A decade after trying–and failing–to impose a constitutional ban on the far right Nationaldemokratische Partei Deutschlands, the National Democratic Party, Germany is attempting to outlaw it again. But this time lawmakers are confident they’ll succeed. Germany’s 16 state governors voted unanimously on Dec. 6 to seek a ban, and on Dec. 14 the country’s upper house of parliament, the Bundesrat, agreed to formally ask the Constitutional Court to rule the NPD an illegal political party. “We think it’s the right time politically,” says Dietmar Woidke, a Social Democratic Party lawmaker in Brandenburg’s state parliament, speaking ahead of the vote.
The falling support of the NPD might seem to suggest otherwise. From its heyday in the 1969 election when the NPD polled at 4.3% of the national vote, its support slipped to 1.8% in the 2009 national elections. For the past decade, membership has been estimated at between 5,000 to 7,000, according to the Federal Office for the Protection of the Constitution, Germany’s domestic intelligence agency.
But there is another reason for the sense of urgency: revelations last year of a seven-year-long killing spree, allegedly by a neo-Nazi terror cell, that have sharpened fears of letting the far right practice politics in a country still grappling with its history of fascism. In November 2011, police in the city of Eisenach in eastern Germany found the bodies of Uwe Mundlos and Uwe Boehnhardt in a camper van following a botched bank robbery and the pair’s apparent suicide pact. The only known surviving member, Beate Zschaepe, turned herself in to police after attempting to burn down the flat she shared with Boehnhardt and Mundlos, according to Saxony police officials.
Police officials said they found evidence in the van and the apartment linking the trio to the murders of eight Turkish men and one Greek man between 2000 and 2006. Zschaepe was charged last month as an accomplice to multiple counts of murder, attempted murder, armed robbery, as well as arson and membership in a terrorist organization, according to federal prosecutors. The revelations have sparked a national debate, and five regional heads of the secret service have resigned in a growing furor over the perceived failure of intelligence agencies to properly investigate the murders.
Four parliamentary committees examining the matter have questioned how law enforcement failed to connect the killings–all the NSU’s murders were carried out with the same weapon, a Ceska 83 caliber 7.65 mm Browning–and instead treated them as isolated incidents committed by Turkish mafia, according to Bundestag documents. Also, agents working with the Federal Office for the Protection of the Constitution shredded troves of documents last fall, hindering further investigation of the case,according to the NSU Investigation Committee of the Bundestag in a July press statement. TIME asked officials from the Federal Office for the Protection of the Constitution, as well as from the Federal Crime Police Office (Germany’s version of the FBI) and police departments in Thuringia and Saxony to comment. All declined.
Some critics say the entire case was mishandled. “The way [the authorities] behaved over the last year gives the idea that there is a lot to hide,” says Andreas Hieronymus of the Institute for Migration and Racism Research in Hamburg.
That sense of unease feeds into the debate around the future of the NPD. The German constitution contains a clause declaring that “parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.” The Constitutional Court has invoked this clause twice before, in 1952 to outlaw the far right Socialist Reich Party of Germany, and in 1956 to rule the Communist Party of Germany (KPD) illegal. In 2003, German lawmakers asked the Court to ban the NPD. But judges ruled against the motion on the grounds that the evidence provided was “tainted” because it was gathered through numerous government informants placed inside the NPD’s organization, meaning the party was possibly influenced by the state, according to the Court’s ruling.
Because of those concerns, state interior ministers said earlier this year they were pulling out their NPD informants. Instead, the ministries have gathered more than 1,000 pages of new material against the party, from websites, videos, speeches and public events, to show their ideology and aggressive intentions against the German state violates the German constitution.
What German authorities haven’t established, and which they acknowledge would make their legal case for the ban much stronger, is a clear link between the NPD and the NSU cell. Interior Ministry officials say they have been trying to find a clear organizational link but have been unable to do so. “If we could see or we could prove that the NSU is in direct contact with the NPD, it would be very easy to ban the NPD because then the NSU would more or less be the military arm of the party, but that can’t be proven,” says Interior Ministry spokesman Jens Teschke.
German officials and experts also admit there is risk in trying to ban the NPD, in particular that by doing so it would raise the party’s profile. While having never been able to meet the 5% threshold of votes needed to enter the federal parliament, the party has made gains since German reunification in the East; unlike the West, which spent decades confronting its Nazi legacy from World War II, the East refused to claim that legacy and right-wing ideology never held the taboo status it did in the West. Even so, the NPD holds less than 10 seats in each of the parliaments of Eastern states Saxony and Mecklenburg-Western Pomerania, where they lost seats in local elections over the past three years.
“We cannot wait until the NPD has 20% or 25% support–we have historic experience from the Nazi movement in the 1920s,” says Woidke, whose state is in the former East Germany. “And that’s why the question is not whether the party is weak or strong but is it working against the Constitution, to destroy the political system in Germany? We’re sure we have enough material and evidence to show that [it is].”
“It would be better to leave [the NDP] as they are because they are not important politically,” says Meinhard Starostik, a lawyer and judge in Berlin’s Constitutional Court. Instead, he says the ban draws focus away from the mistakes made in the NSU case and the bigger issues surrounding it. “It is distracting attention from the more burning issues–that is, how to react to right-wing terrorism, how to treat those people who have come under the influence of far right-wingers, and how we can help them to get out,” he says. “The real problem is not the political party – the real problem is the rightwing scene: you can’t ban an ideology.”
According to a report released last month by the Friedrich Ebert Foundation, a political foundation affiliated with the Social Democratic Party, 9% of Germans hold a rightwing extremist “world view” in line with neo-Nazi ideology (that amount spiked in the former East from 10.5% to 15.8% since 2010). Beyond the NPD, there are the non-violent “Freie Kameradschaften,” unofficial and autonomous but linked groups that act as informal political organizations and are estimated to number 150 across the country, according to the Federal Office for the Protection of the Constitution. These are complemented by far-right soccer clubs, music bands and businesses. All this is held together by the umbrella movement known as the National Resistance–overshadowing the NPD, says Bernd Wagner, a retired policeman and criminologist who founded Exit Deutschland, an organization that helps rightwing extremists quit the scene. “The NPD is not the big motor driving the movement,” says Wagner, “it is just one part, and a relatively small problem.”
If the Constitutional Court in Karlsruhe agrees to back the ban, the NPD could appeal to the European Court of Human Rights, which may not agree that the party is an explicit threat to German democracy. Chancellor Angela Merkel has said the federal government will announce its decision on supporting the ban in early 2013.
But with more than 1,000 pages of new “clean” evidence, Brandenburg’s Woidke says now is the moment to act. “The NSU was one sign, but not the only [one], of how dangerous the movement is,” he says. The NPD may look like one of the more ineffectual manifestations of that movement, but it may also be the easiest to tackle.