background
Politics and society are debating how legal action could be taken against the AfD. A party ban would be the most radical, but not the only option. The Federal Constitutional Court would almost always be involved.
Party ban proceedings
There are high hurdles in Germany for banning a party. The Basic Law defines in Article 21, Paragraph 2:
Parties that, based on their goals or the behavior of their supporters, aim to impair or eliminate the free democratic basic order or endanger the existence of the Federal Republic of Germany are unconstitutional.
A political party can only be banned in the Federal Republic by the Federal Constitutional Court. The federal government, the Bundestag or the Bundesrat can submit the application for such a ban. For parties that are only organized in one federal state, also the respective state government.
The former constitutional judge Peter Huber counted in December MDR the criteria that are involved in banning a party. These are threats to human dignity, democracy and the fundamental rule of law, “that the will of the majority cannot override the protection of minorities, fundamental rights, independent courts and other things.”
According to previous Karlsruhe case law, the spread of unconstitutional attitudes alone is not enough for a ban. Added to this is an “actively combative, aggressive attitude” towards the basic democratic order. Huber pointed out another requirement: the party must have a realistic chance of implementing the threat.
The last point was emphasized by the Federal Constitutional Court in 2017 when it decided not to ban the NPD. The party regularly failed at the five percent hurdle. The last political party to be banned by the Federal Constitutional Court was the Communist Party of Germany (KPD) in 1956.
Ban on individual state associations or the AfDYouth organization
An application can also be made to ban individual state associations of a party – for example, state associations that the Office for the Protection of the Constitution classifies as definitely right-wing extremist. The Bonn constitutional lawyer Klaus Ferdinand Gärditz made this demand in the “Frankfurter Allgemeine Zeitung”. Currently, three AfD state associations are classified as “certainly right-wing extremist”: These are the associations in Saxony, Saxony-Anhalt and Thuringia.
A ban on the AfD youth organization Junge Alternative is also being discussed. Since it is a club, this would be easier to implement. Associations can be banned by the Federal Ministry of the Interior if they contravene criminal laws or are directed against the constitutional order or the idea of international understanding. For example, Federal Interior Minister Nancy Faeser (SPD) issued a ban on Hamas and Samidoun’s activities in Germany in November 2023.
One Forfeiture of fundamental rights for individual politicians
An online petition from the campaign network Campact calls on the federal government to submit an application to the Federal Constitutional Court for the forfeiture of fundamental rights for the AfD politician Björn Höcke. Almost 1.5 million people have signed the petition so far.
Like the ban on parties, the forfeiture of fundamental rights is also a regulation of “defensive democracy”. The forfeiture of fundamental rights is included in the Basic Law so that enemies of democracy can never again abuse their freedoms to abolish democracy. It can also only be pronounced by the Federal Constitutional Court in Karlsruhe. It must carry out its own procedure in which the person concerned must be heard.
This is not about all fundamental rights. The Basic Law stipulates that someone has, for example, forfeited their freedom of assembly or freedom of expression if they misuse them to fight against the free-democratic basic order. That doesn’t mean that the person can no longer have an opinion. However, he could no longer invoke the fundamental right if, for example, he were banned from making a certain public statement. There must be a serious danger posed by that person.
The right to be elected or hold public office could also be revoked, even for a certain period of time. The forfeiture of fundamental rights can be limited, but it must last at least one year.
However, Federal Interior Minister Faeser sees little chance of depriving Höcke of his basic rights. “In the history of the Federal Republic, the Federal Constitutional Court has never ruled that a person has forfeited their fundamental rights,” Faeser told the newspapers of the Funke media group. There are “high hurdles” here.
Exclusion from the state Party financing
The Bavarian Prime Minister Markus Söder (CSU) spoke out in the “Frankfurter Allgemeine Sonntagszeitung” for consequences for AfD members who are “recognizable enemies of the constitution”. These included “incompatibility with the public service or restrictions on party financing.”
A party can be excluded from state subsidies if these impair or damage the free democratic basic order or endanger the existence of the Federal Republic. The Federal Constitutional Court would also decide on this at the request of the Bundestag, Bundesrat or Federal Government. Such an exclusion – unlike a party ban – does not presuppose that the party can potentially achieve its anti-constitutional goals.
Next Tuesday, the Federal Constitutional Court will decide on an exclusion from party financing – for the party Die Heimat, as the NPD now calls itself.