Prof. Holterhus on Deutschlandfunk: Legal Perspective on Party Bans

In the current episode of the Deutschlandfunk podcast "Der Rest ist Geschichte" (“The Rest is History”), journalist Anh Tran explores the issue of banning political parties in Germany. The central question is whether a ban on the Alternative für Deutschland (AfD) would be legally possible and politically advisable.

Professor Dr. Till Patrik Holterhus of Leuphana Law School contributes a legal perspective to this debate. He explains the constitutional requirements set out in Article 21 of the Grundgesetz (Basic Law – Germany’s constitution) for banning a political party. He emphasises that it is not the mere unconstitutionality of a party that is decisive, but rather its potential to endanger the free democratic basic order (freiheitlich-demokratische Grundordnung). This criterion already played a role in the second attempt to ban the National Democratic Party of Germany (NPD), which failed despite the party's proven unconstitutionality, due to its lack of political influence and capacity for enforcement.

Another element highlighted by Professor Holterhus is the requirement of state neutrality (Gebot der Staatsfreiheit). This principle demands that party structures must not be infiltrated by state authorities at the time of prohibition proceedings – for instance, through the use of undercover informants (V-Leute) – in order to ensure the independence of the evidence. This requirement led to the termination of the first NPD ban proceedings and could also be relevant in the context of a potential ban on the AfD.

Professor Holterhus places these aspects within the current constitutional framework and illustrates the lessons the Federal Republic of Germany has drawn from the history of the Weimar Republic and the early post-war period. He stresses the importance of a cautious and restrictive approach to party bans as a sign of a stable and resilient democracy.

The full broadcast is available in the Deutschlandfunk media library.