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

(Bloomberg) -

Germany’s heated debate over refugees and its troubled political past have collided as the country’s top court considers outlawing 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 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 federal government views the NPD as an anti-democratic, xenophobic and anti-Semitic party that’s opposed to the constitution,” Chancellor Angela Merkel’s chief spokesman, Steffen Seibert, told reporters on Friday, voicing her government’s support for the case even though it decided against joining the suit. “All of us oppose it forcefully.”

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. “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.”

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.

Recent “attacks on refugee homes and xenophobic demonstrations have their roots in other elements of society” like an anti-immigration group called Pegida that sprung up last year and has drawn thousands of supporters to its rallies, said Leutheusser-Schnarrenberger. “You can’t simply attribute this to the NPD.”

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.

“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.”

By challenging the suit, the NPD is also protecting the rights of Germans to freely debate key issues in the future, the party said in a statement on its website. In the current climate, any position defending “the national identity and sovereignty of Germany is being denounced as politically and morally reprehensible,” it said.

Peter Richter, the NPD’s lawyer, on Tuesday asked to have two judges removed for bias because, before joining the court, they were state politicians who advocated banning the party. Most judges on the bench weren’t properly appointed, because a committee and not the full parliament elected them, he said.

One judge “called the NPD’s ideas disgusting,” Richter said. “He has said it’s clear the party is unconstitutional. He’s already made up his mind.”