Status: 10.12.2022 06:08 a.m
Among those arrested in the “Reichsbürger” raid is a former AfD politician who is allowed to work as a judge. How can the state defend itself against enemies of the constitution in its own ranks?
From the Bundestag back to the Berlin district court and from there to custody. This is the path taken by former AfD member of parliament Birgit Malsack-Winkemann, who was among those arrested in the raids on Reich citizens on Wednesday. The accusation: She is said to have been a member of a terrorist organization. According to the investigators, she was supposed to take on the role of infiltrating other Reich citizens there as an ex-deputy with access to parliament. No small allegation against a group that, among other things, recruited ex-KSK soldiers and had weapons.
The Berlin Judicial Service Court decided less than two months ago that Malsack-Winkemann was allowed to work as a judge again after leaving the Bundestag. So how can it be that the court apparently did not have the information it would have needed to dismiss the former AfD MPs? And: How do courts proceed when it comes to the question of whether civil servants can be dismissed?
It depends on the constitution
There is no general answer because of the different forms of employment: While police officers and teachers are civil servants, this does not apply to judges and soldiers. They have their own service law.
However, there is a minimum requirement for everyone: so-called loyalty to the constitution. Anyone who works for the state must actively commit to the values of the Basic Law. This also includes clearly distancing oneself from groups and statements that attack the constitution. This is checked on a case-by-case basis.
At the same time, anyone who works for the state can be politically active. Even membership in a party like the AfD, which is monitored by the Office for the Protection of the Constitution, does not speak against loyalty to the constitution. What matters in each individual case is how a party member positions himself on politically extreme demands.
How far can the commitment go?
Nevertheless, it is currently mainly cases of AfD members in which the question arises as to whether they can be dismissed from the civil service. Two ex-AfD members of parliament recently made headlines who wanted to work as judges again after leaving the Bundestag.
It was not until the beginning of December that the magistrate’s court in Leipzig granted an application that put the 60-year-old Jens Maier into early retirement. So he can no longer speak justice.
Maier is observed by the Saxon Office for the Protection of the Constitution and was considered one of its leading figures until the right-wing extremist wing was formally dissolved. He had described himself as a “little Höcke” and “AfD judge”. This mixing of political stance and office went too far. The court declared that the public should no longer assume that Maier would speak impartially.
The Berlin court did not ask the Office for the Protection of the Constitution
The case of Malsack-Winkemann seemed less clear than that of Jens Maier until the raids. Now that the ex-AfD MP has been arrested, things look different. So far, the court had taken the position that it could not use many of the statements made by Malsack-Winkemann against her in the Bundestag and that the statements made by the Justice Senate were “by far” insufficient to dismiss her from the service.
That’s true – statements from the Bundestag could not be used because of the principle of the so-called indemnity from the Basic Law. It is intended to protect politicians from being persecuted for their statements.
However, the court itself could have done more. The court did not ask the Office for the Protection of the Constitution about Malsack-Winkemann, although it would have been authorized to do so. The Berlin Administrative Court said this at the request of the ARD legal department. Instead, the court only relied on the information provided by the Berlin Senator for Justice.
“The court failed to investigate”
“The court itself has a duty to clarify the facts. It cannot play the buck on the Judiciary Senate. The case shows that the court did not even begin to fulfill its duty to investigate,” criticized the legal scholar Andreas Fischer-Lescano from the University of Kassel, who dealt with the case early on.
It is unclear how the Office for the Protection of the Constitution classified Malsack-Winkemann and what information the service would have disclosed to the court while an investigation was ongoing. Nevertheless, it would have been obvious to at least ask.
Your case will now be reopened. Berlin’s Senator for Justice Lena Kreck has already appealed. The Berlin district court had already changed the court’s business allocation plan in an urgent procedure on Wednesday, so that the former AfD MP will no longer administer justice for the time being.
Federal Minister of the Interior wants to reverse the burden of proof
Federal Interior Minister Nancy Faeser said that after the raids, a bill would soon be presented that would make it easier to dismiss civil servants who are no longer constitutional.
Among other things, Faeser wants to reverse who has to prove loyalty to the constitution. If there is a corresponding suspicion, in future this person should have to prove their loyalty to the constitution to the state and not the other way around, explained Faeser in the Bundestag.
A proposal that is already causing a lot of discussion. After all, there are good reasons for judges, for example, that the hurdles for dismissal are high. This is the only way they can make unpopular judgments without having to be afraid of the consequences.