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Applications made by the NPD against Bundestag, Bundesrat and Federal Government unsuccessful
Press Release No. 15/2013 of 05 March 2013
Order of 20 February 2013
2 BvE 11/12
In an order published today, the Second Senate of the Federal Constitutional Court rejected an application made by the National Democratic Party of Germany (NPD) for a declaration that it is not unconstitutional. The Federal Constitutional Court Act does not provide proceedings for the declaration sought. Furthermore, this does not entail a gap in legal protection with regard to the NPD's assertion that the effect of the current debate about a prohibition of the party was de facto that of a party ban. Government agencies are not prevented from putting up for discussion the pros and cons of party ban proceedings with the required objectivity. The Second Senate also rejected the NPD's auxiliary application to establish that the German Bundestag, the Bundesrat and the Federal Government violated the NPD's rights as a party by continually alleging its unconstitutionality.
The decision is essentially based on the following considerations:
1. The main application is inadmissible. The Federal Constitutional Court Act does not provide a party with the option to invoke the Federal Constitutional Court's jurisdiction for a declaration of its constitutionality.
a) Political parties are free to exercise their rights as long as the Federal Constitutional Court has not established their unconstitutionality. If it is contested that they are entitled to exercise these rights, they can take recourse to the courts. The applicant's objection that it is too much for a party which is branded as unconstitutional to seek legal protection in every individual case, and that apart from this, legal protection often proves ineffective, does not show a structural deficit with regard to legal protection. The applicant merely names practical problems which can recognisably be handled with reasonable effort.
b) A deficit in legal protection is not cognizable either with regard to the applicant's allegations that the statements which it labels "debate on a ban" (Verbotsdebatte), and the other measures directed against it have the same effect as a ban.
aa) In accordance with their function to participate in the formation of the political will of the people, political parties must face public dispute. Statements on the assessment of a political party as unconstitutional are part of the public dispute as long as they keep within the limits of statute and law. The party affected can, and must, counter such statements with the means available to it in the struggle of opinions.
If state agencies engage in political dispute, they must respect the limits set to them by the Constitution. Observance of these limits is open to judicial review. This also applies to the public discussion of whether proceedings to ban it are opened against a party. In such a case, however, it is possible that the party's rights under Art. 21 sec. 1 of the Basic Law (Grundgesetz - GG) are violated if the objective of such a debate is not to decide this question but to discriminate against the party affected.
bb) Apart from this, recourse to the courts is open to the political parties and their members in order to counter the allegation of unconstitutionality. The applicant does not at all ignore that the constitutionality of a political party can be, and indeed is, the subject of judicial assessment. If it concludes from losing such actions before the ordinary courts that there is a gap in legal protection, this conclusion is implausible.
cc) For these reasons, it is also unobjectionable that the respondents have not provided for proceedings for the establishment of the constitutionality of a party in the Federal Constitutional Court Act.
2. As an action of one public body against another, the auxiliary application is permissible; its reasoning, however, makes it inadmissible. It has not been sufficiently stated that the applicant's status as a party has been violated, or is directly endangered, by the respondents' measures or omissions. The applicant quotes statements by Länder minister-presidents, Länder Ministers of the Interior, individual members of the Bundestag and a federal minister. However, it is not cognizable that the persons mentioned intended to make statements on behalf of one of the respondents. Even measures by a federal minister - such as support for programmes against right-wing extremism - cannot necessarily be attributed to the Federal Government as a collegiate body.