Headnotes

to the Order of 8 July 1997

– 1 BvR 1243/95 –

– 1 BvR 1247/95 –

– 1 BvR 744/96 –

1. 1. The requirements for access to the public service laid down in Article 33.2 of the Basic Law also apply if the examination of the requirements for access is carried out at a later date in connection with the decision on termination of an employment relationship under Annex I chapter XIX subject area A part III number 1.4 number 1 of the Treaty of 31 August 1990 between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity (Vertrag vom 31. August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands, Unification Treaty).

2. 2. The overall assessment of the personality of the employee that is constitutionally required in this connection may not be shortened by treating a post earlier held by the employee as if it had the weight of a statutory presumption that establishes a lack of aptitude if it is not refuted.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 1243/95 –

– 1 BvR 1247/95 –

– 1 BvR 744/96 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

– 1 BvR 1243/95 –,

– 1 BvR 1247/95 –,

– 1 BvR 744/96 –

the Federal Constitutional Court – First Senate –

with the participation of Justices

Vice-President Seidl,

Grimm,

Kühling,

Seibert,

Jaeger,

Haas,

Hömig,

Steiner

held on the basis of the oral hearing conducted in Leipzig on 11 and 12 March 1997:

Judgment

1. 1. a) The judgments of the Federal Labour Court (Bundesarbeitsgericht ) of 17 February 1994 – 8 AZR 128/93 –, of the Saxony Higher Labour Court (Landesarbeitsgericht ) of 2 December 1994 – 3 Sa 475/94 – and of the Leipzig-Stadt District Court (Kreisgericht [Translator’s note: forerunner of the Amtsgericht ]) – 20th Chamber for Labour Law – of 8 May 1992 – 20 Ca 246/91 – violate the first complainant’s fundamental right under Article 12.1 in conjunction with Article 33.2 of the Basic Law. The judgments of the Federal Labour Court and of the Higher Labour Court are overturned. The matter is referred back to the Federal Labour Court. * (* The wording "Federal Labour Court" instead of the original "Higher Labour Court" is based on the order of the Senate of 7 October 1997, correcting the text. ) *

2. b) Apart from this, the constitutional complaint is dismissed as inadmissible.

3. c) The Land (state) Saxony shall reimburse the complainant’s necessary expenses.

4. 2. a) The judgment of the Thuringian Higher Labour Court of 19 October 1994 – 6 Sa 1346/93 – violates the second complainant’s fundamental right under Article 12.1 in conjunction with Article 33.2 of the Basic Law. It is overturned. The matter is referred back to the Higher Labour Court.

5. b) The Land Thuringia shall reimburse the complainant’s necessary expenses.

6. 3. The constitutional complaint of the third complainant is rejected as unfounded.

Reasons:

A.

The constitutional complaints relate to the termination by notice of teachers who had prominent functions in the school administration of the German Democratic Republic and in the German Socialist Unity Party (Sozialistische Einheitspartei Deutschlands , SED).

I.

The Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity (Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands, Unification Treaty ), approved by the Bundestag and the Bundesrat in the Act of 23 September 1990 on the Treaty of 31 August 1990 between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity (Gesetz vom 23. September 1990 zu dem Vertrag vom 31. August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands , Unification Treaty Act, Federal Law Gazette, Bundesgesetzblatt II p. 885) governs inter alia the legal relationships of the members of the public service in the area of the former German Democratic Republic. Under Article 20.1 in conjunction with Annex I chapter XIX subject area A part III number 1.4 number 1 of the Unification Treaty (hereinafter: subsection 4 number 1 of the Unification Treaty), the termination by notice of an employment relationship in the public service is also admissible if the employee does not fulfil the requirements by reason of lack of professional qualification or personal aptitude (on the meaning and purpose of the provision, cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts , BVerfGE, 92, p. 140 [at pp. 142, 151-152]).

II.

