Are communist parties illegal in your country
Toralf Staud was the political editor of ZEIT from 1998 to 2005, today he writes as a freelance author on, among other things, right-wing extremism. Two of his books were also published by the Federal Agency for Political Education. In 2010 and 2013 he was involved in research by ZEIT and Tagesspiegel on the victims of right-wing violence. Most recently he published at Kiepenheuer & Witsch: New Nazis. Beyond the NPD - populists, autonomous nationalists and terror from the right.
The Christmas issue of the news magazine Der Spiegel from 1968 had a striking cover picture. A crossed-out NPD party logo was to be seen on it, under it just a single word in large letters: "Prohibition?". For more than four decades, the NPD ban debate has preoccupied German politics, almost as long as the National Democratic Party of Germany (NPD) founded in 1964 has existed. The first application for a ban was finally submitted in 2001, but the Constitutional Court dropped the proceedings two years later, well in advance of a decision, so a ban was not issued. This left the two party bans in the history of the Federal Republic: in 1952 the Socialist Reich Party (SRP) and in 1956 the Communist Party of Germany (KPD) were banned.
Why these proceedings were successful while the one against the NPD failed, how exactly such a party ban actually works and who has to enforce it - these questions are answered here.
1. Why are there parties at all?A parliamentary democracy is hardly conceivable without parties. The parties have the task of bundling the multitude of different interests in a modern society before decisions or compromises can be found in politics. In the Basic Law a separate article is dedicated to the parties, Article 21 : "The parties participate in the formation of the political will of the people", it says in the first sentence. How exactly this should happen is described in Paragraph 1 of the Political Parties Act : parties should "stimulate and deepen political education, promote active participation of citizens in political life, train citizens capable of assuming public responsibility". The parties' fields of action also include setting up applicants for federal, state and local elections, helping to steer political developments in parliament and government, developing political goals and introducing them into the process of state decision-making, and establishing a connection between the people and the state organs promote.
There are currently around 110 parties in the Federal Republic of Germany - from A for "Alternative für Deutschland" to H for "Humanwirtschaftspartei" and P for "Party of Biblical Christians" to X for "XXL Party for more prosperity and democracy". Eleven of these parties are represented by members in a federal or state parliament, the largest parties (both in terms of the number of members and in terms of the number of parliamentary seats won in the federal and state levels) are CDU and SPD. There are also numerous free voter communities, especially at the municipal level.
2. Who allows parties?Nobody. There is no state licensing procedure, "its establishment is free", says Article 21 succinctly. Anything else would theoretically give the authorities the opportunity to prevent uncomfortable parties from the outset. The existence of a party in Germany therefore says nothing at all about whether its program is problematic or not. In any case, every citizen of the Federal Republic can found a party together with like-minded people. This can stand elections, win parliamentary seats and at some point participate in the government - like the party Bündnis 90 / Die Grünen , which emerged from the West German social protest movements of the 1970s and the GDR citizens' movement from 1989 and from 1998 to In 2005 he was involved in the federal government as a coalition partner of the SPD.
Even without an admission procedure, Article 21 lays down some basic rules for parties - but these only relate to formal questions, not to the goals or the program. The "internal structure" of a party - for example the procedure for electing executive boards or parliamentary candidates - must therefore "conform to democratic principles". In addition, parties have to "give public account of the origin and use of their funds as well as their assets".
Before elections there is a kind of check: At the federal level, the federal electoral committee determines whether a party has complied with all formal regulations. If so, she will be allowed to vote. But even with this exam, the goals or the program do not play a role.
3. Who bans parties?Because parties are so important for parliamentary democracy, only the highest German court can impose a ban: the Federal Constitutional Court in Karlsruhe. It is very controversial that this possibility exists at all. In countries with a long democratic tradition, such as Great Britain or the USA, party bans are completely unknown; they would be seen as a serious interference with freedom of expression. However, in order to prevent a party with anti-constitutional goals from coming to power legally - like the NSDAP in 1933 - the authors of the Basic Law have deliberately provided the possibility of a party ban in order to make democracy "defensible" or "controversial". To make . According to this concept, the state can take action against enemies of democracy and, for example (within a narrow framework), withdraw basic rights from citizens or prohibit political parties.
In the history of the Federal Republic of Germany there have only been two party bans:
- 1952 against the Socialist Reich Party (SRP), which the Federal Constitutional Court has classified as the successor of the NSDAP. The unconstitutionality of the SRP is expressed, among other things, in its disregard for essential fundamental rights and in its orientation against the multi-party principle.
- 1956 against the Communist Party of Germany (KPD). As a Marxist-Leninist fighting party, the KPD wants to establish the "dictatorship of the proletariat" and, on the way there, undermine the free democratic basic order, the Federal Constitutional Court said in the judgment.
4. How exactly does a ban work?The hurdles for a party ban are deliberately high: the Bundestag, Bundesrat or federal government may submit a ban application to the Federal Constitutional Court (in the case of parties that are only active in one federal state, the regional government there as well). On the basis of statutes and programs, party newspapers and other advertising material, statements by party officials or acts by party supporters, the court judges whether a party is unconstitutional (see question 5). The controversial party naturally has the right to defend itself in Karlsruhe. A ban can only be pronounced with a two-thirds majority, i.e. at least six of the eight judges in the competent Senate of the Constitutional Court must agree.
