This month, Germany’s Karlsruhe based Constitutional Court hears arguments on a proposed ban of Germany’s far-right extremist National Democratic Party (NPD). The Bundesverfassungsgericht is tasked with deciding whether the NPD represents and spreads national-socialist ideological values and is, thus, in breach of the country’s constitution. The proceedings show Germany’s rift between upholding constitutional rights to democracy and dealing with a growing right-wing faction.
The German Bundesverfassungsgericht was set up after the turmoil in Germany between the 1920s and the end of the Second World War. The newly created Federal Republic of Germany (FRG) wanted to prevent the establishment of another dictatorship through democratic means. That is the main reason of the establishment of this special Court. Although the fascists dominated the period prior to the establishment of this Court, the newly drafted Constitution of the FRG did not only focus on right wing parties, but on any party trying to abuse the democratic process to reign in the free democratic basic order.
The Grundgesetz reaffirms a free competition between the freedom of expression and the freedom to association. In article 21, the Grundgesetz states that, ‘Political parties shall participate in the formation of the political will of the people’, giving political parties an explicit role in the development of civil society. However, in the following paragraph it states: “Parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.”
It is now to the Constitutional Court to decide whether the NPD, by reason of their aims or the behavior of their adherents, is to be labelled unconstitutional and be banned. Considering Germany’s high threshold required to ban a party, current proceedings are of a historical nature. There have only been two party-bans in post-war Germany: 1952 of the Socialist Reichsparty, which was deemed ideologically close to the NSDAP, and of the German Communist Party in 1956. In these proceedings, the Karlsruhe court deemed that only the spreading of unconstitutional ideology was not enough, but that parties similarly had to display an ‘actively fighting, aggressive attitude towards the democratic values’ of the country.
Considering the NPD’s fundamental anti-immigration ideology and long-standing background in right-wing extremism, the Bundesverfassungsgericht now has to adapt its 1950’s requirements to the modern age and rule on what constitutes hate speech, ‘actively fighting aggressive attitude’ and whether it breaches Germany’s constitutional values. The NPD can challenge a possible ban by the Bundesverfassungsgericht in the European Court of Human Rights. According to rulings by the ECHR, a party ban can only be justified in cases where this is strictly for the protection of civil society. Considering the NPD’s open rhetoric towards violence against minorities and immigrants, the ECHR, indeed may side with the position that the party endangers the country’s democratic principles and the protection of an ethnically diverse civil society.
The rise of nationalist and extremist parties has become a common phenomenon throughout Europe following recent terrorist attacks and an escalating refugee crisis. In light of extremist far-right parties and movements such as Golden Dawn in Greece, the British National Party, Pegida in Germany or the Party for Freedom in the Netherlands advocating violence against a rising portion of society, a forced dissolution ruling by the Germany’s highest court could spur other countries to pursue similar proceedings to safeguard internal national stability.
As such, with its ruling on the NPD’s fate, Germany’s Constitutional Court has the power to reaffirm modern-day Germany’s trust in a rule-based, open and democratic civil society. By preventing far-right nationalist extremist from having a national platform, Karsruhe can boost Berlin’s embattled ‘Willkommenskultur’ and give an important uplift to the democratic values underlying the European Union.