No prohibition of the National Democratic Party of Germany as there are no indications that it will succeed in achieving its anti-constitutional aims

Press Release No. 4/2017 of 17 January 2017

Judgment of 17 January 2017

2 BvB 1/13

The National Democratic Party of Germany (NPD) advocates a concept aimed at abolishing the existing free democratic basic order. The NPD intends to replace the existing constitutional system with an authoritarian national state that adheres to the idea of an ethnically defined “people’s community” (Volksgemeinschaft). Its political concept disrespects human dignity and is incompatible with the principle of democracy. Furthermore, the NPD acts in a systematic manner and with sufficient intensity towards achieving its aims that are directed against the free democratic basic order. However, (currently) there is a lack of specific and weighty indications suggesting that this endeavour will be successful; for that reason the Second Senate of the Federal Constitutional Court, in its judgment pronounced today, unanimously rejected as unfounded the Bundesrat’s admissible application to establish the unconstitutionality of the NPD and its sub-organisations (Art. 21 sec. 2 of the Basic Law, Grundgesetz – GG).

Key Considerations of the Senate:

1. The application to prohibit the NPD is admissible. There is neither an infringement of the strict requirement that there be no informants at the party’s executive level (Staatsfreiheit) nor an infringement of the principle of fair trial that would preclude carrying out the proceedings. The applicant convincingly demonstrated to the Court that all police informants at the executive levels of the NPD had already been deactivated, at the latest, at the point in time at which the intention to file an application to prohibit the NPD had been announced, and that there had been no follow-up aimed at obtaining information. It can also be assumed that the NPD’s procedural strategy has not been spied out with intelligence service means and that there have been sufficient precautions to ensure that information obtained incidentally through the observation of the NPD is not used to the party’s detriment.

2. The applicant requests, pursuant to Art. 21 sec. 2 GG in conjunction with §§ 43 et seq. of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz – BVerfGG), the declaration that the NPD is unconstitutional because it seeks, by reason of its aims or the behaviour of its adherents, to undermine the free democratic basic order. This request must be measured against the following standards:

a) The notion of the free democratic basic order within the meaning of Art. 21 sec. 2 GG encompasses the central basic principles that are absolutely indispensable for the free constitutional state. Human dignity (Art. 1 sec. 1 GG) is the very basis of the free democratic basic order. The guarantee of human dignity encompasses in particular the safeguarding of personal individuality, identity and integrity, as well as the fundamental equality before the law. Concepts aimed at racist discrimination are incompatible with this finding. Apart from this, under the principle of democracy, also the possibility of equal participation of all citizens in the process of developing an informed political opinion, and the exercise of all state authority being attributable to, i.e. derived from, the people (Art. 20 secs. 1 and 2 GG), are constitutive elements of the free democratic basic order. As far as the rule of law is concerned, this applies with regard to public authority being bound by the law, the independent courts’ review in that respect, and to the state’s monopoly on the use of force.

b) The concept of “abolishing” (beseitigen) within the meaning of Art. 21 sec. 2 GG describes the abolishment of at least one of the constituent elements of the free democratic basic order or the replacement of this order with another constitutional order or another system of government. The criterion “undermining” (beeinträchtigen) can be assumed to be met once a party, according to its political concept, noticeably threatens one of the constituent elements of the free democratic basic order.

c) Whether a political party seeks to undermine or abolish the free democratic basic order must result from the aims or the behaviour of its adherents. The aims of a party are the embodiment of what a party (openly or covertly) intends to achieve politically. “Adherents” are all persons who support a party’s cause and profess their commitment to the party even if they are not members of the party. In general, activities of the party leaders, of leading party officials (also of sub-organisations) and statements in party publications are attributable to a party. With regard to statements and acts of rank and file members or of adherents who do not belong to the party, it is decisive whether their behaviour recognisably expresses the party’s political will. This is generally the case if the behaviour reflects a fundamental tendency existing in the party, or if the party has expressly adopted such behaviour.

d) The prohibition of a political party requires that the party seeks (darauf ausgehen) to undermine or abolish the free democratic basic order. It is not a means for prohibiting views or an ideology. Instead, the party must go beyond its commitment to its anti-constitutional aims in that it exceeds the threshold of actually combating the free democratic basic order. This criterion is met if the party actively and systematically advocates its aims and acts towards undermining or abolishing the free democratic basic order. It does not require, however, that the party’s acts result in a specific danger to the legal interests protected by Art. 21 sec. 2 sentence 1 GG. However, there must be specific and weighty indications that at least make it appear possible that the party’s activities will be successful (potentiality). If, on the contrary, the acts of a party do not even suggest that it might possibly succeed in achieving its anti-constitutional aims, it is not necessary to protect the Constitution preventively by prohibiting the party. Thus, the Senate does not uphold the deviating definition set out in the judgment prohibiting the Communist Party of Germany (KPD), according to which the fact that there are, according to human standards, no prospects that the party will be able to realise its unconstitutional intention in the foreseeable future does not preclude the prohibition of the party (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts– BVerfGE 5, 85 <143>).

e) Art. 21 sec. 2 GG leaves no room for assuming that there are other (unwritten) criteria. Neither is the principle of proportionality applied in proceedings regarding the prohibition of political parties, nor does a party’s similarity in nature to National Socialism provide a substitute for the criteria set out in Art. 21 sec. 2 GG. Nonetheless, similarity in nature to National Socialism can in fact serve as an indication of a party’s pursuit of anti-constitutional aims.

