BVerfG, 2 BvB 1/13, 2017
- 2017
- Germany
Topics
Right-wing extremismLegal bases
Germany: Constitution of 1949, Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland (GG))Courts
Federal Constitutional Court, GermanyLaws
Freedom of Association Freedom of ExpressionFacts
The applicant, the German Bundesrat, applied to establish the unconstitutionality of the National Democratic Party of Germany (NPD). The applicant argues that the NPD advocates a concept aimed at abolishing the existing free democratic basic order and 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). Furthermore, its political concept disrespects human dignity and is incompatible with the principle of democracy. In addition, the NPD acts in a systematic manner and with sufficient intensity towards achieving its aims that are directed against the free democratic basic order. The Bundesrat therefore demands the NPD to be declared unconstitutional as a pre-requisite to prohibit the party.
Legal grounds
Article 21.2 of the GG
Findings
The Court rejected the application to declare the NPD unconstitutional as unfounded. The Court confirmed that the concept of “people” (Volk) advocated by the NPD violates human dignity as 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 those excluded from the NPD’s definition of ‘people’. Moreover, the NPD also disrespects the free democratic basic order with a view to the principle of democracy and advocates abolishing the existing system of parliamentary representation and replacing it with a national state that adheres to the concept of the Volksgemeinschaft. However, the 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, there are no specific and weighty indications that suggest that the NPD will succeed in achieving its anti-constitutional aims. 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. In the foreseeable future, the NPD also 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. 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. 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.