Ban on party

from Wikipedia, the free encyclopedia

A party ban is the ban on a political party , its political activities and its sub- and successor organizations. The consequences of this are the confiscation of the party's assets and the loss of mandate.

Germany

In Germany , the constitutional procedure in accordance with Article 21, Paragraph 2 of the Basic Law (GG) serves the preventive protection of the free democratic basic order, one of the supporting foundations of the state. In the criminal process for politically motivated crime , on the other hand, it is about the determination of culpable and punishable individual behavior and the enforcement of the state criminal claim, i.e. primarily about repressive state protection of legal interests.

Basics

Political parties represent the main element of parliamentary work and are significantly involved in the formation of political will in a democracy. The special importance of the parties is made clear under constitutional law by the party privilege anchored in Art. 21 GG . For these reasons, and above all for historical reasons, a party ban is a politically sensitive issue and is sometimes seen as contradicting democracy .

Due to the intensity of the interference associated with a prohibition and in order to prevent (political) abuse, only the Federal Constitutional Court is entitled in the Federal Republic , in which Article 21 (2) in conjunction with Art . V. m. § 13 no. 2, §§ 43 ff. Federal Constitutional Court Act (the FCC) regulated process, the unconstitutionality determine a party and in the provisions adopted judgment a ban express this. The decision not only leads to a ban on the party and its successor organizations, but also to an immediate loss of mandate, the confiscation of the party's assets and the ban on their trademarks and propaganda materials .

Due to the similarity of the party prohibition proceedings to the criminal process and the historically conditioned concern about abuse, not only the judgment as such, but also all others require the respondent, i.e. H. of the party concerned, adverse decisions by a qualified two-thirds majority of the members of the competent Senate at the Federal Constitutional Court. The second senate of the Federal Constitutional Court is responsible for proceedings to prohibit parties.

Eligibility to apply for a party ban proceedings

According to Section 43 (1) BVerfGG, only the following constitutional bodies are entitled to apply :

If the organization of a party is limited to one federal state , the state government of this state can also submit the application in accordance with Section 43 (2) BVerfGG .

Constituent elements

For a party ban, the criteria must be given. These are defined in Art. 21 of the Basic Law. These include:

  • go for it according to their goals or the behavior of their followers
  • Impairment or elimination of the free and democratic basic order
  • Endangering the existence of the Federal Republic of Germany

The 1st element of the offense must be met. For the other two characteristics, it is sufficient if one of them is given.

In the case of a party ban, the Federal Constitutional Court also orientates itself on the criterion of the European Court of Human Rights , according to which an “urgent social need” is a prerequisite. The Federal Constitutional Court limited the impairment of the free-democratic basic order to the elements of human dignity , the principle of democracy , the legal binding of public authorities and the independence of the courts . The “Guidelines on Prohibition” of the Venice Commission of the Council of Europe contain further criteria .

requirements

Insofar as an application has been submitted, the requirements for a party ban result from the wording of Article 21 Paragraphs 2 and 4 of the Basic Law or, in fact, its interpretation by the Federal Constitutional Court. The free democratic basic order must then be endangered by unconstitutional behavior in order to be able to pronounce a ban. A mere anti- constitutional attitude is not enough. In addition to the wording of Article 21 (2) of the Basic Law, the Federal Constitutional Court demands that, in addition to an anti-constitutional attitude, there must also be an aggressive and combative approach to the existing order. The Federal Constitutional Court sums this up in its decision on the KPD ban proceedings of 1956:

“A party is not unconstitutional if it does not recognize the highest principles of a free democratic basic order [...]; Instead, there must be an active, combative, aggressive attitude towards the existing order. "

Another prerequisite for a successful party ban is that this must come about in a constitutional process. For example, the NPD prohibition proceedings were discontinued because, in the opinion of three constitutional judges, there was a procedural obstacle due to the use of numerous informers. Due to the resulting "lack of distance from the state" of the party, a constitutional procedure could not be guaranteed. The Federal Constitutional Court states in this context:

"The observation of a political party by informants of state authorities who act as members of the federal executive committee or a state executive immediately before and during the execution of a procedure before the Federal Constitutional Court to determine the unconstitutionality of the party is generally incompatible with the requirements for a constitutional procedure, which results from Art. 21 Para. 1 and Para. 2 GG i. V. m. the rule of law, Art. 20 Abs. 3 GG. "

swell

Publicly obtained information can be used as sources or evidence for the constituent elements. These include the party's own publications , interviews , major events and demonstrations , judgments and police investigations . All documents must be subject to the freedom of the state. This means that no undercover agents , undercover agents and Undercover investigators involved in the provision of the information or the information itself may have influenced. This must be proven by attestations and sub- attestations .

judgment

The verdict in a proceeding makes statements about the unconstitutionality and the prohibition . This is followed by a detailed justification .

