Another Test in Proceduralizing Democracy: The Oral Proceedings in the NPD Party Ban Case before the Federal Constitutional Court

2002 ◽  
Vol 3 (11) ◽  
Author(s):  
Felix Hanschmann
Keyword(s):  
Democratic Party ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
History Of

After recognizing that the motions in the party-ban proceedings against the “National Democratic Party of Germany” were partly based on evidence provided by so-called V-Männer informants (members of the party who were supervised and paid by the secret-services) and after suspending the decision to hold the substantive hearing because of this information, the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) last Tuesday, 8 October 2002, resumed the party-ban proceedings with an extraordinary and – in the history of the Court - unique session.

Federal Constitutional Court To Review NPD Party Ban Motion

2001 ◽  
Vol 2 (17) ◽  
Author(s):  
Felix Hanschmann
Keyword(s):  
Democratic Party ◽  
German Law ◽  
Constitutional Court ◽  
Right Wing ◽  
Extreme Right ◽  
German Government ◽  
Constitutional Order ◽  
Short Survey ◽  
Federal Constitutional

As already reported by German Law Journal, the German Government, the Bundestag (Federal Parliament) as well as the Bundesrat (Federal Legislative Chamber of the Länder) filed motions with the Bundesverfassungsgericht (FCC; Federal Constitutional Court) seeking a constitutional ban of the extreme right-wing National Democratic Party of Germany (NPD). Now, some eight, respectively six months, after filing the motions for a constitutional order of the NPD's dissolution, the banning of all of party activities and the confiscation of the party's property, the FCC decided on October 1st, 2001, that the motions were admissible. The following annotation discusses the meaning of the Court's decision to admit the motions, provoding a brief account of what the decision says and what — just as interesting — it does not say. It will also report on the course of events and developments that have taken place during the stretch of time between the filing of the applications and the Court's ruling of October 1. Finally this report will provide, leaving aside speculations as to possible results of the process, a short survey of the legal possibilities that are open to the NPD, once the FCC in Karlsruhe grants the motions and declares the party unconstitutional.

FCC suspends hearing in NPD Party Ban Case

2002 ◽  
Vol 3 (2) ◽  
Author(s):  
Alexander Hanebeck
Keyword(s):  
Democratic Party ◽  
Constitutional Court ◽  
Right Wing ◽  
Legal Questions ◽  
Basic Law ◽  
Federal Constitutional ◽  
The Subject ◽  
High Ranking Official ◽  
Senior Civil Servant ◽  
Basic Order

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.).

Review Essay –Principles of European Constitutional Law (Armin Von Bogdandy & Jurgen Bast eds., 2006)

2009 ◽  
Vol 10 (11) ◽  
pp. 1551-1560
Author(s):  
Giuseppe Martinico
Keyword(s):  
European Union ◽  
Review Essay ◽  
Constitutional Law ◽  
Lisbon Treaty ◽  
Systemic Approach ◽  
Constitutional Court ◽  
The European Union ◽  
Federal Constitutional ◽  
History Of

Recently the GermanBundesverfassungsgericht(Federal Constitutional Court) knocked on the European Union's door with its impressive judgment on the Lisbon Treaty, recalling all the weight of the German scholarship tradition steeped in the German dogmatic flavor: the attention to the history of sovereignty and the attempt to catch all the European Union constitutional system's life revealed the systemic approach peculiar to the German dogmatic scholarship.

Lisbon in Karlsruhe: Maastricht's Epigones At Sea

2009 ◽  
Vol 10 (8) ◽  
pp. 1201-1218 ◽  
Author(s):  
Christoph Schönberger
Keyword(s):  
Democratic Legitimacy ◽  
Constitutional Court ◽  
The European Union ◽  
Federal States ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
History Of ◽  
The Moment ◽  
German Federal Constitutional Court

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.

Calibrating Liberty and Security: Federal Constitutional Court Rules on Freedom of Speech in PKK Case

2002 ◽  
Vol 3 (6) ◽  
Author(s):  
Dan Wielsch
Keyword(s):  
Free Speech ◽  
Democratic Party ◽  
Freedom Of Speech ◽  
Constitutional Court ◽  
Right Wing ◽  
September 11Th ◽  
The Core ◽  
Preventative Measures ◽  
Federal Constitutional ◽  
The One

In a recently published decision the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) was concerned with the basic right of free speech of PKK sympathizers. The decision draws a fine line between, on the one hand, preventative measures which aim to inhibit radical associations and, on the other hand, the protection of free speech which lies at the core of democracy. The Court's decision touches upon the debate about security triggered by the events of September 11th and Germany's proactive stance towards right-wing radicalism, characterized by the Court's present consideration of an application to ban the extreme right-wing National demokratischen Partei Deutschlands (NPD – National Democratic Party of Germany).

