Suspected case or not?: Can the Office for the Protection of the Constitution observe the AfD?

The Administrative Court of Cologne is negotiating whether the Office for the Protection of the Constitution may monitor the AfD as a suspected right-wing extremist. What are the legal sticking points?

Why did the case end up in court?

At the beginning of 2021 it became known: The Federal Office for the Protection of the Constitution (BfV) was planning to classify the entire AfD party as a so-called suspected case of extremist activities. That would allow the party to be monitored by intelligence means. On the other hand, the AfD had made (preventive) urgent applications to the Cologne Administrative Court. The domestic secret service then assured that it would not communicate its decision and would not yet order surveillance measures against AfD parliamentarians.

At the beginning of March 2021, however, media reports made it public that the Office for the Protection of the Constitution had decided internally to classify the AfD as a suspected case. The administrative court reacted angrily and issued a so-called hanging order. After that, the Office for the Protection of the Constitution was not allowed to classify the AfD as a suspected case for the duration of the court proceedings. Now the complaints of the AfD are being negotiated. Due to the great interest and the pandemic situation, the court rented a hall in the Cologne exhibition center for two days. It is not yet clear when a verdict will be passed.

What is the task of the Office for the Protection of the 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.” In doing so, he looks in particular at 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, the main focus is on observing right-wing extremism, left-wing extremism and Islamist extremism.

What do the terms test case, suspected case and observe mean?

In a first step, the Office for the Protection of the Constitution creates a test case – including for the entire AfD party. To put it simply, a preliminary check is carried out to determine whether there are sufficient indications for an observation. At this stage, the Office for the Protection of the Constitution may only collect information from openly accessible sources, such as newspaper articles, television programs or websites, public statements by the people involved, association statutes or party programmes. The AfD has so far ranked in this category.

If, from the point of view of the authority, there are “actual indications” of an anti-constitutional endeavor, the Office for the Protection of the Constitution classifies the case as a suspected case. If there is a suspicion, the Office for the Protection of the Constitution can use secret intelligence to monitor the group, for example recruit informants, i.e. collect informants from the party’s environment; Observe people or, under certain additional conditions, even monitor telecommunications. However, the measures must always be proportionate.

The BfV now wants to classify the entire AfD in the suspected case category. Individual state associations had already been classified as suspected cases by the responsible state protection of the constitution, for example in Saxony and Brandenburg.

In a third stage, the Office for the Protection of the Constitution can come to the conclusion that “secure extremist efforts” exist. As in the case of a suspected case, the Office for the Protection of the Constitution monitors the respective group or individual for intelligence purposes. So the means are the same. However, in the case of certain extremist efforts, it is easier for the authority to also carry out more serious interventions in the rights of those affected. The AfD regional association in Thuringia around Björn Höcke, for example, is listed as “securely extremist”.

What is it about in court?

A total of four cases are being heard before the administrative court in Cologne: In what is probably the most important, the AfD is resisting the classification of the entire party as a suspected case and the information of the public about it. Other proceedings concern the classification of the AfD youth organization Junge Alternative as a suspected case, the classification of the AfD “wing”, which has actually already been dissolved, as a secured right-wing extremist effort and finally the question of whether the Office for the Protection of the Constitution can claim that the “wing” had around 7,000 before its dissolution had members. All four procedures are being heard jointly by the Administrative Court of Cologne. This is responsible because the Federal Office for the Protection of the Constitution is based there.

What will be the sticking points?

From the point of view of the AfD, the conditions for an observation are not met. The Federal Office for the Protection of the Constitution is not acting lawfully. The court must now examine this. Equal opportunities for political parties is an important asset. Exceptions to this, such as the surveillance of a party by the secret service, must be well justified. All in all, it will depend on whether the domestic secret service can concretely substantiate the suspicions. To do this, the office would have to explain where and when AfD members made right-wing extremist statements. Possible points of view are: How is the party dealing with the German Nazi past? What is her position on fundamental rights such as freedom of religion for all people? Or the independence of the judiciary? How intensive are contacts with extremist groups?

In the run-up to the hearing, very extensive briefs with material collections from the Federal Office and counter-arguments from the AfD were exchanged. In addition, it will be a matter of proving that such statements were not “slips” by individuals, but can be attributed to the party as a whole. At this point, the court could take a close look at the role of the right-wing extremist “wing”, which has since been formally dissolved.

Does the Administrative Court of Cologne have the last word?

The Administrative Court of Cologne is the first instance. It is possible that the case will go to the Higher Administrative Court in Münster and the Federal Administrative Court in Leipzig after a decision has been made.