Bundesverfassungsgericht

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Discontinuation of Proceedings Regarding the Prohibition of the National Democratic Party

Press Release No. 22/2003 of 18 March 2003

Order of 18 March 2003
2 BvB 1/01

The Second Senate of the Federal Constitutional Court today discontinued the proceedings regarding the prohibition of the National-democratic Party of Germany (Nationaldemokratische Partei Deutschlands –NPD).

Facts of the Case:

The respondent, the NPD, which was founded in 1964, achieved election results between 5.8 and 9.8 per cent in individual Landtag elections between 1966 and 1968. In 1969 the party achieved its highest results in elections for the Bundestag, achieving a result of 4.3 per cent with the second vote [translator’s note: cast for the individual parties]. Since then, the NPD has obtained no further seats in any elections for a Landtag or for the Bundestag. In the elections for the Bundestag in 1998 and 2002 the respondent obtained 0.3 and 0.4 per cent of the valid second votes cast and 0.4 per cent of the valid votes in the most recent European elections held in 1999. According to the respondent’s own information, the party had more than 3,240 members in 1996. Following Udo Voigt’s election as party chairman in March 1996, the number of party members rose to 6,500 by 2001.

On 30 January and 30 March 2001 the Federal Government, Bundestag and Bundesrat (applicants) applied to the Federal Constitutional Court for a decision on the respondent’s unconstitutionality and to declare the dissolution of the political party. The applicants consider the respondent to be unconstitutional, given that, by reason of its aims and its adherents’ behaviour, it seeks to undermine the free and democratic basic order. The overall picture of the respondent was one of a national-socialist, anti-Semitist, racist and anti-democratic orientation. The respondent is of the opinion that the applications are inadmissible and unfounded.

With its order of 1 October 2001, the Senate decided to conduct an oral hearing. In January 2002, the Senate became aware that a functionary of the respondent, whose statements had been referred to a number of times to support the applications for the prohibition of the political party, was a confidential informant of a Land office for the protection of the constitution (Landesamt für Verfassungsschutz). The applicants subsequently explained that the respondent was being observed by confidential informants of the constitution protection authority (Verfassungsschutz) and that there were also confidential informants operating at the level of the leadership of the respondent.

After the Senate had discussed the questions resulting from the intelligence service-led observation of the respondent with the parties to the proceedings on 8 October 2002, the respondent presented an application to the court to the effect that the proceedings be discontinued. It argued that the confidential informants had enabled the applicants to obtain internal information on the respondent’s strategy for the legal proceedings. According to the respondent, it was therefore no longer possible, in light of rule of law standards, to carry out the proceedings for the prohibition of the political party. The applicants stated that there had been no illegal investigation into the respondent’s strategy for the proceedings and that there was thus no procedural impediment. Press Release No. 15/2003 of 26 February 2003 is referred to with regard to the further procedural history [translator’s note: available in German only].

1. The key considerations of the Senate are as follows:

The proceedings cannot be continued. The rejection of the respondent’s application for discontinuation of proceedings did not receive the necessary qualified two-thirds majority of the Senate’s members. Four Justices are of the opinion that there is no procedural impediment. Three Justices are of the opinion that there is an unresolvable procedural impediment.

Pursuant to § 15 sec. 4 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) a two-thirds majority among the members of the Senate is necessarily required in proceedings for the prohibition of a political party for any decision to the disadvantage of the respondent. At least six of the eight Justices comprising a Senate must support a decision that is to the disadvantage of the respondent. Generally, any decision that worsens the legal standing of the respondent or negatively influences it in any other way is to the disadvantage of the respondent.

