However, he had, on the other hand, assured

representatives of the lecturers that the applicant's dismissal was

based on personal grounds, that it therefore was an individual case

and that they must not fear that other lecturers would be dismissed

because of excessive length of tenure. Neither in the university of

Cologne nor elsewhere had an appointment to a lecturer's post ever

been terminated on the ground of excessive length of tenure, although

there were cases where it had lasted up to eighteen years.

The university's chancellor replied to the applicant's action

on 19 April 1978. He stated, inter alia, that already since April 1975

the Minister had made repeated inquiries about the university's

intentions concerning the continued employment of the applicant as a

temporary or permanent civil servant. This was based on general

guidelines issued in 1966 for junior staff ("Mittelbau") of the

universities, according to which a review should be carried out after

eight years of tenure. As a consequence of the university's negative

reactions concerning a permanent appointment of the applicant, the

Minister had on 21 March 1977 proposed the termination of the

applicant's temporary appointment. The dismissal was thus based on

general considerations relating to the nature of a temporary civil

servant's appointment which, under Section 35 of the Civil Servants

Act, could be revoked at any time. The applicant's case was a special

one in this respect as there were no longer any prospects for his

permanent appointment. He could not invoke Sections 211 or 212 of the

Act which contained special provisions for particular situations.

However, the applicant's case came under the general rule that a

temporary appointment could, in principle, be revoked, and he must

also have been aware of that. The grounds which the applicant

suspected to be the true reasons behind his dismissal had not been

relevant to the decision terminating his appointment. The

chancellor's decision had been exclusively based on objective reasons

and not on considerations concerning the applicant personally. The

faculty's decision not to propose him for appointment to a permanent

post resulted from an examination of his scientific qualification.

The statements in the faculty's letter of 11 May 1976 concerning the

applicant's personal behaviour were irrelevant in this context. They

had been submitted in proceedings relating to a wholly different

matter, namely the faculty's earlier decision to refuse a proposal

for an appointment as extraordinary professor on the ground that the

applicant lacked personal aptitude for such a post.

The proceedings were then adjourned pending the outcome of the

litigation concerning the appointment as extraordinary professor.

They were resumed on 8 April 1981.

On 15 July 1981 the Administrative Court dismissed the

applicant's action on the following grounds: The relevant provisions

of the Civil Servants Act gave the university's chancellor discretion

to terminate a temporary appointment. Sections 34 and 35 of the Act

had been complied with. The chancellor furthermore had not overstepped

the limits of his discretionary powers nor used them in a manner which

was incompatible with their aim.

Termination of the applicant's appointment was justified under

Section 35 by objective reasons related to the specific nature of the

applicant's post. The 1966 guidelines showed that continued tenure of

such a post was regarded as unjustified if, after eight years, the

university did not intend to offer permanent employment to the person

concerned. The applicant had not obtained a permanent post in another

university and the law faculty of Cologne had denied the applicant's

scientific qualification for an appointment as university professor.

The Administrative Court of Appeal had confirmed the lawfulness of

this decision. It was therefore manifest that the applicant could no

expect to obtain a permanent post. The applicant had not proved that

other cases of long tenure up to eighteen years were comparable to his

case. He was in a special situation in that he definitely could not

longer achieve the aim connected with a lecturer's post, while the

situation of other lecturers with a tenure of eleven or more years

might be different in this respect.

Finally, the applicant could not rely on the Federal Act on

Principles concerning the Organisation of Universities. The

chancellor was not bound to maintain the applicant's temporary

appointment with a view to giving him a chance to apply for

appointment to a new professorship under the transitional provisions.

Such transfer was not mandatory in all cases, and in any event it also

required an appropriate qualification (Section 75 paras. 3 and 5 of

the Federal Act). As the lack of qualification was manifest in the

applicant's case, the chancellor's discretion could not be restricted

in this respect.

In view of the finding that the termination of the applicant's

temporary appointment was justified because he had no longer any

chance to be appointed permanently, there was no need to consider the

applicant's submissions regarding the allegedly true reasons behind

the chancellor's decision and the Administrative Tribunal was only

required to review the facts on which this decision had actually been

based. The letter of the dean of the law faculty of 11 May 1976 was

irrelevant in this context as it had been submitted in other

proceedings relating exclusively to the faculty's refusal to propose

the applicant's appointment as extraordinary professor because he

lacked the required personal aptitude.

