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Constitutional complaints against prohibitions of associations unsuccessful

Press Release No. 69/2018 of 21 August 2018

Order of 13 July 2018
1 BvR 1474/12, 1 BvR 57/14, 1 BvR 670/13

In a decision published today, the First Senate of the Federal Constitutional Court rejected constitutional complaints against prohibitions of three associations. Both the provision regarding prohibitions in the Associations Act (Vereinsgesetz – VereinsG) and the challenged decisions issued by the authorities competent for prohibitions and by the regular courts that upheld them are compatible with the fundamental rights requirements.

In its reasoning, the Senate held that Art. 9(2) of the Basic Law (Grundgesetz – GG), as a manifestation of a pluralist and militant constitutional democracy (wehrhafte Demokratie), limits the freedom of association under Art. 9(1) GG. According to Art. 9(2) GG, associations whose aims or activities contravene criminal laws or which are directed against the constitutional order or against the concept of international understanding are prohibited. Yet any interference with the freedom of association must comply with the principle of proportionality. If the requirements for a prohibition under Art. 9(2) GG are met, an association must be prohibited; however, if measures are available that are less restrictive but equally effective for protecting the legal interests specified in Art. 9(2) GG, these take precedence. Such measures were not available in any of the three cases. An association that knowingly channels donations to third parties that support terrorist acts must be prohibited, just as an association that encourages prisoners who are right-wing extremists in their attempts to actively combat essential parts of the constitutional order. The same holds true for an association of bikers that supports its members and third parties in violating criminal law.

Facts of the case:

The three associations were prohibited on the basis of the Associations Act. The Internationale Humanitäre Hilfsorganisation e.V. (International Humanitarian Aid Organisation – IHH) is accused of having indirectly supported a terrorist organisation by channelling donations to it and thus actively contravening the concept of international understanding. The Hilfsorganisation für nationale politische Gefangene und deren Angehörige e.V. (Organisation Supporting Domestic Political Prisoners and Their Families – HNG) is accused of having encouraged imprisoned right-wing extremists, in its association magazine, in their attitude to fight the foundations of the constitutional order of the Federal Republic of Germany, thus actively and belligerently opposing the constitutional order and contravening criminal laws. The association Hells Angels MC Charter Westend Frankfurt am Main is accused of having supported its members in committing criminal offences. The three associations unsuccessfully sought legal recourse before the administrative courts against the orders prohibiting them issued by the Federal Ministry of the Interior and the Ministry of the Interior of the Land Hesse. Their constitutional complaints are directed against the orders and the judicial decisions, and indirectly against the provision that allows for their prohibition in the Associations Act.

Key considerations of the Senate:

The challenged decisions issued by the authorities competent for prohibitions and by the regular courts, as well as the legal basis for the prohibition of associations, § 3(1) first sentence VereinsG, are compatible with the Basic Law.

I. Art. 9(1) GG protects the formation and the existence of associations. Apart from that, activities of associations must be measured against those fundamental rights and equivalent guarantees that cover such activities in general. Regarding the existence of associations, the constitutional legislature (Verfassungsgeber) has expressly subjected the collective right of an association to limitations in Art. 9(2) GG. If it is established that an association meets one of the prohibition requirements therein, it must be prohibited. Yet, just as in every case of an interference with fundamental rights of an association, the principle of proportionality enshrined in the rule of law applies here as well. The prohibition of an association as the most serious interference can thus only be imposed where less restrictive but equally effective means are not sufficient for achieving the aims of the prohibition requirements defined in Art. 9(2) GG.

The requirements of Art. 9(2) GG must be interpreted strictly. An association meets the prohibition requirements under Art. 9(2) first alternative GG where its apparent aims or its activities are, in essence, to provoke, encourage or enable its members or third parties to commit criminal offences or to facilitate them by supporting criminal actions or by recognisably identifying with them. The prohibition requirements under Art. 9(2) second alternative GG are met where an association opposes the constitutional order by openly taking an actively belligerent stance (kämpferisch-aggressive Haltung) against the fundamental principles of the Constitution and is, as such, characterised by this stance. An association meets the prohibition requirements under Art. 9(2) third alternative GG where it actively advocates and promotes violence or comparable serious actions violating international law such as terrorism in international relations or among parts of the population. This may also be the case where an association supports third parties, if this support is objectively likely to impair the concept of international understanding significantly, severely, and deeply, and if the association is aware of this fact and at least condones it. In this respect, associations may however not be prohibited to prevent humanitarian aid in crisis areas just because this might indirectly promote terrorism.

