Mar 042016
 
Unbalanced Scale Silhouette

After a subjective decade, the trial that could lead to a ban of the right-wing extremist NPD, Germany’s oldest surviving Extreme Right party, has finally begun this week. That alone is news: Last time around, a blocking minority of the judges was so concerned about the unknown informers within the party’s leadership that the proceedings came to an end during the pre-trial phase. But to dissolve the party, six of the eight judges will have to vote in favour of a ban.

So what have we learned from three days of hearings? Not too much, actually. The court’s president said that this time, they were not fussed about any informers, but that was clear from the day that a date for the hearing was announced.

On the second day, the judges posed some very awkward questions to the counsel for the prosecution. After all, the NPD is nearly bankrupt, has only several thousand members, and has lost most of its parliamentary representation a while ago. There were some points in its 50+ year history when it has been weaker, but not too many, so why ban it now? So everyone was mentally preparing for yet another embarrassing failure to get rid of the NPD.Unbalanced Scale Silhouette

But then, on the final day of the hearings, the mood seemed to change: Experts and witnesses from the north-eastern state of Mecklenburg-Vorpommern, the party’s remaining stronghold of sorts, spoke of the atmosphere of fear and threats that has engulfed many villages and smaller towns in this region. According to their testimony, the NPD forms the organisational backbone of a large-scale right-wing extremist network for which they provide funds and political cover. Although their membership and electoral support are dwindling, they could pose a danger to democracy, at least at the regional level. The judges seemed quite impressed.

So what will happen next? We don’t know. The judges will now ponder the evidence for an indefinite number of months before they come up with a verdict. If they decide that the party is indeed unconstitutional, this would be the first such ban since 1956, and the NPD might challenge the decision in the European Court of Human Rights, creating unprecedented legal complications. And if the court throws out the case again, it does not take a seer to predict that there will be no new attempt to ban a party in a couple of decades. Either way, their verdict will be a landmark in the legal-constitutional history of the Federal Republic.

Mar 262014
 

For people of a certain age, it is somewhat hard to believe that Alanis Morissette’s fourth single was released a mere 18 years ago. Moreover, it is a truth universally acknowledged that this single has single-handedly clouded the idea of irony. There is a point, and I will get to it eventually.

What’s the Matter with German Public Broadcasting?

After the war, the BBC provided the template for the re-organisation of broadcasting in Germany. Broadcasters became public bodies, funded by a licence system and not under the (direct) control of the government of the day. They were to be controlled by an elaborate system of boards on which stake holders such as the churches, the unions, and the political parties had representatives. Moreover, in a bid to create further checks and balances, they were set up at the state level. To the present day Germany’s first national TV channel is produced and aired by the federation of these broadcasters.

But back in the mist of time, the Adenauer government wanted a second national TV channel, preferably with a conservative bent. Following an epic political and legal struggle, Zweites Deutsches Fernsehen (ZDF) was created in the early 1960s through a “Staatsvertrag”, a quasi-constitutional, legally binding and enforceable agreement between the (then) eleven federal states. Again, insulating the corporation from direct government control was supposed to be a guiding principle.

Verhandlung über das Bundeswahlrecht vor dem Bundesverfassungsgericht

What Did the Court Say?

50 years on, the old battles were fought once more. In 2009, the Director General (with support from the SPD) wanted to extend the contract of the broadcaster’s chief political editor, Nikolaus Brender. The CDU opposed the appointment and organised a majority to vote against Brender by leaning on the nominally non-partisan members of the board. Kurt Beck (SPD), then minister-president of Rhineland-Palatinate, went to the Federal Constitutional Court in a bid to have the agreement declared unconstitutional.

Isn’t It Ironic? No.

