“I warn against playing with fire”

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Written By Maya Cantina

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Mr Murswiek, you have it the judgment of the Münster Higher Administrative Court (OVG) surprised somehow?

Dietrich Murswiek: That wasn’t really surprising. This is because the conditions under which the Office for the Protection of the Constitution may observe an organization as a suspect are very low. I need to explain this in a little more detail.

There are three levels that the Office for the Protection of the Constitution uses to classify organizations that it may consider or has proven to be unconstitutional. Namely the classification as a suspicious case, the classification as a case of proven anti-constitutionality and then the situation in which it is assumed that the observed organization meets the requirements for an organizational or party ban. The legal requirements vary at all three levels.

When qualifying a case as suspicious, it is sufficient that there are actual indications of suspicion. This organization or party pursues anti-constitutional goals. So that doesn’t have to be proven at all. And the Office for the Protection of the Constitution draws these clues mainly from various statements by members and officials of the party in question. They must be statements that reveal an anti-constitutional purpose. So if an individual politician says something like that, it is an indication that the party is pursuing anti-constitutional goals.

So you have to make a qualitative and quantitative overall judgment to see: do we have enough evidence here? The crucial question is how many clues and how important clues we need. This is a very vague criterion. And the Office for the Protection of the Constitution and the courts have a very wide discretion.

If you know the previous case law of the administrative court regarding the AfD, it was not surprising that the OVG came to the conclusion that there are indications of this. Unfortunately, it cannot be assessed at this time whether it is convincingly justified that these indications are sufficient or whether the instructions that the OVG believes have been given can actually be regarded as such, because the judgment has not yet been published. The OVG has Only a short press release was issued and there are only general propositions. We will have to wait until the verdict is published.

“The verdict says nothing at all about the prospects for success of an injunction procedure”

You quoted this press release from the OVG, I pointed it out when I read that the court was not bound by the demands of the Federal Constitutional Court to require the elimination of all sources of constitutional protection within party structures. And based on what you have now described to me or to us, it seems to me that this could also mean that, in case of doubt, the allegations of the Office for the Protection of the Constitution against the AfD, which led to the current judgment, are based on the activities of the Office for the Protection of the Constitution, namely by the non-official employees of the Office for the Protection of the Constitution within the structure. That’s a dilemma.

Murswiek: This is a dilemma that cannot be ruled out. And I also wonder whether this statement that the OVG is not bound by the Federal Constitutional Court can be maintained. The AfD should test this in the appeal procedure, because I do not think it is logical that there is such a big difference between the party ban process at the Federal Constitutional Court and the process at the administrative court.

It is also important for the administrative judge to establish the truth. And in order to determine whether sufficient evidence has been provided by AfD members, I need to know whether they are actually members who made this statement as human beings, as members, or whether they are perhaps informants of the Office for the Protection of the Constitution .

I have read that most media coverage of the verdict was actually a misinterpretation of the verdict. To be honest, I didn’t quite understand that. Could you perhaps clarify this?

Murswiek: I noticed that some politicians from several other parties have publicly stated that following this ruling, a consistent approach to ban proceedings must now be taken. This view is in fact a complete misunderstanding of the judgment. This judgment does not relate to the question of whether an injunction procedure has a chance of success.

Because the injunction procedure has completely different requirements. It can only be successful if it can be proven that the party as a whole and not just its individual parts pursues anti-constitutional goals and, moreover, these anti-constitutional goals are also represented by the entire party in the banning process. must be an aggressive and combative manner. This judgment says nothing about that at all.

I don’t even see that these requirements could be met. So you can really only warn those who could apply for a ban not to play with fire here. The shot could seriously backfire if it turns out before the Federal Constitutional Court that the request for a ban is unfounded.

“It is a fact that there is an ethnically and culturally understood German people.”

It is suspected that a decision will certainly have to be made before the elections for the EU Parliament. And on the same day there will be local elections in eight states. This is a bit lost in the reporting. But especially before the three state elections in September in Thuringia, Saxony and Brandenburg, so that the AfD can be maximally damaged. Is this just a conspiracy theory?

Murswiek: So I am always very careful when accusing a court of pursuing unrelated purposes, unless such purposes are immediately obvious. So I wouldn’t make any assumptions in this regard.

However, I would like to draw your attention to one aspect of the press release from the Higher Administrative Court. The main argument of the Federal Office for the Protection of the Constitution, which was constantly repeated by Haldenwang and his office, was that the AfD was using an unconstitutional concept of the people. Anyone who assumes that, in addition to the people of the state, there is also a people defined on the basis of criteria such as language, culture or origin, provides evidence for anti-constitutional efforts. This view is obviously legally incorrect and also inherently inconsistent.

The ethno-cultural folk term is a descriptive term. As such it cannot be unconstitutional. The fact is that there is an ethnically and culturally understood German people. But there are no unconstitutional facts. If the Federal Office for the Protection of the Constitution were able to enforce the position it has defended thus far, it would mean that it is effectively maintaining a ban on expressing the truth, the empirical truth. That would be extremely unconstitutional and a very serious violation of freedom of expression.

And here the OVG Münster has now provided clarity and explicitly stated that the descriptive use of an ethno-cultural folk term is not unconstitutional. But that is not everything. However, the court says it is possible that this descriptive concept of the people is linked to a political objective that calls into question the fundamental equality of all citizens.

So if a party says that members of the ethno-cultural nation should have better rights than other citizens of the state, the OVG says that is unconstitutional. This view is also consistent with the view of the Federal Constitutional Court. In this respect it is actually beyond dispute.

“As far as I can remember, I have never heard discriminatory statements from leading AfD politicians.”

The AfD itself has also admitted that this is the case. But the AfD says it does not attach any legal consequences to the use of the ethnic concept. And above all, it does not want to discriminate in any way or even exclude any German citizen, even with a migration background, from their civil rights.

What will be interesting, and in this respect we can now look forward to the verdict, is how the Münster High Court now justifies the claim that it puts forward that the AfD actually has such an unconstitutional link between the ethnic and cultural spheres . to a large extent the concept of people having unconstitutional discrimination against ethnic non-Germans.

As far as I can remember, I have never heard statements from leading AfD politicians pointing out such discrimination. There are certainly very isolated statements from subordinate party members, there are a few lunatics in every party and if that is the case, the AfD must also ensure that it can get rid of that.

But I would be very surprised if in a few weeks, when the verdict is published, we would have to realize that there actually are such connections between the concept of ethnicity and discrimination against German migrant citizens, that something like this has been proven.

The other alternative is that the judgment, when read, does not actually establish a connection in the said sense, but it does what the Office for the Protection of the Constitution continually does: it connects the use of the ethnic concept of the people with assumptions about political goals made to individual members. These objectives are therefore not proven at all, but the Office for the Protection of the Constitution says that certain statements should be understood in this sense. Of course, if that happens, we will be dealing with an evidence-level disaster.

>> The interview was first published on May 15, 2024 on internet radio “Kontrafunk”.

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Prof. Dr. Dietrich Murswiek is emeritus professor of constitutional and administrative law at the Albert Ludwig University of Freiburg. He is the author of the book “Protection of the Constitution and Democracy”, published in 2020.

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