The applicant's appeal (Berufung) against this decision was

dismissed by the Administrative Court of Appeal on 2 September 1983

after it had rejected a challenge of the judges and also the

applicant's requests for evidence. The Court held that the

applicant's right to be heard had not been violated. Even if the

question of the applicant's lack of chances for a permanent

appointment had not been sufficiently discussed at first instance, he

had had an opportunity to raise it in the appeal proceedings. The

Administrative Court had rightly dismissed the action; in particular

it had correctly held that an appointment to a temporary civil

servant's post as lecturer could be terminated on the basis of

objective reasons. The applicant could not rely on the Act on

Principles concerning the Organisation of Universities or related

statutes nor on the allegation that no other lecturer's appointment

had ever been terminated. As the university had submitted, this was

due to the fact that a need for termination against the will of the

person concerned had never arisen. In the present case the dismissal

had been based on an objective ground related to the nature and

purpose of a lecturer's post, because at the time of the chancellor's

decision there had been no prospect for the applicant's appointment

within a reasonable time to a permanent post either in Cologne or

elsewhere.

It was also justified to consider the interests of other

lecturers for whom no temporary post was available at that time.

The alleged assurances given by the chancellor to other lecturers that

they would not be dismissed for excessive length of tenure provided no

argument to the applicant that he had been discriminated against

contrary to Article 3 of the Basic Law. He overlooked that in his

case it was not only the length of tenure, but also the lack of

chances for a permanent appointment which justified the termination of

his temporary appointment. In this respect the applicant's situation

was apparently different from that of other lecturers with a

comparative length of tenure. For the same reason he could not

criticise that no general instructions had been given to terminate

appointments after a certain length of tenure, and that the university

had only terminated his appointment.

It was true that the faculty was responsible for facts which

had led to the termination of his appointment in that it had refused

to propose his appointment as extraordinary professor and had decided

not to consider him for any other permanent civil servant's post. In

this context the faculty had stated certain reasons in its letter of

11 May 1976. However, the chancellor of the university had to take

into account only the actual consequences of the faculty's decisions,

i.e. the lack of prospects for a permanent appointment, without

considering the circumstances under which these decisions had been

taken. Accordingly the faculty's letter of 11 May 1976 could not be

regarded as relevant. Finally, it was also irrelevant that the

university's representative had stated at the hearing before the

Administrative Court of Appeal: "Since the dismissal had to be

pronounced it was necessary to think about the reasons on which to

base the dismissal." ("Nachdem die Entlassung ausgesprochen werden

musste, musste man sich Gedanken machen, weshalb die Entlassung

ausgesprochen werden musste.")

The Court refused leave to appeal on points of law to the

Federal Administrative Court. This decision was confirmed by the

Federal Administrative Court on 5 July 1984. The Federal

Administrative Court considered that none of the grounds invoked by

the applicant as justifying the admission of an appeal on points of

law had been established. It could not be challenged that the Court

had refused to take evidence on certain facts which it considered as

irrelevant. This was so even if the Court's views concerning the

relevance of those facts was doubtful from a legal point of view. The

Administrative Court of Appeal had regarded as irrelevant that no

general instructions had been given to terminate temporary

appointments after a certain length of tenure, as it had considered

the termination of the applicant's appointment as lawful in the

individual case. That case had been considered as showing a specific

feature, namely a lack of chances to be appointed to a permanent post

within a reasonable period. In substance the applicant thus only

sought to challenge the Court's assessment of the facts. A complaint

of procedural defects in the establishment of the facts could not be

based on such an argument. Finally, it did not violate fundamental

procedural principles that the Court had not discussed the applicant's

refusal to take part in a ceremony in honour of a criminal law

professor. The Court was only required to set out the reasons which

it considered as relevant for its judgment. It had stated that the

university's chancellor was bound to take into account the

consequences of the faculty's decision, namely the lack of chances for

a permanent appointment of the applicant, while he could disregard the

reasons which had led to the faculty's decision. On this basis the

Court had considered the faculty's letter of 11 May 1976 irrelevant

for its judgment. In these circumstances there was no necessity for

the Court to deal with the applicant's confrontation with the faculty

in 1976.

