FEDERAL CONSTITUTIONAL COURT

- 1 BvR 661/96 -

IN THE NAME OF THE PEOPLE

In the proceedings

on

the constitutional complaint

the Second Chamber of the First Senate of the Federal Constitutional Court

with the participation of Justices

Kühling,

Jaeger,

Hömig

unanimously held on 21 September 2000:

1. The notice of the Saxony State Ministry of Justice (Sächsisches Staatsministerium der Justiz) dated 8 December 1992 - 3836E-I.-1859/92 - and the order of the Federal Court of Justice (Bundesgerichtshof) dated 5 February 1996 - NotZ 42/94 – violate the complainant’s fundamental right under Article 12.1 of the Basic Law. They are overturned.

2. The proceedings are referred back to the Federal Court of Justice for a decision on the costs.

3. The Federal Republic of Germany shall reimburse the complainant for the expenses necessarily incurred by her in the proceedings before the Federal Constitutional Court.

R e a s o n s:

I.

The constitutional complaint concerns the question, if and to what extent, involvement in a political trial before the criminal courts in the German Democratic Republic represents an obstacle to working as a notary.

The subjects of the proceedings are court decisions and decisions by public authorities, which removed a former judge from the office of notary due to her involvement in the persecution of dissenting citizens wishing to leave the German Democratic Republic. The legal basis for the challenged decisions are provisions in the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges (Gesetz zur Prüfung von Rechtsanwaltszulassungen, Notarbestellungen und Berufungen ehrenamtlicher Richter) dated 24 July 1992,[…] whose constitutionality has already been clarified in principle by the Federal Constitutional Court (cf. BVerfGE [Decisions of the Federal Constitutional Court] 93, p. 213 [at pp. 235 et seq. ]). In the present case, the sole issue is what professional consequences does § 6 of the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges have for a criminal court judge involved in a political case where the elements necessary for the criminal offence of perverting the course of justice are not fulfilled.

1. The complainant is a notary in the area of accession [territory of the former German Democratic Republic]. After completion of her studies […]she was elected a judge in 1980. She was a criminal court judge at the Lower District Court (Kreisgericht) in the years between 1985 and 1988 (in 1988 she became director of the court) and handed down numerous criminal judgments concerning attempted “illegal border crossing” (§ 213 of the Criminal Code of the German Democratic Republic [Strafgesetzbuch/DDR ] and impairment of state activity (§ 214 of the Criminal Code of the German Democratic Republic). Nine of the proceedings were decisive in connection with her removal from office […]. The complainant [had] imposed suspended sentences or prison sentences from less than one year to a maximum of one and a half years; shortly after the commencement of the prison sentences she converted the remaining terms of such sentences to suspended sentences.

In February 1990 she retired from the judiciary after being advised to do so; she trained to become a notary and has since then run a notary’s office together with another notary. As a notary she deals predominantly with real property, inheritance and corporate matters. No complaints have been made about her work. The complainant was removed from office by the Saxony State Ministry of Justice pursuant to § 6 of the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges with effect from 1 January 1993. She has not yet been officially removed from office.

The decision is based on the fact that the complainant passed sentences in the period between 1985 and 1988 which violated human rights. According to the decision, she had sentenced the accused persons to prison terms in political trials before her criminal court where all the accused persons had really done was to exercise their fundamental human rights. As the director of a Lower District Court it was her task to ensure that the value system embodied in socialist legislation was upheld. In doing so, she had violated human rights principles and the principles in a state governed by the rule of law.

The complainant was successful before the Higher Regional Court (Oberlandesgericht) ; the Senate responsible for administrative matters concerning notaries also did not consider the complainant unsuitable to be a notary on the basis of the accusations brought against her.

