Germany's Nazi Past Clashes With Refugee Debate at Top Court

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  • Constitutional court hearing case to outlaw right-wing party
  • Former German justice minister warns suit could backfire

Activists attend a demonstration organized to protest against the Federal Congress held by far-right NPD on Nov. 21, 2015 in Weinheim, Germany.

Photographer: Simon Hofmann/Getty Images

Germany’s heated debate over refugees and its troubled political past have collided as the country’s top court considers whether to outlaw a far-right party accused of espousing Nazi views. 

The Federal Constitutional Court on Tuesday started three days of hearings in a bid by all of Germany’s 16 state governments to ban the Nationaldemokratische Partei Deutschland, or NPD. It’s the first time in 60 years that the court is trying such a case after the communist party and a successor to the Nazis were banned in the 1950s.

The hearings in the southwestern city of Karlsruhe come as Germany is torn by fierce debate over how many asylum seekers the country should accept, with an increase in xenophobic attacks on shelters after more than 1 million refugees arrived last year. The nation’s constitution, adopted four years after World War II in reaction to its Nazi past, aims to make sure such atrocities won’t be repeated by allowing for the outlawing of parties that seek to topple democracy. The country also has laws against actions that elsewhere would be covered by freedom of speech, such as denying the Holocaust.

"The NPD is a racist, anti-Semitic and democracy-hostile party. Its ideology is clearly in the tradition of Nazism," Stanislaw Tillich, prime minister of the state of Saxony, told the court. "It disdains the human dignity of our fellow citizens of Jewish or Muslim creed, of foreigners, above all of asylum seekers, and political active people of all shades. Violence and incendiary attacks against homes for asylum seekers are the result of its racist thought."


Not everyone thinks the suit, filed three years ago, is a good idea. Sabine Leutheusser-Schnarrenberger, who served as German justice minister in Merkel’s previous government, warns the case could backfire legally and politically, with a ban far from certain and the NPD unnecessarily gaining publicity in the process.

"I’m very skeptical,” she said in an interview before the hearing. “There are significant risks, the hurdles are high. In a democracy, banning a party must be the absolute exception. You’ve got to confront extremists politically and with arguments."

Nazi Ideology

The states argue that the NPD champions Nazi ideology and seeks to abolish democracy. More than a decade ago, a first attempt to ban it failed. The top court in 2003 decided against holding a trial then because there were too many government spies in the party’s leadership -- a practice they say they stopped before filing the new case in 2013. To win now, the states must show the NPD is actively working to overthrow the constitutional order, not just criticizing it. Racist propaganda alone is not enough for a ban because individuals can be prosecuted for that under criminal laws.

The states need a two-third majority at the eight-judge panel to win their case. If the constitutional court bans the NPD, the party can appeal to the European Court of Human Rights. That tribunal has overturned similar national rulings where the party in question had limited political impact. The NPD in the 2013 national elections got 1.3 percent of the vote, down from 1.5 percent four years earlier. The party has deputies in one state parliament and on some local municipal councils.

Watchful Democracy

"The action to ban a party is an expression of the concept of a ‘watchful democracy,’ which addresses the problem that freedom can be misused to abolish freedom and thus be turned against itself," Court President Andreas Vosskuhle said, explaining what’s at stake at the opening of the case. "The procedure proves to be a double-edged sword, which must be handled with care: it limits freedom to preserve freedom."

Peter Richter, the NPD’s lawyer, asked the court to drop the case, arguing that it wasn’t clear whether the states really removed all spies. The court rejected Richter’s bid to have two judges removed for bias over anti-NPD comments they made when they were state politicians. It also dismissed his argument some judges weren’t properly appointed because a committee and not the full parliament approved them.

"In a democracy, the people decide what political ideas are right," Richter said. "This suit isn’t about preserving democracy but about preserving those in power."

A ruling is expected later this year. The case is: BVerfG, 2 BvB 1/13.