One of the main tasks of a democratic state is to ensure and facilitate the conditions necessary for the free functioning of political parties. To avoid the misuse of this privilege, certain legal orders introduced the institute of the prohibition of a political party. This master’s thesis introduces the legal provisions and historical background of this institute in Slovenia and Germany, while also providing an in-depth analysis of 5 prohibition procedures against political parties in front of the German Federal Constitutional Court and the European Court of Human Rights. It also analyses 2 judgements of the Slovenian Constitutional Court, indirectly dealing with the institute in question.
The conditions that are, according to the case law of the Federal Constitutional Court and the European Court of Human Rights, necessary for the prohibition of a political party have aggravated considerably over the years. For the earliest prohibitions of political parties the simple fact of a unconstitutional program sufficed. Later, the condition of an active struggle against the constitutional order was added. The latest case introduced the condition of potentiality; the political party in question has to have realistic possibilities to execute its unconstitutional program. The introduction of potentiality severely limits the possibilities to prohibit a political party.
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