To the extent that the prohibition of an association under Art. 9(2) GG is based on actions protected by fundamental rights or impairs other fundamental rights, these fundamental rights must be taken into account in the context of justifying the interference with Art. 9(1) GG. Prohibitions of associations must not forbid what is otherwise protected by fundamental freedoms, and they must not be directed one-sidedly against particular political opinions.

II. Ultimately, the prohibition of the IHH association satisfies these requirements.

1. In its case-law, the Federal Administrative Court (Bundesverwaltungsgericht) holds that the prohibition requirements are met if an association, over a long period of time, provides considerable financial support to an organisation which forms part of another organisation promoting violence in the relations between peoples, if it does so knowingly and identifies with this organisation and the acts of violence it commits. This case-law is compatible with the requirements of Art. 9(2) GG.

2. According to the findings of the Federal Administrative Court, IHH channelled considerable amounts of financial donations to organisations that can be attributed to Hamas, thus supporting an organisation that violates international law. Hamas ignores basic principles of international law, including, in particular, the prohibition of the use of force under international law and the rejection of terrorism. Classified as an organisation involved in terrorist acts by the European Union, Hamas operates on the basis of an anti-Semitic charter and accepts neither the prohibition of the use of force nor local peace agreements.

3. This stance against international understanding can be attributed to IHH. The prohibition of an association can be permissible if international understanding is jeopardised indirectly, by means of financial donations supporting terrorism. In this case, the association that has been prohibited knew what Hamas stood for and at least condoned the fact that the donations could impair the concept of international understanding significantly, severely, and deeply.

4. Ultimately, the principle of proportionality is also met. It requires a strict interpretation of the reasons justifying the prohibition. The regular courts employ such a strict interpretation, since they require that, in order to justify a prohibition, associations must be characterised by the prohibited aims to such an extent that less restrictive means are not available to protect the legal interests specified in Art. 9(2) GG.

5. The prohibition of the association is also in accordance with fundamental rights requirements with regard to the Constitution’s openness to international law. Activities related to humanitarian aid only justify a prohibition if they directly support an organisation whose activities promote actions of another organisation that violates international law, and if the aid measures themselves also violate the principle of neutrality. The rules of international law for providing humanitarian aid in conflicts specify when this is the case. The Federal Administrative Court has not failed to recognise their essential meaning.

III. The prohibition of the HNG association is justified under constitutional law, since the association opposes the constitutional order and contravenes criminal laws as laid down in Art. 9(2) GG.

1. The authority competent for prohibitions and the Federal Administrative Court found that the association opposes the constitutional order actively and belligerently. This finding is not objectionable under constitutional law.

a) The association challenges fundamental principles of the “constitutional order” within the meaning of Art. 9(2) GG. It opposes human rights, core elements of the rule of law and basic democratic principles. Its regular publications illustrate its proximity and clear commitment to the agenda, ideas and overall design of National Socialism, to anti-Semitism and racial ideology, to the former NSDAP and its main functionaries; the association calls the Federal Republic of Germany “corrupt”, “degenerate”, “forced on the people” and “disgraceful” and hopes for democracy’s “downfall”.

b) In addition, the prohibition is based on the fact that the association not only rejects and disdains the foundations of constitutional democracy under the Basic Law, but actively seeks to “undermine” them and calls upon its members to fight them. The preventive nature of Art. 9(2) GG, which forms part of the concept of militant democracy under the Basic Law, allows for the prohibition of an association even before violence is used, yet not just because of a political opinion –, which is why the prohibition of an association may only be justified if the association is characterised by an actively belligerent stance. In this respect, it does not matter how effective the association is in achieving its aims. Unlike in cases of prohibition of a political party (Art. 21 GG), activities of an association directed against fundamental elements of the constitutional order in specific communities or other “delimited social spaces” are sufficient to prohibit the association. The decisive factor is whether the overall design of the association, including its formal and actual purpose, its apparent stance, its organisation and the activities of its organs and members, meets the prohibition requirements. In view of the statements of leading members of the association, this is the case here. According to these statements, one must create “liberated national space”, “the rat system” must be fought, there must be “no capitulation” and this will require “the use of force”. According to the court’s findings, the association communicated with prisoners who are right-wing extremists in order to radicalise them so that they would again commit criminal offences after their release from prison. The association magazine also called upon its readers to name “public prosecutors, heads of police operations or judges” so that they could be “held accountable” at a later date, thus threatening state officials because they exercise their official functions. The association’s activities thus go beyond the mere articulation of a political belief. Its promotion of criminal offences and the aggressive fight against fundamental constitutional principles can therefore justify the prohibition of the association under Art. 9(2) GG.

c) A prohibition that is linked to such statements does not raise constitutional concerns, neither regarding the freedom of expression (Art. 5(1) GG) nor regarding the prohibition of discriminatory treatment due to political opinions (Art. 3(3) first sentence GG). The association was not prohibited because of an opinion deemed right-wing extremist or because of a political belief, but because it openly opposes the constitutional order in an active and belligerent manner. The Basic Law protects the core elements of constitutional democracy against attacks from within that leave the realm of political debate by seeking to destroy its very prerequisites. The advocacy of Nazi rule is not just linked to a particular political opinion; in that respect, the prohibition of the association is also not generally directed against the approval of individual measures of the Nazi regime. Rather, the association was prohibited because it identifies with the Nazi regime’s violent means, which reflects an active and belligerent stance against the free democratic basic order.