Legal consequences

The legal consequences of successful party prohibition proceedings are the dissolution of the party and its sub-organizations as well as the confiscation of property .

Appeal

A party can appeal to the European Court of Human Rights after successful prohibition proceedings.

Party bans in Germany

German Empire

In the German Empire , the Socialist Law of October 22, 1878 to September 30, 1890 made all socialist and social democratic organizations and their activities illegal. However, the Social Democrats were still able to take part in elections and ultimately emerged stronger from the period of prohibition.

In the Weimar Republic , as a result of the Hitler putsch , the NSDAP was banned from November 23, 1923 until it was re-established on February 27, 1925. The German National Freedom Party was also affected by the ban; At the end of February 1924 it was lifted again.

The KPD was banned in the spring of 1919 and again on November 23, 1923 (until February 28, 1924).

After the seizure of power by the Nazis (see German Empire from 1933 to 1945 ) was SPD declared on June 22, 1933 for "the people and the anti-state organization" and therefore prohibited, the law against the formation of new parties were from July 16, 1933 all other parties besides the NSDAP are also prohibited.

In post-war Germany , on October 10, 1945, the NSDAP with all its branches and affiliated associations was banned by the Control Council Act No. 2 of the Allied Control Council . The party was declared a " criminal organization " in the Nuremberg trials in 1946 .

Federal Republic of Germany

Even if there have been several corresponding opening motions, the Federal Constitutional Court in the Federal Republic of Germany has so far only issued two party bans: against the SRP , a successor organization to the NSDAP, on October 23, 1952 and the KPD on August 17, 1956 (see KPD- Prohibition ).

There were also three other proceedings: the proceedings against the Freedom German Workers' Party (FAP) and the National List (NL), which was limited to the Hamburg area, failed because the Federal Constitutional Court denied the FAP and the NL party status. The bans were then carried out in accordance with the association regulations by the responsible interior minister.

The NPD prohibition procedure , which was initiated jointly by the Bundestag , Bundesrat and Federal Government ( Cabinet Schröder I ) in 2001 , was discontinued by the Federal Constitutional Court on March 18, 2003 for procedural reasons because informers from the constitution protection were also active in the party's management level. The question of whether the NPD was an unconstitutional party at the time was not examined.

In December 2013, the Federal Council again requested the Federal Constitutional Court to ban the NPD . This time, however, the federal government ( Merkel II cabinet ) and the Bundestag did not participate. The question of the unconstitutionality of the NPD was heard before the Federal Constitutional Court from March 1st to 3rd, 2016. When the verdict was pronounced on January 17, 2017, the court was unable to find any “indications of the successful implementation of its anti-constitutional goals” on the question of the unconstitutionality of the NPD. The party was not banned, but its anti-constitutionality was recorded. As a result, the Bundestag amended the Basic Law in such a way that a declaration of hostility to the constitution is sufficient to exclude parties from party funding without prohibiting them.

Austria

Party bans in Austria

The NSDAP (Hitler movement) was banned in Austria from June 19, 1933 as a result of a hand grenade attack on a division of Christian-German military gymnasts in Krems . It was only permitted again with the Berchtesgaden Agreement of February 12, 1938, when free political activity was allowed again by the National Socialists.

Under Austrofascism (1933–1938) the KPÖ (from May 26, 1933) and the SPÖ (from February 12, 1934) were prohibited from any political activity.

After the annexation of Austria , the law against the formation of new parties came into force on March 15, 1938, whereby all parties except the NSDAP were banned.

In Austria, according to the Prohibition Act 1947 , which was passed on May 8, 1945 and came into force on February 18, 1947, the NSDAP is forbidden and any re-activation is prohibited. On this basis, the National Democratic Party , which had existed since 1967, was stripped of its legal personality as a party in 1988 and in the same year it was officially banned (now as an association).

