Few dispute that right-wing extremist parties are undemocratic. But proving their unconstitutionality is a touchy issue and makes instituting a political ban a difficult proposal.
A long-running debate over how Germany should deal with the far-right National Democratic Party (NPD) finally appears to be coming to a close. Interior ministers from all 16 German states as well as the federal interior minister voted to initiate legal proceedings on Thursday (06.12.2012) to ban the political party.
The first step in doing so was for the state interior ministers to give their recommendation on a motion at their conference in the northern German town of Rostock on Wednesday. The vote represents the second attempt to ban the right-wing extremist party. The decision on the possible ban will eventually be made by Germany's Constitutional Court.
The NPD currently holds seats in two state parliaments: Mecklenburg-Western Pomerania and Saxony, both in eastern Germany. The first attempt to ban the NPD in 2003 failed on technical grounds, when the judge questioned the legitimacy of the presented evidence. A large part of the evidence stemmed from high-level NPD functionaries who were also undercover informants for the Federal Office for the Protection of the Constitution, which protected their identities.
In order to better their chances, state interior ministers - responsible for the undercover informants - announced their intention in the spring to "deactivate" the highest NPD informants.
In addition, the ministries have apparently gathered extensive material from freely available sources such as websites and public events to make their case in proving the unconstitutionality of the NPD. Most state ministers apparently consider the approximately 1,000 pages of material that has been gathered so far as enough to move toward a ban.
Uwe Schünemann, interior minister for Lower Saxony, said before the conference that he supports the second attempt for a ban and hopes the federal interior minister, Hans-Peter Friedrich, agrees with other ban supporters.
To date, Friedrich had hesitated to take the final step. While the state ministers could have filed for the ban in court without him, they felt that the joint effort with the German government, which was agreed to Wednesday, as well as with parliament would send a more decisive political signal.
Schünemann said he was confident Friedrich and the federal government would go along with the second attempt as "80 percent of the incriminating material came from the German Office for the Protection of the Constitution," which falls under the responsibilities of the interior minister.
Difficult to prove
But if it were up to Justice Minister Sabine Leutheusser-Schnarrenberger, the ban proceedings would not go ahead. She has warned of the risk of failure, which could inadvertently help promote the NPD. According to the justice minister, it's difficult to prove that the party is "aggressive and militant" and is agitating against the fundamental democratic order, which is what the constitution requires to ban a political party.
Gero Neugebauer, a political scientist at the Free University in Berlin, shared this skepticism. There must be proof of anti-democratic activities "in word and deed," Neugebauer told DW.
"It would be about proving that NPD goals are to be carried out with violence." Neugebauer, however, was convinced of the extremist nature of the party which he said propagates xenophobia, anti-Semitism and jingoism. "It's fundamentally opposed to democracy."
Political arm of alleged terror network?
Since the National Socialist Underground (NSU) was exposed two years ago and accused of 10 xenophobic killings between 2000 and 2007, many have suspected the NPD of acting as the political wing of the right-wing terrorist network. Among the accused is Ralf Wohlleben, the former deputy NPD leader in Thuringia - the same state where the NSU trio of Beate Zschäpe, Uwe Mundlos and Uwe Böhnhardt was active. However, there does not appear to be any incriminating evidence linking the NSU and the NPD at an organizational level.
If this second attempt succeeds at banning the NPD, the party intends to appeal the decision at the European Court of Human Rights (ECHR) in Strasbourg. Decisions there are backed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, with a focus on freedom of expression and of association.
In the court's legal opinion, the prohibition of a political party is the last resort. The NPD hopes that the ECHR would have more stringent guidelines for such a decision, thus overruling a possible ban by Germany's Federal Constitutional Court.
The Research Services section of the German Bundestag has examined 2,007 previous judgments made by the ECHR, looking at previous attempts to ban political parties with aims to "enforce anti-democratic political goals." In 1998, for example, a Turkish party was banned despite having the support of a majority of the population, according to polls. The NPD, by contrast, can't dream of such support; in national polls, less than 1 percent of voters back the party.
One possible outcome is a paradoxical development that skeptics are dreading: Germany's Constitutional Court declares the NPD politically dead, and the ECHR decides to resurrect the right-wing party.
The federal government has refused to weigh in before the interior ministers' meeting on Wednesday, with Steffen Seibert, spokesman for German Chancellor Angela Merkel, declining to speculate on the issue.