It is a paradoxical situation: The NPD's failure has led to its success in Karlsruhe. The extreme right-wing party is sinking into political insignificance - therefore it will not be banned.
It is a bitter blow for the federal states. It was just over four years ago that the 16 interior ministers decided on a new attempt to ban the NPD. They filed the lawsuit with the Federal Constitutional Court over three years ago, producing abundant evidence of nationalist and racist activity. And now, the unanimous verdict of the magistrates in Karlsruhe has come back: No, it is not enough. The party is too insignificant.
Still, in the eyes of the Federal Constitutional Court it is beyond doubt that the NPD, in accordance with its goals and supporters, is striving to overthrow the fundamental order of liberal democracy. The party wants to replace the existing constitutional system with an authoritarian nation-state oriented toward an ethnically defined "national community.”
Moreover, the NPD is seen to be exhibiting "an affinity with National Socialism" and working methodically to achieve its goals.
The reason this was still not enough to warrant a ban is the Karlsruhe magistrates' explicit renunciation of previous rulings. Unlike when the courts banned the Communist Party of Germany (KPD) roughly 60 years ago, a decisive factor now is whether the party in question is in a position to realize its unconstitutional intentions in the foreseeable future. The court did not see any such indications in the case of the NPD. So they followed the new principle: A party ban is not a "ban on attitudes or ideologies."
The police and the judiciary have to be urgently reinforced to guarantee a resilient constitutional state.
And so the judges in Karlsruhe refused to wield what they call "the democratic state's sharpest and also double-edged sword against its organized enemies." Indeed the NPD had most recently shrunk to become a political dwarf. Last September the party was ousted from the last state parliament where it was still represented.
On a municipal level, the extreme right-wing party currently has just over 360 seats. The party received just 1.3 per cent of the vote in the last federal election. On a wider scale, they are represented by just one member of the European Parliament. Fewer than 6,000 members support the ideology. And in addition, the NPD is in financial straits after a fine totaling millions of euros for errors in its financial reports.
They have little influence and are in a chaotic situation. The NPD may spread nationalist slogans, but they are not powerful enough to pose a real danger in the eyes of the magistrates. And while the NPD might sell the outcome of the proceedings as a victory, their demise still seems inevitable.
The failure of proceedings to have the party banned brings us back to the crux of the matter: Radical and extremist movements exist in this country, but they are not necessarily concentrated in one party - certainly not in the long-term. And that alone makes the banning of individual parties highly controversial in the fight against extremism. For example, there can be no doubt that the burgeoning AfD marginalized the NPD, because it is where protest voters and critics of the asylum and refugee policy were concentrated. It is significant that the AfD did not even exist when the federal states decided on the new motion to ban the NPD.
In the final analysis, the states did not have enough ammunition to have the NPD banned. That is a disaster, not least because earlier legal proceedings to ban the party in 2003 were also rejected by the constitutional court. Back then it was revealed that undercover government agents had been active in the leadership of the NPD. That will surely have been the last attempt by the upper and lower houses of parliament or the federal government to ban the NPD. But it widens the scope to look for alternative solutions in the fight against extremist movements.
The NPD retains its so-called “party privilege” (i.e. the affirmation that it can only be banned by the constitutional court), its party assets and existing seats. But the judges in Karlsruhe did make two important points when explaining their verdict: First, it is up to the legislators to decide in the current situation whether alternative reactions are appropriate, like the withdrawal of state financing. The democratic parties will now have to reflect on this as a matter of urgency.
Second, there has to be a swift and comprehensive reaction to intimidation, threatening behavior and the organization of potential violence using the means implicit in “pre-emptive police law” and “repressive criminal law” to guarantee the effective protection of liberty. That means that both the police and the judiciary have to be urgently reinforced to guarantee a resilient constitutional state.
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