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Germany: Constitutional Court Rejects Petition for Declaratory Judgment Brought by the National Democratic Party

(Apr. 25, 2013) On February 20,2013, the Federal Constitutional Court rejected a petition of the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD) for a declaratory judgment on the NPD’s conformity with the Federal Constitution (docket no. 2 be 11/12; Press Release, No. 15/2013, Federal Constitutional Court, Application Made by the NPD Against Bundestag, Bundesrat and Federal GovernmentUnsuccessful (Mar. 5, 2013)). The Court held that the petitioner had no standing to request this judgment, because the Federal Constitution does not grant the Court jurisdiction over such an action.

Article 21 (2) of the German Federal Constitution (Basic Law, Grundgesetz für die Bundesrepublik Deutschland, May 23, 1949, BUNDESGESETZBLATT (BGBl)1, as amended, translation from Federal Ministry of Justice website) provides that political parties that seek to undermine or abolish the free democratic order or endanger the existence of Germany are unconstitutional, and the article grants jurisdiction to the Federal Constitutional Court to rule on their unconstitutionality. According to the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz, repromulgated Aug. 11, 1993, BGBl I at 1473, as amended, § 43, Federal Ministry of Justice website), only the Cabinet (the executive branch of the federal government) and each of the two chambers of the bilateral federal legislature have standing to bring such an action, if the party under suspicion acts in more than one of the German states. If the party is limited to one state, then the state government also has standing to sue.

In fact, the Federal Council (Bundesrat), the chamber representing the states, resolved in December 2012 to bring such a proceeding against the NPD to the Federal Constitutional Court (Bundesrat Drucksache 770/12, Antrag, Dec. 12, 2012) and is currently in the process of preparing for this action. The Cabinet, on the other hand, has decided not to participate in the proceeding. The Bundestag, the representative chamber of the bilateral federal legislature, is in the process of deciding on whether to participate, but chances of its participation are slim ([email protected], Stumpfes Schwert; Ein Antrag auf ein NDP-Verbot wird spätestens in Strassburg scheitern, KÖLNER STADT-ANMZEIGER 4 (Mar. 22, 2013), available from LEXIS online subscription database, Deutsche Presse file).

In their petition to the Federal Constitutional Court, the NPD alleged that the ongoing discussion on having it banned is tantamount to a ban and requires the Court to step in so as to protect the NPD against the consequences of a ban that in effect exists without having been decreed by the Court. The Court rejected this argument, holding that the absence of jurisdiction over the petition of a party to have its constitutionality decided is not a gap in the law that must be remedied. Instead, the Court stated that political parties must be robust enough to face public dispute, and it referred them to the ordinary courts for the pursuit of any potential offenses against them.

There is much agreement in Germany that the NPD is an extremist right-wing party that pursues reprehensible neo-Nazi goals. There is little agreement, however, on how to best deal with the situation. Whereas some view an action before the Constitutional Court as the best remedy, others hesitate on the grounds that the NPD is not successful in the polls and therefore not a danger to Germany. Some also wonder whether a judgment of the Constitutional Court could be successfully challenged before the European Court of Human Rights ([email protected], supra), whereas others are concerned that the Constitutional proceeding would expose the extent to which the NPD has been infiltrated by covert agents of German intelligence services and that this would make it difficult to prove the unconstitutionality of the NPD (Peter Carstens, Verfahrensfehler – Vor einem neuen Verbotsantrag gegen die NPD, ANWALTSBLATT M402 (2012)).