NATIONALDEMOKRATISCHE PARTEI DEUTSCHLANDS (NPD) v. GERMANY
Inadmissible
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
1. The applicant, the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD), is a German political party. It was represented before the Court by Mr P. Richter, a lawyer practising in Saarbrücken. 3. The applicant was founded on 28 November 1964. It regularly participates in elections to the European Parliament, the Federal Parliament (Bundestag), parliaments of the Länder and municipal elections. At the time the present application was lodged, the applicant was represented in the parliaments of the Land of Mecklenburg-West Pomerania and the Land of Saxony, as well as numerous city councils and county councils. 4. In 2001, the Federal Parliament, the Federal Council (Bundesrat) and the Federal Government (Bundesregierung) lodged an application for the ban of the applicant (Verbotsantrag) with the Federal Constitutional Court (nos. 2 BvB 1/01, 2 BvB 2/01, 2 BvB 3/01) pursuant to Article 21 § 2 of the Basic Law (see relevant domestic law and practice, paragraph 15). The plaintiffs alleged that the applicant was unconstitutional and sought to damage the free democratic basic order (freiheitlich-demokratische Grundordnung). They claimed that the applicant propagated views that were National Socialist, anti-Semitic, racist and anti-democratic and sought to abolish what it called the “system” imposed by the Allied powers at the end of the Second World War. They further stated that the applicant worked towards restoring the “community of the people” (Volksgemeinschaft) and towards replacing the multi-party parliamentary democracy by a “rule of the people” (Volksherrschaft) of the “national elites” (nationale Eliten). Finally, they alleged that the members and supporters of the applicant did not hesitate to use violence and threatened their opponents with “reckoning” (Abrechnung) upon taking power. 5. On 18 March 2003 the Federal Constitutional Court decided to discontinue the proceedings because the statements cited in support of the unconstitutionality of the party could not be clearly distinguished from those of undercover agents of the intelligence services. It found that the principle of separation between party and State (Staatsfreiheit), which was an essential requirement for proceedings aimed at banning the applicant, was not respected due to the influence of those agents, who were even present in the party’s leadership, on the applicant’s decision-making process. 6. On 8 November 2012 the applicant lodged an application against the Federal Parliament, the Federal Council and the Federal Government with the Federal Constitutional Court (no. 2 BvE 11/12), seeking a declaration that it was not unconstitutional within the meaning of Article 21 § 2 of the Basic Law. In the alternative (hilfsweise), it requested to find that the defendants violated its rights under Article 21 § 1 first sentence of the Basic Law by constantly stating that the applicant was unconstitutional, thereby causing the effects of de facto ban, without initiating party ban proceedings. In the further alternative (höchst hilfsweise) it requested to find that its rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before the Federal Constitutional Court. 7. In support of its application, the applicant cited leading politicians –Prime Ministers and Ministers of the Interior of different Länder and members of the Federal Parliament – who had stated that the NPD was unconstitutional. The applicant alleged that its members who were working in the public sector had been subject to disciplinary measures or even been excluded from public service because of their affiliation with the party. It submitted that its candidates were not allowed to stand at municipal elections in the Land of Mecklenburg-West Pomerania and in the Land of Thuringia. The applicant submitted that it had made 328 unsuccessful requests to open accounts at public and private banks and that it had to pursue legal action against public banks in 35 cases. It further submitted that it was required to engage in proceedings before the administrative courts almost every time it intended to rent communal space for its events, because the towns had refused to let it use their premises due to a fear of acts by “the extreme left”. The applicant added that it did no longer find companies willing to provide liability insurance for its events, which was a prerequisite for renting communal space. It complained that its authorised demonstrations were regularly disturbed by opponents and that the police did not sufficiently protect these demonstrations. It pointed out that its members were regularly victims of criminal offences committed by “the extreme left”. The applicant moreover complained that public funds allocated to projects against “the extreme right” referred to it as a party of the extreme right and concluded that these funds were used to combat it. Finally, it claimed that the media did not sufficiently give it the floor. 8. The applicant maintained that the remedies available before domestic courts were not sufficient to protect its interests, given the extent of discrimination and restrictive measures it was confronted with on the one hand and its limited resources on the other hand. It considered that the constant “stigmatisation” and perpetual debate about its potential ban amounted to a “de facto ban”. It submitted that the defendants were, by stigmatising the applicant and by calling on the public to “combat against the far right” (Kampf gegen Rechts), also at the origin of and hence responsible for the discriminatory acts and criminal offences which private actors committed against the applicant and its members. 9. On 20 February 2013 the Federal Constitutional Court dismissed the application. The decision was served on the applicant on 6 March 2013. 10. The Federal Constitutional Court held that the application for a declaration that the applicant was not unconstitutional was inadmissible. It stated that Section 43 § 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, see relevant domestic law and practice, paragraph 16) provided that only the Federal Parliament, the Federal Council and the Federal Government could apply for decision on whether a political party was unconstitutional. Domestic law did not provide that a political party could have recourse to the Federal Constitutional Court to have its constitutionality ascertained. It observed that this did not amount to a gap in legal protection, since the applicant and its members could pursue legal action before administrative, civil and criminal courts whenever its or their rights were infringed. 