Document Type

Article

Disciplines

International Law

Abstract

In what was perhaps the most succinct and insightful analysis of German history ever uttered, Sir Winston Churchill once noted that, "[T]he Germans are always either at your throat or at your feet."' Churchill's rather acerbic wit aside, it requires no long recitation of supporting facts to make credible the statement that German political life in the nineteenth and twentieth centuries has been somewhat unsettled. From Bismarck to Ludendorff to Hitler, a long procession of figures have marched out of the German maelstrom and onto the world stage. As one scholar put it, "[T]he story of Germany in the twentieth century is a compelling one . . . . It has dramatically shaped-and drastically truncated-the lives of millions of people, Germans and non-Germans, and continues to be of central importance in European and world affairs."

In the aftermath of much of that drama, it is not surprising that the German people would have something of a yearning for tranquility. Having seen that so much of the tumult which characterized German political life from 1918-1945 was the result of extreme political views, and having witnessed the collapse of the Weimar Republic under an onslaught from the fight and the left, the creators of the new German state which arose out of the ashes and rubble of World War II hoped to ensure that this time democracy in Germany would have the means to protect itself. To achieve that goal, the constitution of the Federal Republic of Germany contains provisions which allow the banning of political organizations which threaten the democratic political system.3 In order to make these provisions effective, German civil servants were charged with a special duty of loyalty to the democratic political system and to the new German state. They were required, among other things, to "satisfy the authorities that they will at all times uphold the free democratic constitutional system within the meaning of the Basic Law,"4 and "by their entire conduct bear witness to the free democratic constitutional system within the meaning of the Basic Law and act to uphold it."5 What these statements came to mean, under successive West German governments, was that civil servants were not permitted to become members of extremist political organizations, and vice-versa.

It was, perhaps, inevitable that this policy would eventually come into conflict with the rights to free association and free expression guaranteed by the European Convention on Human Rights. In Vogt v. Germany,7 the European Court of Human Rights abruptly reversed its prior tolerance of the German policy of banning political extremists from the civil service, standing a decade of precedent on its head and carving out a new, broader freedom under the Convention. This note will examine the legal and political implications of the Vogt decision, for Germany in particular, and for European human rights law in general. Part II of this note will set out the state of the law prior to the Vogt decision, with particular emphasis on Glasenapp v. Germany8 and Kosiek v. Germany,9 the two decisions which Vogt essentially overruled. Part m will describe the factual and procedural background of the Vogt case. Part IV will unravel the legal rationale contained in the Court's decision. Part V will discuss the political and jurisprudential concerns which may have motivated the Court. And Part VI will conclude with a brief discussion of the impact which the Vogt decision may have on political life in Germany, as well as on European human rights law in general.

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