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Constitution: Important decision in the dispute between the AfD and the Office for the Protection of the Constitution

Constitution: Important decision in the dispute between the AfD and the Office for the Protection of the Constitution

How does the Federal Office for the Protection of the Constitution classify the AfD? In a year with many elections and protests against the party, this question is particularly explosive. Now the highest administrative judges in North Rhine-Westphalia are deciding.

Is the AfD a suspected right-wing extremist case? And the party’s youth organization, the Junge Alternative (JA), too? The administrative court in Cologne confirmed this assessment by the intelligence service in the lower instance. Now it is the turn of the North Rhine-Westphalia Higher Administrative Court (OVG). In an appeal hearing on March 12th and 13th, the highest administrative judges in North Rhine-Westphalia will clarify whether the BfV’s assessment is legal. Because the Federal Office is based in Cologne, the courts in North Rhine-Westphalia are responsible.

For the AfD, which is currently led by Alice Weidel and Tino Chrupalla, the appointment in Münster comes at an inopportune time. The party leadership is certain that a defeat before the OVG would not represent a major liability for the state elections in Thuringia, Brandenburg and Saxony. A large proportion of their supporters there buy the AfD’s narrative, which portrays itself as a victim of an overreaching state apparatus that supposedly wants to censor free expression.

Overall, trust in the Office for the Protection of the Constitution is greater in the West

The AfD’s process still causes problems because many people in the west of the Federal Republic, where the European elections are due to take place on June 9th, see it differently. In addition, the negotiation could break down the old trench warfare between the ever smaller part of the party that is pushing for moderation and the radicals who see such an assessment by the Office for the Protection of the Constitution as a sort of award. Some of the right-wing parties abroad, with whom the AfD would like to join forces in the new European Parliament, will also be interested in the outcome of the proceedings.

In Thuringia, where the AfD state leader is called Björn Höcke, and in Saxony, the AfD’s respective state associations are already classified as definitely right-wing extremist and monitored by the constitutional protection offices there. The AfD-Brandenburg is considered a suspected case.

Mountains of files

The mammoth proceedings have occupied the responsible 5th Senate of the OVG for months. The files of the three proceedings are now kept completely digitally. Nevertheless, the scope is huge. According to a spokeswoman, the court files total around 15,000 pages. Of these, around 9,500 pages are from the appeals instance at the OVG. The administrative files of the Federal Office for the Protection of the Constitution are held in 275 file folders and stored in a separate room at the OVG. The parties involved will each bring their own copies to the oral hearing. This means that the number of piles of files that need to be kept ready in the hearing room triples.

In the 75 years of its existence, the North Rhine-Westphalia Higher Administrative Court has repeatedly had comparable large-scale proceedings with socio-political explosiveness. Negotiations took place regarding the fast breeder reactor in Kalkar, the Hamm-Uentrop and Würgassen nuclear power plants, the Ahaus interim nuclear storage facility, hard coal power plants or the Garzweiler open-cast brown coal mine, Düsseldorf Airport, and the surveillance of politicians and Scientology by the Federal Office for the Protection of the Constitution. Because of the limited space available, the North Rhine-Westphalia Higher Administrative Court then switched to the university buildings, police, district government, the Münsterland hall, conference rooms of a hotel and also – as in March – to the entrance hall of the OVG. Due to the high number of participants in the proceedings, spectators and 95 registered journalists, negotiations will take place again in the hall in March.

Final factual authority

The reason given in Cologne was that there was sufficient evidence of anti-constitutional efforts within the AfD. In the case of JA, the party’s lawsuit in 2022 was also unsuccessful. In the conflict between the AfD and the Federal Office that has been going on for years, the Higher Administrative Court is the final authority on the facts. This means: The Federal Administrative Court in Leipzig, as the possible next and final instance, only carries out a pure legal review. Clarification of the facts by a court and applications for evidence by the AfD or the Federal Office are only possible up to the OVG.

The fact that the AfD is legally defending itself against the Cologne Administrative Court’s decision has no suspensive effect as far as the party’s observation is concerned. This means that in recent months the Office for the Protection of the Constitution has been allowed to investigate using intelligence tools such as observation and tapping informants (so-called informants) to find out whether the suspicion of extremism has been substantiated or not.

In a response to a corresponding parliamentary question from the AfD parliamentary group, the federal government left it open whether and to what extent the Federal Office made use of these options. “The requested information affects confidentiality interests that require such protection that even the slight risk of it becoming known cannot be accepted,” the answer states.

It would not be surprising that the Federal Office for the Protection of the Constitution would come to the conclusion in its next report that the AfD is a guaranteed right-wing extremist effort. Finally, BfV President Thomas Haldenwang also says publicly that he sees the party continually moving “towards the far right”.

The fact that his authority has not yet submitted a new report is certainly due to the fact that the BfV wants to wait for the OVG’s decision first. But this new assessment is not yet the issue in Münster. The question of the appeal hearing revolves around the assessment as a suspected case, i.e. one level below.

Step model

The step-by-step model of the Federal Office for the Protection of the Constitution provides for first the test, then the suspected case and then the determination that the object being observed is a confirmed extremist effort. With the youth organization of the AfD, the young alternative, the Federal Office has already reached the third level. It is viewed as a definite extremist effort. The Cologne Administrative Court confirmed this view on February 5, 2024. However, this question is now not part of the appeal process at the OVG.

The pivotal point of all questions is a provision in the Federal Constitutional Protection Act (BVerfSchG) on the so-called group of people. According to court spokeswoman Gudrun Dahme, the extent to which this point also applies to parties and their youth organizations will probably be the subject of the oral hearing. This law also determines when the Office for the Protection of the Constitution must inform the public about its findings and when, for example, it can also work covertly with people it trusts. In the first stage, the test case, only the evaluation of publicly available sources is permitted.

If the OVG confirms the decision from the lower court, according to OVG spokeswoman Gudrun Dahme, nothing will change in the current situation for the Office for the Protection of the Constitution. The domestic secret service would then continue to monitor the AfD as a suspected case, as it has been since March 10, 2022. At this point, the Cologne Administrative Court had rejected an urgent application from the party on the issue.

At the administrative court in Cologne, Judge Michael Huschens had already made it clear in the lower court before his verdict what was at stake. The Office for the Protection of the Constitution is an “early warning system,” Huschens said. “If you have soil that smells of oil, you can drill test holes,” he says. A defensive democracy should not wait until “the child has fallen into the well”.

Source: Stern

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