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FCC suspends hearing in NPD Party Ban Case

Published online by Cambridge University Press:  06 March 2019

Alexander Hanebeck

Extract

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In a unanimous, surprising decision the Federal Constitutional Court (FCC) announced last Tuesday, 22 January 2002, that the hearing in the NPD Party Ban Case - scheduled for five days in early and late February - was suspended. The Court did not yet set a new date. The Court explained that facts had now become known to the Court that raised serious legal questions which can not be resolved in the two weeks before the scheduled hearings. Even the decision from October 1st, 2001, in which the motions by the Bundesregierung (German Federal Government), the Bundestag (Federal Par-liament) and the Bundesrat (Federal Legislative Chamber of the Länder) seeking a ban of the extremist right wing National Democratic Party (NPD) were ruled to be admissible and not evidently unfounded is called into question by the Court. The FCC had been told by a senior civil servant from the Federal Ministry of the Interior that there would be one so-called “V-Mann” among the 14 people to appear as witnesses before the FCC at the scheduled hearing. The motions to ban the NPD build upon numerous sources in order to show that the NPD seeks to undermine or abolish the “freiheitliche demokratische Grundordnung” (free democratic basic order) and therefore must be banned under Art. 21 (2) of the German Basic Law (“Grundgesetz. Among those quoted is the V-Mann, Wolfgang Frenz, a former high-ranking official of the NPD. The rather drastic reaction by the FCC to these news is explained by the significance of the information about the V-Mann, an often dubious source (infra I.) and the way this information made its way to the Court, which is a scandal in itself (infra II.). The fallout from the decision will be the subject of the closing remarks (infra III.).

Type
Research Article
Information
German Law Journal , Volume 3 , Issue 2 , February 2002 , E3
Copyright
Copyright © 2002 by German Law Journal GbR 

References

(1) See Government Commits to Seeking a Ban of the Extreme Right-Wing National Democratic Party of Germany (NPD), 1 German L.J. 2 (November 1st, 2000); Federal Constitutional Court Issues Temporary Injunction in the NPD Party Ban Case, 2. German L.J. 13 (August 1st, 2001); Felix Hanschmann, Federal Constitutional Court to Review NPD Party Ban Motion, 2 German L.J. 17 (November 1st, 2001) all available at http://www.germanlawjournal.com.Google Scholar

(2) BVerfG, 2 BvB 1/01 u.a., January 22nd, 2002, available at http://www.bundesverfassungsgericht.de.Google Scholar

(3) See Hanschmann, F., supra note 1.Google Scholar

(4) These 14 were not technically witnesses, the FCC called them “Auskunftspersonen” which roughly translates as a person who is expected to give information but is not awarded the legal status, rights and duties of a witness.Google Scholar

(5) All three motions together add up to close to 600 pages. For comments on all three motions see S. Lovens, Parteiverbote in der Bundesrepublik Deutschland. Zur verfassungsrechtlichen Ausgangslage der Anträge gegen die NPD, Zeitschrift für Parlamentsfragen 2001, 550, 564ff.Google Scholar

(6) The parties to the case were afforded no opportunity to react to the new facts before the decision to sus-pend the hearings.Google Scholar

(7) On the website of the Federal Ministry of the Interior (http://www.bmi.bund.de/english/bfv_einzel_engl.html) its responsibilities are desribed as follows: “The task of the Federal Office for the Protection of the Constitution is to gather and analyze information and other intelli-gence about:Google Scholar

- endeavours which are directed against the liberal and democratic fundamental order, against the existence or the security of the Federation as a whole or of one of its federal states (Länder), or which - by the use of un-lawful meansGoogle Scholar

- aim at hampering the ability of the constitutional organs of the Federation or the Länder to fulfil their duties,Google Scholar

- activities endangering the security of the Federal Republic of Germany, or intelligence activities on behalf of a foreign power, as well asGoogle Scholar

- endeavours endangering foreign concerns of the Federal Republic of Germany by the use of force or pre-paratory arrangements for the use of force.Google Scholar

In addition, the BfV fulfils certain tasks in connection with security checks of persons.”Google Scholar

(8) See Bönisch, Georg/ Cziesche, Dominik et. al., Blamiert bis auf die Knochen, Der Spiegel, Issue 5/2002, January 28th, 2002, 22, 27.Google Scholar

(9) See e.g. Gebauer, Matthias, Geheime Strichlisten, Verstaubte Vermerke, Spiegel online, http://www.spiegel.de/politik/deutschland/0,1518,179576,00.html.Google Scholar

(10) In August of 2001 the LfV of North-Rhine-Westphalia had already informed another senior cicil servant in the Ministry, Werner Müller, about Frenz. He reportedly forgot to pass the information on.Google Scholar

(11) The LfV had given Frenz a permission to give evidence on the subject if it came up at the hearing, after he contacted them and asked what he should do. Apart from this it is not entirely clear who knew what. The Minister of the Interior, Otto Schily, apparently was informed by the civil servants in hin Ministery on the day the FCC announced its decision.Google Scholar

(12) See Nink, Karin/Notz, Anton, Urteil im NPD-Verbotsverfahren verzögert sich, Financial Times Deutschland, January 25th, 2002, available on the www at http://www.ftd.de/pw/de/FTDK80F4UWC.html.Google Scholar

(13) In the Ministry of the Interior there are four State Secretaries, they are second in the hierarchy and report to the Minister only.Google Scholar