The applicant then lodged a constitutional complaint

(Verfassungsbeschwerde) in which he invoked, in particular, the

freedom of expression and freedom of science (Article 5 of the Basic

Law), the constitutional principles governing the status of civil

servants (Article 33 of the Basic Law), the principle of equality

(Article 3 of the Basic Law) and the right to be heard (Article 103 of

the Basic Law). However, on 30 October 1984 a three-judge commission

of the Federal Constitutional Court (Bundesverfassungsgericht)

refused to accept the complaint, finding that it had insufficient

prospects of success. It stated that the termination of the

applicant's appointment was primarily an issue of the application of

ordinary law by the competent Administrative Courts. A review by the

Federal Constitutional Court was possible only within narrow limits if

the decisions of these courts showed disregard for the principles of

the constitution or arbitrariness. However, there was no appearance

of arbitrariness or of the violation of specific constitutional

guarantees. In particular, there was no violation of the principle of

equality because even the applicant failed to cite a comparable case

where a lecturer had been maintained in a temporary post despite a

lack of any chance to be permanently appointed. Nor was there a

violation of the authority's duty to protect the interests of its

temporary civil servant (Fürsorgepflicht des Dienstherrn) as the

applicant had been given sufficient opportunities after his

qualification as lecturer to find an adequate position. There was no

constitutional obligation to maintain him in his post even having

regard to the specific circumstances of the case, in particular the

age of the applicant. There was no room to apply Article 5 of the

Basic Law. The judicial decisions were exclusively based on the

consideration that the length of tenure and the manifest lack of

chances for a permanent appointment justified the termination of the

applicant's temporary appointment. Constitutional principles had not

been disregarded. Article 5 para. 3 of the Basic Law did not

stipulate any right of persons exercising scientific functions in the

universities to remain in office without restrictions or time-limits.

The application of the general civil servants statutes to these

persons remained unaffected by Article 5 para. 3.

Finally, there was no violation of Article 103 para. 1 of the

Basic Law. The applicant had been given an opportunity to be heard on

all aspects of his case before the Administrative Court of Appeal.

Any shortcomings concerning the right to be heard at first instance

had been cured in this way. There was no constitutional obligation of

the courts to give hints or discuss specific matters if only the right

to be heard had been respected. Nor did Article 103 protect against

court decisions in which certain facts or pieces of evidence were not

discussed due to provisions of formal or substantive law. Finally,

Article 103 could, in principle, not be violated by court decisions in

respect of which it was alleged that they contained wrong assessments

of the facts or that the importance of certain facts was not reflected

in the legal conclusions.

COMPLAINTS

The applicant now alleges that his rights under Articles 6, 9

and 10 (Art. 6, Art. 9, Art. 10) of the Convention have been violated.

As regards Article 6 (Art. 6), the applicant claims that he has not had

a "fair hearing" because the courts based their decisions on arguments which

had not been discussed in the proceedings and because they refused to take any

evidence on the relevant facts. The applicant further complains that the

proceedings lasted seven years and thus were not conducted within "reasonable

time".

As regards his complaints under Articles 9 and 10 (Art. 9, Art. 10) of

the Convention, the applicant submits that he must, in principle, be free to

express his opinions and ideas concerning judicial murder by the Nazis,

including the view that he disapproves of a ceremony of the law faculty in

honour of a person who had written commentaries on immoral Nazi statutes.

However, because of this action he lost his post as a university lecturer. This

sanction was much more serious than that considered in application No. 9251/81,

G. v. Federal Republic of Germany (Dec. 16.12.82, unpublished), because he was

not only refused access to a civil servant's post, but lost his income after

eleven years of teaching at the university at the age of 55, when it was

practically impossible for him to start a new professional career. Moreover, he

was not only sanctioned for having expressed his opinion, but he was also

prevented from expressing ideas. While he could continue some teaching and

research activities, he was forced to find another source of income, which

necessarily implied a practical reduction of his academic activities.

Moreover, his reputation had been seriously damaged by the discriminatory

revocation of his university appointment.

The applicant claims that the restriction imposed on the

exercise of his freedom of expression is not justified by Article 10

para. 2 (Art. 10-2). It is not unlawful to disapprove of a ceremony in honour

of a person who had been involved in Nazi crimes. A democratic society must

allow criticism of Nazi political murderers and, in his view, it amounts to a

mockery of Nazi victims if a ceremony is held in honour of such a person. He

had done nothing but disapprove of such an action.

As his attitude was prompted by fundamental ethical

orientations, the applicant must be entitled to invoke his freedom

of conscience. On this basis he claims that there has also been a

breach of Article 9 (Art. 9) of the Convention.

