Petition against Höcke: How forfeiture of fundamental rights works

A petition calls on the federal government to submit an application to the Federal Constitutional Court for infringement of fundamental rights against the Thuringian AfD leader Höcke. What’s behind it? An overview.

Like the ban on parties, the forfeiture of fundamental rights is also a regulation of “defensive democracy”. The forfeiture of fundamental rights is included in the Basic Law so that enemies of democracy can never again abuse their freedoms to abolish democracy.

What is a Forfeiture of fundamental rights?

The forfeiture of fundamental rights is not a punishment, but is intended to protect democracy against threats in the future. Legal commentaries therefore also speak of a symbolic function. Above all, a violation of fundamental rights should send the signal that democracy will not tolerate abuse of fundamental rights in the fight against democracy.

What does it mean to forfeit fundamental rights?

Forfeiture of fundamental rights means that someone can no longer rely on certain fundamental rights, such as freedom of expression, against the state. He can still express his opinions or demonstrate, but is less protected if government authorities take action against him. Lawyers speak of an “obstacle to the exercise” of the forfeited fundamental rights.

Important: The Federal Constitutional Court in Karlsruhe cannot only rule that someone has forfeited their freedom of expression or freedom of assembly. It can also deprive him of the right to vote and be elected. It can also deny the ability to hold public office. If their top candidate Björn Höcke were affected, it could have a serious impact on the AfD in Thuringia.

How are fundamental rights forfeited?

Only the Federal Constitutional Court in Karlsruhe can declare a forfeiture of fundamental rights. It must carry out its own procedure in which the person concerned must be heard. Only the Bundestag, the federal government or a state government can submit an application.

If there is to be a case against a member of the Bundestag, it must be specifically approved by the Bundestag. The forfeiture of fundamental rights can be limited, but it must last at least one year.

Which requirements apply to the Forfeiture of fundamental rights?

Because the forfeiture of fundamental rights is intended to protect democracy from its enemies, it is crucial that the person affected poses a threat to the future. What is needed is a risk forecast as to whether the person concerned is abusing their basic rights to fight against the free, democratic basic order.

The Constitutional Court also demands a “serious danger” to the free, democratic basic order. This is primarily why the four procedures that have existed so far have failed. For example, there were proceedings against a former Wehrmacht officer who worked as a right-wing extremist politician in the Federal Republic, or against a right-wing extremist publisher. Both were viewed as politically insignificant.

How would that be in the Höcke case?

In the case of the Thuringian AfD leader Björn Höcke, the political danger would certainly be assessed differently given his party’s poll numbers. Many of Höcke’s statements appear in the Thuringian Office for the Protection of the Constitution. The Federal Office for the Protection of the Constitution classifies the AfD in Thuringia as firmly right-wing extremist. This is at least an indication that the prerequisites for a forfeiture of fundamental rights are present in the case of Björn Höcke. The Federal Constitutional Court would have to examine this independently.

Looking at the previous proceedings, one can say: The hurdles to a forfeiture of fundamental rights are generally high. And: In the past, such procedures have taken several years.