If the respondent’s application for the discontinuation of the proceedings is rejected, this constitutes a decision that is to the disadvantage of the respondent. The wording of § 15 sec. 4 BVerfGG clearly indicates that a qualified majority is necessary in order to reject an application for the discontinuation of proceedings due to a procedural impediment, the provision prescribing a two-thirds majority among the Senate’s members “for any decision” to the disadvantage of the respondent. This requirement takes into account the prominent constitutional position of political parties and considers their enhanced protection and continuation guarantee. Due to the fact that a political party is excluded from freely participating in the formation of the political will of the people if it is declared unconstitutional and its organisation is thus dissolved, judgments to the disadvantage of a political party require special justification in proceedings on its prohibition. In any case, this regulatory aim also covers decisions relating to the existence of unresolvable procedural impediments. Were the Federal Constitutional Court to reject the discontinuation of proceedings on the grounds that there is no procedural impediment, the proceedings on the prohibition of the political party would have to be continued and an oral hearing held. This would constitute in itself a burden for the political party concerned. A minority of three Justices is of the opinion that the lack of freedom from state influence both in the leadership of the respondent and in the description of the political party as presented in the reasoning on which the applications are based constitutes an unresolvable impediment to the continuation of the proceedings. In consideration of the fact that a qualified majority is required, the applications for the prohibition of the political party are thus unsuccessful. Thus, according to the rule of law, continuing proceedings would therefore not be justifiable and could not be expected from the respondent.

The decision on the discontinuation of proceedings is a procedural decision and not a decision on the merits of the case. Therefore, the legal views presented by the minority and the majority of the Justices have no binding effect.

2. Justices Hassemer, Broß and Osterloh are of the opinion that there is an unresolvable procedural impediment.

The proceedings on the prohibition of the political party undermined - in a manner that conflicts with rule of law standards - the requirement of strict freedom of political parties from state influence. This deficiency cannot be remedied. Furthermore there are currently no apparent reasons that would exceptionally justify continuing the proceedings on the prohibition of the political party nonetheless. In detail, the three Justices argue as follows:

a) There are minimum rule of law requirements that have to be adhered to in court proceedings: No state proceedings may focus in a one-sided manner solely on the legally determined purpose of the proceedings without respecting possibly conflicting constitutional requirements and at the expense of the rule of law resulting from a one-sided enforcement of objectives. If the enforcement of state interests in proceedings conflicts with opposing constitutional rights, principles and rules, giving preference to the state interests must be justified under the principle of proportionality. In this context, the Federal Constitutional Court must guarantee that the rule of law requirements in proceedings on the prohibition of a political party are complied with. The determination of a procedural impediment resulting in an immediate discontinuation of proceedings is the ultima ratio for violations of the Constitution and only possible under the following prerequisites: There must be a substantial violation of the Constitution. In light of the rule of law, such a violation of the Constitution entails an irreparable damage affecting the continuation of the proceedings. Thus, the continuance of proceedings is unacceptable under rule of law standards, even when balanced against the state’s interest in effective protection against the dangers emanating from a possibly unconstitutional political party.

The observation of a political party by confidential informants of state authorities who act as members of the party leadership at federal or Land level immediately prior to and in the course of proceedings on the prohibition of a political party is generally incompatible with the rule of law requirements governing such proceedings. The presence of state representatives at a party’s leadership level will necessarily result in influence being exerted with regard to the party’s decision making and activities. The core of a political party’s position as a respondent in proceedings on its prohibition before the Federal Constitutional Court will be weakened substantially if members of the party leadership have to cope with conflicting loyalty obligations towards the state authority on the one hand and the observed political party on the other hand. To have such an effect, the mere presence of such “contact” persons with “double functions” that are legally and actually connected to both the state and the party is already sufficient. Whether or not the applicants are in fact informed about the respondent’s procedural strategy in the case is irrelevant.

Against this background, Federal Constitutional Court proceedings on the prohibition of a political party require a maximum of legal certainty, transparency, predictability and reliability. This also applies with regard to the factual material to be reviewed. To enable the Federal Constitutional Court to fulfil its task of ensuring proceedings according to the rule of law, the constitutional organs with the legal ability to file an application must recognise their procedural responsibilities and act accordingly. They must prepare thoroughly, thereby laying thenecessary foundations for carrying out proceedings on the prohibition of a political party. They must further rule out that persons and their statements are reflected in the presented image of an unconstitutional political party, and who maintain or have maintained intelligence service-led contacts with state authorities without disclosing this fact and without disclosing the resulting attribution problems.

