Abstract of the judgment of 17 August 1956

First Senate
Judgment of 17 August 1956
1 BvB 2/51

Headnotes:

1. The preamble of the Basic Law is primarily of political significance, but it also has legal significance. All state organs have a legal obligation to do their utmost to achieve German unity; all their measures must be directed towards this aim, and above all they must avoid anything that might legally prevent reunification, or render it de facto impossible. 

2. Whether the Federal Government, after weighing all aspects, wishes to lodge an application pursuant to § 43 of the Federal Constitutional Court Act, in accordance with the requirement to protect the Constitution, or whether it chooses to postpone such a measure as it may threaten German reunification is a matter of political discretion. In this respect, the Federal Constitutional Court is limited to reviewing whether there has been an abuse of power.

3. The prohibition of the Kommunistische Partei Deutschlands does not rule out that a communist party might be allowed to participate in elections in a reunified Germany. 

4. Article 21.2 of the Basic Law is directly applicable (upholding the decision of the Federal Constitutional Court, 1 BvB 1/51, 23 October 1952, BVerfGE 2, 1 <13 f.>).

5. To be considered unconstitutional, it is not enough that a political party does not respect the supreme principles of the free democratic basic order (cf. BVerfGE 2, 1 <12 f.>); rather, it must take an actively belligerent and aggressive stance towards the existing order. 

6. Unlike § 81 of the Criminal Code, Article 21.2 of the Basic Law does not require specific action; it suffices that the agenda of a political party is determined by a stance that fundamentally and permanently seeks to combat the free democratic basic order.

7. The clear line between academic theories protected by Article 5.3 of the Basic Law and the political aims of a party, which are subject to assessment pursuant to Article 21.2 of the Basic Law, is crossed where academic findings become part of a party’s political agenda and determines its political activities. 

8. A political party can already be deemed unconstitutional if it seeks to establish a social and political form of liberal democracy that differs from the one existing in Germany today in order to use it as a stepping stone towards an easier abolition of the free democratic basic order, even if the abolition were to be planned only in the context of or after reunification. 

9. A political party cannot only be declared unconstitutional under Article 21.2 of the Basic Law on the basis of the aims the political party in question seeks to realise in any event, but also on the basis of those aims that it will only seek to realise under favourable circumstances. 

10. The Basic Law provides for a system of checks and balances between state powers and of effective legal protection against violations or distortions of the Constitution by state organs. In view of this, a right to resistance against individual unlawful acts enshrined in the Basic Law may only be exercised subject to the following requirements:

The right to resistance can only be used to preserve, i.e. as a defensive right to uphold or restore the legal order. 

The act countered by resistance must be manifestly unlawful.

The legal remedies available under the legal order must offer so little prospect of being effective that resistance is the only means available to uphold or restore the legal order.

Summary:

I.

The Federal Government lodged an application to have the Kommunistische Partei Deutschlands (hereinafter, the KPD) declared unconstitutional. The KPD contended that its prohibition is precluded by the Potsdam Agreement and the state’s obligation to work towards German reunification.

II. 

The Federal Constitutional Court held that the KPD was unconstitutional and must be dissolved. It further prohibited the establishment of substitute organisations or the continuation of existing organisations as substitutes. 

While the Potsdam Agreement only defines democracy in negative terms – directed against Nazism –, the Basic Law also includes positive values and principles upon which the democratic state order is based. All of these positive values and principles taken together make up the free democratic basic order. The Court held that, in the context of this free democratic basic order, the Basic Law itself can provide for rules governing political parties and also protect the democratic order from political parties that satisfy the negative definition of “democratic” but combat other values that make up this order. 

Banning the KPD does not render reunification legally or de facto impossible. As long as reunification remains an international matter, a judgment of the Federal Constitutional Court banning the KPD cannot prevent any measure of the Allied Powers. Even if measures working towards reunification, such as the preparation of elections in a reunified Germany, were taken by German constitutional organs autonomously and without being overseen by the Allied Powers, the prohibition of the KPD could not prevent reunification given that decisions rendered by the Federal Constitutional Court solely affect the territory and period in which the Basic Law applies.