1. a) The first complainant is qualified as a schoolteacher and a special school teacher, and in the German Democratic Republic she was continuously employed at special schools. From 1986 to 1989, she was a deputy principal of extra-curricular activities and from the end of September 1989 to January 1990 she was a principal. From 1970 to 1973 and from 1976 to 1988 she was a Freundschaftspionierleiterin [Translator’s note: pedagogically trained youth functionary appointed by the youth organisation Freie Deutsche Jugend , Free German Youth, responsible for the political and pedagogical guidance of all the members of the Free German Youth in a school], and from 1983 to 1989 she was an honorary party secretary. The defendant Land Saxony gave her notice of termination of her employment, on the basis of subsection 4 number 1 of the Unification Treaty.

b) The District Court found against the plaintiff in the action for protection against unfair dismissal. It held that the plaintiff was personally unsuited to be a teacher. The court stated that it could review the termination only to determine whether it was clearly lacking in objectivity, unreasonable and arbitrary. Judged by these criteria, it was not defective. A party secretary had been expected to have a particular degree of identification with the goals of the party and the state and to support these without reservation. It was not necessary to provide proof of specific misconduct.

The Higher Labour Court, after taking evidence on the complainant’s duties and how she had carried out those duties, overturned the judgment of the court of first instance and found in favour of the plaintiff in her action for protection against dismissal. The function of the party secretary, in particular at a special school, ought not to be overestimated; moreover, the complainant had wanted to use her party function in order to do something for the pupils entrusted to her.

The defendant Land appealed to the Federal Labour Court, which overturned the decision of the Higher Labour Court and referred the dispute back to the Higher Labour Court. It held that the fact that the complainant had repeatedly held the office of a party secretary indicated that she lacked aptitude. It was not necessary for her to have taken part in repressive individual measures or exercised functions that indicated she had been actively involved in the repressive system. In the German Democratic Republic, the party secretary had been a member of the school administration, had taken part in every political decision of the principal and had kept watch on the principal with regard to his achievement of the political goals prescribed. He or she had reported to the district leadership of the SED on the political climate at the school and had represented the government party at the school. Exactly the same applied in the case of special schools, although political supervision by the party secretaries had been of less importance there. If there were special circumstances that suggested that the complainant’s efforts for the goals of the SED were on a lesser scale, she had to give evidence of them. Similarly, she had to submit in detail what benefits she had wanted to obtain for the children entrusted to her through her activity as party secretary, and what she had actually achieved. It did not exonerate her that there were no concrete accusations that she had used her office to the detriment of colleagues, parents or children.

After taking evidence again, the Higher Labour Court rejected the appeal. It held that it was impossible to establish that the role of the party secretary at the complainant’s school had been substantially different from that in other schools. At her school too, the control of the party had been ensured.

It could be inferred that the complainant had wanted to obtain influence in the SED in order to achieve something for her school and her pupils. However, this did not contradict the assumption of a particular identification with the SED. She had essentially fulfilled her duties as party secretary. Admittedly, political questions had not determined the everyday life of the school, which resulted above all from the character of the school. Nor had there been a doctrinaire atmosphere there. However, the complainant had fulfilled her political duties and represented the party doctrine in the school, albeit as a rule without particular effort and not in an aggressive and dogmatic manner. As the representative of the SED, she had been responsible for the political climate at the school. A critical colleague who had been disturbed by the conformist calm of the staff had been reprimanded in conversations in which the complainant had also been involved. The picture she had presented of a school that was largely politically abstinent must be regarded as refuted, the court held. Nor was she exonerated by the fact that at the beginning of October 1989 she had persuaded an employee of the Ministry for State Security to break off his investigation of a teacher who had taken part in one of the Monday demonstrations for political change in the German Democratic Republic. At this date it had no longer been in the SED’s interests to take repressive measures against demonstrators.

