Party privilege

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The party privilege of Article 21 of the Basic Law equips the political parties in Germany with an increased guarantee of protection and continuity because of their special importance for parliamentary democracy . In particular, Article 21 (4) of the Basic Law places the decision on the unconstitutionality of a political party exclusively in the hands of the Federal Constitutional Court . Until the decision of the Federal Constitutional Court, the constitutionality of the party can be assumed. In this respect, this decision is of constitutive importance.

A prohibition order on the basis of Art. 9 Para. 2 GG, § 3 VereinsG by the executive is inadmissible. For the sake of political freedom , the Basic Law accepts the danger that exists in the establishment or activity of a party until it is found to be unconstitutional .

Constitutional guarantee

The party privilege relates primarily to the party organization. It protects the party in its existence as long as its unconstitutionality has not been established. Until then, the party must not be hindered in its political activity.

In addition, the privilege also extends to the party-official or party-affiliated activities of the functionaries and supporters of a party, provided that they work with generally permitted means, in particular do not violate the general criminal laws. The party privilege results from the task of the parties to participate in the formation of political will in accordance with Article 21.1 sentence 1 of the Basic Law . Since the parties are dependent on formulating political objectives as well as ways of achieving them and convincing the citizens of both, they must have the right and the opportunity to influence the political decision-making of the citizen without hindrance until they are found to be unconstitutional.

The political activities of a non-banned party and its members and supporters may not be hindered by bans on meetings or speeches based on the content represented by the party, or, for example, by rejecting election advertising spots that are not criminally questionable or by unequal treatment of access to community institutions.

Substitute organizations

With the determination of the unconstitutionality, the dissolution of the party and the prohibition to create a substitute organization must be combined ( Section 46 (3 ) BVerfGG ). In this case, the Federal Constitutional Court can also confiscate the party's assets in favor of the federal government or the state for charitable purposes.

For the period after the decision of the Federal Constitutional Court, the party privilege does not apply. Maintaining the cohesion of the party or the establishment of a substitute organization are punishable as continuation of a party declared unconstitutional under Section 84 of the Criminal Code.

The Federal Constitutional Court also decides on the prohibition of substitute organizations in accordance with Section 33 of the PartG .

Prohibition Procedure

In 1952 the Socialist Reich Party (SRP) was banned, and in 1956 the Communist Party of Germany (KPD). Prohibition proceedings initiated in 2001 against the National Democratic Party of Germany (NPD) were discontinued in 2003 for procedural reasons. In a further ban proceedings against the NPD in 2013, it was not banned in 2017 despite it being unconstitutional.

(For more see prohibition of parties .)

See also

Individual evidence

  1. ↑ BVerwG , judgment of September 30, 2009, Az. 6 C 29.08 full text , margin no. 20th
  2. ↑ BVerfG, judgment of March 21, 1961 - 2 BvR 27/60, BVerfGE 12, 296 .
  3. ↑ BVerfGE 2, 1 , 13; BVerfGE 5, 85 , 140
  4. ^ Federal Ministry of the Interior : Party ban .
  5. ↑ BVerfG, decision of January 17, 1978, Az. 2 BvR 487/76, BVerfGE 47, 130 , 139 mwN
  6. ↑ BVerfGE 47, 130 140 f.
  7. ↑ BVerfG, decision of May 1, 2001, Az. 1 BvQ 22/01, full text = NJW 2001, 2076.
  8. ↑ BVerfG, decision of December 8, 2002, Az. 1 BvQ 49/02, full text = NJW 2003, 1108.
  9. ↑ BVerfG, decision of February 14, 1978, Az. 2 BvR 523/75 u. a., BVerfGE 47, 198 .
  10. ↑ BVerwG, decision of July 21, 1989, Az. 7 B 184.88, full text = Buchholz 415.1 AllgKommR No. 91.
  11. ↑ BVerfGE 2, 1
  12. ↑ BVerfGE 5, 85
  13. ↑ BVerfG: Prohibition of parties
  14. ↑ BVerfG, judgment of January 17, 2017, Az. 2 BvB 1/13, full text .