Merely a Landmark or a Change of Course: The Federal Constitutional Court Hears Arguments in the NATO Strategic Concept Case

2001 ◽  
Vol 2 (11) ◽  
Keyword(s):  
Federal Government ◽  
Democratic Party ◽  
Foreign Minister ◽  
Executive Branch ◽  
Constitutional Court ◽  
Social Democratic Party ◽  
Democratic Socialism ◽  
Social Democratic ◽  
The Social ◽  
Federal Constitutional

The Second Senate of the Bundesverfassungsgericht (Federal Constitutional Court) heard oral arguments on June 19, 2001, in the “NATO Strategic Concept” case. The parliamentary fraction of the Party of Democratic Socialism (PDS) in the Bundestag (Federal Parliament) brought the case to the Federal Constitutional Court as an Organstreitverfahren (dispute between federal organs), which permits one federal organ (in this case, the Federal Parliament as represented by one of its party fractions) to challenge the constitutionality of an action taken by another federal organ (in this case, the Bundesregierung [Federal Government - executive branch]). The Federal Government consists of a parliamentary coalition between the Social Democratic Party (SPD) headed by Chancellor Gerhard Schröder, and the Alliance 90/the Greens (Greens), whose most prominent figure in the Federal Government is Foreign Minister Joschka Fischer.

Preventive Detention of Dangerous Offenders Re-examined: A Comment on two decisions of the German Federal Constitutional Court (BVerfG – 2 BvR 2029/01 of 5 February 2004 and BVerfG – 2 BvR 834/02 – 2 BvR 1588/02 of 10 February 2004) and the Federal Draft Bill on Preventive Detention of 9 March 2004

2004 ◽  
Vol 5 (6) ◽  
pp. 619-637 ◽  
Author(s):  
Frieder Dünkel ◽  
Dirk van Zyl Smit
Keyword(s):  
Prison Population ◽  
Preventive Detention ◽  
Constitutional Court ◽  
Dangerous Offenders ◽  
Federal Constitutional ◽  
History Of ◽  
Draft Bill ◽  
The 1960S ◽  
Second World ◽  
Equivalent Reduction

Preventive detention is, together with life imprisonment, the harshest sanction in German criminal law. In the form of a “measure for improvement and security” of indeterminate duration, preventive detention potentially may be enforced until the death of the offender. Such a measure may be imposed together with a term of imprisonment on offenders regarded as dangerous and implemented after the fixed term of imprisonment has been served. The history of this provision goes back to a Nazi law against habitual criminals that was enacted in 1933 and retained after the end of the Second World War. In the context of the debate about the new criminal laws in the 1960s preventive detention was severely criticised. The result was that in 1969 both the formal and material requirements for the imposition of preventive detention were made more restrictive. This led, in turn, to it being imposed far less frequently. While in the 1960s more than 200 people were sentenced to preventive detention annually, by the early 1990s this figure was fewer than 40 a year. There was an equivalent reduction of the number of people in prison on preventive detention on a given day, from around 1500 at the beginning of the 1960s to fewer than 200 in the 1980s, that is, about 0.3 per cent of the total prison population.

Federal Constitutional Court Issues Temporary Injunction in the NPD Party Ban Case

2001 ◽  
Vol 2 (13) ◽  
Keyword(s):  
Political Parties ◽  
Democratic Party ◽  
German Law ◽  
Constitutional Court ◽  
Right Wing ◽  
Federal States ◽  
Constitutional Order ◽  
Federal Constitutional ◽  
Political Sector ◽  
Temporary Injunction

German Law Journal reported last November on the German Government's plans to take the extraordinary move of seeking a constitutional ban of the extreme right-wing National Democratic Party of Germany. At the end of January, 2001, the Federal Government filed its motion for a ban of the NPD with the Federal Constitutional Court in Karlsruhe. At the end of March, 2001, the Bundestag (Federal Parliament) and the Bundesrat (Federal Legislative Chamber of the States) followed with separate motions. The Federal Constitutional Court now has before it three separate actions, raising distinct claims and presenting distinct evidence, seeking the constitutional excommunication of the NPD. The motions present a unified front from every political sector of the German constitutional order: the executive, the legislature and the Länder (federal states). This lock-step approach to the effort to ban the NPD was part of the master-scheme of Federal Interior Minister Otto Schily, who pressed hard to gain support for the move to seek a ban from all mainstream political parties and all the Länder, at least in part to limit the political fall-out in the case that the Constitutional Court finds against the motions.

On the German History of Method in Civil Law in Five Systems

2016 ◽  
Vol 17 (4) ◽  
pp. 543-578
Author(s):  
Hans-Peter Haferkamp
Keyword(s):  
Real Life ◽  
Civil Code ◽  
Constitutional Court ◽  
National Socialist ◽  
German Empire ◽  
Political Ideas ◽  
Federal Constitutional ◽  
History Of ◽  
The Law ◽  
Legal Methodology

AbstractGermany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.

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