The AfD is suing the Federal Office for the Protection of the Constitution with great persistence. The Higher Administrative Court in Münster decided on Monday on the party’s appeal against a decision by the Cologne Administrative Court from 2022, which had already ruled in favor of the domestic intelligence service in the first instance. This means that the Federal Office for the Protection of the Constitution can continue to treat and monitor the party as a so-called suspected case of right-wing extremism. What does that mean – and what follows from it? An overview.
How does the court justify its decision?
The presiding judge Gerald Buck said that the evidence presented was sufficient to at least justify the suspicion that the AfD was directed against the free-democratic basic order of the Federal Republic. Buck illustrated it with an example: If the smoke detector sounds an alarm in an apartment but no one opens it, the police are ultimately allowed to enter the apartment and check whether there is a fire. “The constitution’s smoke alarm is ringing,” said the presiding judge in reference to the AfD. It is the job of the Federal Office for the Protection of the Constitution to check whether there is really a fire or whether it is “smoke about nothing”.
The Office for the Protection of the Constitution argues that the AfD violates the human dignity guaranteed by the Basic Law. Because it systematically denigrates people with a migration background and especially refugees and Muslims. The court sees it that way too. In addition, the officials of the domestic intelligence service see violations of the principle of democracy because AfD representatives, for example, equate the Federal Republic with the SED or the Nazi dictatorship. The court also sees evidence for this, “even if not with the frequency and density as assumed by the Federal Office.” The AfD sees this as a partial success.
How does the AfD react?
With a shake of the head. At least that’s what AfD board member Peter Boehringer did every few minutes in the courtroom, while Judge Buck explained the Senate’s decision for a good half hour. Shortly afterwards, Boehringer and Roman Reusch, a member of the Federal Executive Board, stood in front of the assembled press and launched a counterattack. The court refused to take detailed evidence, said Reusch, and simply adopted assessments by the Office for the Protection of the Constitution. “I would assume that short shrift was made here,” said Boehringer.
During the previous days of the hearing, the court had rejected hundreds of applications for evidence from the AfD. Boehringer said the AfD “did not get a chance to fairly present our counterarguments.” Reusch and Boehringer announced that they want to challenge the court’s decision not to allow an appeal before the Federal Administrative Court. For the AfD, the legal fight against the Office for the Protection of the Constitution is far from over.
Does the Federal Office for the Protection of the Constitution now classify the AfD as “certain extremist”?
The officials in the right-wing extremism department have been working on a new report on the AfD for months, presumably in order to prepare for a new classification. She had that about it Southgerman newspaper already reported in February. In order to be able to classify the AfD as a confirmed extremist case, the office of President Thomas Haldenwang, President of the Office for the Protection of the Constitution, would have to prove that the evidence regarding the AfD has “condensed” to such an extent that it must be assumed that it is unconstitutional. Haldenwang emphasized on Monday that they were in an “open-ended review process,” as is usual with suspected cases. We want to wait for the written reasons for the judgment from Münster, which will probably be available in a few weeks, and then “come to a further assessment of the AfD in due course.”
The court in Münster refrained from making any statements in this direction. Chairman Gerald Buck simply said: What is sufficient to suspect an anti-constitutional effort, as in this case, “does not necessarily lead to the assumption of a proven extremist effort.” That requires more.
How does the Federal Office for the Protection of the Constitution actually monitor the party?
In suspected cases such as the AfD and in confirmed extremist organizations, the Federal Office is allowed to use “intelligence resources”, i.e. observing targets, recruiting informants into the party and infiltrating its own undercover employees. How many informants there are in the AfD is top secret. However, in mid-March, officials from the Federal Office for the Protection of the Constitution said in court that only two of the many thousands of documents submitted contained “statements and behavior from human sources.” Most of what the AfD’s intelligence service reports comes from public statements by party officials. The Office for the Protection of the Constitution is not allowed to automatically monitor telephones and mailboxes.
Is the AfD now threatened with a ban?
Already on Monday, voices were again heard in the Bundestag calling for exactly that. “The AfD is networked with right-wing terrorists and has some in its ranks, the party and its supporters do not shy away from violence and, on top of that, it cooperates with dictatorships and apparently gets paid by them,” says Marcel Emmerich, chairman of the Greens in the Interior Committee, the South German newspaper. “The judgment should be seen as a mandate for all authorized constitutional bodies to initiate a ban procedure,” demands Emmerich. This must “now be prepared precisely and decisively,” Emmerich continued. For example, a working group between the federal and state governments, security authorities and constitutional and constitutional lawyers could be considered.
Such a procedure is not ruled out in the traffic light government. But the FDP in particular is skeptical about this. The prevailing opinion so far is that the AfD should initially be fought primarily politically. Especially since there are doubts as to whether the high hurdles for a ban procedure can be overcome. If the radicalization of the AfD continues, a ban procedure would be an option, Interior Minister Nancy Faeser (SPD) recently explained. The Bundestag, Bundesrat or federal government could submit such a ban application to the Federal Constitutional Court in Karlsruhe.