Over the line?

Once again, Germany's highest court will have to deal with the National Democratic Party (NPD), but this time, it's at the far-right group's behest. On Tuesday (25.02.2014), the Federal Constitutional Court in Karlsruhe is hearing a case brought by the NPD against President Joachim Gauck. The party alleges Germany's president failed to live up to his duty of maintaining neutrality on party politics by calling NPD members "loonies" during a speech.

Gauck gave the speech in question a few weeks ahead of federal elections in 2013, when the mood in the capital was already inflamed. There had been repeated demonstrations in the Berlin district of Hellersdorf, considered a poor and socially problematic zone. Residents felt neglected by politicians, while right-wing groups such as the NPD took to the streets in an effort to ferment xenophobia. Counter demonstrators responded with "Refugees Welcome" signs and calls.

The controversy centered on the opening of a center intended to house refugees in the area. Just days after the first group of asylum seekers had arrived under police protection, Joachim Gauck held a speech in front of around 400 school pupils in Berlin, saying of the right-wing protest action, "We need citizens who get out on the street and show these loonies their limits. That's a task for all of you."

The president added, however, that as long as the NPD is not legally banned - for years a contentious issue in and out of German courts - then the group's expression of its political stances must be tolerated.

Over the line?

The legal question is whether Gauck singled out the NPD when using the word "loonies" ("Spinner" in German). For Volker Boehme-Nessler, a law professor in Berlin, the answer isn't simple. He says Gauck's statement can be interpreted as referring to the demonstrators, but not necessarily the NPD as a party.

"That may sound like legal hair-splitting, but it plays a role in the evaluation," he said.

Fellow law professor Ulrich Battis agrees, saying, "It depends on the context with such statements." He views Gauck's comment as being on the line. "Whether he stepped over that line, that's what the Constitutional Court will determine," Battis added.

No direct consequences for Gauck

The court will just hold a hearing on the case on Tuesday, and its verdict can be expected within three months. It's an open question as to how the judges will rule. Volker Boehme-Nessler considers it probable that the Karlsruhe court will stress that every German president is committed to political neutrality, but that it will ultimately say the president was referring to the demonstrators in general rather than the party specifically.

If the court finds that Gauck did violate his obligation to neutrality, no direct consequences for the president would follow. The "loonies" affair wouldn't cost him his job, believes Boehme-Nessler, but he adds, "A public reprimand from a court is a problem for a president. It would weaken his position."

There are narrow boundaries for Germany's president, a largely ceremonial rather than executive position, when it comes to free speech. "It's a figure intended to promote integration, to bring all citizens together. That's why he's required to uphold neutrality when it comes to any given party. He's now permitted to evaluate what the parties are doing," explains Boehme-Nessler.

Lessons from the Weimar Republic

The special rights and duties of Germany's head of state can be traced back to experiences from early on in Germany's modern political history. During the Weimar Republic, the president was afforded a unique status in that he could issue emergency decrees that bypassed parliament.

"By the end of the Weimar Republic, there was much governance taking place by way of such decrees - that's one factor that paved the Nazis' path to power," says Boehme-Nessler.

Faced with rebuilding a state after World War II, West Germany's heads of state drew lessons from the Weimar Republic's downfall. They strictly limited the president's powers, reducing them essentially to symbolic tasks. The president is intended to represent integration for the country both at home and abroad. Part of doing so means keeping out of inter-party maneuvering, but it's now up to the Constitutional Court to define just where the line is to be drawn on such issues.