What does the Basic Law say?
Article 21 paragraph 2 states: “Parties which, based on their goals or the behavior of their supporters, aim to impair or eliminate the free democratic basic order or endanger the existence of the Federal Republic of Germany are unconstitutional.” They can do so Federal Constitutional Court banned. However, Karlsruhe only becomes active upon request. This in turn can be made by the Bundestag, the Bundesrat or the federal government.
Is an anti-constitutional stance enough for a ban?
No, the party must, as the law says, “set out” to eliminate the existing order. It must therefore want to implement its anti-constitutional stance in an “active, combative manner”. There is no need for a group of thugs; a party can also be “active and combative” with words. The rhetoric could even be “soft,” said Bonn constitutional lawyer Klaus Ferdinand Gärditz in the FAS. They must “persistently act on combating the free-democratic basic order and eliminating it actively and systematically.” This can also be done without violence, as a legal coup from above.
Are there any other criteria?
In 2017, the Federal Constitutional Court set out a further criterion for banning a party in the NPD ruling. Since then, it has only been an option if the party also has the potential to overthrow itself. The judges said no for the NPD. It appears impossible for the NPD to enforce its anti-constitutional concept using parliamentary or extra-parliamentary democratic means, according to the ruling. At that time, the NPD had around 5,000 members and received 1.3 percent of the vote in the previous federal election. The judges wrote that they had neither the prospect of winning their own majorities nor the option of gaining their own freedom of action through participation in coalitions. In Thuringia, where elections will take place on September 1st, surveys currently show the AfD at 31 percent. All other parties have so far ruled out collaboration.
The Office for the Protection of the Constitution has classified the regional associations in Thuringia, Saxony and Saxony-Anhalt as “certainly right-wing extremist”. Is that enough for a ban?
On its own, this is not enough, even if the classification provides important evidence. A right-wing extremist movement does not necessarily want to implement its anti-constitutional stance and a certain attitude is not sufficient for a party ban, as Karlsruhe emphasized in the NPD ruling.
What then makes the difference, the AfD program?
Not alone. It would hardly be enough for a ban, because the AfD's program is relatively moderate. A party ban cannot be based solely on quotes from individual politicians; Rather, a comprehensive examination would be necessary. The material collections of the Office for the Protection of the Constitution play an important role in this.
The federal party has so far been treated by the Office for the Protection of the Constitution as a suspected right-wing extremist case. What does this mean for a possible ban on the federal party?