Banning the NPD
A question of freedom for political parties
language

The debate surrounding the ban of the NPD is an ongoing social and political mantra. The threat to the freedom of political parties is often forgotten. Why? Explained by HORST MEIER



Translated by Stefanie Jaekel and Christine Crawford.

On the 22nd November 2011, shortly after the murders of a terrorist cell called "National Socialist Underground" (NSU), the Bundestag parliamentary groups presented an application, which was unanimously adopted at the end of the plenary debate. As its title "series of murders by the Neo-Nazi gang and the work of security authorities" suggests, the application deals in particular with the role of the police and the protection of the constitution. However, at the end it says:

Right-wing extremists, racists and anti-constitutional parties have no place in our democratic Germany. Therefore, the German Bundestag calls on the Federal Government to check whether the results of the investigation are linked to the ban of the NPD. The requirements of the Federal Constitutional Court and the European Court of Human Rights must be taken into account.1

The ending is well known: The Chief Federal Prosecutor's investigation revealed no direct links between the NPD's politics and the murders carried out by the NSU. On the 20th March 2013, the federal cabinet rejected a separate petition to ban the NPD. On the 25th April 2013, even the Bundestag (whilst dealing with a corresponding advance of the SPD parliamentary group), agreed with the majority of the CDU and the FDP against the ban request. Now it is down to the Bundesrat, to make a second attempt.

In the past, German policy has had no success in achieving political party bans. Initial proceedings against the NPD in 2003 were dropped by the Constitutional Court, before they even got started. Bans that have been put in place so far affect the SRP (1952) and the KPD (1956), both small parties which are practically harmless to the young West German democracy. In 1952, prohibition of the "[National] Socialist Reich Party" (SRP) went smoothly. After 10 days of negotiations, the Constitutional Court named the SRP as the NSDAP's successor.2

However, parallel proceedings against the KPD showed just how problematic "legal proceedings for political purposes" (Otto Kirchheimer) are.3 Proceedings against the KPD began at the same time as those against the SRP - with the difference being that proceedings against the KPD lasted almost five years. In November 1954, the Court President Josef Wintrich even went to Chancellor Adenauer and asked whether the government were still interested in proceedings to ban the KPD, which in 1953, only reached 2.2% nationwide.4 Immediately afterwards proceedings against the KPD began, which lasted 51 days. Finally, in August 1956, a judgement to ban the KPD was passed.5

Distortion of political competition
Basically, Art. 21, para. 2 GG has not been used until today. However, its potential for exclusion seduces politics, calling it to seek out symbolic prohibition, rather than instilling a democratic normality against the Anti-Democrats. Therefore, the party ban, once thought of as only an emergency solution, causes many problems for decades. This also applies to the Bundesrat's new application against the NPD. One can not make it plausible to ban the fully insulated faction, after 50 years of marginal existence.

When the subject of banning political parties is raised, no one can keep quiet regarding the freedom of political parties.



When the subject of banning political parties is raised, no one can keep quiet regarding the freedom of political parties. Any intervention against the freedom of opposition is a distortion of political competition. Prohibition, the most severe intervention (unknown in old democracies like Britain and the United States)6 is necessary in order to defend democracy.

This is obviously not the case with regards to the NPD. Today's NPD is a long way off from having a noticeable effect on the German State's "free democratic basic order". Additionally, its bonds with Nazi ideology does not make it a successor organisation of the NSDAP. The thesis of the "essential relationship" was again used during the 2013 ban request, but it appeared to be created against and speculate on a taboo's political benefits: If you have nothing to hold against the party other than inappropriate slogans, then at the very least, the slogans should be a part of the unconstitutional National Socialism.

Proceedings in Karlsruhe will only take place when the ban request is not only permissible, but also "sufficiently substantiated". Should the process extend past preliminary proceedings, the substance of the matter has to be negotiated.

