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Statement by the Press Office of the Federal Constitutional Court
Press Release No. 58/1952 of 23 October 1952
Judgment of 23 October 1952 - 1 BvB 1/51
Today the First Senate of the Federal Constitutional Court pronounced its judgment in the proceedings against the Socialist Reich Party (Sozialistische Reichspartei – SRP). The SRP is unconstitutional and must therefore be dissolved. Creating replacement organisations is prohibited. The Party’s assets are transferred to the Federation for charitable purposes. The party’s members in the Bundestag and in the state parliaments (Landtage) lose their mandates and may not be replaced by candidates succeeding them on the party lists.
The Federal Constitutional Court’s decision is based on Art. 21 of the Basic Law (Grundgesetz – GG). This constitutional provision recognises that the will of the people as the basis of state authority, expressed in elections and other votes, can only be implemented by means of parties as political units of action in the reality of the modern big state. Therefore, the constitutional legislature guarantees free establishment of and freedom of action for political parties. However, it denies those parties this freedom that do not recognise the fundamental principles of democracy and that seek to abuse the formal democratic instruments to abolish the free democratic basic order. To avert the abuse of party bans, the legislature transferred responsibility to decide on the constitutionality of parties to the Federal Constitutional Court, rather than to the executive or the legislating entities; it also outlined the constituent elements for such a decision.
This manifestation of Art. 21 of the Basic Law is the lesson learnt from the bitter experience of recent history. The process of undermining and, ultimately, abolishing democracy at the hands of the National Socialists must not repeat itself in the same or a similar manner. Likewise, the arbitrary suppression of other parties by the executive, as practised by the National Socialist regime, must be ruled out. Thus the judgment of the Federal Constitutional Court is particularly significant because it affects a party established by hard-core National Socialists and exposes the SRP as the successor organisation to the NSDAP. This is a classic case for applying Article 21(2) GG. The 98-page judgment is divided into eight sections. After an introductory description of the establishment and development of the SRP, which applied for a licence with the regional military government after its regional association in Lower Saxony was founded on 2 October 1949, the judgment first outlines the applications of the Federal Government and the SRP and summarises their submissions before providing an overview of the procedural history. This is followed by the discussion of preliminary procedural questions, including the rejection of the argument that the Court is not properly operational with 11 Justices, and the analysis of the legal requirements of Art. 21 GG. The subsequent sixth section gives a concise overview of the nature and development of the German Imperial Party (Deutsche Reichspartei), in particular the NSDAP. This is the background to the appraisal of evidence in the seventh section, which alone comprises 60 pages and is divided into five subsections. The last section contains the legal conclusion and above all gives reasons for the removal from office of the SRP deputies, which is not expressly provided for in the Basic Law and the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht – BVerfGG), but is derived from the concept underlying Art. 21 GG.
The appraisal of the enormous amount of evidence discussed by the Court in ten days of oral hearing makes up the core of the reasons for the decision. It is introduced by a fundamental discussion of the methods which are used for power struggles aimed at abolishing the existing order in the modern state: Increasingly, means of internal disintegration are used rather than open and immediate violence. The modern revolution is implemented through many individual hostile acts, which seem relatively insignificant in isolation and only reveal their revolutionary aim when considered as a whole; these hostile acts are carried out under the pretence of seemingly legal actions, which – as the example of Hitler has shown – may culminate in express declarations of loyalty, even in swearing an oath on the Constitution, and in the context of a programme that does not reveal its real aims. Art. 21 GG does justice to this realisation by not only addressing the party’s aims, but also the behaviour of its adherents, as this behaviour often most unmistakably reflects the true intentions of a modern revolutionary party
It is emphasised in the judgment that the result of the appraisal of evidence, which is explored in detail, gains particular importance because the SRP had the opportunity of destroying incriminating evidence on a huge scale, and it demonstrably did so before the Federal Constitutional Court was able to intervene with search and seizure orders.
In particular, the following conclusions from the taking of evidence are significant:
The SRP’s leadership is mainly composed of former old and active National Socialists. The party considers the “old fighters” its natural members and pool of future leaders (Fuehrerreserve). It systematically seeks to recruit officials for key party positions from this pool. In the letters seized from the party offices, a National Socialist past and a continuing commitment to the National Socialist ideology are typically considered a necessary and sufficient qualification for holding a party office.