Her complaint against denial of leave to appeal was dismissed as inadmissible […].

c) In her constitutional complaint, the complainant challenges a violation of her rights under Article 33.2, Article 12.1, Article 3.1 and 3.3 and Article 5.1 of the Basic Law, and Article 2.1 of the Basic Law in conjunction with the obligation to establish and maintain a social state.

[…]

2. a) The second complainant taught mathematics, physics and astronomy in the German Democratic Republic. In addition, from 1973 she was the deputy planning director, from 1982 to 1987 the district school inspector and from 1987 to 1990 the head of the district school inspection department. Apart from this, from 1982 to 1984 she exercised the functions of a deputy party group secretary of the SED and from 1987 to 1989 those of a secretary of the department party organisation with approximately 40 party members. From May 1990 she worked in the school authority; from September 1991 she was again employed as a teacher of mathematics and physics in years 8 to 10 [Translator’s note: teaching pupils aged from 13 to 16]. The Land Thuringia gave her notice of termination of employment in March 1992.

b) The Labour Court found in favour of the plaintiff in her action for protection against dismissal. It found that the Land had not set out how it had formed the opinion that the complainant was still holding fast to the system of the German Democratic Republic.

The Higher Labour Court overturned the judgment of the court of first instance and found against the plaintiff in the action for protection against unfair dismissal. Those who in the German Democratic Republic had taken on offices and functions that went beyond mere fellow travelling, motivated by the desire for an undisturbed life and unhindered exercise of a profession, had made themselves mainstays of the system of repression. They could not, as teachers, credibly represent the ideals they had formerly fought against. The situation was different only in the case of those who, despite their functions, or exploiting the possibilities these gave them, had documented dissenting opinions or had given up their functions. The court held that the functions previously exercised were conclusive indications when assessing their aptitude. The termination was unjustified only if, on account of the special features of the individual case, it was not possible to draw conclusions from this for the specific conduct of the complainant.

According to the court, the complainant’s activity as a school inspector had required that she identify herself with the system. The course of her life permitted no doubts that she had behaved as she was expected to. She submitted that she had fears in connection with taking on the function of a school inspector, but there was no verifiable basis for this. To the extent that she had deviated from government and party guidelines, this was not an indication that this expressed the overall picture of her practice of her profession. On the contrary, everything suggested that these were individual incidents. The fact that after the end of the German Democratic Republic she had adapted to the changed circumstances was evidence only of her particular adaptability, but not of her conviction.

c) In her constitutional complaint, the complainant challenges a violation of her rights under Article 12.1 in conjunction with Article 33.2 and 33.3 of the Basic Law and under Article 2.1 of the Basic Law.

[…]

3. a) The third complainant is a teacher with a university qualification of chemistry and English. In 1972, at the age of 27, he was made deputy principal of a small secondary school and at the same time party secretary. From 1977 to 1990 he was the principal of the school. In March 1990 he resigned from his post, after a majority of the staff had suggested this. However, his colleagues were unanimously of the opinion that he should continue to work as a teacher. The Land Saxony terminated his employment in June 1992.

b) His action for protection against unfair dismissal failed at all instances. The Higher Labour Court based its decision essentially on the fact that the complainant’s teaching career was a typical party career in the sequence of his functions as party secretary and school principal. He had given up his office as party secretary only because it had been incompatible with the post of principal. For a long period of time, he had identified himself in a particular way with the SED state. The post of a school principal did not in itself support the conclusion that he identified himself in a particular way with the state. However, in the present case it had to be assumed that the complainant, who had been made principal at the age of only 32, had actively supported the goals of the SED. If this post was given to a person at an unusually young age following a long period as a party secretary, this suggested he had shown particular commitment in promoting the goals of the German Democratic Republic.

The complainant had not refuted this particular identification with the state. Nor were any circumstances evident from which it could be inferred that the complainant’s declared belief in the Basic Law had been irrefutably manifested. The fact that he had been teaching since 1 January 1990 without complaints being made was not sufficient for this, in particular if one considered that before this he had done particular service to the goals of the SED state for eighteen years.