Yesterday, the court ruled (entirely in line with everything the have said over the last five decades or so) that parts of the agreement are indeed unconstitutional, because there are too many representatives of the state on the boards: According to the court’s count, about 44 per cent of the members fall into that category. In an not uncommon display of judicial inspiration, they decided that 44 per cent was certainly too much, whereas one third would be ok, and that the federal states will have to modify the agreement accordingly. That leaves the tiny problem that almost anyone representing one of the societal groups (churches, unions, associations of employers) is at least close to a political party and at any rate part of Germany’s corporatist system of interest mediation.1

And moreover, there is the AM moment: Yesterday’s ruling was brought about by two state governments. Kurt Beck, the original plaintiff, was very happy yesterday. He may have retired as minister president, but he still hangs on as chair of the board. That is not ironic in the conventional sense of saying the opposite of what you mean, but … here is a gratuitous bonus video.

Footnotes:

1

To be fair, one judge made the exact same observation in his dissenting opinion.

Dec 302013
 

Germany’s National Democratic Party in Turmoil

The NPD ended 2013 with a veritable Christmas Panto. On December 19, Holger Apfel, who had become party leader in 2011, stepped down from this and other party offices citing his ill health – a proposition that seemed implausible to your humble blogger (and many others). On December 22, the party’s highest decision making body appointed Udo Pastörs as interim leader. They also published a communique that urged Apfel to ‘disprove allegations directed against him’ and threatened to expel him from the party. Within hours, the nature of these allegations emerged, first in the blogosphere, then in the mainstream media: One (or two, according to other sources) ‘young comrades’ (male) claimed that the (drunken) leader had sexually harassed them during the electoral campaign. Shortly afterwards, Apfel left the party for good.

Homosexuality and Ultra-Nationalism

Sexual harassment is a crime. Homosexuality is not a crime. But it is the latter which ended Apfel’s long and distinguished career within the NPD. During thecurrent legal proceedings against the NPD, it emerged that a quarter of NPD functionaries has criminal convictions, mostly for hate crimes. Apfel’s predecessor (and potential successor) Udo Voigt as well as the interim leader Pastörs were convicted for inciting racial hatred. Voigt’s predecessor Günter Deckert, who was leader in the 1990s, served several years in prison.

Adolf Hitler
cliff1066â„¢ / Foter.com / CC BY

Back in the 1990s, Herbert Kitschelt, in his seminal study on the ‘Radical Right in Western Europe’, traced the electoral weakness of the German Extreme (or Radical) Right to its obsession with the past. Part and parcel of this obsession are the style and culture of the interwar right. The Extreme Right of the 1920s and 1930s, with its images of hypermasculinity, became the spiritual home for scores of young men traumatised in the trenches. The NPD’s insistence on comradery echoes the spirit of these all-male paramilitary organisations.

The Nazis purged homosexuals from their own ranks and killed them on a large scale in the concentration camps while turning women into breeding machines for Reich and Führer. It does not take a great deal of psychoanalysis to make you wonder.

The latest NPD electoral manifesto is an arguably much tamer version of these homophobic (and possibly schizophrenic) tendencies within the right. The party wants to ban single homosexuals (let alone homosexual couples) from adopting children and opposes the notion of ‘homosexual families’ or marriages. According to the NPD, there is a biological struggle between (ethnic) Germans on the one hand and ‘foreigners’ on the other, and Germans must be encouraged by all means (including mini skirts) to breed faster, and more.

Apfel is married with three children, and that was part of his political persona. But while ‘respectability’ was at the core of his personal brand and his strategy for the party, ‘allegations’ of homosexual acts involving consenting adults would kill any political career in the party. And Apfel came to power by a narrow majority vote and was always controversial during his term as leader, making more than enough enemies within the party.

What’s Next?

The NPD is bankrupt, has very little electoral support and is embroiled in internal strife. The current leadership crisis will obviously not help the party. Apfel’s predecessor Voigt has already declared that he wants his old job back, while interim leader Pastörs will have his eyes on a more permanent arrangement. That is one lousy start of the European Parliamentary campaign.

