Concept and significance of endangerment to the democratic rule of law
Die Endangerment to the democratic rule of law refers to the threat or impairment of the fundamental principles upon which the democratic and constitutional order of the Federal Republic of Germany and other states is based. The term encompasses all actions, developments, and endeavors that substantially endanger the democratic basic order, human rights, protection of fundamental rights, separation of powers, or the binding of state actions to the law. This term is particularly applied in constitutional law, criminal law, and state law, and is of central importance in German law for the protection of the free democratic basic order.
Legal Foundations and Constitutional Framework
Protection of the free democratic basic order
At the core of the constitutional order is the free democratic basic order, as enshrined in particular in the Basic Law (Grundgesetz, GG). Protection mechanisms against its endangerment are primarily found in the following constitutional norms:
- Article 1 GG (Inviolability of human dignity)
- Article 20 GG (Principle of democracy, rule of law, social state principle, separation of powers)
- Article 21 para. 2 GG (Prohibition of political parties)
- Article 9 para. 2 GG (Prohibition of unconstitutional associations)
- Article 18 GG (Forfeiture of fundamental rights in case of abuse)
These provisions set out the necessary protection of the democratic rule of law from internal and external dangers and create a legal basis for defense and prevention.
Defense mechanisms in case of endangerment
The democratic rule of law is characterized by a system of ‘militant democracy,’ which is distinguished, among other things, by the following instruments:
- Prohibition of political parties (§21 para. 2 GG)
- Prohibition of associations (§9 para. 2 GG)
- Forfeiture of fundamental rights (§18 GG)
- Right of resistance (§20 para. 4 GG)
These mechanisms are applied in court proceedings, particularly before the Federal Constitutional Court, to effectively counter threats.
Manifestations of endangerment
Unconstitutional efforts
Typical manifestations include activities aimed at abolishing democracy or the rule of law. Such efforts may, for example, be evidenced by:
- Violence against state institutions
- Propaganda against the democratic basic order
- Undermining the rule of law (e.g., through corruption, intimidation, or appointment of constitutionally hostile actors to key positions)
- Extremist movements (Right-wing extremism, left-wing extremism, religiously motivated extremism)
Compromising the separation of powers and legal binding
The infiltration of the separation of powers, disregard of parliamentary procedures, or systematic ignoring of judicial decisions also pose risks to the maintenance of the democratic rule of law.
Attacks on fundamental rights and minority rights
The restriction of individual fundamental rights, disregard for principles of due process, or discrimination against minorities endanger the democratic legitimacy and integrity of the state.
Criminal relevance and case law
Criminal acts against the democratic rule of law
The Penal Code (StGB) contains numerous offenses to protect the constitutional order, including:
- High treason (§§81 ff. StGB)
- Treason (§94 StGB)
- Unconstitutional associations (§§129a, 129b StGB)
- Incitement of the people (§130 StGB)
- Formation of terrorist organizations (§129a StGB)
Such offenses are consistently prosecuted by law enforcement agencies to protect state institutions and the basic order.
Significance of the Federal Constitutional Court’s jurisprudence
The Federal Constitutional Court has repeatedly issued fundamental rulings on the defense of the democratic rule of law, for example in proceedings to ban political parties or to prohibit extremist associations. The decisions clarify the requirements for proof of a substantial threat and focus on a danger potential that impairs the existence or functioning of the democratic order.
Prevention and constitutional protection
Tasks of the constitutional protection authorities
The Office for the Protection of the Constitution is tasked with identifying and countering threats to the democratic rule of law at an early stage. Measures include:
- Monitoring extremist efforts
- Education and information of the public
- Cooperation with law enforcement authorities
- Counseling services for prevention
Measures of the State
In addition to repressive measures, preventive approaches such as political education, strengthening of civil society, and promotion of democratic resilience are essential to counter tendencies hostile to the constitution.
Risk assessment and current developments
Threat situation
The analysis and assessment of the current threat situation is conducted regularly through constitutional protection reports by the federal and state governments. They describe current threats posed by political, religious, or ideological movements directed against the free democratic basic order.
International perspectives
Internationally, for example through the Council of Europe or the European Union, mechanisms also exist to protect democratic rule of law. The Federal Republic of Germany is bound by these standards and is obliged to maintain the resilience of its own democratic and constitutional order.
Summary
Die Endangerment to the democratic rule of law is a central term in German constitutional and criminal law. A multitude of legal norms, institutions, and mechanisms serve to protect the democratic rule-of-law order. Threats can arise from various directions; they require consistent monitoring, prevention, and, in serious cases, also repressive measures. The legal and practical safeguarding of the democratic rule of law remains an ongoing task in the area of tension between freedom, security, and the rule of law.
Frequently asked questions
What legal instruments are available to the state for defending against efforts directed against the democratic rule of law?
