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Application by the National Democratic Party against the Federal President rejected

Press Release No. 51/2014 of 10 June 2014

Judgment of 10 June 2014
2 BvE 4/13

In a judgment delivered today, the Second Senate of the Federal Constitutional Court rejected an application that the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands - NPD) had made against the Federal President because of statements he had made at the time of the 2013 election campaign for the German Bundestag. The Court held that the Federal President is generally free to decide how to perform the representational functions and integrative tasks connected with the office. In so doing, he must comply with the Constitution and the laws, including the political parties' right to equal opportunities. However, specific statements by the Federal President can only be objected to before the courts if the Federal President takes sides in a way that clearly neglects the integrative task of his office, and thus takes sides in an arbitrary manner. This was not the case here.

Facts of the Case:

In August 2013, in a school in Berlin-Kreuzberg, the respondent, the Federal President, took part in a discussion with several hundred vocational school students between the age of 18 and 25. During the event, which had the motto "22 September 2013 - Your Vote Counts!", the respondent inter alia emphasised the importance of free elections for democracy and encouraged the students to become involved in social and political activities. Answering a student's question, the respondent addressed certain incidents related to protests which the applicant's members and supporters had launched against an asylum accommodation centre in Berlin-Hellersdorf. The press coverage of the discussion quoted the respondent as follows: "We need citizens who take to the streets and show the nutcases their limits. All of you are called upon to do so." and "I am proud to be the President of a country in which the citizens defend their democracy."

Key Considerations of the Senate:

The respondent's statements which the applicant challenges are not objectionable under constitutional law, and therefore do not violate the applicant's right to have the equal opportunities of political parties respected.

1. The Federal President represents the state and the people of the Federal Republic of Germany both externally and internally and is called upon to embody the unity of the state. The holder of the office of Federal President is generally free to decide how to breathe life into the representational functions and integrative tasks connected with the office. If an important task of the Federal President consists in making the unity of the polity visible by his appearances in public, and to further the unity via the authority of this office, he must have a broad margin of appreciation in this respect. The Federal President can only live up to the expectations connected with the office if he can respond to developments in society and to general-policy challenges according to his assessment, and if in so doing, he is free to both choose the topics and to decide about what form of communication is adequate in the given context. Therefore, the Federal President does not require a statutory authorisation beyond the authority to make public statements, which is inherent in his office, even when he points out undesirable developments or warns of dangers and in so doing names the groups or persons he considers responsible.

2. The Federal President's actions are limited by the Constitution and the laws. The rights that the Federal President must respect include the political parties' right to equal opportunities under Art. 21 sec. 1 of the Basic Law (Grundgesetz - GG), and, insofar as equal opportunities in elections are concerned, Art. 21 sec. 1 GG in conjunction with Art. 38 sec. 1 GG or Art. 28 sec. 1 GG. For a party, statements containing negative value judgments on its aims and activities can result in a negative effect on its equality of opportunities in competition.

3. When reviewing statements by the Federal President that affect the political parties' equality of opportunities, the Federal Constitutional Court must take into account that it is exclusively for the Federal President to decide how to perform the functions and integrative tasks connected with the office. The extent to which the Federal President, in so doing, takes as a guideline the concept of a "neutral Federal President" is neither in general nor in an individual case subject to judicial review. On the other hand, it would contradict the principle of the rule of law if political parties, whose right to equal opportunities is an essential element of the democratic basic order, had no legal protection vis-à-vis the Federal President. Against this backdrop, it seems both necessary and sufficient to judicially review the Federal President's negative remarks about a political party on whether he made them in a way that clearly neglects the integrative task of his office, and thus in an arbitrary manner.

4. According to this standard, the respondent's statements that the applicant challenged are not objectionable under constitutional law.

a) Insofar as the applicant considers its rights violated by the fact that the respondent publicly supported protests against the applicant in Berlin-Hellersdorf, the application is unsuccessful. Under the necessary objective interpretation, it cannot be inferred from the Federal President's statements that he supported or approved violent protests against the applicant. At the beginning of his remarks, the Federal President explicitly pointed out that even tearing off posters was unacceptable. Therefore there could be no doubt about him disapproving all the more of violent conflicts with the applicant. Afterwards, and regarding issue at hand, he referred to the freedom of expression and assembly and appealed for participation in the political struggle of opinions. He was authorised to do so.

b) The use of the term "nutcases" (Spinner) in the specific context is also unobjectionable under constitutional law. With this term, the respondent made a negative value judgment about the applicant and its members and supporters which, seen in isolation, could in fact be regarded as defamatory, and which could indicate an unobjective exclusion of the persons thus named. Here, however, as follows from the overall style of the respondent's statements, the term "nutcases", in addition to the terms "ideologists" and "fanatics", serves as a collective term for people who have not learned the lessons of history and who, unimpressed by the dreadful consequences of National Socialism, hold nationalist and anti-democratic opinions. The exaggeration contained in the term "nutcases" was not only intended to make clear to the participants in the discussion that the persons thus termed would never change; it was also meant to emphasise that they hoped in vain to succeed with their ideology if the citizens "show them their limits".

Building on the lessons to be learned from the tyrannical rule of National Socialism, the respondent called for the involvement of citizens against political views which, in his opinion, pose dangers to the free democratic basic order and which, in his view, the applicant advocates. In so doing, he advertised for a way of dealing with these views that conforms to the Basic Law. He thus did not cross the boundaries regarding negative remarks about political parties set to him by the Constitution.