I have often argued that trying to get the NPD banned by the Federal Constitutional Court is unnecessary and imprudent. Without the publicity brought about by the Court proceedings, it might simply have faded into virtual oblivion, just like the Republikaner party of 1990s fame. But even if the FCC refuses to ban the NPD (or, god forbid, if the ECHR overturns a ruling by the FCC), the NPD’s future does not look too rosy. While there is certainly a demand for eurosceptic and xenophobic policies, most voters find the NPD’s tarted-up version of grandpa’s fascism unpalatable. My medium-range prediction is therefore the emergence of a more modern anti-immigrant party in Germany.

Apr 252013
 

German political parties enjoy a special constitutional protection. Only the Federal Government, the Bundestag (parliament), and the Federal Council can apply for a ban, and only the Federal Constitutional Court can declare a party unconstitutional and subsequently dissolve it. Over more than six decades, the court has banned two parties: the neo-Nazi SRP in 1952 and (slightly more controversially) the communist KPD in 1956. In both instances, it was the government who initiated the process.

Back in 2001, the then Red-Green government sought to ban the NPD. The attempt failed spectacularly because a qualified minority of the judges raised procedural concerns about the very large number of informers within the party, and the unwillingness of the state to provide the names of these people. While the whole thing was ill-advised, it is best seen as part of a larger symbolic drive against right-wing extremism, which was rampant after unification and fuelled a whole host of violent hate crimes. Back then, the government cajoled the CDU/CSU and FDP into supporting the cause, and all three institutions jointly applied for a ban, thereby raising the stakes and putting a lot of pressure on the court.

This time round, the Federal Council (dominated by the SPD and Green, but with support from the centre right-led state governments) pushes for a ban, while the government has long dragged its feet and finally came up with a statement saying that they would not co-sponsor the bid but still provide assistance. While this sounds half-baked, it might actually be a sensible position, given what sort of evidence against the NPD has been collected.

The most bizarre performance, however, was delivered in today’s debate in the Bundestag. CDU/CSU and FDP tabled a motion not to support the ban and won with their majority, while the opposition voted against. Then the SPD table a motion in favour of a ban. The government parties voted against, the Left and some Greens supported the move, of course to no avail. Next came the Left with their own motion, which was supported by the SPD while the Greens abstained. Finally, the Greens argued that issue should not be rushed through parliament. Now the government and the SPD voted against, while the Left abstained. Throughout the day, everyone agreed that the NPD (which, although bankrupt and electorally battered beyond recognition held their party conference last weekend) was indeed a very nasty party. Five months to go until election day.

Feb 202013
 

Once more, German authorities are pondering what to do with the extreme right NPD (officially “Nationaldemokratische Partei Deutschlands / Die Volksunion” after merging with its longstanding competitor DVU). While the Federal Council (which represents the 16 federal states) has already applied for a ban, government and parliament have not yet decided whether they support this move. Only the Federal Constitutional Court can ban a party, only these three institutions can act as plaintiffs, and the hurdles are high, as a qualified majority of the eight judges sitting on the case would have to vote in favour.The last ban was issued in 1956, and the government is duly afraid of another failure after the 2003 disaster.

Interestingly, both the Federal Council’s activism and the other institutions’ reluctance are based on a confidential report by a joint working party compromised of security people from both tiers of government and led by the Federal Office for the Protection of the Constitution, i.e. one of the federal secret service agencies. In a shock move, the NPD has posted what appears to be a 140-page executive summary of this report on its website today. Apparently, the party leadership is of the opinion that they appear as mostly harmless in the dossier.

The three-part PDF, apparently a scan of a paper copy, looks genuine enough. Its style, diction and classic Word 95 typography are all in line with what one would expect from such a document, and so is its content. The 2003 disaster was due to the excessive number of activists who moonlighted for Germany’s many secret service. This time, the authors have gone to great pains to collate material that is both public and not produced bye “source”, i.e. paid informers within the party. Interestingly, the statements in the document are classified into two categories: “A” for people who were not informers after January 1, 2003 (but possibly before that date), and “AD” for people who were not on the payroll at the time they made the relevant statement.