The Federal Labour Court approved the opinion of the Higher Labour Court. It held that the complainant had given up his office as a party secretary only in order to take on the post of school principal. All his activity as a party secretary and school principal was to be seen as a uniform party career. In addition, he had carried out his duties as a principal in a way that was close to the party line. He had endeavoured to enforce the SED’s goals in education and training, had declared his support for its ideology and attempted forcefully to dispel any doubts among his colleagues. As a principal, he had been more committed to ideological work than to other areas.

c) In his constitutional complaint, the complainant challenges that he is being reproached for conduct that came to an end before the Basic Law applied. Nor, according to him, was account taken of the fact that he neither grew up in the Federal Republic of Germany nor was educated there. He says he is deprived of the possibility to argue that his behaviour represented a lawful alternative, and that therefore the judgments are also in conflict with the prohibition on retroactivity. It would have been admissible to terminate his employment only by reason of a specific disciplinary offence.

[…]

III.

1. The Saxon Ministry of Justice, in the name of the Saxon Land government, gave an opinion on the constitutional complaint of the third complainant. It regards the complaint as unfounded. […]

2. In the oral proceedings, the federal government and the Laender governments of Saxony and Thuringia gave their opinions. On the legal and factual position of the party secretaries at the schools in the German Democratic Republic and on the duties and influence of the school inspectors and principals working there, the expert witnesses Dr. habil. Gert Geißler [Translator’s note: Dr. habil. qualifies the holder to teach at a professorial level in higher education], Prof. Dr. Heinz-Elmar Tenorth and Dr. Stefan Wolle were heard.

B.

The constitutional complaint of the first complainant is inadmissible to the extent that it is directed against the judgment of the Chemnitz Higher Labour Court of 28 October 1992 and the order of the Federal Labour Court of 25 April 1995. […]

Apart from this, the constitutional complaints are admissible.

C.

The first and second constitutional complaints are well-founded to the extent that they are admissible. The judgments challenged violate the complainants’ freedom of occupation (Article 12.1 of the Basic Law in conjunction with Article 33.2 of the Basic Law). However, the third constitutional complaint is unfounded.

I.

Article 12.1 of the Basic Law protects, inter alia , the free choice of a place of work. In addition to the decision in favour of a specific occupation, this also comprises the intention of the individual to keep the place of work. The fundamental right gives protection against all state measures that restrict this freedom of choice (for details on this, cf. BVerfGE 84, p. 133 [at p. 146]; 92, p. 140 [at p. 150]).

Where employment contracts in the public service are concerned, Article 33.2 of the Basic Law contains a supplementary provision. It makes the employment of applicants for a public post dependent on particular requirements (aptitude, qualifications, and professional achievement), and demands that these requirements are applied uniformly. Only those who are physically, emotionally, and by character adequate to the post applied for have aptitude in the meaning of Article 33.2 of the Basic Law. In addition, aptitude includes the ability and the inner willingness to carry out one’s official duties in compliance with the principles of the constitution, in particular to observe the citizens’ civil rights and liberties and to observe the rules of a state under the rule of law (cf. BVerfGE 92, p. 140 [at p. 151]).

The decisions challenged, which confirm the terminations of employment at state schools, encroach upon these rights of the complainants.

II.

1. a) The choice of a place of work, just like the other rights guaranteed by Article 12.1 of the Basic Law, can be restricted by statute. The requirements for this are higher than for provisions relating to the exercise of a profession. A restriction is at all events justified if compelling reasons of public interest require it (cf. BVerfGE 92, p. 140 [at pp. 151-152]) and the principle of proportionality has been observed. The reasons of public interest include in particular the concerns taken account of by Article 33.2 of the Basic Law in the requirements for admission to the public service. These also apply if – as here – the assessment of the requirements for admission takes place subsequently, on the basis of the Unification Treaty, as part of the decision on whether to maintain an employment relationship.