In German law, there are a variety of instruments to secure and defend the democratic rule of law. Among the most important are the prohibition of political parties under Art. 21 para. 2 and 4 of the Basic Law (GG), by which the Federal Constitutional Court can ban parties seeking to eliminate the free democratic basic order. In addition, the Law on Associations allows for the prohibition of associations that are directed against the constitutional order (§§ 3, 9 VereinsG). To avert danger, security authorities have preventive measures available under police law, such as imposing assembly bans or restrictions on public gatherings if there is a danger to public safety through, for example, anti-constitutional statements or actions. Criminal law contains numerous offenses providing special protection for the rule of law, for instance, the formation of terrorist organizations (§ 129a StGB), disparagement of the state and its symbols (§§ 90 ff. StGB), or preparation of a serious act of violence endangering the state (§ 89a StGB). Finally, regulations such as the Federal Act on the Protection of the Constitution permit the observation of anti-constitutional efforts by domestic intelligence services under certain legal conditions, enabling the preventive collection of information to detect and respond to dangers in a timely manner.
How is freedom of expression protected by the Basic Law within the democratic rule of law, and what are its legal limits?
Freedom of expression is comprehensively guaranteed in Art. 5 para. 1 GG and constitutes one of the foundational rights of the free democratic basic order. However, it is not protected without reservation. Limitations arise in particular from general laws, which include criminal provisions such as incitement of the people (§ 130 StGB) or insult (§ 185 StGB). Furthermore, youth and personal honor are cited as specific legally protected interests. Especially relevant for protecting the democratic rule of law is the interplay between freedom of expression and the constitutional principles guaranteed by Art. 20 GG: The so-called ‘militant democracy’ means that expressions of opinion actively aimed at dismantling the democratic order may be restricted and if necessary legally sanctioned. For example, propagating National Socialist ideas or endorsing acts of violence against the state is not protected within the scope of freedom of expression. The jurisprudence of the Federal Constitutional Court always differentiates according to the specifics of each case and carefully balances the right to free expression against the protection of the democratic rule of law.
What is the significance of the so-called party privilege in the context of threats to the democratic rule of law?
Party privilege is a central element of the democratic rule of law and is regulated in Art. 21 para. 2 GG, which stipulates that only the Federal Constitutional Court can declare parties unconstitutional. Until such a decision is made, parties—even if suspected of pursuing anti-constitutional aims—are allowed to participate in elections and exercise their rights under the Parties Act. This privilege is intended to ensure that political disputes generally take place in the public and parliamentary arena—a preventive ban or restriction of party-political activity is not legally permissible before the Federal Constitutional Court has made such a determination. At the same time, the party privilege presents a challenge for hazard prevention, as it imposes high legal hurdles for banning extremist parties. Prohibition requires concrete evidence that the party is seeking to impair or abolish the free democratic basic order and that this could likely succeed.
How does the law distinguish between legitimate political opposition and anti-constitutional efforts?
The Basic Law protects political opposition as an indispensable element of a pluralistic democracy. Mere criticism of the government or political institutions is comprehensively protected by fundamental rights, particularly freedom of expression, assembly, and association. However, the boundary to anti-constitutional activities is crossed when acts or statements are aimed at abolishing essential constitutional principles—that is, the free democratic basic order, human rights, separation of powers, or the principle of the rule of law. § 4 para. 2 of the Federal Protection of the Constitution Act and the jurisprudence of the Federal Constitutional Court are decisive in this respect. Not every radical or system-critical statement is already anti-constitutional; what matters are the intent, context, and actual effects. If there are sufficient indications of activities directed against the democratic rule of law, state surveillance or even prohibition measures can be initiated.
What information rights and obligations do intelligence agencies have in connection with anti-constitutional activities?
The German intelligence services (e.g., Federal Office for the Protection of the Constitution, State Offices for the Protection of the Constitution) are obliged under the Federal Protection of the Constitution Act (BVerfSchG) to collect and analyze efforts directed against the free democratic basic order, the existence, or the security of the Federation or a Land (§ 3 BVerfSchG). They have far-reaching information rights, such as surveillance, use of informants, or monitoring communications, but always under the strict requirements of fundamental rights protection, in particular the principle of proportionality and judicial authorization in cases of serious intrusions. Additionally, certain measures must be reported to parliamentary oversight bodies or data protection officers. At the same time, there is an obligation to inform state executive bodies so that any specific threats to the democratic rule of law can be averted. The collection and storage of information is furthermore limited by strict rules on deletion and purpose limitation.
What criminal consequences exist for attacks on democratic institutions and officeholders?
Criminal law comprehensively protects state institutions and their officeholders against attacks directed at the democratic basic order. This includes offenses such as resistance to law enforcement officers (§ 113 StGB), attacks against the constitutional order (§ 92 StGB), and politically motivated acts of violence, which may be subject to increased penalties. Public officials also enjoy criminal protection in the exercise of their office, e.g., against threats (§ 241 StGB), defamation (§ 186 StGB), or physical attacks (§ 114 StGB). In cases of attacks on constitutional bodies, such as the Bundestag or the Federal Constitutional Court, § 105 StGB (coercion of constitutional organs) also applies. Furthermore, acts punishable under the Penal Code may be classified as anti-constitutional activities, which can result in monitoring by the Office for the Protection of the Constitution and, in individual cases, disciplinary measures for civil servants or even a ban on activities.