The Federal Court of Justice overturned the order of the Higher Regional Court […]. In its view, the complainant violated human rights principles and the principles in a state governed by the rule of law within the meaning of § 6 of the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges. It is true that the elements of the offence may not be interpreted differently for a notary than for a lawyer; however, due to the stricter personal requirements placed on a person’s suitability to occupy the office of notary it is possible to reach different results when judging whether a person is unsuited to occupy the office of notary or unworthy to be a member of the legal profession. Of course mere involvement in political trials before the criminal courts is not generally a violation of human rights principles or the principles in a state governed by the rule of law; nevertheless, the complainant handed down sentences which were grossly disproportionate even according to the legal standards regarding injustice and guilt prevailing at that time. The Federal Court of Justice elaborated that even if Article 12 of the International Pact of 19 December 1966 Regarding Civil and Political Rights (Internationaler Pakt über bürgerliche und politische Rechte) was not adopted as national law, the fundamental freedom to leave the country was a human right whose essence should not have been violated by the German Democratic Republic. Violation occurred, however, because the courts interpreted § 214 of the Criminal Code, in conformity with the goal pursued by the highest state authority, as covering every significant criticism of the rules and practice of leaving the German Democratic Republic. The purpose of the provision […] was to relentlessly discipline and oppress citizens wishing to leave the country. The complainant was involved in this in that she imposed prison sentences of one year and more which was an excessive punishment and counter to the principles in a state governed by the rule of law. Her removal from office was therefore proportional. It does not block the complainant’s ability to work independently in a legal capacity, but with less proximity to the state.

2. The complainant alleges a violation of her fundamental right under Article 12.1 of the Basic Law. In her view, unlike the Higher Regional Court which did not consider her removal from office justified, the Federal Court of Justice misjudged the effect and influence of a fundamental right when it was interpreting § 6 of the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges. Before she could be removed from office as a notary it was necessary for there to be sound proof that her own conduct objectively violated human rights principles or the principles in a state governed by the rule of law as well as proof that the violation was intentional (i.e. there had to be subjective guilt on her part). The fact that she carried out certain functions within the system was insufficient. According to the complainant, parliament had made it clear that essentially the same criteria should apply to the disqualification of lawyers from practice and the removal of notaries from office. Therefore, there had to be special circumstances in addition to being a criminal judge. The person concerned must have himself or herself either violated fundamental protected interests or it must have been foreseeable that his or her acts would lead to such violations. For instance, a violation of such kind could be seen if the conduct was connected with an expectation that the person concerned was threatened by inhumane consequences or consequences in violation of the principles in a state governed by the rule of law or if human rights principles or the principles in a state governed by the rule of law were disregarded under the cloak of the administration of criminal justice or the maintenance of public security. This could be assumed, for instance, if the act was intended or was obviously suited to initiate system-related persecution. The loyalty owed to the political and socialist legal systems alone was not sufficient. Mere involvement by judges in political trials before the criminal courts is just as insufficient as mere membership of the Ministry for State Security (Ministerium für Staatssicherheit) or agreement to be an informant.

The complainant argued that the challenged decisions did not contain solid information that she had used her office as director of the Lower District Court to persecute accused persons for political crimes. Her prominent position did not make examining her case individually superfluous. The Federal Court of Justice should not be allowed to decide itself that § 214 of the Criminal Code of the German Democratic Republic violated human rights and that its application therefore always amounted to such a reprehensible violation. The complainant could not have been expected to resign from judicial office; resignation would, however, have been the practical consequence if she had not complied with the general framework of criminal law in the German Democratic Republic. Parliament also shared this view since it did not even mention the hearing of politically motivated crimes by a criminal judge in the Law Concerning the Review of Practising Certificates for Lawyers and the Appointments of Notaries and Honorary Judges.

The complainant also argued that she was not guilty of culpable conduct. She was not accused of perverting the course of justice. Besides the accusation of perverting the course of justice, removal from office could only be considered if individual and serious culpable violations of human rights principles or the principles in a state governed by the rule of law were found. This was not the case here as was convincingly established by the Higher Regional Court. Furthermore, subtle western standards to weigh interests should not be applied. A standard such as the proportionality principle was unknown to judges in the German Democratic Republic; failure to adhere to it cannot be regarded as a gross violation of human rights. The Federal Court of Justice was applying the standards of the Federal Republic of Germany and demanding conduct which would have meant the end of a judicial career in the German Democratic Republic.

