Is there a solution for NPD

Federal Constitutional Court

Press release No. 4/2017 of January 17, 2017

Judgment of January 17, 2017
2 BvB 1/13

The National Democratic Party of Germany (NPD) advocates a political concept aimed at eliminating the existing free democratic basic order. It wants to replace the existing constitutional order with an authoritarian nation-state based on the ethnically defined “national community”. Your political concept disregards human dignity and is incompatible with the principle of democracy. The NPD also works systematically and with sufficient intensity to achieve its goals, which are directed against the free democratic basic order. However, there is (currently) a lack of concrete evidence of weight that would make it appear possible that this action will lead to success, which is why the Second Senate of the Federal Constitutional Court submitted the admissible motion of the Federal Council to establish the unconstitutionality and dissolution of the NPD and its sub-organizations (Art. 21 para. 2 GG) with the judgment announced today unanimously as unfounded.

Key considerations of the Senate:

1. The prohibition application is admissible. The conduct of the procedure is not precluded by a violation of the principle of strict freedom of the state or a violation of the principle of fair trial. To the conviction of the court, the applicant has demonstrated that all informants at the management levels of the NPD were switched off at the latest at the time of the announcement of the intention to file an application for a ban and that no information-gathering follow-up was carried out. It can also be assumed that the NPD's litigation strategy was not spied on by the intelligence service and that sufficient precautions were taken so that any knowledge gained by chance in the context of the observation of the NPD is not used to the detriment of the NPD.

2. Pursuant to Article 21 (2) of the Basic Law in conjunction with Sections 43 et seq. BVerfGG, the applicant seeks a declaration that the NPD is unconstitutional because, according to its goals or the behavior of its supporters, it seeks to impair the free democratic basic order . This is based on the following standards:

a) The concept of a free democratic basic order within the meaning of Article 21, Paragraph 2 of the Basic Law contains the central basic principles which are absolutely indispensable for the free constitutional state. The free democratic basic order finds its starting point in human dignity (Article 1, Paragraph 1 of the Basic Law). The guarantee of human dignity includes in particular the preservation of personal individuality, identity and integrity as well as elementary equality of rights. Concepts aimed at racial discrimination are not compatible with this. In addition, within the framework of the principle of democracy, the possibility of equal participation of all citizens in the process of political decision-making and the tying back of the exercise of all state authority to the people (Art. 20 (1) and (2) GG) are constitutive components of the free democratic basic order. With regard to the rule of law, this applies to the legal binding of public authority, the control of this binding by independent courts and the state monopoly on the use of force.

b) The concept of elimination within the meaning of Article 21, Paragraph 2 of the Basic Law denotes the abolition of at least one of the essential elements of the free democratic basic order or its replacement by another constitutional order or another system of government. Impairment can be assumed if a party, according to its political concept, causes a noticeable threat to one of the essential elements of the free democratic basic order with sufficient intensity.

c) The fact that a party strives to impair or eliminate the free democratic basic order must result from the goals or the behavior of its supporters. A party's goals are the epitome of what a party (openly or covertly) strives for politically. Followers are all people who stand up for a party and are committed to it, even if they are not a member of the party. In principle, the activities of the party leadership, senior officials (including those of sub-organizations) and statements in the party's publication organs are to be attributed to a party. In the case of statements or actions by simple members or by supporters who do not belong to the party, it is crucial that their behavior clearly expresses the party's political will. This is regularly the case if the behavior reflects a basic tendency in the party or the party has expressly made this behavior its own.

d) The party ban requires a "going out" on the impairment or elimination of the free democratic basic order. It is not a prohibition of convictions or beliefs. Rather, the party must go beyond the confession of its anti-constitutional goals and cross the line to fight the free democratic basic order. This presupposes that it is committed to its goals through active and planned action and works towards the impairment or elimination of the free democratic basic order. It is not necessary that the party's actions lead to a specific danger for the protected interests of Article 21, Paragraph 2, Sentence 1 of the Basic Law. However, there must be concrete indications of weight that at least make it appear possible that the party's actions can be successful (potentiality). If, on the other hand, the actions of a party do not even suggest the possibility of achieving their anti-constitutional goals, preventive protection of the constitution through a party ban is not necessary. In the different definition in the KPD judgment, according to which it does not preclude a party ban if the party has no prospect of realizing its unconstitutional intention in the foreseeable future (BVerfG 5, 85 <143>), does not hold the Senate.

e) There is no room for the acceptance of further (unwritten) elements of the offense within the framework of Article 21, Paragraph 2 of the Basic Law. The principle of proportionality does not apply in the party prohibition proceedings, nor does the affinity of a party with National Socialism have a function that replaces the elements of Article 21.2 of the Basic Law. However, the kinship with National Socialism can develop indicative significance with regard to the pursuit of anti-constitutional goals of a party.