Consequently, most of this stuff is disgusting but phrased so that it is right at the boundary of what is legally acceptable.  Germany’s extreme right has decades of experience in crafting their statements in a way that remains just under the constitutional radar. Going through that material, one can see why the party published it on its website and gets the impression that it will be different to ban the party without relying on internal communications. NPD File

One of the most interesting points is the recommendation. The paper suggests in rather strong terms that a ban feasible and proportionate and yet, the government dithers. This indicates that either the federal people on the working party were outvoted (which seems unlikely from the phrasing), or that there is a rift between the political leadership and the services.

A final point concerns the way through which the party got hold of the document. Today, the internet is rife with speculation: Has the NPD, for decades targeted by agents, in turn infiltrated the services? Given that relations between the services and the party have been too close for comfort in the past, that would not be entirely implausible. There is, however, a simpler explanation. The document is stamped “VS – nur für den Dienstgebrauch”, which is the lowest classification level. Such files are normally accessible by a large number of people within an office. Given the rather enthusiastic recommendation issued in the report and the reluctance of the government to act on it, it’s easy to imagine someone in an agency or a ministry leaking the paper to the press, where anyone could have passed it on to the party.

Jan 032013
 

The NPD is Germany’s oldest surviving Extreme Right party. It has been around for about five decades. After merging with its long-time rival German People’s Union (DVU, the ruling mentioned in the post was finally squashed), it is also a serious contender for the coveted title of Germany’s daftest party (see exhibit number one). While it has been electorally successful occasionally, for most of its history it has been confined to the lunatic fringe. While parties such as the Front National, the Freedom Parties in Scandinavia or the Austrian FPÖ have thrived, the NPD has, apart from a brief period in the late 1960s, always been at the very margins of German politics.

This is not to say that the NPD is not a dangerous, racist and outright nasty party. Therefore, the idea of banning the NPD has surfaced time and again, becoming its own Doppelgänger after the 2001-2003 disaster. Upon granting the matter due consideration, I think the plan is largely bonkers. If this kind of concise verdict does not impress you much, you can read my full analysis of the proposed NPD ban at the extremis project, the go-to site for all thing, well, extreme.

Jun 212012
 

Yesterday, the BBC’s man in Berlin discovered that there are constitutional limits to Merkel’s ability to somehow save the Euro. Following a constitutional amendment in the 1990s, article 23 of the Basic Law stipulates that any further transfers of sovereignty to the EU require absolute two-thirds majorities in both the Bundestag and the Federal Council (which represents the Länder). That is a tough call. Her Majesty’s government may talk about red lines, Germany has them.

Just yesterday, the Federal Constitutional Court strengthened the role of parliament in a ruling on the decision through which the temporary bailout fund EFSF had been implemented last year. While this does not affect the EFSF’s status, it further increased the pressure on the government to liaise with parliament, the states, and the opposition parties.

Today, it briefly looked like the saga of saving the Euro could go ahead as far as Germany is concerned: Merkel’s coalition, the Social Democrats and the Greens declared that they had reached an agreement on the fiscal pact and the permanent ESF. That seemed to leave only the issue of securing a super-majority in the Federal Council, a formidable task in itself as the Länder are concerned about further restrictions on their already very limited spending powers.

Then, things got messy: the Left and a dissident MP declared that they would challenge the two treaties in the Federal Constitutional Court. The court in turn asked the Federal President not to sign the ratification bills into law for the time being so that they would have enough time to deliberate (once the treaties are ratified, a ruling by the FCC would be quite pointless). While this is not totally uncommon, the court held a press conference to make the public aware of the issue. It does not get much more uncommon in Germany. The president, who allegedly had been lobbied by the government to ratify the treaties before July was then forced to publicly declare that he would heed that request.

Like the content and the context of the bailout packages, all this is very unusual. Today’s events do not yet a constitute a constitutional crisis. But they do provide even more evidence  that we are living in very interesting times.

Jun 012012
 

You may or may not be aware that the EU commission has announced yesterday that it will take Germany to court over the country’s failure to transpose the data retention directive into national law. The commission also proposed that the ECJ should impose a fine of € 315 036.54 per day on Germany. And no, I have no idea where the 54 cent come from, in case you wanted to ask that question.

