Afd ban
now

The Bundestag, the Bundesrat or the Federal Government can apply for the AfD to be banned – individually or jointly. Taking into account publicly available information (e.g. public statements), the motion must explain why the party "according to its objectives or the behaviour of its supporters, aims to impair or eliminate the free democratic basic order or to endanger the existence of the Federal Republic of Germany" (Art. 21 para. 2 GG). Following preliminary proceedings, the Second Senate of the Federal Constitutional Court collects and examines evidence in oral hearings to prove that the AfD is unconstitutional. In the end, six out of eight constitutional court judges must consider the application for a ban to be justified – conversely, just three judges can prevent a ban.

This is hard to say. A party ban is a complex procedure in which a lot of evidence has to be collected and carefully scrutinised. Even the preparation of the motion is extensive and likely to take months. In the last ban proceedings, more than three years passed between the submitting the motion and the judgement. Proceedings against the AfD would be even more extensive. Therefore, it is important not to let any more time pass and to put pressure on the initiation of proceedings now.

If the Federal Constitutional Court rules that the AfD is unconstitutional, it will lose its status as a party and must dissolve - indefinitely. It will no longer receive any state funding - the court can even order the party's assets to be seized (§ 46 Abs. 3 S. 2 BVerfGG, § 32 Abs. 5 PartG). The federal and state interior ministers are responsible for enforcing the ban. People who oppose the ban face criminal prosecution (§§ 84–86a StGB).

A ban would also have an impact on the balance of power in the parliaments. AfD members of the Bundestag, the state parliaments and the European Parliament would lose their seats (§ 46 Abs. 4 BWahlG, § 22 Abs. 4 EuWG and state laws). In the case of direct mandates, elections are repeated in the relevant constituencies; state list seats remain unfilled. In almost all federal states, the loss of mandate also applies to municipal officials, such as district councillors, mayors and local councillors.

Organisations that pursue (essentially) the same goals as the banned party are also banned (§§ 33 Abs. 1 PartG). The requirements for a ban are then significantly lowered. In the case of parties that already existed before the ban, the Federal Constitutional Court must be involved in the question of whether the party is a substitute organisation.

Other, already existing parties could pick up the AfD votes, of course. However, the repressive nature of a party ban and the risk of being banned as a substitute organisation should not be underestimated.

That is true, of course. In a liberal democracy, everything is allowed in principle, including being against democracy. The party ban is not a "ban on ideas, but a ban on organising" (Ulrich K. Preuß) - it is intended to prevent the privilege of party freedom from being misused to destroy the freedom of others. Although a party ban is a serious encroachment on the openness and freedom of the political process, it is not a self-contradiction of liberal democracy, because political visions that undermine freedom are not legitimised by the idea of freedom.

Socially and politically, an AfD ban would undoubtedly be an immense challenge. The fact that the potential voter base is already so large and that many voters do not care that the party is considered far-right makes decisive action against the AfD and its anti-democratic and inhumane plans all the more urgent. Irrespective of a party ban, however, it will be important for politicians and civil society to democratically rein in this potential.

A party ban is a highly repressive measure, which is why the requirements are rightly high. The Federal Constitutional Court itself says that it is "the sharpest and, moreover, double-edged weapon of the democratic constitutional state" (Federal Constitutional Court, judgment of 17.01.2017 - 2 BvB 1/13 -, 1. leading sentence).

At the same time, Article 21(2) of the Constitution explicitly provides for the possibility of banning political parties - and for good reasons. The decision to allow for a party ban was made deliberately after 1945 "in order to prevent a repitition of the catastrophe of National Socialism and a development of the party system as in the final phase of the Weimar Republic" (Federal Constituional Court, judgment of 17.01.2017 - 2 BvB 1/13 -, marg. no. 514). Or, as the Federal Constitutional Court put it: No unconditional freedom for the enemies of freedom! (Federal Constitutional Court, judgment of 17.08.1956 - 1 BvB 2/51 -, marg. no. 139).

It is part of the strategy of authoritarian parties to feed and utilise this victim myth. In doing so, they deliberately manoeuvre democratic parties into a dilemma: either they take action against the AfD with the necessary severity and with the means of the rule of law, or they remain inactive and possibly even cooperate with it and thus help it to gain more power. To forego the means of a ban for fear of fueling the AfD‘s victimisation would be a success of this strategy.

That is not an option. Because the damage to democracy and human rights that the AfD is already causing and can still cause once it is in a political position to do so will be difficult to undo.

A party ban alone will not lead to the disappearance of racism, intolerance and authoritarian ideas of the AfD in society. This is and remains essentially the task of political debate and civil society work.

However, the AfD is the most important rallying point for these views that are hostile to humanity. It is the central network of right-wing and anti-democratic structures. A ban could break up the party's organisational structure and deprive it of financial support, almost half of which comes from state funds. It could also deprive the AfD of the legitimacy it claims for itself as long as it can be democratically elected.

The AfD would undoubtedly exploit a failed procedure for its own benefit. In addition, the evidence would be used up and could no longer be be used for a second attempt. The first step must therefore be a careful examination of the ban - both by the Federal Ministry of the Interior and civil society. The results must be public so that a broad political and scientific debate can take place. On this basis, a motion can then be submitted with a good chance of success – and we are convinced that the conditions for a ban on the AfD are in place.

Should the ban nevertheless fail, this does not mean that the Federal Constitutional Court will give the AfD a democratic seal of approval. Even if it only bans particularly radical sections such as the youth organisation or the Thuringia, this would be detrimental to the AfD – and protect people from hatred, discrimination and threats.

That depends on the individual case. In principle, any statement on an AfD ban procedure should be factually sound and, if possible, make reference to its own statutory purposes.

In particular, references to specific activities or statements of the AfD, i.e. its functionaries and members, which contradict the free democratic basic order, are likely to be covered by the general purposes (education, political education, § 52 para. 2 sentence 1 no. 7 AO and general promotion of the democratic state, § 52 para. 2 sentence 1 no. 24 AO). In the case of the so-called specialist purposes (sport, environmental protection, etc.), a more detailed statement should in any case refer to these or to the organization's own work. Factually sound means that the statements can be substantiated. This can be done in particular by referring to official statements (e.g. classification by the Office for the Protection of the Constitution) or press reports.

It should also be avoided to support a single party, even if it also advocates an AfD ban, and care should be taken to ensure that the non-profit organization pursues other activities to achieve its statutory purposes, that these are also reflected in the activity reports and that these outweigh the political commitment in terms of the use of financial resources.

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