Finally, it was asserted by the complainant that even if one wished to evaluate her conduct in individual cases differently, this should not lead to her dismissal from office because her work as a notary had been beyond reproach for the last six years and the longest prison sentences of more than one year handed down by her occurred eight years prior to her removal from office. Before a notary can be removed from office, there must be an expectation of some future misconduct on his or her part; in the present case no indications of such have been given. In addition, the complainant claimed that it needed to be taken into account that removal from office was to a large extent the equivalent of a lifelong professional ban because the chances of obtaining a comparable position as a notary in the area of accession were extremely low.

3. The Saxony State Ministry of Justice, the Federal Association of Notaries (Bundesnotarkammer) and the Association of Notaries of Saxony (Notarkammer Sachsen) have given their comments. They consider the constitutional complaint unfounded....

[…]

II.

The Chamber admits the constitutional complaint for decision because this is necessary for the implementation of the rights named in § 90.1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) (§ 93a.2 letter b of the Federal Constitutional Court Act). The additional prerequisites of § 93c.1 of the Federal Constitutional Court Act also exist. The challenged decisions violate the complainant’s occupational and professional freedom (Article 12.1 of the Basic Law).

1. The Federal Constitutional Court has already decided the relevant constitutional questions. The First Senate of the Federal Constitutional Court also reached the view during consultations on 1 March 2000 that the present case does not raise any fundamental questions.

a) Removal from office which would force the person concerned to give up his or her chosen profession encroaches on the freedom to choose a profession or occupation that Article 12.1 of the Basic Law protects. Such encroachments need a statutory basis that itself satisfies constitutional requirements. Encroachments are only permissible if they protect a particularly important community interest and strictly observe the principle of proportionality (BVerfGE 97, p. 12 [at p. 26] with further references).

b) The right of a notary to practise his or her profession is also a fundamental right protected by Article 12.1 of the Basic Law. However, since notaries are holders of public office, special rules which follow Article 33 of the Basic Law apply that can overrule the effects of the fundamental right under Article 12.1 of the Basic Law (cf. BVerfGE 73, p. 280 [at p. 292]). Nonetheless, questions of suitability for civil service in connection with unification have already been decided by the Federal Constitutional Court (cf. BVerfGE 92, p.140 [at pp.151 et seq. ]). Insofar it is recognised that previous identification with the Socialist Unity Party of Germany (Sozialistische Einheitspartei Deutschlands) is only one factor in assessing suitability; when assessing suitability, specific evaluation of the individual’s personality as well as his or her conduct following accession need to be taken into account in the individual case (cf. BVerfG, loc. cit ., p. 155; BVerfGE 96, p. 152 [at p. 165]).

c) Finally, the Federal Constitutional Court has already decided the relevant constitutional questions in relation to violations against human rights principles within the meaning of the Law Concerning the Review of Practising Certificates for Lawyers and the Appointments of Notaries and Honorary Judges (cf. BVerfGE 93, p. 213 [at pp. 235 et seq .]).

2. The challenged decisions are based on § 6 of the Law Concerning the Review of Practising Certificates for Lawyers and the Appointments of Notaries and Honorary Judges, whose constitutionality is not in doubt according to the decisions named. According to this provision, notaries who were appointed between 29 June and 3 October 1990 must be removed from office, if their personality was not suitable for the office of notary according to the law in force at the time of such appointment because they had violated human rights principles or the principles in a state governed by the rule of law, in particular in connection with their full-time employment with the State Security Police (Staatssicherheitsdienst) or their acting as informants for the organisation.

3. The challenged decisions’ interpretation of the provision does not, however, stand up to constitutional examination.

a) Apart from examining ordinary laws to see whether the interpretation and application of their provisions violate the prohibition of arbitrary decision-making, the Federal Constitutional Court can only examine them to see whether they contain errors in interpretation which derive from a fundamentally erroneous view of the significance of the fundamental right affected – in particular with regard to the scope of the protection it offers. This will be the case where the interpretation of the legal provisions, as undertaken by the originally competent courts, does not sufficiently take into account the scope of the fundamental right or results in a disproportional restriction of freedom under the Basic Law (cf. BVerfGE 18, p. 85 [at pp. 92-93, 96]; 85, p. 248 [at pp. 257-258]; 87, p. 287 [at p. 323]).

b) This is the case here. The challenged decisions do not meet the standards set by Article 12.1 of the Basic Law.

aa) The challenged decisions are correct in assuming that the hearing of politically motivated crimes by a criminal judge is not sufficient on its own to fulfil the elements of a violation of human rights principles or the principles in a state governed by the rule of law.

