European Centre for Counterterrorism and Intelligence Studies, Germany & Netherlands – ECCI
Germany’s far-right AfD could face legal challenges
DW – Germany is deliberating over what legal steps can be taken to combat the right-wing populist Alternative for Germany. Anti-constitutional parties can have their state funding suspended or be banned.Germany in January 2024: The Alternative for Germany (AfD), which the Federal Office for the Protection of the Constitution has partially classified as right-wing extremist, is enjoying record highs in opinion polls. At the same time, hundreds of thousands of people have been taking to the streets to demonstrate against the anti-immigration party.
The German Bundestag is also debating how to deal with the AfD. A motion has been submitted by the three governing parliamentary factions, the center-left Social Democrats (SPD), the Greens, and the neoliberal Free Democrats (FDP). The topic: “Resilient democracy in a diverse country — a clear stand against the enemies of democracy and their plans of forced displacement.”This was prompted by a media report about a meeting of right-wing extremists in which AfD officials as well as members of the center-right Christian Democratic Union (CDU) took part. The gathering is said to have been about plans for the so-called remigration (expulsion) of millions of people who have immigrated to Germany.
In the parliamentary debate, Bernd Baumann, Parliamentary Secretary of the AfD, told lawmakers the meeting was no more than a “small, private debate club,” but not a “secret meeting dangerous to the public.” Federal Interior Minister Nancy Faeser (SPD) responded: “We are seeing an active effort to shift borders and to spread contempt for democracy and misanthropy into the heart of society.”Nancy Faeser said she could also imagine banning the party — but only as a last resort.
How can a party be banned?
The last time there was an attempt to ban a party concluded — and failed — in 2017 against the nationalist and racist National Democratic Party of Germany (NPD), which has since renamed itself “Heimat” (homeland). The Constitutional Court found at the time that the splinter party was so insignificant that it posed no threat to democracy and therefore did not ban it.Unlike the former NPD, the AfD has been enjoying a wave of popularity. However, it has only been confirmed as “right-wing extremist” in three of Germany’s 16 states.
The Federal Constitutional Court has set high hurdles for banning parties. In an interview with DW, Christian Pestalozza, an expert on constitutional law in Berlin, explained that one prerequisite was that there must already be a certain probability that the party in question will at some point have enough weight to achieve its goals.
Withholding funds from the AfD
It is easier, however, to exclude an anti-constitutional party from state funding. In Germany, parties are financed by membership fees, donations, and tax money. The more votes a party receives in elections, the more it is entitled to receive from state coffers. For the AfD, this currently amounts to over €10 million ($10.8 million).According to Pestalozza, it would be easier to exclude a party from this kind of funding because of its allegedly unconstitutional goals than to ban it: “That they are committed to such goals would be enough, without having to prove that they have the potential to implement them.”
Even if the AfD’s political program sounded relatively harmless, showing that the reality is quite different could be enough, says Pestalozza.”But whether these conditions have already been met is a matter of speculation. This is something that authorities at the Federal Office for the Protection of the Constitutional, Germany’s domestic intelligence agency, which has been monitoring the party and some of its state affiliates, know better,” he says.
As a so-called observation case, the AfD may be subject to surveillance in Thuringia, Saxony, and Saxony-Anhalt using secret methods such as phone tapping. The Berlin constitutional law expert believes that excluding the party from state funding, at least in these federal states, is possible.To do so, the government or parliament would have to submit the relevant motion. The Federal Constitutional Court could then still come to a completely different conclusion than the intelligence agency. However, Pestalozza stresses that this is unlikely.
Another way to combat perceived enemies of the Constitution would be to revoke basic rights from individuals. This would mean that they would no longer be allowed to run for public office. For example, an online petition has been launched recently aiming to prevent the Thuringian AfD right-winger Björn Höcke from being able to become state premier in the state elections in September 2024. His party is currently polling well over 30%.
However, constitutional law expert Azim Semizoglu of the University of Leipzig doubts that Höcke’s basic rights can be revoked. Similar efforts have never been successful, he says, and the hurdles for such proceedings are also quite high. However, he does not consider such an attempt to be completely futile, as it takes less effort to investigate a single person for allegedly being anti-constitutional than it does to investigate an entire party.Debates on banning the AfD and other possible sanctions against the party or individuals notwithstanding, Semizoglu believes that democracy in Germany is strong enough to defend itself against its enemies.”It’s an encouraging moment to see so many people taking to the streets against racism,” he says.
European Centre for Counterterrorism and Intelligence Studies, Germany & Netherlands – ECCI
