Case Summary and Outcome

The Constitutional Court of the State of Thuringia, Germany, held that the Thuringian prime minister had an obligation to remain neutral regarding other political parties on the official Facebook and Twitter pages of the Thuringian state. The Thuringian prime minister, Bodo Ramelow, shared a link, on the official Facebook and Twitter pages of the state chancellery of Thuringia, to an interview in which he appealed to all democratic parties to never support requests from the far-right party Nationaldemokratische Partei Deutschland (NPD). The Court stressed that by using those official websites, Ramelow was acting in his official functions as prime minister and had an obligation to remain neutral. His statements disregarded this obligation and violated the NPD’s right to the equal treatment of all political parties under Art. 21 para 1 sent 1 of the Basic Law (Grundgesetz).

Facts

On June 15, 2015, three members of the city council of Eisenach, Thuringia, from the far-right party Nationaldemokratische Partei Deutschland (NPD), requested a deselection proceeding against the mayor of Eisenach, a city in the German state of Thuringia. The request was not successful. Nevertheless, it triggered a political discussion, as members of other political parties in the city council supported the NPD’s request.

The day after, Bodo Ramelow, prime minister of the state of Thuringia, said in a TV interview that there could never exist common grounds between democratic parties and the NPD since the only ones benefitting from any cooperation were the far-right.

On June 16, 2015, the state chancellery of Thuringia shared a link to this interview on its official Twitter account and added, “The Thuringian way has always been the common ground of democrats against the right-wing.” [p. 6] On the official Facebook page of the state of Thuringia, the chancellery shared the link to the interview too, without any comment.

On June 23, 2015, the NPD initiated court proceedings against Ramelow before the Constitutional Court of Thuringia. It claimed that the prime minister had violated his obligation to remain neutral based on the right to the equal treatment of all political parties—as enshrined in Art. 21 para 1 sent. 1 of the German Basic Law (Grundgesetz, GG)—by sharing the link to the aforementioned interview on his official Twitter and Facebook accounts.

Decision Overview

On 8 June 2016, the Constitutional Court of the State of Thuringia issued a decision on the matter. The central issue for the Court was whether Ramelow’s statements and subsequent publication of them through official social media channels violated the NPD’s right to the equal treatment of all political parties. To answer this question, the Court first had to inquire whether Ramelow had acted in his official capacity as prime minister of Thuringia—bound by an obligation to neutrality—or as a party politician.

The NPD claimed that Ramelow had given the TV interview in his official capacity as prime minister because it took place in the building of the state chancellery. Additionally, the interview was posted on the official Facebook page and Twitter account of the state chancellery of Thuringia. Furthermore, the NPD noted that during the interview Ramelow never clearly stated that he was expressing his opinion as a party politician and not as prime minister. Therefore, according to the NPD, the defendant was abusing his authority as prime minister by trying to influence other political parties’ politicians through his appeal. The NPD also considered that the defendant’s duty to remain neutral was breached when he referred to some politicians as “Nazis”.

The defendant claimed that he had acted as a party politician and not as prime minister. According to Ramelow, in the interview, he never referred to himself as the prime minister or about his official tasks and powers. Ramelow argued that even if he had acted as prime minister, it is part of his duties to contribute to the public debate in Thuringia. According to the defendant, in a parliamentary democracy, a political discussion between the prime minister and a “sharply opposition party” [p. 9] does not have to be neutral but can also be shaped by political preferences. Hence, he argued that he did not violate the obligation to remain neutral regarding other political parties.

The Court stated—referring to the jurisprudence of the Federal Constitutional Court (ThürVerfGH, judgment of December 3, 2014 – VerfGH 2/14; BVerfG, judgment of March 2, 1977 – 2 BvE 1/76)— that Art. 21 para 1 sent 1 GG guarantees all political parties equal opportunities when it comes to political participation and established a duty on the government to remain neutral regarding all political parties. This obligation, the Court noted, does not apply exclusively during election campaigns but to the political debate and scene in general (BVerfG, order of November 7, 2015 – 2 BvQ 39/15).

The Court stressed that there was a difference between acting as a member of the government and acting as a party politician—or even as a private individual. While critical statements about other political parties are legal when acting as a party politician, the Court stressed that Art. 21 para 1 sent 1 GG obligates government bodies to remain neutral when acting as such. The Court argued that public statements can be attributed to an official function “if the statement is made with recourse to the resources available only to a member of the government or if there is a recognizable reference to the office of the government.” [p. 14]

In the case at hand, the Court considered that the content of Ramelow’s interview may suggest that he was acting as a party politician. Yet, the subsequent publication of the interview’s link on the official social media accounts of the state chancellery of Thuringia suggested an attribution to his position as prime minister. For the Court, only members of the government could access these accounts, so they constitute “official publication organs” [p. 15] of the government. Thus, the Court concluded that the defendant used public resources and claimed public authority by linking his interview to the official social media accounts of the state of Thuringia.

The Court found that Ramelow did influence the political debate in an unlawful manner by disregarding his obligation to remain neutral. His appeal to block the NPD requests and calling them Nazis, the Court opined, exceeded the constitutional limits that apply to government officials’ statements.

Accordingly, the Court decided that Ramelow had violated the applicant’s right to the equal treatment of all political parties, as protected under Art. 21 para 1 sent 1 GG, through his statements and subsequent dissemination on official Thuringian channels.