3. Measured against these standards, the application to prohibit the NPD is unfounded.

a) The political concept of the NPD is aimed at abolishing the free democratic basic order.

aa) The concept of “people” (Volk) advocated by the NPD violates human dignity. It negates a person’s entitlement to respect which follows from human dignity and leads to the denial of the fundamental equality before the law to the detriment of those persons who do not belong to the NPD’s ethnical definition of the Volksgemeinschaft. The NPD’s political concept is aimed at segregating and disparaging social groups (foreigners, migrants, religious and other minorities) and at largely depriving them of most of their rights.

bb) Moreover, the NPD also disrespects the free democratic basic order with a view to the principle of democracy. A national state characterised by the “unity of people and state” as defined by the NPD, as a matter of principle leaves no room for a participation of non-ethnic Germans in the process of developing an informed political opinion. This concept contradicts the right to equal participation of all citizens in the development of political opinions that is rooted in the human-rights core reflected in the principle of democracy. Furthermore, the NPD also advocates abolishing the existing system of parliamentary representation and replacing it with a national state that adheres to the concept of the Volksgemeinschaft.

cc) The NPD’s nature resembles National Socialism. Its concept of the Volksgemeinschaft, its fundamentally anti-Semitic attitude and its disparaging of the existing democratic order show clear parallels to National Socialism. Furthermore, proclaimed identification with leading personalities of the National Socialist German Workers’ Party (NSDAP), the use of selected National Socialist vocabulary, texts, songs and symbols, as well as revisionist statements with regard to history demonstrate an affinity of at least relevant parts of the NPD with the mindset of National Socialism. The NPD’s similarity in nature to National Socialism confirms its disrespect of the free democratic basic order.

b) However, a fact that precludes a prohibition of the NPD is that the element of “seeking” (darauf ausgehen) within the meaning of Art. 21 sec. 2 sentence 1 GG is not met. While the NPD indeed professes its commitment to aims that are directed against the free democratic basic order and although it systematically acts towards achieving them, which is why its acts constitute a qualified preparation of abolishing the free democratic basic order that it strives for, there are no specific and weighty indications that suggest that the NPD will succeed in achieving its anti-constitutional aims. Neither is there a prospect of successfully achieving these aims in the context of participating in the development of political opinions (aa), nor is it sufficiently discernible that there is an attempt – attributable to the NPD – to achieve these aims by undermining the freedom of participating in the development of political opinions (bb).

aa) It appears to be entirely impossible that the NPD will succeed in achieving its aims by parliamentary or extra-parliamentary democratic means.

(1) As far as the parliamentary sphere is concerned, the NPD neither has a prospect of obtaining own majorities in elections nor the option of creating its own scope for action by taking part in coalitions. At a supra-regional level, it currently has only one representative in the European Parliament. The party’s results in elections to the European Parliament and to the German Bundestag are stagnating at a low level. In the more than fifty years of its existence, the NPD has never been successful in being represented in a Land parliament on a permanent basis. There are no indications suggesting that this situation will change in the future. Furthermore, the other parties represented in the federal and Land parliaments have so far not been willing to enter into coalitions with the NPD or even to occasionally cooperate with it. In spite of its representation in local parliaments, a determining influence of the NPD on the formulation of political opinions within the local bodies of representation is neither apparent nor is such influence to be expected in the future.

(2) In the foreseeable future, the NPD does not have any possibility of successfully pursuing its anti-constitutional aims with democratic means outside its parliamentary action by participating in the process of policy formulation either. On the contrary, the NPD’s low degree of organisation, which shows a downward trend, its limited campaigning capability and the fact that its reach into society is marginal stand in the way of its having a lasting influence on the formulation of political opinions outside the parliamentary sphere. Its total number of less than 6,000 members considerably limits the NPD’s possibilities of action. It is not apparent that the party could compensate its structural deficiencies and its marginal reach into society by its public relations activities, or by implementing its strategy of “taking care” within its “national revolutionary grassroots work”. There is also no evidence that the NPD succeeds in obtaining a relevant degree of additional support for its anti-constitutional purposes through its asylum policy and policies on foreigners. Apart from occasional cooperations, it has not succeeded in increasing its reach into society by creating right-wing extremist networks under its direction either.

bb) Furthermore, there are no specific and weighty indications suggesting that the NPD exceeds the boundaries of admissible political struggle of opinions in a manner that would satisfy the criterion of „seeking“. It is incapable of realising its aspirational urge to dominate delimited social spaces to a relevant degree. The tiny village of Jamel constitutes a special case which cannot be generalised. Other examples of the party’s successful implementation of its striving for territorial dominance were not identified. A fundamental tendency of the NPD to assert its anti-constitutional intentions by violent means or by committing criminal offences cannot (yet) be inferred from the individual cases described in the proceedings. Finally, there are no sufficient indications at present and with regard to the near future to suggest that the party creates an atmosphere of fear that noticeably undermines the free process of the development of political opinions. The fact that the NPD, by intimidating or criminal behaviour of members or adherents is able to occasionally raise understandable concerns for the freedom of the political process or even fear of violent attacks is undeniable, but it does not reach the threshold determined by Art. 21 sec. 2 GG. Intimidation and threats, as well as the building up of potentials for violence, must be countered with the means of preventive police law and of repressive criminal law in order to effectively protect the freedom of the political process as well as individuals affected by the behaviour of the NPD.