The AfD wants to prevent stage two and could get stage three

This article first appeared at ntv.de.

For years, the AfD has resisted being classified by the Office for the Protection of the Constitution as a suspected case or even as a confirmed extremist effort. An important decision is now pending in an appeal process before the Münster Higher Administrative Court – the possible consequences extend up to an application for a ban. And yet the ruling is unlikely to have any impact on the state elections in September. But it could harm the AfD in West Germany. An overview.

What is the issue before the OVG Münster?

Formally, the AfD is not a defendant, but a plaintiff: It is suing “against the Federal Republic of Germany, represented by the Federal Office for the Protection of the Constitution,” as the OVG Münster announced in January when the dates for the oral hearing were announced. In practice, there are three appeal procedures:

In parts, reality has overtaken the process. Since April 2023, the Office for the Protection of the Constitution has no longer classified the “Young Alternative” as a suspected case, but as confirmed right-wing extremist. The AfD unsuccessfully sued the Cologne Administrative Court. The “wing” has now not only been formally dissolved, but has also “absorbed into the party,” as right-wing extremism expert Axel Salheiser tells ntv.de. At the same time, Höcke is now “the central leader within the AfD, even if he has no office at the federal level,” says lawyer Hendrik Cremer from the German Institute for Human Rights. Höcke’s position in the AfD shows the radicalization of the party.

What does the classification as a suspected case mean?

The Federal Office for the Protection of the Constitution has three steps to draw attention to extremist threats. Stage one is the so-called test case. The AfD was classified as such in January 2019, a few months after Thomas Haldenwang became head of the Office for the Protection of the Constitution. Stage two followed in 2021: the classification as a suspected right-wing extremist case, which enables the Office for the Protection of the Constitution to monitor the AfD using intelligence means. However, monitoring emails and phone calls is only theoretically possible; in practice, there must be evidence of serious crimes such as high treason, secret service agent activity, the formation of a terrorist organization or incitement to hatred, as the “Letal Tribune Online” explains. Finally, level three is the assessment as a confirmed right-wing extremist effort.

How does the AfD defend itself?

The AfD submitted three applications for bias against judges to the OVG, all of which were rejected. The last application for bias was made because the AfD did not have enough time to prepare for the trial: After the Office for the Protection of the Constitution sent “extensive documents” to the court at the beginning of January, the OVG postponed the trial dates from the end of February to the 12th and 13th. March. That was too short for the AfD; they demanded at least six weeks.

There are other strategies, for example self-trivialization, as Cremer calls such an approach. The “Berliner Zeitung” reported that the AfD federal executive committee sent a letter to elected officials and party officials asking whether there were people with a migrant background among them or whether they had a “migrant” as a spouse. The AfD wants to use this information before the OVG Münster “in our legal defense against the Federal Office for the Protection of the Constitution”.

As early as 2018, the AfD formed a working group to deal with the Office for the Protection of the Constitution. It was dissolved in 2021 because the goal had been achieved, as the then AfD board member Alexander Wolf said. A few months earlier, the Cologne Administrative Court had banned the Office for the Protection of the Constitution from classifying the AfD as a suspected case. The first head of this working group was the former AfD member of the Bundestag Roland Hartwig – the (now former) employee of AfD leader Alice Weidel, who took part in the infamous meeting in Potsdam.

How could the proceedings in Münster end?

“I think it is likely that the classification will be confirmed,” says Axel Salheiser. But even then, the legal dispute is likely to continue for now. “First of all, the AfD would challenge the verdict,” said Salheiser. “Then it goes to the next instance, to the Federal Administrative Court, and finally to the Federal Constitutional Court, where the procedural review would lie.”

According to information from the “Süddeutsche Zeitung”, after the ruling from Münster, the AfD is also threatened with being classified as a confirmed extremist effort – i.e. level three. The report on this should already be ready, only the “considerations” of the court should be “taken into account as far as possible”.

Would a classification as extremist harm the AfD politically?

Hendrik Cremer assumes so. “I hope and expect that the debate about the AfD and the way the party is treated will change,” says the lawyer in an interview with ntv.de. At the moment, with regard to the AfD, there is only talk of a “right-wing populist” or “partly right-wing extremist” party. “It has still not been recognized that the party as a whole has long since developed into a right-wing extremist party.”

On the other hand, Salheiser says that the political consequences would be ambivalent. “Because the classification as a right-wing extremist would also increase the self-victimization, the victim narrative of the AfD.” This would also apply to any application for a ban, which Salheiser still considers necessary: ​​”If the burden of proof is overwhelming, then the state has a duty to act.” Such a ban proposal is currently being discussed politically. But it would have to be made by the Bundestag, the Bundesrat or the federal government so that the Federal Constitutional Court can decide. So far there are no majorities in favor of this.

Salheiser does not expect any consequences for the state elections in September. “The impression on voters, especially in the three eastern German states where state elections will take place in September – Brandenburg, Saxony and Thuringia – is likely to be very small.” The protests against right-wing extremism in response to the Potsdam meeting clearly damaged the AfD in the polls – but especially in West Germany. “When people with a migrant background are treated with hostility and devaluation by right-wing extremist ideologies and parties, then this affects many people personally.” This is an experience that many in East Germany do not share.

See the photo series: The AfD started out ten years ago as a Euro-critical party. It has changed a lot since then and is now significantly further to the right. Part of the membership wants Germany to leave the EU. Nevertheless, a number of people are pushing for the European election list.