Switzerland

Party bans in Switzerland

In November 1940, the Swiss Federal Council banned the Swiss Communist Party and its affiliated organizations, as well as the Swiss National Movement (NBS). To justify the ban, it was said that these extremist parties are striving to reshape the state order outside the constitutional order. He lifted both bans on February 27, 1945.

Other countries

In 1998, the ban Turkey's Constitutional Court , the Turkish Welfare Party . The European Court of Human Rights accepted this ban.

A Spanish court in March 2003 banned the Basque Batasuna party, which was seen as the political arm of ETA . The ban was based on a law of June 27, 2002.

literature

  • Martin Will: Ephoral Constitution. The party ban of the right-wing extremist SRP from 1952, Thomas Dehlers Rosenburg and the constitution of the Federal Republic of Germany. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155893-1 .

Individual evidence

  1. BVerfG, decision of March 18, 2003 - 2 BvB 1, 2, 3/01 , no. 84.
  2. Article 21 , accessed April 7, 2019.
  3. ^ Ingo Richter , Gunnar Folke Schuppert : Casebook Constitutional Law. With the collaboration of Christian Bumke , Katharina Harms and Hans Christoph Loebel . CH Beck, Munich 1996, ISBN 3-406-39388-8 , pp. 476 f. = Art. 21 . with reference to the Federal Constitutional Court, BVerfGE 2, 1 , 12 f. (SPR judgment) and BVerfGE 5, 85 , 141, 195, 238, 141, 208 (KPD ban)
  4. a b Stephan Pötters, NPD ban: constitutional hurdles in: juraexamen.info April 2, 2012.
  5. BVerfGE 5, 85 , 2nd principle.
  6. BVerfG, decision of March 18, 2003, Az. 2 BvB 1/01, 2 BvB 2/01, 2 BvB 3/01, BVerfGE 107, 339 .
  7. BVerfG, judgment of the Second Senate of January 17, 2017 - 2 BvB 1/13 - Rn. 1–1010 , accessed May 17, 2019.
  8. ^ Reimer Wulff: The German National Freedom Party 1922–1928. University publication, Marburg 1968, p. 35 f.
  9. ^ The Communist Party of Germany (KPD). German Historical Museum Foundation , September 8, 2014, accessed on September 18, 2016 .
  10. ^ Communist Party of Germany (KPD), 1919-1933 / 1945-1956. Historical Lexicon of Bavaria , accessed on September 18, 2016 .
  11. Timeline for the history of the KPD 1875-1933. www.kpd-sozialgeschichte.homepage.t-online.de, accessed on September 18, 2016 .
  12. ↑ Date of entry into force of the law against the formation of new parties .
  13. ^ SRP prohibition judgment of the BVerfG, judgment of October 23, 1952, Az. 1 BvB V51.
  14. KPD prohibition judgment of the BVerfG, judgment of August 17, 1956, Az. 1 BvB 2/51.
  15. Cf. Robert van Ooyen : The party prohibition proceedings before the Federal Constitutional Court ; in: Martin Möllers / Robert van Ooyen (eds.), Party prohibition proceedings , 3rd edition, Frankfurt a. M. 2011, pp. 139-160, ISBN 978-3-86676-137-7 .
  16. Cf. Claus Leggewie / Johannes Lichdi / Horst Meier, "What should we do with it?" The renewed ban proceedings against the NPD. The process (part 2). In: Law and Politics, Issue 2/2016, pp. 86–97; on the whole problem Horst Meier, ban on the NPD - a German state theater in two acts. Analyzes and Criticism 2001 - 2014. Berliner Wissenschafts-Verlag 2015.
  17. Federal Constitutional Court - Press - No ban on the NPD due to a lack of evidence for a successful implementation of its anti-constitutional goals. In: www.bundesverfassungsgericht.de. Retrieved January 17, 2017 .
  18. Overview of the legislative procedure at the Bundestag .
  19. ^ Siegwald Ganglmair / DÖW : The way to the "connection" .
  20. When the Federal Council even banned political parties . In: NZZ . November 27, 2014, ISSN  0376-6829 ( nzz.ch [accessed March 30, 2019]).
  21. Interpellation 98.3613 of December 17, 1998 of the social democratic parliamentary group and statement of the Federal Council of May 26, 1999 .
  22. European Court of Justice: Judges accept ban on Turkish welfare party. Frankfurter Allgemeine Zeitung , July 31, 2001, accessed on May 27, 2013 .
  23. Ley Orgánica 6/2002, de 27 de junio, de Partidos Políticos (Spanish).