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The Cologne Administrative Court in Germany issued a preliminary injunction, preventing the Federal Office for the Protection of the Constitution of Germany from classifying a right-wing political party as a suspected extremist organization and from making any public statements about that classification. The political party had initially approached the Court when media reports indicated that the Federal Office was intending to classify it as a “suspected case” of extremism. At that stage, the Federal Office undertook to not make any classification public and to not surveil any members of the party, and the courts dismissed the application. After the media reported information leaked from the Federal Office that it had, in fact, made the classification, the political party approached the Administrative Court again. The Court then granted the preliminary injunction on the grounds that the party’s right to equal opportunities for all political parties under article 21(1) of the German Basic Law had been infringed.
Around January 19, 2021, German media reported that the Bundesamt für Verfassungsschutz (BvF) – the Federal Office for the Protection of the Constitution – intended to classify the right-wing party Alternative für Deutschland (AfD) – Alternative for Germany – as a “suspected case” (Verdachtsfall) of an extremist organization at the federal level in the near future. Such a classification enables the BvF to use intelligence resources to surveil the organization and its members.
On January 21, 2021, the AfD applied to the Cologne Administrative Court for a preliminary injunction. The AfD sought an order that the BfV stop their possible classification of the party as a suspected extremist organization or as a “proven extremist threat” (gesichert extremistische Bedrohung) and refrain from any related public announcement. The BfV announced that it would guarantee to not make any classification or surveil any representatives or elective candidates of the party until the court’s final ruling.
On January 27, the Court dismissed the AfD’s application, holding that given the BfV’s guarantee the injunction was not necessary. It made a distinction between the possibility of the BfV classifying the AfD as a “proven extremist threat” and a “suspected case”. In respect of the first, it noted that it could not be “foreseen” that the BfV would classify the AfD as a “proven extremist threat” as only one news report stated that the BfV intended to classify the AfD this way, and so there was no concrete danger of irreversible damage. It stated that a classification as a “suspected case” had no effect on the party’s members, voters and supporters as it was merely an internal measure of the BfV, and so a preliminary injunction was unnecessary. The Court also stated that a possible use of intelligence resources against members of the party was not grave enough to issue a preliminary injunction, as a classification does not automatically lead to a use of intelligence resources and that there is a substantial public interest in surveilling a suspected case of extremism to protect the democratic order.
The AfD appealed the decision to the Higher Administrative Court North Rhine-Westphalia.
On February 18, 2021, the Higher Administrative Court North Rhine-Westphalia rejected the appeal, agreeing with the Cologne Administrative Court that the benefits of surveillance of a “suspected case” of an extremist organization outweighed the violation of the AfD’s right to equal opportunities for all political parties under article 21(1) of the German Basic law as a result of that surveillance. The Court noted the negative consequences if the AfD was, indeed, found to be a “suspected case” and its anti-constitutional efforts continued without the intelligence agencies’ surveillance, and that this outweighed the consequences of party members possibly being surveilled – particularly given the BfV’s guarantee – until the final decision was made.
On March 3, 2021, there was widespread media coverage that the BfV had decided to classify the AfD as a suspected extremist organization and therefore put it under formal observation. The reports cited a leaked statement by the BfV in which it stated that the AfD had been classified as a suspected extremist organization at the end of February.
The AfD again applied to the Cologne Administrative Court for a preliminary injunction that the BfV must not classify, observe and handle the party as a “suspected case” and must not publicly announce such a classification.
The Cologne Administrative Court had to determine whether – given the media reports on March 3, 2021 – it should now issue a preliminary injunction preventing the BfV from classifying the AfD as a suspected case of extremism, announcing that classification and surveilling the party.
The Court stated that the principle it needed to follow in determining whether to grant the preliminary injunction was the need to balance the disadvantages that would arise if the injunction was not issued but the urgent application was successful in the broader preliminary proceedings, against the disadvantages that would arise if the injunction was issued but the urgent preliminary application was unsuccessful.
In respect of the publication of the classification, the Court held that a preliminary injunction was necessary under the present circumstances. It noted that the courts’ previous decisions had relied on BfV’s guarantee to not make any information public, and that the media reports of March 3 came from an information leak at the BfV. The Court held that this was an unjustifiable infringement of the AfD’s right to equal opportunities of all political parties under article 21(1) of the German Basic Law, and that there was a considerable risk of a re-offense on the part of the BfV. The Court commented that even though there was information on the classification of AfD in the public domain, any new public or non-public announcement would intensify the violation of the principle of separation of powers, under article 20(3), and the right to equal opportunities of all political parties under article 21(1) of the German Basic Law. It remarked this was particularly intolerable given the upcoming state and federal elections and that the Court’s final decision was still pending.
In respect of the application that the BfV must not classify, observe and handle the party as a “suspected case” until the Court delivered a final decision, the Court noted that it – given the other breach of the guarantee – could not rely on BfV’s guarantee to not deploy intelligence surveillance on representatives and elective candidates of the party. The Court held that the publication of the “suspected case” classification encroached upon the AfD’s right to equal opportunities of all political parties to such an extent that the possibility of a further interference by a (possible) surveillance of the party member on the grounds of their membership in the AfD was intolerable. Here again the Court considered the upcoming state elections in Baden-Wuerttemberg and Rhineland-Palatinate, and noted that the disadvantages for AfD were more severe than the possible disadvantages for democracy if intelligence surveillance was ceased and a preliminary injunction rejected at a later stage.
The Court held that – given the BfV’s breach of its guarantee – it could no longer assume that the internal process of classifying and examining the AfD (which would not directly interfere with the right to equal opportunities of all political parties) would, in fact, remain internal.
Accordingly, the Court issued the preliminary injunction ordering that the BfV could not classify, observe and handle the AfD as a “suspected case” of extremism and could not publicly or non-publicly announce such a classification (again).
The main proceedings are pending before the Cologne Administrative Court (case number 13 K 326/21).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment demonstrates that state-operated surveillance of political parties must follow strict rules to protect the constitutionally protected right to equal opportunities of all political parties, and emphasizes the importance of intelligence agencies acting with restraint to avoid public prejudgment of a political party on the basis of a classification as “extremist”. This protection of political expression, equality and of voters’ choices at the preliminary stage (given that the merits of the matter were still to be determined) strikes the balance between protecting democracy from extremists and protecting other constitutionally-protected political expression rights.
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