 The question whether a violation of these procedural requirements will damage rule of law principles beyond remedy cannot be answered in a general abstract way. This rather depends on the specific procedural situation and the risk situation that results if the proceedings were to be terminated. If the rule of law deficiency is irreparable, it will only be possible to continue proceedings in exceptional risk circumstances. The overall assessment must take into account that discontinuing the proceedings does not constitute a final decision on the admissibility of future applications to prohibit a political party. New applications are possible without being subject to further conditions and in particular must not be “based on new facts”.

b) The nature and intensity of the observation of the respondent by the offices for the protection of the constitution do not meet these constitutional requirements. It is beyond doubt that the party’s leadership was not free from state influence after the proceedings on the prohibition of the political party had been initiated. It is the conviction of all members of the Senate that immediately before and even after the Federal Government had filed the application for the prohibition of the party, there was intelligence service-led contact with party leadership members of the respondent both at federal and Land level. According to information provided by the applicants, the respective percentage of confidential informants at the party’s leadership level was below fifteen per cent on the three reference dates that were examined. The leadership at Land level included an average of one to two confidential informants. At least at the federal level, the intelligence service-led contacts were upheld by the Federal Government after the application had been filed. Long after all three applications had been submitted, the contact with a confidential informant in the federal leadership of the party was discontinued. Between 1996 and 2002, the NPD was supposedly also under permanent observation by the offices for the protection of the constitution in Bavaria, Berlin and Hesse. Even after the applications for the party ban had been filed, a member of the federal leadership of the respondent was contacted with the aim of engaging him as a confidential informant to observe the respondent’s leadership.

Evidently, the reasons for the applications are also based to a large extent on the statements made by members of the respondent who are or were confidential informants for state authorities yet without this fact being openly addressed as an issue for consideration during the proceedings; furthermore, this is no longer possible.

There is no specific exceptional situation that could have still justified the state presence in the leadership of the respondent after the applications for the prohibition were filed. Nor does the applicant claim that such a situation exists. There is also no justification for the fact that the reasons for the applications are based to a considerable extent on statements made by leading party members who also worked as confidential informants for state authorities either at the same time or before. There is no indication for an exceptional danger requiring urgent action that would have been capable of preventing a thorough preparation of the applications.

3. Justices Sommer, Jentsch, Di Fabio and Mellinghoff are of the opinion that there is no procedural impediment. Thus they assume that continuance of the proceedings was necessary.

Procedural impediments that exclude proceedings conducted to reach a decision on the merits only exist in particularly exceptional cases when in a specific case there is no reasonable interest in carrying out court proceedings, and continuing the proceedings appears unacceptable based on rule of law principles. Courts are generally not permitted to deny access to the courts, unless statutory procedural rules or other cogent reasons prevent the court from ruling on the merits of a case. If a court denies a ruling on the merits of the case on the grounds of a procedural impediment that is not explicitly defined in statutory law, it obstructs the recourse to the courts required under rule of law standards. As a consequence, there is no satisfying way of determining the legal situation. The assumption of a procedural impediment must therefore meet strict criteria. The court is required to take all possible efforts to eliminate actual or legal reasons preventing it from ruling on the merits of a case. With regard to the current proceedings against the respondent, so far no circumstances have come to light that would make it impossible to continue the proceedings in their entirety or would let this appear unreasonable from a legal standpoint. Neither with regard to the principle of political parties’ independence from state influence, nor with regard to the question whether the respondent can be associated with the evidence presented nor with regard to the obligation to ensure a fair trial, does the intelligence-led observation of the respondent constitute a procedural impediment. In detail, the four Justices argue as follows:

There is not even the slightest indication that control of the respondent by the state affected it in a way that its political appearance was no longer the result of an open, corporate policy formulation process. External influence on the topics and the programme of the party would not result in a procedural impediment. In such a case, the respondent would rather lose its status as a political party, with the result that the application for its prohibition would have to be rejected as inadmissible in a decision on the merits.