The efforts of the party instances to systematically enlist old National Socialists to build their organisation correspond to the tendency of those former National Socialists who obstinately hold on to their old ideas.
Many quotes from the letters confirm that the SRP is like a magnet for them. They are welcomed with open arms; they are never required to declare a change of opinion or attitude. On the contrary, they all boast of their National Socialist past, with some writers explicitly stressing in their letters that they have retained their former attitudes without any change.
The organisation of the SRP is similar to that of the NSDAP. The Party is built from top to bottom in the spirit of the Fuehrer principle, characterised by a strictly implemented system of appointment and activity. The party’s authoritarian streak, which is only thinly veiled in its statutes, becomes clearly evident in party practice. Following the NSDAP’s pattern, the party seeks to favour old party members in addition to granting prerogatives to the party’s founders in the statutes. The term “old guard” is used. Members are excluded from the party arbitrarily, sometimes collectively, when entire regional associations are dissolved from the top down. The party is intended as a political order based on the principle of absolute obedience. In a letter of 25 December 1950, the party leader revealed his intention to organise the party apparatus “according to the principles of an officer corps” and “to reorganise the party ruthlessly towards a cadre organisation”. Accordingly, party officials are generally appointed rather than elected.
The party’s programme, which lacks a clear commitment to democracy, deliberately uses cautious, sinister and ambiguous wording. Its real meaning with clear parallels to National Socialism only becomes apparent when considered in the context of statements of leading officials and the behaviour of party adherents. There is no hesitation to show allegiance to Hitler. Propaganda follows Hitler’s approaches and methods in detail; for instance, the catchphrase “Deutschland erwache” (“Germany awake”) is used. The “Badenweiler Marsch“ [translator’s note: a military march used to signal Hitler’s arrival at public events] favoured by Hitler is recommended for rallies. Assemblies are started with melodramatic remembrance ceremonies, which create the impression that those who died in the war supported the same political ideas as the SRP. Mass rallies of the SRP are so similar to those of the NSDAP in terms of the speakers’ tone and manner of speaking and the hysterical applause of a frenzied crowd that they create the impression of being NSDAP rallies.
A cult of blood witnesses (Blutzeugenkult) inspired by National Socialist practices is observed. As the party does not have its own blood witnesses, its adherents have declared solidarity with the so-called Landsberger [translator’s note: seven National Socialists sentenced to death in the Nuremberg trials], among them a certain Ohlendorf, who admitted in his witness account [in the Nuremberg trials] that on his command and partly in his presence more than 90,000 innocent men, women and children were killed because they were Jews. A new stab-in-the-back lie (Dolchstoßluege) has been invented and disseminated with the aim of shifting the responsibility of Germany’s fate in public awareness from the NSDAP, the “great predecessor” of the SRP, to the opponents of National Socialism. The glorification of National Socialism is reflected by the systematic disparaging of the organs of the Federal Republic and its officials, with the party not shying away from distortions and defamations, while using a vocabulary that is constantly reminiscent of the National Socialist period. All other parties are fought with the aim of eliminating them from political life. Accusing them of betraying the most vital interests of the German people, the SRP disputes their right to exist. Laws and symbols of democracy realised in the Basic Law are cynically disrespected. Anti-Semitic and terrorist tendencies towards political opponents are apparent.
In the last part of its judgment, the Court addresses the purported self-dissolution of the SRP. It declares this self-dissolution, which was decided solely by the Party leadership, void, because it violates the mandatory provision of Art. 21(1) third sentence GG. “The decision on the existence of a political party, which would have to be made by as big a body as possible due to its significance, cannot be at the free discretion of the authoritarian leadership of a few party officials. The consent obtained from party members by the authoritarian party leaders cannot correct this flaw either. Such an “acclamation” without discussion is not a democratic vote”.
The decision of the Federal Constitutional Court in the proceedings against the SRP has made a new and essential contribution to the interpretation of the Basic Law. It has important state-political consequences that cannot be fully determined yet. It makes the saying come true that the enemies of freedom are not worthy of freedom and proves that the young German democracy is alive rather than an empty vessel that can be abused and ultimately destroyed at will.