While this sounds serious, infringement procedures are rather common. The commission’s press release specifically mentions Austria and Sweden, who also failed to implement the directive. Moreover, the commission alone initiated several hundred infringement cases in every single of the last fifteen years, on top of thousands of complaints by third parties.

What makes the recent case unusual is its domestic background: First, Germany agreed to the original directive, which regulates the retention of traffic and location data, in 2006. In 2010, however, Germany’s powerful Federal Constitutional Court declared the German law that implemented the directive unconstitutional and therefore null and void, which chimes with last week’s seminar session on the perpetual conflict between European law and the German idea of constitutional review. The commission is used to this kind of trouble with the Germans and was prepared to wait a year or two for the Germans to draw up and vote on a constitutional implementation of the directive.

But, to use the rather indignant phrase from the commission’s statement the “German authorities have not indicated how and when they will adopt new legislation that fully complies with the Directive”. More specifically, the government cannot make up its mind. The home office, led by the centre-right CSU, complains that Germany must fulfil its obligations and urgently needs a law that implements the directive. The ministry of justice, which is controlled by the liberal FDP, blankly refuses to draw up such a bill, claiming that data retention is ineffective, and that the EU will soften up the current directive anyway. Yesterday’s sole comment from the ministry was that they “were not surprised” by the commission’s move. And so, Germany remains on its collision course because of a deadlock within the coalition.

 

Nov 142011
 

Unless you spent the last couple of days under a rock, you will have heard about the terrible series of (at least) ten neo-Nazi murders that has stunned Germany. In my view, three things are particularly remarkable about this crime.

First, the mainstream media including the public broadcasters and the left-liberal press refer to the series as ‘Dönermorde’, i.e. ‘Kebab Killings’, because most of the victims were small businessmen of Turkish origin. This is impious at any rate, and not exactly sensitive in the context of ethnically motivated violence.

Second, for most of the media the victims are ‘foreigners’ (‘Ausländer’), although they spent much of their lives in Germany. The BBC and other English-speaking media refer to ‘ethnic Turks’ or ‘persons of Turkish origin’. Much food for thought here.

Third, Germany has seventeen offices for the protection of the constitution (one in each state as well as a federal institution), effectively secret services that are given the task to observe extremists. Add to that the same number of federal and state criminal investigation offices, plus seventeen crime prosecution services, plus countless special branches and task forces who are supposed to keep an eye on Neo-Nazis.

These agencies are not understaffed or underfunded, and their employees are not lazy: In 2003, an attempt to ban the NPD collapsed because the party leadership had been infiltrated by so many undercover agents that some of the judges sitting on the Federal Constitutional Court were not sure the NPD had any political life of its own. How could the killers possibly escape this machine?

 

Three possible answers spring to mind:

  • Parts of the left claim that the state still turns a blind eye when it comes to right-wing extremism. That may or may not have been true in the past but is certainly not a correct description of the situation today. The various agencies’ performance has much improved over the last decade, and much of the increase in the number of reported hate-crimes is due to the fact that officers are now trained to look very carefully for extremist motives, and that the rules for collecting statistics have been harmonised.
  • Quite predictably, the right (and many politicians who specialise in Home Affairs) argue that coordination and communication between the various agencies need to be improved. While this may seem reasonable, this is a perennial and very delicate issue in Germany. For historical reasons, the constitution puts strict limits on the cooperation between secret services and the regular police. Moreover, policing is generally the domain of the states, which jealously guard their rights.
  • Finally, many observers just begin to wonder if one or more agencies were involved much closer with the killers than they let on at the moment. Nobody really seems to know how many Neo-Nazis are moonlighting as undercover agents for whom. Is it possible that agencies did not share their information with other institutions in order to protect their sources? Given the scale of the NPD disaster in 2003, it seems quite possible. I strongly
    suspect this is how the story will pan out over months to come.