With regard to the attribution of evidence, the Federal Constitutional Court is obliged to make use of all procedurally permissible means of fact finding in proceedings on the prohibition of a political party. The judicial obligation to establish the facts prohibits the Federal Constitutional Court from discontinuing proceedings without further review and only on the grounds that there may have been indirect state influence exerted by confidential informants on statements or actions in the context of the party’s activities. All facts that may be relevant for a decision on the merits of the case must be established in a public oral hearing, making full use of all means to take evidence and fully granting the right to be heard.

The fair trial principle does not lead to a procedural impediment either. This would only be the case if it were positively determined already at this point that the respondent’s procedural strategy has been secretly investigated in a way that makes an adequate legal defence impossible. It does not suffice that it merely appears likely or that there is an abstract risk that the respondent was secretly investigated. There is no indication that the intelligence service-led observation of the respondent by state authorities prevents the respondent from adequately defending itself in the proceedings on the prohibition. It has neither been argued nor has it become apparent that the applicants obtained knowledge of circumstances concerning the respondent’s plan for a defence strategy in the proceedings. Also, there is no indication that the measures of defence the respondent planned to take have been impaired.

Even if the actions of the respondent’s party leaders and representatives significantly involved in the legal proceedings had been investigated, continuing the proceedings on the prohibition would only violate constitutional principles if the impairment outweighed the specific preventive purpose of the proceedings. In order to constitute a procedural impediment, a possible impairment of rights must be of such nature and relevance that under consideration of the aims and importance of the proceedings, continuing it would be disproportionate. With regard to proceedings on the prohibition of a political party, this does not only require abstractly determining the importance of Art. 21 sec. 2 of the Basic Law (Grundgesetz – GG), but also requires an assessment as to the specific danger situation the political party poses with regard to the legal interests protected by this provision. The balancing of interests required accordingly requires full investigation of the facts and taking of evidence with regard to all facts relevant to the balancing of interests. Discontinuing proceedings without such an investigation contradicts the special obligation of the Federal Constitutional Court to provide access to justice in the proceedings on the prohibition of a political party.

Based on its mandate to protect the Constitution, the Federal Constitutional Court is required to determine the extent to which the legal interests protected by Art. 21 sec. 2 GG are specifically jeopardized if the proceedings are to be discontinued without a decision on the merits of the case. It must also be determined whether there are attacks on human dignity that are carried out in a way that is characteristic of the political party. If a political party clearly constitutes an actual verifiable danger for the continued existence of the free constitutional state, the Federal Constitutional Court may not let possible violations of the general fair trial principle outweigh all other arguments within its assessment. The Federal Constitutional Court itself can and must ensure a necessary full investigation of the facts on the basis of the principle to investigate. The Court may not from the outset refrain from investigating the facts relevant to the decision by referring to conflicting security interests or the special responsibilities of parties involved in the proceedings.

When assessing whether procedural deficiencies in the proceedings on the prohibition of a political party violated the fair trial principle, the interests of a preventive protection of the Constitution must be adequately taken into consideration. Government agencies have a constitutional obligation to investigate any unconstitutional objectives and to take action against these where necessary. This obligation is not generally suspended during proceedings on the prohibition of a political party. Particularly the protection of individual legally protected interests, such as dignity, life and health, which government agencies are obliged to ensure, might require continuing adequate intelligence service-led observation measures, irrespective of ongoing proceedings on the prohibition of a political party. Rule of law principles do not prescribe to accept that protected legal interests, especially those of third parties, are jeopardized for the duration of proceedings.

Karlsruhe, 18 March 2003