3. According to these standards, the application for a ban is unfounded.

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

aa) The concept of the people represented by the NPD violates human dignity. It negates the person's claim to respect resulting from this and leads to the denial of elementary legal equality for all who do not belong to the ethnically defined "national community" in their sense. The political concept of the NPD is aimed at the exclusion, contempt and extensive deprivation of rights of social groups (foreigners, migrants, religious and other minorities).

bb) In addition, the NPD disregards the free democratic basic order, also with a view to the principle of democracy. In a nation state characterized by the “unity of people and state” in the sense of the NPD, there is basically no room for ethnic non-Germans to participate in the formation of political will. This concept contradicts the right, which is rooted in the human rights core of the democratic principle, to the equal participation of all citizens in the formation of political will. In addition, the NPD advocates the abolition of the existing parliamentary-representative system and its replacement by a nation-state based on the principle of the “national community”.

cc) The NPD shows an essential affinity with National Socialism. The concept of the “Volksgemeinschaft”, the basic anti-Semitic attitude and the contempt for the existing democratic order reveal clear parallels to National Socialism. In addition, there is the commitment to leaders of the NSDAP, the selective recourse to vocabulary, texts, songs and symbolism of National Socialism as well as historical revisionist statements that document a connection between at least relevant parts of the NPD and the world of ideas of National Socialism. The affinity of the NPD with National Socialism confirms their disregard for the free democratic basic order.

b) A prohibition by the NPD is opposed by the fact that the constituent element of “going out on it” within the meaning of Article 21, Paragraph 2, Sentence 1 of the Basic Law is not fulfilled. The NPD is committed to its goals that are directed against the free democratic basic order and works systematically towards their attainment, so that its actions represent qualified preparation for the elimination of the free democratic basic order that it is striving for. However, there is a lack of concrete evidence of weight that would make it appear possible to implement the anti-constitutional goals it is pursuing. There is no prospect of successful implementation of these goals within the framework of participation in the process of political decision-making (aa), nor is an attempt to achieve these goals through an impairment of the freedom of political decision-making attributable to the NPD to a sufficient extent detectable (bb).

aa) Achieving the unconstitutional goals of the NPD by parliamentary or extra-parliamentary democratic means appears to be impossible.

(1) In the parliamentary sphere, the NPD has neither the prospect of winning its own majorities in elections, nor the option of gaining its own freedom of action by participating in coalitions. At the supra-regional level, it is currently only represented by one member in the European Parliament. The election results in the European and Bundestag elections are stagnating at a low level. In the more than five decades of its existence, the NPD has not been able to be permanently represented in a state parliament. There are no indications of a future change in this development. In addition, the other parties represented in the parliaments at federal and state level are not yet ready to form coalitions or even to cooperate with the NPD on a selective basis. Despite their presence in the local parliaments, a decisive influence on the formation of political will in the local representative bodies is neither given nor expected in the future.

(2) Even by participating in the process of political decision-making with democratic means outside of parliamentary action, the NPD will not be able to successfully pursue its anti-constitutional goals in the foreseeable future. Rather, a lasting influence on the extra-parliamentary formation of political will by the NPD stands in the way of its low and declining degree of organization as well as its limited campaigning ability and low impact on society. A total of less than 6,000 members significantly restricts the NPD's ability to act. It is not evident that it could compensate for its structural deficits and its low effectiveness through its public relations work or the implementation of the “carer strategy” by means of “national-revolutionary grassroots work”. There is also a lack of evidence that the NPD succeeds in gaining relevant additional support for its anti-constitutional intentions with its asylum and immigration policy activities. Likewise, it has not been able to increase its effectiveness in society through the creation of right-wing extremist networks under its leadership - apart from occasional collaborations.

bb) There are also no concrete indications of weight that indicate that the NPD exceeds the limits of the permissible political conflict of opinion in a way that fulfills the criterion of “going out of it”. It is not capable of realizing claims to dominance in delimited social spaces to a relevant extent. The small town of Jamel is a special case that cannot be generalized. There are no other examples of successful implementation of spatial dominance claims. A basic tendency of the NPD to enforce its anti-constitutional intentions with violence or by committing criminal offenses cannot (yet) be inferred from the individual cases described in the proceedings. Finally, there is a lack of sufficient evidence for the creation of an atmosphere of fear that leads or could lead to a noticeable impairment of the freedom of the process of political decision-making. The fact that the NPD is able to trigger an understandable concern about the freedom of the political process or even fear of violent attacks through intimidating or criminal behavior by members and supporters cannot be misunderstood, but achieves that through Art. 21.2 of the Basic Law marked threshold not. Intimidation and threats as well as the build-up of potential for violence must be responded to in a timely and comprehensive manner using the means of preventive police law and repressive criminal law in order to effectively protect the freedom of the political process as well as individuals affected by the behavior of the NPD.