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Forfeiting basic rights under the constitution?

Rahel Klein
June 20, 2019

The former secretary-general of Angela Merkel's conservatives wants enemies of the constitution to forfeit important basic rights, citing Article 18 of Germany's Basic Law. What is Article 18 and how would it be applied?

German constitution
Image: picture-alliance/dpa/C. Ohde

In a guest op-ed for Welt Online, Peter Tauber, a former secretary-general of Chancellor Angela Merkel's conservative Christian Democratic Union (CDU), has called for tougher measures to be taken against enemies of Germany's constitution — including depriving them of basic rights. He has argued in favor of applying Article 18 of the constitution, or Basic Law, which does provide for such measures. "The mothers and fathers of the Basic Law put in our hands a sharp sword with which to defend the constitution," Tauber writes. "It is time to make use of it." He believes that simply applying existing criminal law is not enough.

Read more: The significance of Germany's Basic Law

Tauber wrote his guest op-ed in response to the killing of Walter Lübcke, a local CDU politician in the city of Kassel. He is believed to have been killed by a right-wing extremist. Tauber said that the far-right Alternative for Germany shared responsibility for Lübcke's death, as members of that party used language that encourages people to shed their inhibitions, and that leads to violence. He also called for a clearer division to be made between conservatives and the extreme right of the political spectrum. "We cannot either integrate or incorporate the political [far] right," Tauber said.

What exactly does Article 18 of the Basic Law say?

Article 18 deals with the forfeiture of basic rights. When the German Basic Law was established 70 years ago, the idea was to ensure that the Federal Republic, as a democracy, was able to defend itself, i.e. was in a position to protect itself against opponents of the basic democratic order. The Basic Law includes various measures to address this. For example, it not only makes provision for specific associations or political parties to be banned; there is also Article 18, which is a mechanism for combating anti-democratic forces. If, for example, a publisher uses his newspaper to agitate against the constitution, this publisher's basic right to press freedom can be taken away.

Germany's Basic Law turns 70

To quote Article 18: "Whoever abuses the freedom of expression, in particular the freedom of the press, the freedom of teaching, the freedom of assembly, the freedom of association, the privacy of correspondence, posts and telecommunications, the rights of property, or the right of asylum in order to combat the free democratic basic order shall forfeit these basic rights."

Have enemies of the constitution ever been deprived of basic rights before?

No. Article 18 has never been used to date. There have been three cases involving four people who could have forfeited their basic rights, including two neo-Nazis, and the former editor-in-chief of the Deutsche National-Zeitung, a far-right nationalist newspaper. However, all the cases were rejected by the Constitutional Court after dragging on for several years.

Read more: The German constitution — putting people first

An application for forfeiture of basic rights can be made by the Bundestag, the federal government, or the respective state government. The decision must be taken by the Constitutional Court. Any such forfeiture would initially be limited to a few years, and the Constitutional Court would be able to rescind it.

If Article 18 were to be applied, what would be the consequences?

"Of course, it doesn't mean that the individual who has forfeited their basic rights would be outlawed, so to speak, and deprived of all his rights," Professor Michael Brenner, a constitutional lawyer from the University of Jena, explained to DW. Only specific basic rights would be taken away, as listed in Article 18. A person would still retain other rights guaranteed to individuals under the German Civil Code.

The German Basic Law: freedom of expression

The most important and most direct consequence of a forfeiture of basic rights would be that the individual concerned can no longer invoke the basic right he has forfeited when applying to the Constitutional Court, and is no longer entitled to lodge a constitutional complaint. So he doesn't lose the basic right itself; rather, he loses the possibility of applying it.

It's still unclear what exactly the effects of such a forfeiture of basic rights would be. "So far, it has never been tested in practice," says Brenner. He points out that it would be difficult to police, particularly the forfeiture of the right to freedom of expression. "It certainly won’t be possibly to ban individuals from expressing themselves," says Brenner. "You can’t station a policeman at someone's side and get the officer to supervise everything that person says, or isn't allowed to say."

Read more: What is Germany's constitution, the 'Basic Law'?

Brenner estimates that the practical consequences of the forfeiture of basic rights would, on the whole, be fairly manageable. In recent years, he says, criminal law has been a more effective means of imposing sanctions on enemies of the constitution. "Because, on balance, it naturally hurts the individual far more if he has to go to prison for two years than if he can no longer invoke a basic right before the constitutional court."

Nonetheless, Brenner adds, forfeiture of basic rights does have the potential to be effective as a means of conveying a specific message.