Classification as a suspected case
AfD proceedings in Münster: “When does a handful of grains of sand become a heap?”
AfD party leaders Tino Chrupalla and Alice Weidel
© dts news agency / Imago Images
Is the AfD a suspected right-wing extremist case and can it also be monitored with the help of undercover agents? The Münster Higher Administrative Court will decide on this in an appeal process. There is a lot at stake.
It is a major, explosive procedure. Because it comes at a time when the AfD has a good chance of autumn election successes in Saxony, Thuringia and Brandenburg and at the same time a possible ban on the party is being discussed. What’s it all about in Münster? And what is at stake? Answers to the most important questions.
What is being negotiated?
The judges decide on a total of three cases in the proceedings. The decision does not have to be made on Tuesday; two days are set aside for the negotiations. The most important of the three proceedings is about whether the Federal Office for the Protection of the Constitution can classify the party with around 30,000 members as a so-called suspected right-wing extremist case. In 2021, the authorities upgraded the AfD from a “test case” to a “suspected case”.
The AfD wants to prevent this classification in court – but a year ago the Cologne administrative court ruled in favor of the Office for the Protection of the Constitution. The appeal process is now taking place in Münster. Because the Office for the Protection of the Constitution is based in Cologne, the courts in North Rhine-Westphalia are responsible.
The AfD is also taking action against the classification of its youth organization, Junge Alternative, as a suspected case. And against the classification of the ethnic “wing”, which has now formally been dissolved, first as a suspected case and then as a “certain right-wing extremist effort”.
How will it turn out?
The decision of the judges in Münster is eagerly awaited. Ultimately, the classification as a suspected case also depends on the means with which the Office for the Protection of the Constitution is allowed to monitor the party. Whether he can continue to use undercover investigators. It is not known whether and to what extent the Federal Office makes use of these options. “The requested information affects confidentiality interests that require such protection that even the slight risk of it becoming known cannot be accepted,” writes the federal government in response to a corresponding request from the AfD parliamentary group.
The AfD is not expected to have much of a chance in the appeal process: “I think it is unlikely that the AfD will win,” said the legal scholar and former judge of the Federal Constitutional Court, Gertrude Lübbe-Wolff, to the star. At least the Cologne judges stated in their judgment last year that they saw sufficient evidence of anti-constitutional efforts in the AfD.
The Higher Administrative Court in Münster is the final authority. That means: The AfD could still go to the Federal Administrative Court in Leipzig. But this then only examines legal questions, but no longer clarifies the facts. Things are different in Münster: Compared to the previous proceedings in Cologne, there are around 9,500 new pages of files in Münster, according to a spokeswoman for the court. Because so much material was added, the trial date even had to be pushed back from February to March.
What follows from the verdict?
In the unlikely event that the court rules in favor of the AfD, the Office for the Protection of the Constitution would have to scale back its observation. He would then not be allowed to use intelligence resources such as undercover agents.
If the court confirms the classification of the Office for the Protection of the Constitution, nothing will change in the current situation for the Office for the Protection of the Constitution – it could continue to monitor the AfD as a suspected case. However, it is also possible that such a verdict clears the way for the AfD to be upgraded to a “certified extremist effort” – the AfD state associations in Thuringia, Saxony and Saxony-Anhalt are already considered such. This is the next level after the test and suspected case would enable an even broader use of intelligence resources in the federal AfD.
After all, the President of the Federal Office for the Protection of the Constitution, Thomas Haldenwang, has made no secret publicly that, in his opinion, the party is becoming increasingly radicalized. The legal magazine “LTO” reports that its authority has already prepared a new report on the AfD – which it is still holding back to await the current verdict.
Finally, the decision in Münster could also give renewed impetus to the political debate about a possible ban on the AfD. The Federal Government, Bundestag and Bundesrat could apply for this to the Federal Constitutional Court – but it is unclear whether there would be political majorities for this.
Different conditions also apply to a possible party ban than to the classification as a suspected case. For the former, it is not enough to show that a party is spreading anti-constitutional ideas. In addition, there must be an actively combative attitude towards the basic democratic order that a party is aiming to abolish – which is more difficult to prove.
Nevertheless, the Münster ruling could ultimately also make its contribution to a ban procedure, says constitutional lawyer Fabian Wittreck in an interview published by the University of Münster. Basically, it’s a question of: “When does a handful of grains of sand become a pile?” In the end, every court decision could be a “piece of the mosaic” – in an overall picture that the Federal Constitutional Court could rule on in party ban proceedings.