It is part of the aptitude of teachers at state schools that they can convey to the pupils the fundamental principles of a free and democratic state under the rule of law. This includes not only the communication of knowledge in civics. Rather, the young people are also to be prepared for their role as citizens of the community with the associated rights and responsibilities. In order to develop such an attitude educationally, teachers themselves must support them credibly. Inner reservations, on the other hand, weaken their power of persuasion as models. These reservations come to light in everyday school life, whether consciously or unconsciously, even if the teacher does not expressly acknowledge them. To this extent, the aptitude for employment in the state educational system depends in a particular way on the educator’s mental attitude.

b) The special ground of termination contained in Annex I chapter XIX subject area A part II number 1.4 number 1 of the Unification Treaty (hereinafter: subsection 4 number 1 of the Unification Treaty), on which the decisions challenged are based, satisfies these requirements, as the Federal Constitutional Court has already held (cf. BVerfGE 92, p. 140 [at pp. 151-152]).

2. a) In interpreting and applying statutes that restrict fundamental rights, however, the courts must take account of the importance of the fundamental right restricted in creating values.

aa) If it is a question of the interpretation and application of labour-law provisions on termination of employment in the public service, the courts must take account of the protection given by Article 12.1 of the Basic Law in this respect. If at the same time there is a question as to aptitude for the public service, Article 33.2 of the Basic Law supplements Article 12.1. These rights are violated if there is a fundamental failure to recognise their meaning and scope when the labour-law provisions are interpreted and applied. On the other hand, it is not for the Federal Constitutional Court to monitor how, in detail, the courts grant the protection on the basis of law below the constitutional level and whether their interpretation ensures the best possible protection (cf. BVerfGE 92, p. 140 [at pp. 152-153]).

bb) In the light of the constitutional provisions named, when subsection 4 number 1 of the Unification Treaty is interpreted, it is not admissible to disregard the discernible intention of the Unification Treaty that the employees of institutions of the public service of the German Democratic Republic that were not wound up should largely be integrated into the public service of the Federal Republic of Germany and their employment contracts maintained, unless in the individual case deficiencies in aptitude in the meaning of Article 33.2 of the Basic Law are found. Since employment and promotion in the public service of the German Democratic Republic in general depended on an increased loyalty to state and party and on the readiness to become involved in party or social organisations, the positions or functions associated with this cannot, as a rule, in themselves alone justify a termination. The personal aptitude of the employee for continued employment in the public service of the Federal Republic must, on the contrary, be established on the date of the termination on the basis of a forecast that requires a specific assessment of his or her complete personality, based on the individual case. However, the employee’s behaviour and his or her attitude in the past are an essential source of knowledge for this purpose. This applies in particular in schools, because it is to a large extent impossible for an official review to determine whether the teacher is credibly fulfilling his or her duty of civic education. Positions in the state and the party which were formerly held by the employee may, depending on their status and on the influence associated with them, be indications of a particularly high degree of identification with the system of government of the German Democratic Republic, but they do not dispense with the need for an assessment of the teacher’s conduct as a whole, including his or her development after the accession (cf. BVerfGE 92, p. 140 [at pp. 154 et seq.]).

cc) The overall assessment of the employee that is constitutionally required may not be limited by attributing to a position earlier held by the employee the weight of a statutory presumption that establishes a lack of aptitude if it is not refuted. This applies, at all events, to the positions or functions in the school sector that are the subject here.

(1) The examination of the expert witnesses revealed the following in this connection:

The school party secretary, a teacher, was elected by the SED members on the staff of the school. He or she had to be loyal to the party line and ready to take on the function. In principle, such teachers were not released from their official duties, but they were not usually given the duties of class teachers. As a result of their work as party secretaries, their chances of promotion increased. There were no further occupational advantages associated with the post. Quite frequently, the function tended to be regarded as burdensome and was taken on only at the urging of the other teachers. In small staffs it sometimes happened that the duties were given to the party member who as yet had no other function.