Basic questions that must be answered by any interpretation of Art. 21 para. 2 GG are: How far can opposition go? Is a legal policy subject to constitutional loyalty? Do "inappropriate" party goals exist, which the state can sanction as "unconstitutional" at a later date? What makes party politics a threat to democratic "constitutional order"? Is inappropriate propaganda enough? Do we have to add further issues like breaches in law and politically motivated violence, or at least notable election results? Are all of these factors irrelevant, because prohibition applications claim that no risk can be present? May risk prevention be limitlessly preventative? Are they already applicable, where fundamental rights normally protect open disputes between parties and opinions? Can political intentions as such, be reasons for a ban?

By answering these questions, judges decide simultaneously whether intervention barriers are set high or low. If they decide, like their predecessors in the 1950s, to only look at risk prevention, each discussion about the NPD's actual risk potential is superfluous. Additionally, at the same time answering questions about the importance of freedom for political parties and the corrective function of the proportionality principle.

However, this also removes a prohibition judgement: A purely preventative reasoned verdict, that does not require practical reasoning, would have no significance for security policy, only for one concerning constitutional education. A manifesto by Karlsruhe against right-wing extremism, flattered the well-established "good" Germans, who purposefully distanced themselves from their embarrassing fellow citizens, the "ugly" Germans - without removing their continuous potential.

Prohibitions that primarily apply to political goals, are regularly counteracted by time, because one can prohibit a party, but never a political idea. At present, no one is willing to acknowledge that the NPD came up with any political ideas post 1945.

Let's look for example back through the SPD's history. It was in fact banned within the German Empire, using a very specific and exceptional law "against the dangerous activities of social democracy", only to become stronger year after year. Chancellor Bismarck used the two assassination attempts on Emperor Wilhelm I, as a pretext for the Socialist Law (1878-1890).

Today's interior ministers have minds like sieves, when it comes to recalling specific events from the past. They do not realise or understand what the Prussian Minister of the Interior and Social Democrat Carl Severing formulated in 1923: "A truly spiritual movement can not be solved with a police saber, and to ban a political party due to their political goals, would be a crazy start."7

50 years of coexistence
It's really not a shame to hear about the plight of a political party like the NPD. However, it is about the freedom of parties in general and the right to opposition. Although many might not like the idea, the NPD reap the benefits by such guarantees. We will see, whether the judges of the Second Senate will be influenced by symbolic politics. Or three dissenters will come together at least, that use their blocking minority, to put a stop to frivolous requests. If they have the impudence to risk a "judgment scandal". The rights of minorities are set at specific limits for the wishful thinking political majorities. I therefore respectfully dissent.

All's well that ends well! A renewed failure of prohibition proceedings would indeed be embarrassing for the instigators; but it would not be a "denazification certificate" for the NPD, but a matriculation certificate for the German Democracy. The democracy is stable enough to deal with Anti-Democrats "in accordance to the state".8 In a brochure that Jutta Limbach published in 2000, whenshe was President of the Constitutional Court, it says:

"After the ban of the SRP and the KPD the need to ban other political parties was felt repeatedly – for example, in the late 1960s, following a series of state electoral successes for the extreme right-wing NPD. However, there is now a clear understanding that a stable democracy places their opponents in the most effective position possible during public discussions and elections."9

In the meantime, society can look back on half a century of coexistence with the NPD. Dealing with those who call themselves "National Democrats", was mostly uneasy and rarely sovereign; surprisingly, not even its decline can alleviate the associated nervousness. Therefore, nowadays the "danger from the right" appears dramatic, but not serious. However, when the National Socialist Underground's gloves did come off and people were killed, the danger was not visible for years.

One can hardly blame interior ministers, for their decision to take care of extremists rather than their intelligence service. Through the support of trusted individuals (v-leute), they came amazingly close to preventing the NSU terrorist cell, but reportedly saw no reason to sound the alarm.It is a fact, that the Bundestag Investigation Committee did not completely solve the "operation shredder" mystery, which was specifically undertaken by the Federal Office for the Protection of the Constitution; however it is also a fact that not every shredded files could be "reconstructed".10

Only recently, the Hessian Landtag ordered a special committee to investigate the full-time intelligence agent who was in the internet café in Kassel, when Halit Yozgat was shot. There is a great deal of controversy surrounding him and a lot of unanswered questions, due to statements he later gave.11

This leaves a strong sense of discomfort, further added to by the Thuringian Inquiry Committee's final report: Shouldn't they continue the investigation, to highlight the need to protect the constitution? Does the somewhat absurd ban of the NPD, only serve as a distraction tactic? Is it a displacement activity? It definitely seems absurd that the only major consequence from the NSU debacle, has no effect on the Secret Service, but does affect a party, which according to current understanding, has nothing to do with the NSU-complexity.