11. In response to the applicant’s argument that it did not have the resources to pursue legal action in each and every case, the Federal Constitutional Court stated that this posed a practical challenge that could be overcome with reasonable efforts. It emphasised that a political party which participated in forming public opinion had to accept being criticised as “hostile to the constitution” (verfassungsfeindlich) within the limits of freedom of expression. Where public authorities engaged in political debate, they had to respect the limits set by the Basic Law, which were subject to judicial review. The Federal Constitutional Court considered that a discussion whether or not to initiate party ban proceedings was lawful as long as it contributed to the decision-making process and was not aimed at discriminating against the party concerned. It noted that there were remedies which allowed the applicant to challenge the allegation that it was unconstitutional, such as remedies against the surveillance by intelligence services. It observed that the same held true for the applicant’s members with regard to their employment in public service and added that a lack of success in the respective court proceedings did not mean that there was a gap in legal protection. 12. The Federal Constitutional Court further found that the application, lodged in the alternative, to find that the defendants violated the applicant’s rights under Article 21 § 1 first sentence of the Basic Law by constantly stating that the applicant was unconstitutional, thereby causing the effects of de facto ban, without initiating party ban proceedings, was also inadmissible. It found that, even though this application could in principle be the subject of a “dispute between constitutional organs” (Organstreitverfahren, see relevant domestic law and practice, paragraphs 15, 17 and 18), it was not sufficiently substantiated. It noted that the statements and measures cited by the applicant were not made on behalf of the Federal Parliament, the Federal Council or the Federal Government, but rather by some of their members only. Therefore, they could not be attributed to these organs. Nor did the applicant substantiate that they infringed, or were about to infringe, its status as a political party. 13. Finally, the Federal Constitutional Court observed that the application, lodged in the further alternative, to find that the applicant’s rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before the Federal Constitutional Court was manifestly ill-founded. It argued that there was no gap in legal protection for the reasons set out in relation to the main application (see paragraphs 10 and 11), which precluded a violation of the applicant’s rights. 14. On 3 December 2013 the Federal Council lodged a new application for the ban of the applicant pursuant to Article 21 § 2 of the Basic Law with the Federal Constitutional Court (no. 2 BvB 1/13). The proceedings are pending. 15. The relevant provisions of the Basic Law are worded as follows: “(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds. (2) Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be unconstitutional. The Federal Constitutional Court shall determine the question of unconstitutionality. (...)” “(1) The Federal Constitutional Court shall rule: 1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body; (...)” 16. The relevant regulations governing the declaration of unconstitutionality of a political party are contained in the Federal Constitutional Courts Act and are worded as follows: “(1) The Bundestag, the Bundesrat, or the Federal Government may apply for a decision on whether a political party is unconstitutional (Article 21 § 2 of the Basic Law). (2) The government of a Land may make an application only against such political parties whose organisational extent is limited to that Land’s territory.” “(1) If the application proves to be well-founded, the Federal Constitutional Court shall declare that the political party is unconstitutional. (2) The declaration may be limited to a legally or organisationally independent section of a political party. (3) The declaration shall be accompanied by the dissolution of the political party or of its independent section, as well as by the prohibition of establishing substitute organisations. In this case, the Federal Constitutional Court may also declare that the property of the political party or its independent section be confiscated in favour of the Federation or the Land to be used for public benefit.” 17. In relation to “disputes between constitutional organs”, the relevant provisions are worded as follows: “The Federal Constitutional Court shall decide (...) 5. on the interpretation of the Basic Law in the event of disputes concerning the extent of the rights and obligations of one of the highest federal organs or of other parties who have been vested with own rights by the Basic Law or by the rules of procedure of one of the highest federal organs (Art. 93 § 1 no. 1 of the Basic Law) (...).” “Applicants and respondents may only be: the Federal President, the Bundestag, the Bundesrat, the Federal Government, and such parts of these organs that are vested with own rights pursuant to the Basic Law or the rules of procedure of the Bundestag and Bundesrat.” “(1) The application shall only be admissible if the applicant asserts that an act or omission of the respondent violated or directly threatened the rights and obligations awarded to the applicant or to the applicant’s organ by the Basic Law. (2) The application shall state the provision of the Basic Law which was violated by the respondent’s contested act or omission. (3) The application must be filed within six months after the applicant gained knowledge of the contested act or omission.” 18. It is established case-law of the Federal Constitutional Court that political parties are organs vested with own rights pursuant to the Basic Law in the meaning of Article 93 § 1 no. 1 of the Basic Law and can assert their rights by way of a dispute between constitutional organs (decision of 20 July 1954, no. 1 PBvU 1/54, which has been consistently confirmed since, see, among many others, judgment of 29 September 1990, nos. 2 BvE1, 3, 4/90, 2 BvR 1247/90).