THE LAW

1 The applicant submits that the termination of his appointment

as temporary civil servant, following refusals of permanent

appointment, was a sanction for his having expressed disapproval of

a university ceremony held in 1976 in honour of a professor who

allegedly had published commentaries on immoral Nazi statutes. He

claims that this sanction amounted to an unjustified interference with

his freedom of expression (Article 10 of the Convention) (Art. 10) and his

freedom of conscience (Article 9 of the Convention) (Art. 9).

a) The Commission notes that the decision to terminate the

applicant's temporary appointment was based on the ground that he had

been unable to obtain permanent appointment. It further notes that

the refusal of permanent appointment as extraordinary professor was

the subject of court proceedings which terminated in 1981 at the

Federal Administrative Court. Insofar as the applicant's above

complaint that he was sanctioned for the expression of specific

opinions concerning the above university ceremony is, in substance,

directed against the refusal of permanent appointment as extraordinary

professor, the Commission cannot deal with the matter. The applicant

failed to lodge a constitutional complaint in this respect and in any

event did not complain to the Commission within a period of six

months from the final domestic decision. The applicant thus did not

comply with the requirements of Article 26 (Art. 26) of the Convention both as

regards the exhaustion of domestic remedies and the time-limit. This part of

the application must accordingly be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

b) Insofar as the applicant's above complaint is directed against

the refusal to appoint him to another permanent university post, the

Commission notes that the applicant did not take any remedies against

the relevant faculty decision of 27 January 1977. This part of the

application must therefore again be rejected under Article 27 para. 3

(Art. 27-3) of the Convention for failure to exhaust domestic remedies as

required by Article 26 (Art. 26).

c) Lastly, insofar as the applicant's above complaint is directed

against the subsequent decision to terminate his temporary

appointment, he has exhausted domestic remedies by lodging a

constitutional complaint and has submitted his application within

six months from the Federal Constitutional Court's decision of

30 0ctober 1984. However, the applicant's dismissal was not by its

terms based on the 1976 incident. The university relied on the fact

that the applicant had not been able to obtain a permanent appointment

and had no prospects to obtain such an appointment. This reason was

found to be sufficient by the courts of all instances to justify the

termination of the applicant's temporary appointment, and it was

repeatedly confirmed that the grounds underlying the refusals of

permanent appointment, including the statements made by the applicant

in 1976, were irrelevant in this context. It was pointed out that the

said statements had been considered in different proceedings, namely

those concerning the refusal of the applicant's permanent appointment

as extraordinary professor, which had been concluded in 1981.

The applicant submits that, notwithstanding the reasons adduced

by the university for the termination of his temporary appointment, the

real reason behind this measure was the fact that he had expressed

disapproval of the university ceremony in 1976. However, this

argument was expressly rejected by the domestic courts and the

Commission finds no indication that this finding was arbitrary or

unreasonable. There is no indication in the file that the applicant's

dismissal was in fact based on the expression of critical views

concerning the said university ceremony.

The right to employment in the public service is not as such

guaranteed by the Convention (cf. Eur. Court H.R., Glasenapp judgment

of 28 August 1986, Series A no. 104, pp. 25-26 paras. 48-49; Kosiek

judgment of 28 August 1986, p. 20 paras. 34-35). As it has not been

established that in the present case the applicant's dismissal from

the public service was based on an expression of opinion, there is no

appearance of an interference with his rights under Article 10 (Art. 10) of the

Convention, which guarantees the freedom of expression. Nor is there any

appearance, in the decision terminating his employment, of an interference with

his freedom of conscience as guaranteed by Article 9 (Art. 9) of the

Convention. It follows that the applicant's complaints in this respect are

manifestly ill-founded and must be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

2 The applicant finally complains that he did not have a fair

hearing and that his case was not determined within a reasonable time.

He invokes Article 6 (Art. 6) of the Convention in this respect.

However, Article 6 (Art. 6) is only applicable in cases which concern

the determination of civil rights and obligations or of criminal

charges. In the present case there is no question of a criminal

charge. As regards "civil rights and obligations", it has been

established in the Commission's case-law that litigation concerning

access to, or dismissal from, a public appointment in the civil

service falls outside the scope of Article 6 para. 1 (Art. 6-1) of the

Convention (cf. e.g. No. 9248/81, Leander v. Sweden, Dec. 10.10.83, D.R. 34

p. 78, at p. 83; concerning a university lecturer No. 8963/80, X v. Federal

Republic of Germany, Dec. 10.12.80, unpublished). It follows that the

applicant's procedural complaints are incompatible, ratione materiae, with the

provisions of the Convention and must accordingly be rejected under Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission

&SDECLARES THE APPLICATION INADMISSIBLE.&S

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)