Sunday, December 8, 2013

Can the NPD be banned?

For approximately one and a half years now, the National Democratic Party of Germany has been confronted with the possibility that a new challenge to its legal existence will be mounted by the highest federal court in Germany. Such a possibility has ignited a new wave of intense discussion amongst the political classes, amongst the media, and to a certain extent amongst the German public, as to the validity of such an undertaking.

The objective of the established political forces in Germany is to have a constitutional court, which is based in Karlsruhe, declare that the NPD is fundamentally opposed, indeed hostile, to the German constitution. A political party in Germany can only be declared as being hostile to the constitution, if that party turns against the established democratic order, as that order has been legally established by the Federal Republic.

The legal hurdles for the prohibition of such a political party are significant. A political party can only be banned in Germany if it can be proved that the activities of such an organization are aggressive in the desire to overthrow the current political order. In other words, the mere programmatic expression that a political party rejects the democratic system is not sufficient grounds upon which to have that organization legally barred from the political system.

As a result, only twice in the history of the Federal Republic, since its founding in 1949, has a political party been banned. The first was in 1952 when the nationally minded Sozialistische Reichspartei was banned; and the second in 1956 with the Kommunistische Partei Deutschlands.

In 2003, the political forces in Germany attempted to impose a similar ban on the NPD. However, the attempt failed. One of the reasons it failed was that the prosecution (i.e. the political forces) depended too heavily on NPD informants, in other words it depended on NPD members who had been offered financial remuneration to snitch on their fellow members. This clandestine operation was (and still is) being carried out by a special department in the German Interior Ministry. This department is responsible for protecting the German constitution and for ensuring that the country’s electorate doesn’t go too far astray in its political views. When it came to proving that the NPD was aggressively hostile in its actions to the German constitution, the suspect nature of these informants, and presumably their suspect political views too, proved fatally damaging to the government’s case.

It’s worth noting that in no other European country does there exist a comparable authority, one that is charged with “protecting the constitution”, in the same way that the German Interior Ministry has devised its own internal “Constitutional-Protection” department.

Unpromising – such are the prospects for a renewed effort to ban the NPD

As a consequence of the previous attempt to ban the NPD (brought to the constitutional court in 2001 and rejected in 2003), the German Interior Ministry has this time around decided not to use any NPD informants in its prosecution. Instead, it has said it expects only to introduce so-called “untainted” sources, sources that presumably come directly from quotes and statements made by the
NPD itself.

Last year, the Interior Minister introduced a comprehensive collection of materials, which are supposed to serve as an alternative line of argumentation when attempting to ban the NPD. In turn, this could mean that the Court, as per its decision in 2003, will consider such evidence as being insufficient when it comes to proving the NPD’s hostility to the German Constitution.

This is one of the main reasons why in spite of repeated appeals by the media, and by politicians, and by the Bundesrat (the bi-cameral House that represents the 16 individual states), the current government as represented by Angela Merkel’s administration has been reluctant to support a new legal initiative that would seek a ban on the NPD.

Indeed, it is apparent to many that the risk of yet another failed attempt to ban the NPD is high; not least because:

■ The NPD does nothing illegal
■ It participates legally in the political life of the Federal
■ It has regularly stated that it has no intention of operating
outside of the law of the land and/or of the constitution
■ And it has consistently stated that it rejects the use of
force in political life

The NPD seizes the initiative – a petition that counters the ban proposal

The constant public discussion about a possible ban puts the NPD at a distinct disadvantage when it comes to achieving its political aims. Indeed, the ever present proposal almost acts as a de facto ban on the party. In the public discourse, the NPD is for all intents and purposes being discriminated against, since both its reputation and its election prospects are being constantly and deliberately maligned.

As a consequence, the NPD is hampered in its efforts to influence the political debate, in the same way that other political parties seek to influence this debate. Surely this is contrary to the intentions of the German constitution.

Therefore, it is clearly in the interests of the NPD to establish a clear ruling on the question of whether or not this particular political party is hostile to the constitution. Subsequently, and in anticipation that a proposal to ban the NPD will be filed by the Interior Minister or some other political entity, the party itself has filed a request (12.11.2012) that this very question should be adjudicated on without further delay. This is the so-called “Counter Petition”, a request which actually represents a first in the legal history of the Federal Republic.

By filing such a “Counter-Petition” to the German courts, the NPD is of course NOT seeking to ban itself. It is seeking once and for all a ruling, that when passed, will show that the NPD isn’t hostile to the constitution; and therefore can’t be banned.

This action shouldn’t be seen as a mere “PR stunt” (as has been insinuated by some of the NPD’s opponents). It should be viewed as an effective legal and political move that seeks to act against political discrimination. One objective has indeed already been achieved. By filing this request in Karlsruhe the party has - as suggested by the public’s reaction - seized the political initiative and placed the ball back in the court of its opponent. If and when the Bundesrat, or some other political body, does make a legal request to the constitutional court to have the NPD banned, then it will seem that the establishment is merely reacting to moves already made by the NPD.

How will it turn out?

Because the Constitutional Court rejected the NPD’s request to have a formal declaration as to whether or not the party is hostile to the German constitution, the party will appeal to the European Court of Human Rights. The objective of this appeal will be to produce a legal ruling that attests to the fact that the NPD is indeed in accordance with the German constitution.

Regardless of where this case is heard – be it in Karlsruhe or at the European Court of Human Rights – the NPD is highly confident of a favorable outcome. According to the rule of law in Germany, and as provided for in the country’s constitution, a ban cannot be placed on the NPD. However should the highest court in the land bow to pressure from the established political parties, and rule that a ban is legally possible, then it is highly likely that this decision would be overturned by the European Court of Human Rights; because that court has far stricter criteria for allowing political parties to be banned than exists in Germany.

The political damage to those advocating a ban on the NPD would be significant. They would be required to attest before a European Court that they would have treated the NPD as not being in accordance with the principles of the German legal state. The international reputation of the German legal state would in this case be severely damaged. The proponents of yet another attempt to ban the NPD should therefore seriously consider whether or not they want to take on that risk.

(by Jens Pühse, Responsible for Foreign Affairs of the NPD)