Abridged reprint of the introduction of: Meier, Horst: Verbot der NPD – ein deutsches Staatstheater in zwei Akten. Analysen und Kritik 2001-2014, Berlin 2015.




[1] From the resolution of all Bundestag parliamentary groups to the agreed debate "series of murders by a Neo-Nazi gang and the work of the security authorities", German Bundestag, Document 17/7771, 22nd November 2011.- Reprinted in: Leggewie, Claus; Meier, Horst: Nach dem Verfassungsschutz, Berlin 2012, pp. 182f.
[2] Cf. BVerfGE 2, 1 – SRP-ban; Meier, Horst: Parteiverbote und demokratische Republik, Baden-Baden 1993, pp. 22ff; Frei, Norbert: Vergangenheitspolitik, Munich 1999, pp. 326ff.
[3] Cf. the standard work Politische Justiz, published in 1961 by Otto Kirchheimer, who emigrated to the United States.- Kirchheimer, Otto: Political Justice: The Use of Legal Procedure for Political Ends, Princeton 1961.
[4] Cf. Meier 1993, p. 117; Sacksofsky, Ute: Wellen der Empörung – das Bundesverfassungsgericht und die Politik, in: Merkur, Stuttgart 2014, Vol. 68, No. 8, pp. 711-716.
[5] Cf. BVerfGE 5, 85 – KPD-ban; Meier 1993, pp. 47ff; for a comparison of both processes cf. ibd., pp. 116ff.
[6] "An analogoue provision does not exist in the US", German-American expert in constitutional law and emigrant Karl Loewenstein succinctly stated in 1952.-  Loewenstein, Karl: Der Kommunismus und die amerikanische Verfassung, in: Juristenzeitung, Tübingen 1952, Vol. 7, pp. 2-10; cf. Grimm, Dieter: NPD-Verbot: Die Hürden sind hoch, Interview by Verfassungsblog (05.12.2012), URL: http://www.verfassungsblog.de/npd-verbot-juristisch-riskant-und-politisch-fragwurdig/#.VZp2TkZeyUk, 06.07.2015.
[7] Said in an interview on April 5th 1923.- Cited after Grünthaler, Mathias: Parteiverbote in der Weimarer Republik, Frankfurt a. M./Berlin/Berne/New York/Paris/Vienna 1995, p. 5. (European University Studies, Vol. 1783)
[8] Used in the formulation of the KPD-judgement BVerfGE 5, 85 (136).
[9] Limbach, Jutta (ed.): Das Bundesverfassungsgericht. Geschichte – Aufgabe – Rechtsprechung, Heidelberg 2000, pp. 51f.
[10] Cf. Aust, Stefan; Laabs, Dirk: Heimatschutz. Der Staat und die Mordserie des NSU, München 2014; Aust, Stefan: NSU-Mordserie. Verfassungsschutz war zu nah dran, Interview by Deutschlandfunk (21.05.2014), URL: http://www.deutschlandfunk.de/nsu-mordserie-verfassungsschutz-war-zu-nah-dran.694.de.html?dram:article_id=286920, 06.07.2015.
[11] Cf. eg. Faeser, Nancy: NSU-Terror. "Warum wird die Polizei behindert?", Interview by Frankfurter Rundschau, in: Frankfurter Rundschau (09.08.2014), URL: http://www.fr-online.de/neonazi-terror/nsu-terror--warum-wird-die-polizei-behindert--,1477338,28070808.html, 06.07.2015; for the Thuringian Enquiry Committee Report cf. URL: http://www.thueringer-landtag.de/imperia/md/content/landtag/aktuell/2014/drs58080.pdf, 06.07.2015.


09.12.2015

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