Party ban: The sharpest sword of the constitutional state

Some politicians are debating a proposal to ban the AfD. The Federal Constitutional Court fundamentally outlined the requirements for a party ban in the 2017 NPD ruling. The hurdles are high.

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.

Whether such a ban is submitted is initially a political decision. Such an application has legal success if the party that is to be banned is actually unconstitutional.

The Basic Law states the prerequisites for this: “Parties which, 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,” says Article 21 , paragraph 2.

No party ban since 1956

But what exactly this formulation means legally was unclear for a long time. The last political party to be banned by the Federal Constitutional Court was the Communist Party of Germany (KPD) in 1956. At that time, German democracy was still in its infancy.

It was only more than 60 years later that the most recent ban proceedings revealed the content requirements that the Federal Constitutional Court now sets for a party ban: In January 2017, Karlsruhe handed down its judgment on the application for a ban against the then NPD (National Democratic Party of Germany). The decision made it clear: the hurdles to a ban are now very high.

The “sharpest weapon” of the constitutional state

A party ban represents “the sharpest and, moreover, double-edged weapon of the democratic constitutional state against its organized enemies.” This is what it says in the first guiding principle that the Federal Constitutional Court put before the judgment.

On the following 298 pages, the Karlsruhe judges explain the conditions under which a party can be banned in Germany. And why it wasn’t enough to ban the NPD: Not because the right-wing extremist party (which now calls itself “Die Heimat”) would still stand on the basis of the Basic Law. But only because – to put it simply – it was too insignificant to be able to put its anti-constitutional goals into practice.

If a party lacks the necessary effective power, there is “no reason to ban such a party” despite its unconstitutionality, says Peter Müller. As a rapporteur, he played a key role in shaping the NPD ruling and resigned as a constitutional judge in December after twelve years.

“Actually, the primary aim must be to ensure that a situation does not arise in which democracy can only help itself by submitting an application to ban a party,” says Müller in the ARD-Podcast “The Justice Reporters”. “The party ban must not be used to eliminate unwanted political competition.”

Content-related requirements

The first prerequisite for a ban is that the party, based on its goals or the behavior of its supporters, at least wants to impair or even completely eliminate the free democratic basic order. According to the Federal Constitutional Court, the term “free democratic basic order” includes “the basic principles that are absolutely essential for the free constitutional state”. These include human dignity, the principle of democracy and the rule of law.

The fact that a party aims to eliminate or impair at least one of these core elements must arise from its goals, for example as they are stated in the party program, or from the behavior of its supporters. The supporters do not necessarily have to be party members.

If an application for a ban is to be successful, it would have to provide clear evidence of this. The examination of the content is likely to be the decisive point in possible future ban proceedings. Material contributed by the constitutional protection authorities at federal and state level also comes into consideration.

In Saxony, Saxony-Anhalt and Thuringia, the respective state Office for the Protection of the Constitution observes the AfD as a “secure right-wing extremist effort”. However, this classification that has already taken place is not yet a reason for a ban. The only consequence of this is that the party can be monitored there using intelligence means.

“Setting out” to eliminate the free democratic basic order means that there must be planned, active action in this regard. And there must be significant evidence that makes it at least seem possible that this action will lead to success, i.e. that the party can also implement its goals. This second requirement must also be met for a ban.

This is what Karlsruhe decided and, in the case of the NPD, denied: the party regularly failed in elections at the five percent hurdle and – apart from one European MP – had no elected parliamentarian in a supra-regional parliament. The party did not have a majority and had dwindling membership numbers. According to the verdict – apart from very isolated exceptions in East Germany – there was no actual dominance of the NPD in everyday life and in the process of public opinion formation.

Prohibition as a last resort

The determination of the unconstitutionality of a party by the Federal Constitutional Court can also be limited to a legally or organizationally independent part of a party. A ban on individual state associations is therefore conceivable, provided that they meet the requirements and others do not.

In principle, banning a party is only the last resort. “The idea of ​​the Basic Law is actually that democracy is defended through open intellectual debate,” says Peter Müller “Justice Reporters”. “The Basic Law relies on the power of arguments and not on bans – what is required is the commitment of the Democrats,” said the former constitutional judge. “In Germany, a democracy has already collapsed because too few were prepared to serve it; because too many remained silent and looked the other way.”