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Germany: No Prohibition of the National Democratic Party

(Feb. 2, 2017) On January 17, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) unanimously rejected the application of the German Bundesrat to ban the National Democratic Party (NPD). The German Bundesrat is the constitutional body through which the German states participate in the legislation and administration of the German Federation.  (BVerfG, Jan. 17, 2017, docket no. 2 BvB 1/13, BVerfG website (in German); Press Release No. 4/2017, BVerfG, No Prohibition of the National Democratic Party of Germany as There Are No Indications that It Will Succeed in Achieving Its Anti-Constitutional Aims (Jan. 17, 2017); Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 21 ¶ 2, GERMAN LAWS ONLINE (unofficial English translation); Law on the Federal Constitutional Court, Aug. 11, 1993, as amended through Aug. 2015, BGBl. I at 1473, §§ 43 et seq., BVerfG website.)

The Court held that even though the NPD “advocates a political concept aimed at abolishing the existing free democratic basic order [of Germany],” it does not appear possible that the party will actually succeed in achieving its aim by parliamentary or extra-parliamentary means. (BVerfG, docket no. 2 BvB 1/13, supra, ¶¶ 633, 844, & 845.)

The German Bundesrat had already in 2003 unsuccessfully attempted to have the NPD banned. In that case, three out of the seven judges of the Federal Constitutional Court held that there was an absolute procedural bar to the proceedings, because too much of the evidence was based on testimony from confidential informants.  The Court therefore ended the proceedings, because it did not have the required two-thirds majority to continue.  (BVerfG, Mar. 18, 2003, docket no. 2 BvB 1/01, BVerfG website (in German); Law on the Federal Constitutional Court, § 13 no. 2, § 15 ¶ 4 sentence 1.)

Decision

The Federal Constitutional Court reiterated the view from its 1952 decision that a political party can only be prohibited if it opposes the free democratic order. (BVerfG, Oct. 23, 1952, docket no. 1 BvB 1/51,at 40, Deutschsprachiges Fallrecht website (in German); BVerfG, docket no. 2 BvB 1/13, supra, ¶ 530.) In the present case, the Court opined that the aim of the political concepts and the supporters of the NPD is to abolish the free democratic order of Germany.  The free democratic order as protected by article 21 of the German Basic Law, the country’s Constitution, encompasses the “central basic principles that are absolutely indispensable to the free constitutional state”  (BVerfG, docket no. 2 BvB 1/13, supra, ¶ 529) and is based on the guarantee of human dignity codified in article 1 of the Basic Law (id. at ¶ 538). Protecting human dignity includes “safeguarding personal individuality, identity and integrity, as well as fundamental equality before the law,” among other elements. (Id. at ¶ 539.) In addition, democracy, understood as the “possibility of equal participation of all citizens in the process of developing an informed political opinion and the exercise of all state authority derived from the people,” forms an integral part of the free democratic order.  (Id. at ¶¶ 542 & 543.)

The Court held that the NPD’s concept of “the people” violates human dignity, as it excludes foreigners, migrants, minorities, and everyone else who does not conform to the party’s ethnic definition of “Volksgemeinschaft” (people’s community), thereby depriving these groups of their rights and rejecting the notion of fundamental equality before the law. (Id. at ¶ 635.)  Furthermore, in the opinion of the Court, this concept contradicts the human rights core of democracy by rejecting the participation of non-ethnic Germans in the political opinion formation process and by promoting a national state characterized by a “unity of people and state” as defined by the NPD. (Id. at ¶ 758.)  Lastly, the Court stated that the NPD’s concept of “Volksgemeinschaft” and its anti-Semitic attitude resemble National Socialism.  It added that the party has voiced support for leaders from Hitler’s Nationalist Socialist German Worker’s Party (NSDAP) and used the NSDAP’s vocabulary, symbols, songs, and texts.  The Court concluded that these facts confirm the NPD’s disrespect for the free democratic order.  (Id. at ¶ 805.)

The Court opined that even though the NPD disrespects the free democratic order, it does not “seek to undermine or abolish the free democratic basic order,” as the standard required in order to ban a political party according to article 21, paragraph 2, of the Basic Law. “Seeking” requires concrete and serious evidence that shows that there is a possibility that the party will achieve its unconstitutional aim (potential).  (Id. at ¶ 896.)  The Court stated that the NPD is not likely to achieve a majority of votes in an election, nor are other parties willing to enter into a coalition with it.  (Id. at ¶ 898.)  It reasoned that the NPD will not achieve its unconstitutional aims by influencing public opinion outside of the parliamentary sphere, either, because of its low degree of organization and membership and its inability to create right-wing extremist networks under its direction.  (Id. at ¶ 910.)

The Court concluded that the incidents of actions against the democratic order described in the trial proceedings are only isolated cases and that there is no concrete and serious evidence at present to suggest that the NPD generally exceeds the boundaries of admissible political discourse and fulfills the element of seeking to undermine or abolish the free, democratic basic order. (Id. at ¶¶ 933 & 1002.)

Jurisprudence of the ECtHR

The Federal Constitutional Court also made reference to the jurisprudence of the European Court of Human Rights (ECtHR), which it utilizes as an interpretative aid. The Court concluded that its decision conforms to the principles established by the ECtHR.  (Id. at ¶¶ 607 & 617.)  It is well established in the case-law of the ECtHR, the Court noted, that political parties can only be dissolved in the most serious cases, given their essential role in a democratic society; the dissolution of a political party in a democratic society must be prescribed by law and be necessary to serve one of the aims enumerated in article 11, paragraph 2, of the European Convention on Human Rights (ECHR), on freedom of assembly and association.  (Id. at ¶¶ 609 & 610.)  In addition, there must be a “pressing social need” to justify a prohibition (id. at ¶ 611), and the measure must be “proportionate to the legitimate aims pursued.”  (Id. at ¶ 615.)

The ECtHR considers a prohibition of a political party justified when there is plausible evidence of a sufficiently and reasonably imminent risk to democracy and when the party’s political plans are incompatible with the concept of a “democratic society.” (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Nov. 4, 1950, 213 U.N.T.S. 221, available at ECHR website.)