80 BVerfGE 244 (1989)

[Facts: The German Association Law (Vereinsgesetz, hereinafter AL) features the following provisions:

"Section 3.
1. An association may only then be treated as prohibited (Article 9.2. of the German Basic Law) if by decree of the administrative agency entitled to issue prohibitions it is determined that its purposes or its activities violate the criminal laws or that it is aimed against the constitutional order or the concept of international understanding; in the decree the dissolution of the association has to be ordered (prohibition). The prohibition is to be combined regularly with the confiscation of the wealth of the association...
4. The prohibition is to be in writing [and] justified and [shall] be served to the association [and its subgroups]... The prohibition is effective and executible upon service [or] upon publication [of the decree] in the federal legal gazette...

Section 20.1.1.
1. Anyone who, within the area for which this law is binding by an act within that area,

(1) maintains the organizational cohesion [or is active as a member] of an association [or a declared substitute association of such an association] contrary to an executible prohibition, ...
will be punished with a prison sentence of up to a year or a fine..."

This decision is the result of a referral of a question of constitutional law from the District Court of Hamburg to the Federal Constitutional Court. The District Court found the following facts before the referral: The defendant in the District Court trial is one of the leading figures of an association which was aimed at the revival of national-socialist thought. On November 24, 1983 the Federal Minister for the Interior issued a decree prohibiting the association and ordering immediate dissolution thereof with the justification that it is aimed against the constitutional order. The defendant in the District Court trial filed a complaint against the decree of the Federal Minister with the Federal Court of Administration. Without waiting for the outcome of the complaint, the defendant in the District Court trial decided to maintain the coheson between the members of the association and to improve its organization with the aim to use it to actively pursue his political goals. He wrote and distributed papers and attempted to secure funding for the association. In March 1984 the association was in fact stronger in its organization than in November 1983. The defendant in the District Court trial continued his activities until he left the Federal Republic of Germany on March 19, 1984. The decree of the Federal Minister became final on April 1, 1986 when the complaint with the Federal Court of Administration was taken back.

This fact-finding convinced the District Court that the defendant had violated an executible prohibition of an association. However the District Court did not sentence the defendant because it deemed Section 20.1.1. of the AL in violation with the constitution. Accordingly, the court referred to this court the question whether Section 20.1.1. of the AL violates Articles 9. and 19.4. of the Basic Law as far as it threatens to punish acts which violate decrees that are not yet final.

The District Court argues that Article 19.4. of the Basic Law guarantees the association the right to challenge the decree of prohibition in the courts. Such a guarantee, however, presupposes that the prohibited association is permitted to maintain at least some organizational cohesion in order to be able to actively challenge the prohibition in the courts. Moreover the District Court maintains that Section 20.1.1. of the AL limits the freedom of association more than the Basic Law mandates. The District Court sees in the immediate and absolute prohibition and dissolution of an association as mandated by Section 20.1.1. of the AL a violation of Article 9 of the Basic Law in relation with the principle of proportionality. The District Court believes that the state must limit itself so that it only prohibits those activities of the association that have external effects but refrain from interfering with its organizational structure and existence.

The Federal Minister for the Interior, the Federal Supreme Court, and the Federal Attorney General filed briefs with the Federal Constitutional Court arguing for the constitutionality of Section 20.1.1. of the AL...

Issue:

Is

Discussion:]

C.

Section 20.1.1. of the AL is in agreement with the Basic Law.

I.

[The Federal Constitutional Court first rejected the District Court=s interpretation of the AL. In particular, the Federal Constitutional Court spelled out that Section 20.1.1. of the AL does not prohibit measurements of a banned association which are related to activities to challege a decree of prohibition. The court offered as examples of permitted activities meetings of the members with the purpose of discussing the legal situation, the election of a new board to assure adequate representation in legal proceedings, and the collection of membership fees to finance legal proceedings.]

II.

In the outlined interpretation, Section 20.1.1. of the AL fulfils the demands of the the Basic Law. It violates neither the constitutionally guaranteed freedom of association (Article 9 the the Basic Law), nor the principles of proportionality and seperation of power or the command to specificity of statutes (Gesetzesbestimmtheit).

1. a) The basic right of Article 9.1. of the Basic Law guarantees the freedom [of people] to join toghether in associations of private law (*). With the right to form associations and societies, Article 9.1. of the Basic Law guarantees the principle of free social forming into groups (*). The protection of the basic right includes for the members as well as for the association [itself the right] to self-determination with respect to organization, the process of finding an opinion (Willensbildung), and the conducting of its business (*), as well as--not regarding the question of [legality]--the right of formation and existence (*). Article 9.1. of the Basic Law protects in particular from interferences into the core area of the existence and the activity of the association; the statutory regulation shall permit such an effective protection of the basic right (*).

According to Article 9.2 of the Basic Law associations are prohibited the purposes or activities of which conflict with criminal laws or which are directed against the constitutional order or the concept of international understanding. With this complete definition of reasons to prohibit, Article 9.2. of the Basic Law sets a constitutionally independant limit to the collective right to continued existence of an association. Article 9 of the Basic Law shall be interpreted that Article 9.1.merely guarantees the freedom of association with the limitations of Article 9.2 (*). The prohibition of Article 9.2. of the Basic Law goes further than the limitations that were provided for in the constitution of the German Reich from August 11. 1919. Whereas Article 124.1. of the Weimar Constitution permitted the formation of associations and societies for any purposes which do not conflict with criminal laws, the Basic Law draws narrower limitations in order to protect the legal values named in Article 9.2. of the Basic Law, a position which is to be understood in the background of the experiences... with a totalitarian regime (*). As far as the concern is the protection [of the legal values named in Article 9.2. of the Basic Law, that Article] includes an instrument of Apreventive protection of the constitution@ (Praeventiver Verfassungsschutz) (*).

b) The implementation of the prohibition of association as provided for in Section 3 of the AL... withstands a review under the constitutional standard [outlined above].

Article 9.2. of the Basic Law includes the only limitation of the freedom of association in the constitution. The legislator is limited to organizing the constitutional prohibition more narrowly, it may not widen its boundaries. The regulation in Section 3 of the AL according to which the finding of the prerequisites of Article 9.2. of the Basic Law always has to be combined with a decree to disssolve the association is within the [legislator=s] authority to regulate. It is not commanded by the constitution to order and effect the dissolution of an association which is charged with an activity that is prohibited by the constitution itself only [at that point in time] when the findings on which the dissolution order is based beome incontestable. [One] has to start out from the aim and object of the constitutional regulation of Article 9.2. of the Basic Law. The regulation demands to timely and effectively counter looming dangers to the state, its existence and basic order which might emerge from collective criminal or anti-constitutional endeavors (*). With regard to this decision in the constitution [it does not seem problematic]... that an association is to be dissolved and thereby its influence ended already before the prohibition decree becomes incontestable. The contrary opinion (*) does not sufficiently weigh the founding fathers= [underlying] intent for Article 9.2. of the Basic Law. [The founding fathers= objective] to exclude basic right protection for associations the activities of which counter elementary principles of the legal order and international understanding also rests upon the recognition that such activities can trigger particularly dangerous developments in cases where [the associations] have a basis in society. The immediate dissolution of such associations will regularly be the necessary measurement to fight off endangerment of the constitutionally protected legal values named in Article 9.2. of the Basic Law.

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