(1) Merely being a part of the system does not even constitute a violation in connection with being a full-time employee or informant for the State Security Police, although parliament expressly included these circumstances as an indication for such violations in the statute. In contrast to its treatment of the simple fact that a person conspired and co-operated with the Ministry for State Security, parliament did not make a person’s involvement in the GDR’s criminal justice system’s handling of political crimes an indication that he or she was unworthy to practise as a lawyer or that he or she was unsuitable to be a notary. This is not an unintentional omission: At the same time parliament passed the Law Concerning the Review of Practising Certificates for Lawyers and the Appointments of Notaries and Honorary Judges, it was preparing the Law for Relieving Injustice Perpetrated by the Socialist Unity Party of Germany (Gesetz zur Bereinigung von SED-Unrecht) dated 29 October 1992 [Federal Law Gazette, Bundesgesetzblatt I p. 1814]) which as regards rehabilitation, makes reference to what was - from a western viewpoint – objective injustice contained in certain clearly identified criminal provisions; the decision-makers who had applied such provisions were, however, not called to account, although viewed from the current perspective the application of the elements of the offence did not as a rule correspond to the punishments in a state governed by the rule of law. Therefore, according to the wording and drafting history of the provision, violations of human rights principles and the principles in a state governed by the rule of law shall only be found to have occurred in cases where within the hierarchically structured criminal justice system in the German Democratic Republic overzealous followers or obsequious servants of internal party directions acted to the accused person’s disadvantage in secret or sham trials or used the criminal law to eliminate fellow citizens who were inconvenient.

(2) A violation of human rights principles or the principles in a state governed by the rule of law by a judge applying the criminal law of the German Democratic Republic in a political trial can only be assumed if there are additional special circumstances and the judge’s culpable conduct led to his or her personally injuring protected fundamental interests or it was foreseeable that such injuries would result from his or her acts (cf. BVerfGE 93, p. 213 [at p. 243]).

Due to the practice of paying for the release of prisoners it was also common knowledge in West Germany that a certain percentage of lawyers in the German Democratic Republic were involved in such criminal proceedings; they acted as public prosecutors following the Ministry for State Security’s preliminary investigations (cf. Behlert, in: Rottleuthner, Steuerung der Justiz in der DDR, Einflußnahme der Politik auf Richter, Staatsanwälte und Rechtsanwälte, 1994, p. 287 [at pp. 332 et seq .]; Furian, Der Richter und sein Lenker, Politische Justiz in der DDR , 1st edition, 1992, p. 22 and pp. 147 et seq .; cf. also the Ministry for State Security’s Staff Regulations No. 2/83 dated 13 October 1983 including annex 6, in: Lochen/Meyer-Seitz [editors], Die geheimen Anweisungen zur Diskriminierung Ausreisewilliger, Dokumente der Stasi und des Ministeriums des Innern, 1992, pp. 89, 103, 180 et seq ., 191 et seq .; Reuter, Neue Justiz 1990, p. 322 [at p. 323]); as judges they followed state instruction (cf. Ministerium der Justiz [editor], Strafrecht der Deutschen Demokratischen Republik, Kommentar zum Strafgesetzbuch, Staatsverlag der Deutschen Demokratischen Republik, 5th edition, 1987, § 99 comments 2 and 4; cf. for more detail Gängel, in: Rottleuthner, loc. cit. , pp. 33-34 , 253 et seq ., 278 et seq .) and instruction of the Supreme Court of the German Democratic Republic (cf. Informationen des Obersten Gerichts der Deutschen Demokratischen Republik , offprint, June 1979, p. 33-34, pp. 68-69; Informationen des Obersten Gerichts der Deutschen Demokratischen Republik, No. 6/1980, p 8-9, and Informationen des Obersten Gerichts der Deutschen Demokratischen Republik , No. 2/1988, pp. 11 et seq .) and handed down sentences which were disproportionate according to standards in the Federal Republic of Germany As lawyers they advised their clients against lodging appeals in view of the existing political situation and the prospect of having their releases paid for (cf. Henrich, in: Bundesministerium der Justiz [editor], Im Namen des Volkes?, über die Justiz im Staat des SED, Wissenschaftlicher Begleitband zur Ausstellung des Bundesministeriums der Justiz, 2nd edition, 1996, p. 209 [at p. 217]; Rehlinger, Freikauf: Die Geschäfte der DDR mit politisch Verfolgten 1961 bis 1989 , 1991, p. 105; Werkentin, Neue Justiz 1992, p. 521 [at p. 525]). Knowing these peculiarities of the administration of criminal justice in the German Democratic Republic at the time when it enacted the Unification Treaty (Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands vom 31. August 1990 - Einigungsvertrag) , parliament refused to make a general assessment of the persons involved as unworthy to practise their professions. It did not change its course when enacting the Law Concerning the Review of Practising Certificates for Lawyers and the Appointments of Notaries and Honorary Judges.

