German Far-Right Party Eludes Ban, For Now

On Tuesday the German constitutional court postponed a hearing on the government’s move to ban the National Democratic Party (NPD) after it was revealed that an outspoken representative of the NPD and a key witness in the trial had also worked as an informant for the domestic intelligence agency.

After a year-long process to bring the ban before the constitutional court, the announcement to postpone the hearing on a legal technicality represents a fairly significant setback for the government.

Last January, the upper and lower houses of German parliament moved to request that the federal constitutional court ban the far-right party on grounds of its endorsement of violence and unconstitutional objectives. Calls for a ban on the party were prompted by a wave of attacks against foreigners, synagogues and Jewish graveyards throughout the previous year.

The NPD, largely comprised of young right-wing extremists, has been linked with inciting neo-fascist violence and racially-motivated hate attacks over the past several years. Chancellor Gerhard Schröder’s government, in its bid to outlaw the party, has compared the NPD to Hitler’s Nationalist Socialist party. The party received approximately 0.3 percent of the national vote in the last general election.

According to German law, only the constitutional court has the authority to ban a political party. It can only do so if a party’s activities or goals are found to pose a danger to "the free and democratic order of the country." The last time the constitutional court voted to ban a political party was in 1956, when it made the Communist Party of Germany illegal.

A technical setback

In a statement issued on Tuesday, the Federal Constitutional Court said the government’s petition to ban the NPD may now have to be dropped because it was based on controversial statements made an NPD representative who had also been an informer for the German secret service.

The constitutional court judges justified their decision by saying that the facts of the case have changed.

The court now has to study the legal implications of hearing a case based on statements made by an informant, and has decided to postpone the hearing until then. The first hearing was originally scheduled for February 5.

The public statements made by the top-ranking NPD representative were central to the government’s three applications (one each from the upper and lower houses of parliament and the cabinet) to ban the NPD.

Legal experts say the court has made the right decision given the circumstances. When the court hears the statements made by the witness, it cannot rule out that they were made while he was acting for the secret service – thereby throwing into question the witness’s credibility.

A government blunder

At a press conference on Wednesday, Interior Minister Otto Schily confirmed that the witness in question had worked as an informer for the intelligence service, providing information about the party. But, the minister said, the cooperation between the witness and the secret service ended in 1995, long before the NPD representative made the relevant extremist statements.

The constitutional court said it had learned of the witness’s history by chance at the beginning of the week. An official in the Interior Ministry contacted a judge to say that one of the NPD members scheduled to testify in February would be presenting written permission issued by a regional branch of the intelligence agency.

In a meeting of the parliamentary group for domestic affairs, Schily admitted that his ministry had made grave mistakes that could cause the case against the NPD to be delayed.

The Greens, the junior partner in the government's coalition, expressed worry over the connection between the NPD representative and the intelligence service.

"The possible link between the NPD leadership and the domestic intelligence service must be clarified immediately to avoid damaging the credibility of parliament," Green parliamentary members Volker Beck and Cem Özdemir said in a statement published Wednesday.

Erwin Marschewski, expert for interior affairs of the opposition Christian Democrats, criticized Schily for the ministry's mistakes. Either the minister knew nothing of the connection between the secret service and the witness or he knew and didn’t pass the information on to the proper authorities. Both cases are inexcusable, and grounds for stepping down as minister.

A new date?

On Wednesday Schily announced that his ministry had informed the constitutional court of the new developments, as is required in order to reschedule a new hearing.

Beck, the Green’s legal expert, is convinced that the postponement of the hearing will not mean a complete stop to the case: "I am certain that the ban on the party will be carried through. Nonetheless, the current situation is not ideal, because the NPD will, of course, try to turn it to their benefit. And that is not good for the political climate, but that doesn’t change the character of the organization (NPD)."

Legal advisors to the government warn that the resumption of a hearing on the NPD’s ban will not automatically mean victory for the government. This week’s events throw into question the credibility of the government’s case and the solidity of their facts against the NPD.

If a new hearing is called for, it will not take place this year. That would then leave the NPD free to participate in September’s national election, an unwelcome reminder for the SPD and Greens that the government failed to ban the party.