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In 2022, the Office for the Protection of the Constitution received court confirmation that it could classify the AfD as a suspected case. The party has lodged an appeal against this judgment. The highest administrative judges in North Rhine-Westphalia are now clarifying whether the assessment is legal.
What is the starting position?
The Federal Office for the Protection of the Constitution (BfV) has classified the federal AfD party as a “suspected extremist case” in 2021. In response to a lawsuit from the AfD, the Cologne Administrative Court confirmed this classification as legal in March 2022. The AfD has appealed against the judgment of the first instance, which is now being heard and decided by the Higher Administrative Court of North Rhine-Westphalia in Münster.
It is also about the classification of the AfD youth organization “Junge Alternative” (JA) as a suspected case, as well as the classification of the – officially now dissolved – “wing” as “certain right-wing extremist”. The court has set March 12th and 13th as trial dates. It is not yet clear whether and when a verdict will be made on these days.
According to media reports, the BfV is also checking whether it will upgrade the AfD from a suspected case to the category of “certain extremist endeavors”. But that’s not what the current court case is about. The AfD could defend itself against a possible upgrade in a separate court case. A party ban is also not part of the proceedings. This could only be applied for at the Federal Constitutional Court.
Why did the court confirm the classification?
According to the law, in order to be classified as a suspected case, the Office for the Protection of the Constitution must provide “actual evidence” of extremist efforts. So facts, not just assumptions. From the perspective of the Cologne court, the reports and material collections from the Office for the Protection of the Constitution with numerous statements from the party have overcome this hurdle.
An “ethnically understood concept of the people” is a central party goal of the AfD. After that, the German people must be preserved in their ethnic composition. “Strangers” should be excluded if possible. This deviates from the concept of the people in the Basic Law. In addition, “anti-foreigner agitation” can be seen.
To justify this, the court also relied on the activities and statements of the particularly controversial “wing”. This group within the AfD has now been formally dissolved. According to the court, his protagonists continued to exercise significant influence within the party at the time of the Cologne verdict. The central test criterion is always that extremist statements can be attributed to the party.
What checks that? Higher Administrative Court in Munster?
During the appeal process, the court reopens the case completely. It therefore depends on whether the material collected by the Federal Office for the Protection of the Constitution is sufficient to classify it as a suspected case or not. What is decisive here is the current state of affairs, not the situation when it was first classified in the year.
The representatives of the BfV and AfD exchanged extensive written submissions in advance. The Federal Office presented, among other things, further possible evidence. The AfD counters that the classification is illegal and a violation of the principle of equal opportunities between the parties.
Does the OVG have the final say?
After the decision of the Higher Administrative Court, a third instance is possible, an appeal to the Federal Administrative Court in Leipzig. There the judgment would be checked for legal errors. It is therefore likely that the case will not be closed even after the upcoming verdict.
What is his job? Defense of Constitution?
As the German domestic secret service, the Federal Office for the Protection of the Constitution is a kind of “early warning system”. According to the law, its task is “the collection and evaluation of information, in particular factual and personal information, news and documents”.
The service pays particular attention to efforts that are directed against the “free, democratic basic order”. For example, against the existence of democracy, the rule of law and human rights. In practice, this primarily involves monitoring right-wing extremism, left-wing extremism and Islamist extremism.
What are the consequences of being classified as a suspected case?
The Office for the Protection of the Constitution distinguishes between three levels: test case, suspected case and “secured extremist endeavor”. In the test case, the Office for the Protection of the Constitution may only use publicly available information. As a suspected case, you appear in the annual Office for the Protection of the Constitution report.
In addition, the Office for the Protection of the Constitution is allowed to observe the group using secret intelligence means. For example, recruiting undercover agents, i.e. informants from the party’s environment; Observe people or, in individual cases, monitor telecommunications under very strict additional conditions. However, the individual measures must always be proportionate.
If the BfV classifies a group as “certain extremist”, the same intelligence resources are available. However, in the case of “certain extremist efforts” more intensive observation tends to be permissible.
When it comes to observing elected representatives, the requirements are particularly high. Because they can rely on the free mandate. However, the classifications should not be confused with a ban on the party. For example, they do not change the fact that a party is allowed to take part in elections.
Can there be consequences for officials, judges or soldiers?
Another follow-up question: Can the classification as a suspected case become a problem for officials, judges or soldiers who are members of the AfD? The principle of loyalty to the constitution traditionally applies to public servants. Legally, the general direction regarding the status of suspected case is: Mere membership in the party is not enough for consequences.
Further breaches of duty would have to be added for possible disciplinary proceedings. A later classification as “certain extremist” could lead to greater problems in terms of loyalty to the constitution. However, the following applies to both situations: each individual case would have to be examined carefully. The exact function the official in question fulfills can also play a role. So whether he works in a particularly sensitive area. What is also important is how intensively the official in question is committed to the party and behaves.
Is there a connection to a possible Party ban proceedings?
In recent months there has been a lot of contentious discussion about whether or not party ban proceedings should be initiated against the AfD. The starting point is that the legal proceedings regarding the classification by the BfV and a possible party ban proceedings are two completely separate construction sites.
Only the Federal Constitutional Court in Karlsruhe can decide on an application for a party ban. The Office for the Protection of the Constitution could not request such a thing. Only the federal government, Bundestag or Bundesrat could do that. However, in the discussion about whether a ban should be proposed, a look at the procedure in Münster could play a certain role.
The basis for examining an application for a ban would be a collection of material to prove that the AfD is unconstitutional. The material collected by the BfV for the current procedure could be the basis for an examination of whether an application for a ban could have a chance of success. What is important, however, is that the material would have to be examined specifically with regard to the legal criteria for banning a party in the Basic Law.
The hurdles for this are higher than for classification as a suspected case. It should also be noted that the use of undercover agents in the leadership of a party can be an obstacle to a party ban. Likewise, evidence that comes from undercover agents could not be used in prohibition proceedings.