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Despite banning Nazi symbols, Germany's constitution and legal tradition complicate cases against the NPD.
However personally sympathetic German judges may be to such pleas, they say they can't do anything about the party unless the state can conclusively prove that it is explicitly subverting the German constitution. That sets the bar very high: Party leaders would have to be documented laying out plans to install a dictatorship, or belittling the victims of totalitarianism. Gathering such evidence in the public sphere is a madenning process, as NPD lawyers carefully monitor party rhetoric so that it tiptoes up to, without crossing, the legal boundaries.
The German government has tried other methods to gain damning evidence against the NPD, but those have only led to other legal difficulties. Indeed, an attempt by the federal government in 2003 to ban the party relied heavily on evidence gathered by government agents who operated as undercover spies within the NPD organization. The Constitutional Court claimed it couldn't distinguish between the government agents' observations of the NPD activities, and their own participation and possible instigation of those activities. Legal experts, including former justice Hoffmann-Riem, have suggested that the very fact that undercover government agents are still in force in the NPD organization means that any legal case against the party would be weakened from the get-go.
Interestingly, it's primarily politicians from eastern Germany, where the NPD is strongest, who have most strongly resisted calls to ban the party. They argue that the only sustainable way to combat neo-Nazi radicalism is through the normal channels of the liberal state — namely, open debate and argument. “Even if you banned the NPD party, they would just rename themselves and come back the next week,” said Andreas Adammer, a resident of Potsdam in the state of Brandenburg, where the NPD has enjoyed success in past elections.
Of course, the contrasting strategies for dealing with the NPD can and will most likely be pursued in parallel. Indeed, while Bavaria pursues its case against the NPD, some 8000 neo-Nazis are expected to gather in Dresden Saturday to mark the 65th anniversary of the Allied bombing of that city in the final year of World War II. A police presence will be on hand to ensure that the Nazi sympathizers have the opportunity to air their slogans, which compare Allied firebombing to Nazi atrocities. But, they are also expected to be met by a group of counter-protesters whose numbers will double their own.