The party secretary was obliged to carry out the instructions of the higher party levels. However, the influence of the party secretary on the school administration and the organisation of the lessons was limited, by reason of his or her function. The party secretary was called in to the consultations on all important matters, but had no competence to decide. Essentially, he or she was in charge of the political and ideological work at the school. Party secretaries reported on this to the superior party organisation every month and in the case of unusual events, in particular where pupils were involved in political activities. In addition, in talks with teachers and pupils, they had to represent the party line and to remove ideological uncertainties. Towards the teachers who belonged to the SED the party secretary could call for party discipline under threat of sanctions, such as for example expulsion from the party; apart from this, disciplinary power lay with the principal.

The principal was responsible for the political, pedagogical and organisational management of the school. He or she was authorised to issue instructions to all the school staff and exercised disciplinary powers towards the teachers and the pupils. The principal had a duty to conduct his administration of the school on the basis of the resolutions of the SED and of statutes and other legal provisions. He or she in turn was subject to the instructions and the supervision of the district school authority, which acted through the head of the district school inspection department. Subordinate to the latter were several school inspectors, who were responsible for the regular supervision of the leadership work, in particular that of the principals.

But the possibilities of influence and organisation given by these positions must be seen in the overall context of school organisation in the German Democratic Republic. The education system had a more hierarchical structure there than other branches of administration. The Ministry of Public Education (Ministerium für Volksbildung ) exercised a direct influence on the organisation of everyday school life and the contents of the teaching. The influence of the lower levels of management was correspondingly restricted. However, a certain scope for action and evaluation was preserved. How it was exercised depended largely on the individual administrative and party functionaries at the school or administrative office involved and from their relationship to each other.

(2) With regard to the interpretation and application of subsection 4 number 1 of the Unification Treaty, on the one hand it follows that the exercise of the administrative functions in the area of party leadership at school and school administration that are at issue here is capable of giving rise to doubts as to the personal aptitude of the person involved for the teaching profession in a democratic polity, even without special circumstances being involved. The particular identification with the goals of the state party required of those who exercised these functions and their duty to carry out the orders of party and state suggest that they were committed to these goals out of inner conviction. There is therefore cause to examine how far this was actually so in the individual case and whether this conviction has perhaps now altered to such an extent that the teachers concerned can now credibly undertake educative duties in a free democratic state under the rule of law.

On the other hand, these posts were neither so prominent nor so influential that their holders should be prevented, merely by reason of outward appearances, from exercising the profession of a teacher in the Federal Republic of Germany. In addition, the measure of identification with the goals of the SED and the government of the German Democratic Republic required of school party secretaries, school principals and school inspectors is not so different from the loyalty and cooperation generally required and customary in the public service there that lack of aptitude for the teaching profession after the accession could be inferred from this alone (cf. BVerfGE 92, p. 140 [at p. 156]).

Altogether, therefore, if no further inculpatory circumstances are present, it cannot be concluded from the fact alone that the persons concerned formerly held the posts and exercised the functions here referred to that they lack aptitude. Acts of a severely repressive or damaging nature, for example, may constitute such circumstances (cf. BVerfGE 92, p. 140 [at pp. 156-157]). In schools, these may include extremely unfavourable treatment of pupils that must be considered plainly inappropriate, even taking into account the social circumstances in the German Democratic Republic. It cannot in general be very difficult for the school authorities to determine such matters, since the conduct of the persons formerly in charge took place largely in public view and was clearly discernible not only for the staff, but in general also for pupils and parents. In addition, in a quite considerable number of cases, documents such as the monthly reports or the reports on special occurrences are probably still available.

b) aa) The judgments challenged in the cases 1 BvR 1243/95 and 1 BvR 1247/95 do not satisfy these standards. They violate the complainants’ fundamental right under Article 12.1 in conjunction with Article 33.2 of the Basic Law. It is therefore unnecessary to deal with the other matters challenged by them.

