faq
The OVG Münster is deciding today whether the Office for the Protection of the Constitution has rightly classified the AfD as a suspected right-wing extremist case. What does such a classification mean? And what follows from that? Answers to central questions.
What is the job of Protection of the Constitution?
The Office for the Protection of the Constitution is the German domestic secret service. It is also called the “early warning system of democracy”. In Germany there is the Federal Office for the Protection of the Constitution (BfV) and 16 state authorities for the protection of the Constitution. According to the law, the federal and state governments are obliged to cooperate in matters relating to the protection of the constitution.
The task of the constitutional protection authorities is “the collection and evaluation of information, in particular factual and personal information, news and documents”. Among other things, about “efforts that are directed against the free democratic basic order” – for example against democracy, the rule of law and human rights. In practice, it is primarily about monitoring right-wing extremism, left-wing extremism and Islamist extremism.
What classification categories are there?
The Office for the Protection of the Constitution classifies possible cases of anti-constitutional efforts into three categories: Creating a test case is the first step in the procedure at the Office for the Protection of the Constitution. To put it simply, this involves pre-checking whether there is enough evidence for an observation.
At this stage, the Office for the Protection of the Constitution can only collect information from openly accessible sources: newspaper articles, television reports or websites, for example, but also public statements by the people involved, club statutes or party programs. The Office for the Protection of the Constitution is not allowed to inform the public about the classification of a person or group as a test case.
If the first step shows from the authority’s point of view that there is actual evidence of an anti-constitutional effort in a test case, then the Office for the Protection of the Constitution will upgrade this case. The next level is the suspected case. From this second stage onwards, the Office for the Protection of the Constitution is allowed to observe the group in question; it is now considered an “object of observation”.
The third stage is the existence of a confirmed extremist effort. Here the suspicion has already become so solidified that, from the authorities’ point of view, there are no longer any doubts about the existence of extremist efforts. As with the suspected cases, the Office for the Protection of the Constitution is also monitoring the respective group or individual.
The BfV can also upgrade a test case directly to a confirmed case without taking the “detour” of a suspected case. To the extent that there is sufficiently significant factual evidence in the categories of “suspected case” and “certain extremist,” the Office for the Protection of the Constitution also informs the public.
What does “observe” mean exactly?
The Office for the Protection of the Constitution may use intelligence resources on second and third level observation objects. For example, the authority can recruit informants, i.e. informants from the party’s environment. It can also observe people or – if other requirements are met – monitor telecommunications.
However, observation encroaches on the basic rights of those being observed. That is why the BfV must always observe the principle of proportionality: every measure must be necessary and appropriate. So there must be no milder remedy that would be just as effective. In the case of a confirmed extremist effort, more measures tend to be permissible than in the case of a suspected case. In both cases, the same “tools” are available, but the individual decision on how closely to observe is sometimes different. Telecommunications surveillance in particular is therefore only permitted in exceptional cases.
Important for organizations that are close to parties: If the observation is also to extend to elected parliamentarians, the hurdles are particularly high. The Federal Constitutional Court ruled in 2013 that the observation of a member of parliament by the authorities represents a particularly serious interference with the free mandate. This is only permitted in exceptional cases.
What do the courts examine?
State authorities such as the Federal Office for the Protection of the Constitution cannot do what they want in Germany – they are always bound by law and order. For example, the Federal Constitutional Protection Act applies to the BfV. The courts examine whether the respective authorities adhere to the respective legal requirements or possibly exceed this framework.
Those affected can have measures that affect them independently reviewed by the judiciary. The AfD also sued against the classification as a suspected case. The Federal Office for the Protection of the Constitution first had to present the “actual evidence” before the Cologne Administrative Court and then in the second instance before the North Rhine-Westphalia Higher Administrative Court, which are the prerequisite for classification as a suspected case.
Are such classifications equivalent with a ban on a group?
No. The classification as a suspected case or as confirmed extremist is a measure taken by the Office for the Protection of the Constitution. However, it is not the responsibility of the Office for the Protection of the Constitution to ban parties or associations. In relation to parties, only the Federal Constitutional Court can do this. The Federal Ministry of the Interior is responsible for club bans.
Even if a court has confirmed a classification, for example as a suspected case, that only means: the BfV behaved lawfully and made no mistakes. However, if a ban procedure were to take place at a later date, the results of an observation by the Federal Office for the Protection of the Constitution could become relevant again.
In terms of content, such a procedure sometimes involves the same questions – for example: Which popular concept does a group represent? Or: Does a group want to eliminate the free democratic basic order? Even a party that is listed as a suspected case is not banned. It is therefore allowed to continue to take part in elections and be represented in parliaments.