Hundreds of thousands of people took to the streets of Germany on Saturday and Sunday to protest against the far-right Alternative for Germany (AfD) party.

He promotes radical measures against immigrants, and his popularity is growing, apparently threatening the democratic balance in the country, as well as in Europe, ahead of the elections. But how hard is it to ban a party, especially since Germany already went through a similar experience decades ago and recently ended in failure?

A number of politicians in Germany are discussing a proposal to ban the AfD. But the Federal Constitutional Court, in its ruling on the National Democratic Party of Germany (NPD) in 2017, laid down the basic requirements for banning the party. The obstacles are high.

Conditions of prohibition

Only the Federal Constitutional Court can ban a political party in Germany. The federal government and the houses of parliament (Bundestag or Bundesrat) can apply for such a ban. For parties operating in only one land, the request may also be submitted by the government of the land concerned.

Filing such a motion for injunctions is primarily a political decision. A request is considered legally successful only if the party sought to be banned is deemed factually unconstitutional.

The Basic Law of Germany establishes the prerequisites for this: “Parties which, on the basis of their goals or the behavior of their supporters, seek to influence or eliminate the basic free democratic order or endanger the existence of the Federal Republic of Germany, is unconstitutional,” reads the article. 21, paragraph 2 .

No party ban since 1956

But what exactly this formulation means, from a legal point of view, was unclear for a long time. The last political party banned by the Federal Constitutional Court was the Communist Party of Germany (KPD) in 1956. At that time, German democracy was still in its infancy.

It was not until 60 years later that the most recent ban procedure outlined the content requirements that the Federal Constitutional Court in Karlsruhe now sets for party bans. In January 2017, Karlsruhe issued an injunction against the NPD (National Democratic Party of Germany). The solution was clear: the hurdles for a ban are now very high.

Crimes, process, political substrate

As perpetrators of violence and murder from the far-right terrorist cell National Socialist Underground (NSU) became known, attempts were made in 2012 to initiate a second NPD ban procedure after the first ban procedure was suspended in 2003 due to procedural errors.

About the robberies and murders known as Döner Morde, which are attributed to the NSU, I wrote in detail for Hotnews in the articles “Brown Terror and the Zwickau Neo-Nazi Cell”, “The Great Trial of the Zwickau Terrorist Cell. The main accused, Beate Zcepe, is said to be half-Romanian” and “A neo-Nazi from Germany, who is said to be half-Romanian, has been sentenced to life in prison for killing 10 people.”

In 2012, the plaintiffs’ aim was to have the Federal Constitutional Court (BVerfG) declare that the NPD is unconstitutional and thus have the party banned.

In December 2012, the German states decided to apply for a ban on NPD, and to do so without the support of the Bundestag and the federal government. The federal government was not involved in the ban proposal presented the following year.

In January 2017, the Federal Constitutional Court rejected the request for an injunction. Although the judges found it proved that the party had anti-constitutional sentiments, it did not have the “potential” to destroy democracy in Germany.

Content requirements

Prohibition of the party is “the sharpest and, moreover, double-edged weapon of the democratic rule of law against its organized enemies.” This is what is said in the first guiding principle that the Federal Constitutional Court stipulated before the decision.

In the following 298 pages, the judges in Karlsruhe explain the conditions under which a party can be banned in Germany, and why it was not enough to ban the NPD: not because the far-right party (which now calls itself “Die Heimat”) would continue to exist on the basis of the Basic Law , but because it was too lacking in scope to be able to implement unconstitutional goals.

If a party does not have the necessary effective power, “there is no reason to ban such a party,” despite its unconstitutionality, says Peter Muller, who, in his capacity as rapporteur, played a key role in shaping the ruling on the NDP. He left the position of judge of the Constitutional Court after twelve years in office.

“In fact, the main goal should be to make sure that a situation does not arise where democracy can only be saved by applying for a party ban,” Müller told ARD’s “Justice Reporters” podcast. “The ban on parties should not be used to eliminate unwanted political competition,” he said.

The first prerequisite for a ban is that the party, based on its goals or the behavior of its supporters, wants to at least affect or even completely destroy the basic free democratic order. According to the Federal Constitutional Court, the term “free democratic basic order” includes “basic principles that are absolutely necessary for a free constitutional state.” These include human dignity, the principle of democracy and the rule of law.

That a party seeks to eliminate or influence at least one of these basic elements must follow from its objectives, for example as stated in the party’s platform, or from the behavior of its supporters. Supporters do not necessarily have to be party members.

So decided Karlsruhe, and in the case of the NPD it turned out that the party regularly failed elections with five percent of the vote and, apart from one member of the European Parliament, did not have a single member elected to the supra-regional parliament. The party did not have a majority and its membership was declining. According to the verdict – with very few exceptions in East Germany – there was no real dominance of the NPD in everyday life and in the process of forming public opinion.

AfD monitoring

In Saxony, Saxony-Anhalt and Thuringia, the respective state agency for the protection of the constitution listed the Alternative for Germany (AfD) party with “obvious attempts at right-wing extremism.” And yet this classification, which has already taken place, is not yet a reason for a ban. The only consequence of this is that there the party can be tracked using certain information and means.

In order for an application for an injunction to be successful, clear evidence of this must be provided. Content review is likely to be a deciding factor in any future ban proceedings. Materials submitted by constitutional protection bodies at the federal and state levels are also taken into account.

To “take a course” to eliminate the basic free democratic order means that active actions must be planned for this. And there must be strong evidence to imagine that this action will lead to success, that is, the party will be able to realize its goals. This is the second requirement that must be met for a ban.

The determination of the unconstitutionality of a party by the Federal Constitutional Court may also be limited to a legally or organizationally independent part of the party. Therefore, it is possible to ban certain land organizations, provided they meet the requirements, while others are not banned.

In principle, banning the party is only a last resort. “The idea of ​​the Basic Law is democracy