If a party is banned, the offices of the parties are closed, the assets are confiscated, and any MPs of the party lose their parliamentary seats and thus their diets. Establishing substitute organizations is also prohibited.
If the NPD were banned, they could turn to the European Court of Human Rights in Strasbourg. In its previous judgments (for example on the prohibition of the Islamist welfare party in Turkey in 2003), the Federal Constitutional Court applied stricter criteria in some cases than the Federal Constitutional Court in its prohibition judgments from the 1950s. The Strasbourg judges (unlike those in Karlsruhe) are examining whether the banned party actually threatened to overthrow.
5. When is a party unconstitutional?"Unconstitutional" is not the same as "unconstitutional". People or organizations whose goals or ideas are directed against fundamental constitutional values are called anti-constitutional. A party with a racist program, for example, violates Article 3 of the Basic Law, which states that no one may be disadvantaged or preferred because of their origin. In its 1952 prohibition ruling against the SRP , the Federal Constitutional Court defined the minimum principles of the "free and democratic basic order" of the Federal Republic. These are: "Respect for the human rights specified in the Basic Law, especially the right of the individual to life and free development, popular sovereignty, the separation of powers, the responsibility of the government, the legality of the administration, the independence of the courts, the multi-party principle and equal opportunities for all political parties with the right to a constitutional formation and exercise of an opposition ". Anyone who rejects these principles or who agitates against them is considered unconstitutional.
However, it is only unconstitutional and thus, so to speak, capable of being banned if you violate this basic order or propagate violence as a means. The Karlsruhe judgment on the KPD ban of 1956  therefore says: "Rather, there must be an active, combative, aggressive attitude towards the existing order. ... It must systematically impair the functioning of this order, and later this order itself want to eliminate. "
6. Why has the NPD not been banned long ago?There is no doubt that the NPD is anti-constitutional - but that is not enough for a ban (see question 5). According to the previous judgments of the Federal Constitutional Court, it must also be proven that it is aggressive and combative. But this is difficult because the NPD leadership officially distances itself from violence as a means of political debate. 
After a wave of right-wing extremist acts of violence, politicians launched their first attempt at a ban in 2001. The Bundestag, Bundesrat and Federal Government submitted three coordinated complaints in Karlsruhe. Since the NPD opened up to militant cadres from other, previously banned neo-Nazi groups in the mid-1990s, the argument goes that the party's aggressive and combative stance has been evident. Extensive collections of material were presented to the court in which the ideology of the party and numerous acts of violence by party members and supporters were described.
But even before the actual negotiation began, a scandal broke out in early 2002. Statements from former shop stewards, so-called V-people, were also quoted in the complaints. V-people are not undercover agents who are smuggled in by the authorities, but members of the respective organization who have been recruited by the police or the Office for the Protection of the Constitution to provide information about their organizations for a fee. The security authorities assured several times that they had neither influenced the party through the informants nor researched the defense strategy in the prohibition proceedings. But the court suspended the trial against the NPD.
After lengthy deliberations, three judges finally declared that they saw the involvement of informants as an "unrecoverable procedural obstacle". They were in the minority, but a two-thirds majority (six of the eight judges) should have voted to continue the trial. For this reason, the prohibition proceedings against the NPD were broken off for formal reasons in March 2003  - before any deliberations on the content of a possible unconstitutionality of the NPD could even take place.
7. What would a ban do?Proponents of a ban on the NPD want to achieve that the structures of the party are destroyed and that the economic foundations (above all from state party funding) are deprived of it. A ban could well hinder the extreme right that is gathering in the NPD - but probably not in the long term. At least that is what the experience of the last two decades suggests. Because since the German unification in 1990 around 40 neo-Nazi associations have been banned in the Federal Republic. Their followers often withdrew after the bans. But not their management team: They usually carried on - in other structures.
Experience has also shown that state repression can also boost innovation for the extreme right: After the aforementioned bans on neo-Nazi groups in the early to mid-1990s, neo-Nazi comradeships established themselves that were only loosely organized and therefore significant for the state are harder to pin down than their predecessors. Particularly radical cadres of the banned organizations turned to the NPD in large numbers after the bans and continued their work within the party. Without this development, the rise of the NPD and its entry into two state parliaments in Saxony and Mecklenburg-Western Pomerania would have been unthinkable.
Two further examples: The fact that from the mid-1990s onwards, openly exhibited Nazi symbols were more closely followed and the wearing of combat boots, for example, was increasingly prohibited during right-wing extremist marches, was one of the reasons that the extreme right was aesthetically modernized and the autonomous nationalists (AN) . When the AN group of National Resistance Dortmund  was banned, their leadership cadre unceremoniously joined the newly founded party Dierechte.
In any case, "the right-wing extremist organizational core can hardly be dried up by bans, on the contrary," says political scientist Hans-Gerd Jaschkei . "The right-wing scene takes into account the danger of being banned and is developing ever more sophisticated instruments to prevent or circumvent bans." Even in the NPD, some leadership cadre openly admit that, precautions are already being taken - in West Pomerania's Anklam, for example,  important real estate is not owned by parties, but private. That is because it cannot be confiscated in the event of a ban.
Bans on right-wing extremist organizations since 1990
When racist violence increased significantly, especially in East Germany, after the unification of Germany, there were a large number of bans. In total, around 40 right-wing extremist organizations have been banned by the federal government and ten federal states since 1990, seven in Brandenburg alone.
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