The Federal Office for the Protection of the Constitution has rightly classified the AfD as a suspected right-wing extremist case. The Münster Higher Administrative Court confirmed the lower court’s ruling – and thus rejected the party’s appeal.
The Federal Office for the Protection of the Constitution (BfV) can classify the AfD as a suspected right-wing extremist case. The Higher Administrative Court (OVG) in Münster, North Rhine-Westphalia, rejected the lawsuit. In doing so, it confirmed a previous ruling by the Cologne Administrative Court from 2022.
This means that the Office for the Protection of the Constitution can continue to use intelligence resources to monitor the right-wing populist party. The verdict is not yet legally binding. Although the OVG did not allow an appeal against the current ruling, the AfD can submit an application for approval to the Federal Administrative Court in Leipzig.
Evidence of discrimination and hostility to democracy
“Courts do not make political decisions, even though their decisions may have an impact on politics,” it said when the verdict was announced. The Federal Constitutional Protection Act (BVerfSchG) gives the BfV the authority to monitor a party if there are actual indications of anti-constitutional efforts.
However, the Senate emphasized that these are not limitless. The Office for the Protection of the Constitution must be able to present “sufficiently conclusive circumstances”. “The defensive democracy is not a toothless tiger, but – to stay with the metaphor – it only bites when necessary,” said the presiding judge of the 5th Senate, Gerald Buck.
The Senate saw this as the case when the AfD was classified as a suspected right-wing extremist case: There was enough factual evidence that the party was pursuing efforts that were directed against the human dignity of certain groups and against the principle of democracy, according to the court. It saw reasonable suspicion that at least a significant part of the AfD had the goal of “only granting German citizens with a migration background a legally devalued status.” This is unacceptable discrimination and not compatible with the Basic Law.
There is also sufficient evidence to suspect that the AfD is pursuing efforts that involve disregard for the human dignity of foreigners and Muslims. The court was also able to identify evidence of anti-democratic efforts – “even if not with the frequency and intensity as assumed by the Federal Office.”
President of the Federal Office for the Protection of the Constitution sees himself vindicated
The President of the Federal Office for the Protection of the Constitution, Thomas Haldenwang, sees his course strengthened by the rejection of the AfD’s appeal. His thanks go to all employees, especially those “who, because of this important work, have repeatedly been subjected to hate and hatred from certain circles in public and on social media in recent months, who have been accused of unconstitutional and illegal behavior and who have received intolerable insults had to endure,” says Haldenwang. They could all feel vindicated by the verdict.
The verdict is “a success for the entire constitutional state, for democracy and for our free-democratic basic order,” said Haldenwang. “As a result, the court has fully confirmed our assessment. The court has also confirmed that the Federal Office and its President are entitled to inform the public about the classification of the AfD as a suspected case, as the existing evidence is sufficiently important.” The Federal Office presented “countless examples” that provided evidence of anti-constitutional attitudes on the part of a significant part of the AfD. This included “hatred and agitation against Muslims, against migrants of all kinds,” said Haldenwang. There are also indications of anti-democratic efforts by the AfD.
Years of litigation
The appeal proceedings before the Higher Administrative Court concerned not only the classification of the entire AfD, but also that of the now disbanded AfD “wing” as a suspected case and as a “certified extremist effort” as well as the classification of the youth organization “Junge Alternative” (JA) as Suspected case.
The legal dispute between the party and the Office for the Protection of the Constitution has been going on for several years. After initially classifying the party as a so-called test case in 2019, the Office for the Protection of the Constitution classified the party as a “suspected extremist case” in 2021. The AfD sued against this. However, the Cologne Administrative Court confirmed this classification as legal in March 2022. The AfD filed another lawsuit against this court decision.
AfD wants to go to the next instance
The AfD has already announced that it will take the legal dispute to the next higher court. “We will of course call the next authority,” said AfD federal executive board member Roman Reusch, according to a statement from the party. AfD vice-president Peter Boehringer criticized the proceedings for “insufficient clarification of the facts”. “Not following up on hundreds of applications for evidence borders on refusing to work – as was the case in the previous instance, which was the main reason for the appeal.”
This is how the AfD could proceed after the ruling
Even if the Higher Administrative Court did not allow an appeal against its new ruling, that does not mean that the AfD no longer has any opportunity to take action against it. In an appeal procedure, a court judgment is reviewed. The appeal court – in this case it would be the Federal Administrative Court in Leipzig – examines whether legal errors were made in the lower instance. It does not examine the facts itself. It does not collect new evidence or, for example, interview witnesses.
Since the OVG did not allow the appeal, the AfD would have to lodge a complaint against the non-admission. She has one month to do this after the full judgment has been delivered. In such a case, the complaint first goes to the OVG itself. If it does not remedy the situation, i.e. does not change its own decision, the Federal Administrative Court can still allow the appeal. For this to happen, certain requirements must be met.
Either it is a legal matter of fundamental importance, there is a crucial procedural defect – or the judgment deviates from the highest court case law and is based on this deviation. If the appeal were ultimately allowed, the Federal Administrative Court would examine the judgment from Münster.
During the negotiations in Münster since mid-March, the AfD submitted numerous requests for evidence and requests for bias against the judges, which were rejected. A lawyer for the Office for the Protection of the Constitution accused the AfD of wanting to drag out the process.
The verdict comes in the middle of the campaign for the European elections at the beginning of June and in the preparations for the state elections in Brandenburg, Thuringia and Saxony. According to surveys, the AfD is particularly strong in the eastern German states. The state associations of Thuringia and Saxony – like the one in Saxony-Anhalt – are classified as “certainly right-wing extremist” by the constitutional protection authorities in these federal states.
Faeser: “Judgment shows that we are a defensive democracy”
After the verdict, Federal Interior Minister Nancy Faeser (SPD) emphasized the independence of the Office for the Protection of the Constitution. “Today’s verdict shows that we are a robust democracy,” she said. The German constitutional state has instruments to protect democracy from threats from within. “It is precisely these instruments that are being used – and have now been confirmed again by an independent court,” added the minister, whose area of responsibility includes the Federal Office.
AZ: 5 A 1216/22, 5 A 1217/22 und 5 A 1218/22
Lothar Lenz, ARD Berlin, tagesschau, May 13, 2024 10:53 a.m