2. The prohibition of the association is also proportionate. HNG is essentially characterised by its opposition to the constitutional order. Just taking action against the association’s statements was therefore not an option.

3. The decisions of the authority competent for prohibitions and the Federal Administrative Court to also impose a prohibition because HNG’s aims and activities contravene criminal laws (Art. 9(2) first alternative GG) are also compatible with the constitutional requirements.

a) The prohibition is not based on general assumptions, but on specific reasons that can justify it in a constitutionally permissible manner. The association’s aim was to encourage prisoners in their attitude towards criminal offences, in particular using force. The court conclusively argued that the association sought to consolidate the “fanatically aggressive attitude” of the prisoners, who could therefore be expected to commit further criminal offences; and such offences had also been announced in the association magazine.

b) It is not objectionable to attribute activities by members and third parties to HNG. The Federal Administrative Court was correct to assume that the association, according to its bylaws, did not just support a selected group of offenders, but aimed to maintain and solidify their attitude. If third parties are supported like members by the association, as in this case, their behaviour must also be taken into account. While the prisoners’ actions were not “dominated” by the association, in the sense of the prisoners being its tools, the association recognisably supported their actions by glorifying them and identifying with them and their crimes.

c) The prohibition satisfies the requirements of proportionality also with regard to contravening criminal laws. According to the factual findings, it is constitutionally permissible to assume that no less restrictive but equally effective means were available.

IV. The constitutional complaint of the Hells Angels MC Charter Westend Frankfurt am Main is unfounded.

1. The Higher Administrative Court of the Land Hesse (Hessischer Verwaltungsgerichtshof) assumed that the association’s aims and activities contravened criminal laws in line with the requirements of Art. 9(2) GG. It found that the prohibition was justified since the organisation posed a specific threat to public safety and order, and that no less restrictive means were available to eliminate this threat. This meets the constitutional requirements. The court based its decision on the fact that the delinquent members of the association regularly appeared united as a group representing the association, that the criminal offences were clearly recognisable to the public as activities of the association and that the association at least tolerated this. The court could take into account the association’s admission procedure, the clothing contributing to the members’ sense of identity and the fact that the association expressly distanced itself from being bound by general laws.

2. The Higher Administrative Court could attribute activities of delinquent members to the association, as it backed them, covered up for them and conveyed the impression that it approved of their actions or at least condoned them. As such, visits of members of an association in detention do not provide a reason justifying a prohibition. Yet in this case, the way in which the visits were carried out reflected a planned structure, as the visits were expressly made by leading figures of the association and organised according to a professional system. They were meant to go “beyond the usual friendly favours” and did not serve social reintegration purposes; rather, they were designed to publicly approve of the committed crimes within the association. As such, the prohibition of the association is a reaction to the organisation’s momentum, which is precisely the specific threat posed by the association when acting as an association, against which Art. 9(2) GG is directed.

3. The prohibition is proportionate. It is not objectionable under constitutional law that the Higher Administrative Court of the Land Hesse specifically attributed several serious crimes to the association and thus affirmed that the association violates criminal law. Less restrictive means that would be equally effective for achieving the purpose of Art. 9(2) GG were not available.

V. To the extent that the constitutional complaints indirectly challenge the legal basis for the prohibition of associations in § 3(1) first sentence VereinsG, they are also unsuccessful.

1. The legal provision does indeed lack an express requirement of proportionality, even though such a requirement has to be observed, also with regard to the express prohibition clause in Art. 9(2) GG. However, the requirements of proportionality under the rule of law can be satisfied by means of interpretation. The provision regarding prohibition does not preclude the use of less restrictive means if they render the prohibition of an association, as a consequence of its aims, activities or stance, unnecessary.

2. In substance, the legal provision reflects Art. 9(2) GG and does not go beyond it. It is within the legislature’s leeway to design, and it is sufficiently specific. Such specificity is not lacking just because a provision requires interpretation. Uncertainties merely must not go so far as to render the actions of the competent state agencies unpredictable or exclude them from judicial decision-making. In this case, there is no indication for this.