Constitutional scholar views prohibition proceedings against AfD as grounded in constitutional protections
The Alternative for Germany (AfD) has been classified as a "secured right-wing extremist endeavor" by the German Federal Office for the Protection of the Constitution (BfV). This designation, based on an examination of 829 pieces of evidence, has significant legal implications.
Out of the evidence examined, 574 were found to be "tendentious or potentially relevant." Legal expert, Markus Ogorek, who has applied higher standards for a ban procedure, sees this assessment as a solid basis for a potential ban procedure against the AfD.
The classification allows intelligence agencies to expand their monitoring powers, including the use of informants and communication surveillance against AfD members. It also creates the legal foundation to consider restricting public funding for the party and banning AfD members from certain public sector jobs such as civil servants, police officers, teachers, or soldiers.
However, the actual banning of a political party is a complex and rare measure under German constitutional law. Legal proceedings towards a party ban require a formal procedure initiated by either house of the German Parliament or the federal government, with the final decision resting exclusively with the Federal Constitutional Court (Bundesverfassungsgericht).
While some officials, like Vice Chancellor Lars Klingbeil (SPD), advocate for seriously reviewing the possibility of banning the AfD, others, including conservative politicians, caution that such a move could backfire by increasing its support. The AfD itself contests the classification as politically motivated, asserting violation of constitutional protections such as freedom of speech, and has filed lawsuits challenging the decision.
At the state level, similar extremist assessments of AfD branches have been made, such as in Brandenburg, where the state’s Office for the Protection of the Constitution labeled the local AfD as violating human dignity and the state constitution.
If the Higher Administrative Court in Münster declares the classification of AfD as a "secured right-wing extremist endeavor" lawful, a significant portion of the evidence used could also be used in a party ban procedure as an indicator of anti-constitutional intent. Ogorek suggests that democratic parties should wait for AfD's lawsuit against the BfV's upgrade to be decided before proceeding with a ban application.
However, Ogorek argues that waiting for the court's decision may make it difficult to fulfill the responsibility placed on the Bundestag, Bundesrat, and federal government by the Basic Law to protect the free democratic basic order using the instrument of a ban procedure.
In summary, the BfV’s classification as a "secured right-wing extremist endeavor" provides the basis for parliamentary or government-initiated party ban proceedings before Germany’s Federal Constitutional Court. However, the actual banning remains a complex, cautious, and exceptional measure under German constitutional law.
[1] Bundesverfassungsgericht [2] Bundestag [3] Bundesrat [4] Bundesamt für Verfassungsschutz
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