(1) In the case 1 BvR 1243/95, the judgments challenged are based on the circumstance that the complainant was for a time principal and deputy principal, and repeatedly held the function of an SED party secretary and of a Freundschaftspionierleiterin . The courts found that this was such a strong indication of her lack of aptitude that only particular exonerating circumstances could have resulted in a favourable assessment of her aptitude. However, if found that there had been no such circumstances.

This approach does not satisfy the standards that follow from the complainant’s fundamental right to a free choice of the place of work. In essence, it gives the perception of the functions named the significance of a rebuttable presumption and thus cuts short the assessment of all circumstances of the individual case that is appropriate in the light of this fundamental right. In addition, the fact that the complainant worked at a special school and that the political supervision by the party secretary in general was of less importance there than at other schools were disregarded, as was her submission, which the courts assumed was true, that she had taken on the functions with which she was entrusted only in order to achieve something for the school and for the children. In assessing the question as to how far a teacher can now credibly and of her own conviction support in her teaching a social system and system of government committed to the Basic Law, her inner distance from the offices she held in the German Democratic Republic ought not to be excluded.

(2) In the case 1 BvR 1247/95 too, the Higher Labour Court proceeds on the assumption that the perception of the offices and functions held by the complainant indicates that the complainant identified herself particularly with the SED regime and that this alone, since there were no particular exonerating circumstances, shows that she lacks aptitude for the teaching profession. In addition, the Higher Labour Court attached no exonerating effect to the circumstances submitted by the complainant, which suggest she had a rather pragmatic attitude to her posts, nor to her teaching work after reunification, about which there had been no complaints. Finally, in the light of Article 33.2 of the Basic Law, it is not comprehensible that the Higher Labour Court does not assess a warning that was given to the complainant by the school council, with regard to her call for a freer atmosphere for discussions at the school, as a positive sign of a distanced inner attitude to the SED regime, but concludes from it only that she had thereafter allowed herself to be muzzled.

bb) The decisions challenged in the case 1 BvR 744/96, however, cannot be criticised.

(1) The Federal Labour Court does not at all events base its conclusion that the complainant lacked aptitude solely on his functions as party secretary and school principal; only on the basis of an assessment of further inculpatory circumstances does it come to the conclusion that the complainant particularly identified himself with the goals of the SED. Firstly, it is important in this connection that after he reached the age of 27, the complainant, without interruption, was first party secretary and deputy school principal for 18 years and immediately following this was school principal. His promotion to principal at an unusually young age also lends plausibility to the conviction of the labour courts that he had a purely party career. In addition, the decisions challenged are based on the determination that he held these posts in a way that was close to the party line and that the staff withdrew their trust from him for this reason even before the accession. The fact that from this overall picture of the early activities of the complainant the courts concluded that he lacked aptitude to credibly undertake the duties of a teacher in a free state under the rule of law is constitutionally unobjectionable.

(2) The Federal Constitutional Court cannot assess whether the decisions challenged are compatible with the ILO Treaty or the European Convention for the Protection of Human Rights and Fundamental Freedoms. Its duty in the constitutional complaint proceedings, under Article 93.1 number 4a of the Basic Law, is restricted to assessing sovereign measures against the Basic Law. It is not possible to derive from the constitutional complaint sufficient evidence that the labour courts violated their commitment to the law in this case (Article 20.3 of the Basic Law; cf. on this BVerfGE 87, p. 273 [at p. 280]) or failed to recognise the standard for the human rights guaranteed in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is also important for the interpretation of the fundamental rights (cf., for example, BVerfGE 83, p. 119 [at p. 128]), nor does such evidence appear in another way.