Therefore, if it is sought to establish that human rights or the principles in a state governed by the rule of law have been violated, then the conduct of a judge must be carefully examined in each case. A finding of serious personal guilt will only be justified if the acts qualify as system related acts of persecution and the fundamental rights of the person as well as the essence of a state governed by the rule of law have been violated. Whether the system required the act be done, whether it was necessary for the person’s own safety or whether it was based on loyalty to the socialist legal system must always be taken into account (cf. BVerfGE 93, p. 213 [at p. 244]).

bb) The situation is no different when one takes into account that a notary is the holder of a public office pursuant to § 1 of the Federal Rules and Regulations for Notaries (Bundesnotarordnung) . The standard of Article 33.2 of the Basic Law also does not allow the suitability examination to be based on sweeping judgments. At the time the decision for removal from office is made, all of the qualifications and indications of suitability, including those which a person could also have acquired after the fall of communism, need to be taken into account; in addition, a prognosis based on the individual’s entire personality in the specific case needs to be made. The final assessment may not ignore the development a person has made after accession. An individual’s personal attitude can change and the experience and insight gained particularly by citizens of the German Democratic Republic following accession and the subsequent developments could have led to such a change. After all the provisions of the Unification Treaty are directed towards far-reaching integration and even extend to members of the civil service. The loyalty and co-operation common and necessary for remaining and rising within the civil service in the German Democratic Republic alone are not enough to establish that a person is unsuitable, although they do contradict the values and patterns of behaviour required in Article 33.2 of the Basic Law (cf. BVerfGE 92, p.140 [at pp. 156-157]; 96, p. 152 [at p. 168]).

cc) The Federal Court of Justice reviewed the criminal sentences by bringing the facts of the case under a particular rule of law and by examining the sentence handed down; in doing so it applied the Federal Republic of Germany’s principles of proportionality although doing so was not compatible with constitutional principles. These principles did not apply in the German Democratic Republic.

If one takes into account the way the constitution was interpreted in the German Democratic Republic (cf. Akademie für Staats- und Rechtswissenschaft der DDR [editor], Staatsrecht der DDR , textbook, 1st edition, 1977, at pp. 185, 207) and the way criminal law in the German Democratic Republic was developed and continually tightened (cf. the Criminal Code of the German Democratic Republic dated 12 January 1968 [Law Gazette of the German Democratic Republic - Gesetzblatt I p. 1], the Second Amendment to the Criminal Code dated 7 April 1977 [2. Strafrechtsänderungsgesetz, Law Gazette of the German Democratic Republic I p. 100] and the Third Amendment to the Criminal Code dated 28 June 1979 [3. Strafrechtsänderungsgesetz, Law Gazette of the German Democratic Republic I p. 139]) and the maxims which applied to the criminal prosecution of persons wishing to leave the German Democratic Republic as well as the control mechanisms of the country’s judiciary (cf. the references under II. 3. b aa [2]), there can be no doubt that the complainant passed light sentences. The Opinions obtained ... confirmed the information found in the reference material on customary criminal practice in the German Democratic Republic; the complainant was in fact one of the most lenient judges both in regard to the total length of the sentences she imposed as well as in regard to her generous suspension of sentences. Her conduct was characterized by her desire to retain her position as a judge hence she demonstrated the loyalty necessary and common for this goal. This does not give rise to serious accusations of personal guilt on her part. The standards imposed by the Federal Court of Justice place expectations on judges that they could not meet under the conditions of the GDR judicial system and in respect of which none of the formal safeguards available in the Federal Republic of Germany existed.

(1) In the written law of the German Democratic Republic itself there was no possibility of a restricted interpretation or application. Criminal law was continually tightened, the range of penalties increased, the commencement of the offence brought forward to include preparatory acts (cf. Ministerium der Justiz [editor] Strafrecht der Deutschen Demokratischen Republik , loc cit ., § 213 marginal number 15) and the joint commission of an offence introduced as a serious case (cf. Informationen des Obersten Gerichts der Deutschen Demokratischen Republik , No. 2/1988, pp. 11 et. seq. ). The complainant was trained in this legal system. As the court’s director she was responsible for ensuring that these maxims were adhered to (§ 20 of the Constitutional Court Act of the German Democratic Republic [Gerichtsverfassungsgesetz der DDR] dated 27 September 1974 - Law Gazette of the German Democratic Republic I p. 457]) and she was accountable pursuant to § 26 of the Constitutional Court Act of the German Democratic Republic (cf. Drews et al. , Grundlagen der Rechtspflege , Staatsverlag der DDR, 1st edition, 1983, pp. 24 et seq. ). She was not acquainted with other standards. After all since 1933 there had not at any time been a state governed by the principles of the rule of law on East German soil even though the political situation had changed dramatically within that time.

(2) Contrary to the assumptions made in the notice issued by the Saxony State Ministry of Justice, freedom to leave the country has not become established as a steadfast individual human right.

Public international law does not regard freedom to leave one’s country as a general right (cf. Hofmann, Die Ausreisefreiheit nach Völkerrecht und staatlichem Recht , 1988, p. 64 [at pp. 80 et seq. ]). The Parliamentary Council (Parlamentarischer Rat) decided not to include the right to leave the country in the Basic Law after discussing this question (cf. Polakiewicz, Europäische Grundrechtszeitung 1992, p. 177 [at p. 186] with further references in footnote 128; Pikart/Werner, Der Parlamentarische Rat 1948 - 1949, files and minutes, volume 5/I, Ausschuss für Grundsatzfragen, 1993, pp. 101 et seq .). Prohibitions on leaving the country were also imposed in the Federal Republic of Germany when there was a fear that detrimental comments abroad would impair the Federal Republic of Germany’s interests (cf. BVerwGE [Decisions of the Federal Administrative Court] 3, p. 71; BVerfGE 6, p. 32 [at pp. 34-35, 41 et seq .] - Elfes Decision). Up until recently such prohibitions have been justified on the basis that the applicant’s opinions were likely to strain relations between the Federal Republic of Germany and other countries (cf. Higher Administrative Court of Baden-Württemberg, Verwaltungsblätter für Baden-Württemberg 1995, p. 151, as well as Administrative Court of Frankfurt, Neue Zeitschrift für Verwaltungsrecht 1990, pp. 401 et seq .).

(3) Moreover the judges in the German Democratic Republic had no institutionally protected room for manoeuvre as far as applying the country’s laws in accordance with human rights principles was concerned. The Federal Court of Justice took a similar view on this in other contexts (cf. Entscheidungen des Bundesgerichtshofs in Zivilsachen 53, p. 95). Judges in the German Democratic Republic were not independent, but instead highly dependent on being in favour with the party leadership due to their need to be re-elected, the continual control and the possibility of their being removed at any time (cf. Sorgenicht et al. [editor], Verfassung der Deutschen Demokratischen Republik, Dokumente, Kommentar, Staatsverlag der Deutschen Demokratischen Republik, 1969, volume 2, pp. 427, 460; Drews et al. , Grundlagen der Rechtspflege , Staatsverlag der Deutschen Demokratischen Republik, 1st edition, 1983, pp. 24 et seq .; cf. also Rottleuthner [editor], Das Havemann-Verfahren , 1st edition, 1999, pp. 273 et seq .). Besides they had almost no other opportunities to switch to other professions, in particular, because the right to freely chose to set up a legal office was excluded (cf. Lorenz, Die Rechtsanwaltschaft in der DDR , 1998, pp. 258 et seq .).

(4) According to the fundamental decision reflected in the Unification Treaty and the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges the complainant’s guilt cannot be measured according to how much or how little resistance she showed to the judicial system in the Federal Republic of Germany, but rather according to the events for which she was responsible – measured by fundamental human rights’ rules and the rules prevailing in a state governed by the rule of law. The punishments the complainant imposed must be seen in relation to the motives behind them and fundamental human rights principles as well as the principles in a state governed by the rule of law. The accusation against the complainant that the prison terms she ordered violated human rights cannot be completely evaluated simply by considering the penalty demanded by the prosecution or the penalty imposed; it is necessary to consider the enforcement of the sentence. This is especially true because in part even the accused persons took into account the chances of having their releases paid for when planning their strategies; the judges were also aware of this since the files were marked with a “Z” (cf. the personal comment by Mr. Schümann, President of the Law Association of Mecklenburg-West Pomerania, made as part of the comment from the Federal Association of Lawyers [Bundesrechtsanwaltskammer] in Proceedings 1 BvR 514/97). Besides, the decision whether a sentence should be suspended was a matter for the prosecutors and judges (cf. Luther et al. [editor], Lehrbuch des Strafverfahrensrechts , Berlin 1982, pp. 368 et seq .). How the persons concerned handled sentencing and the possibility of suspending a sentence completes the picture with regards to their application of the criminal law in political trials and must be included in the total evaluation.

dd) The decisions also do not satisfy constitutional guidelines because their effect is to deny the complainant the opportunity to prove her worthiness to be a notary.

The constitution does not allow a decision as serious as the decision whether a person should be excluded from practicing his or her profession in the future to be made without taking into account exonerating circumstances. If the person concerned has freed himself or herself from involvement in past injustices and if the findings – including those made after the fall of communism – allow one to come to the conclusion that there is no need to fear misconduct on the part of the person concerned, then the person may not be held unsuitable to work as a notary provided he or she doe not exhibit any other serious flaws. The latter will only be the case where the person involved has been guilty of serious transgressions and this is generally known. However, it has to be proven that she is guilty of the transgressions.

In the present proceedings there are no indications of this. In view of the small number of proceedings selected and the fact they took place four and a half years or more before the complainant’s removal from office, it cannot be assumed that a large number of serious proceedings were omitted from the proceedings for removal from office. In any case, the justifications submitted by the Saxony State Ministry of Justice, which was in possession of all the available files, do not support a different evaluation.

ee) The challenged decisions evaluated unworthiness for the legal profession and suitability for the office of notary differently regardless of the fact that the elements of the offence are regarded as the same in § 6 of the Law Concerning the Review of Practising Certificates for Lawyers and Appointments of Notaries and Honorary Judges. This may be unobjectionable under constitutional law because suitability for public office in the way required here can be more strictly evaluated than suitability to practise independently as a lawyer. However, in the present case this does not lead to the complainant being disadvantaged because the findings made by the Federal Court of Justice do not indicate that there were culpable violations of human rights or the rights in a state governed by the rule of law which could lead to removal from office if also applied strictly. In this respect reference is made to what has already been said above.

ff) Finally, the challenged decisions can also not be justified on the basis that the complainant was still entitled to work as a lawyer after her removal from office as a notary. To this extent there are two different professions in Saxony. A decision which encroaches on a person’s freedom to practise an occupation or profession will not be any less serious just because the persons concerned could resort to another profession […].

[…].