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AfD boss Chrupalla in the courtroom in Cologne
Photo: Federico Gambarini / dpa
The room in which the Cologne administrative court is hearing about an observation of the AfD by the Office for the Protection of the Constitution looks like something out of a casino: heavy, red carpets, mirrored walls, gold decorations, massive chandeliers hanging from the ceiling.
Only the more than hundred files on the tables give an idea that this is about law and order - because of Corona and the great interest, the meeting was moved to the exhibition halls.
The procedure is "extraordinarily complex" and "legally not easy," says the presiding judge, Michael Huschens, as he enters the room.
The central question of the approximately ten-hour oral hearing was whether the Office for the Protection of the Constitution may classify the entire party as a "suspected case".
The Federal Office wanted to do this last spring, but was temporarily stopped by the administrative court.
Such a step in the super election year seemed too delicate to the Cologne court.
That has changed.
The 13th chamber decided in the evening: Yes, the Federal Office can raise the AfD to a “suspected case”.
There is "sufficient factual evidence of anti-constitutional efforts within the party," the court found.
For the AfD, the decision is a defeat, the classification as a "suspected case" means a deep cut - the party was founded in 2013 as a self-proclaimed "rule of law party".
Now she has to reckon with the fact that the Office for the Protection of the Constitution will soon be able to monitor party officials using the entire range of secret service methods - bugging phones, reading e-mails, recruiting paid informants.
Judge Huschens made it clear right at the beginning of the session that the proceedings were not about trifles.
Finally, Article 21 of the Basic Law protects the free activity of parties.
A ban is only intended as the “hardest level of defensive democracy”.
On the other hand, as an "early warning system", the Office for the Protection of the Constitution does not have to wait "until the child has already fallen into the well".
A classification as a suspicious case by the Office for the Protection of the Constitution serves to investigate the danger, explained judge Huschens – as well as to carry out a “test drilling” “if the ground smells of oil”.
It was a first indication of the direction the Chamber was headed.
During the hearing, the attorney for the Federal Office for the Protection of the Constitution, attorney Wolfgang Roth, once again quoted numerous statements from AfD officials, which the authority had used to justify its surveillance plans.
For example, Björn Höcke, head of the AfD in Thuringia and frontman of the now formally dissolved völkisch-nationalist party »wing«, warned in a book that the black and white population would have »merged into a mass«, which he called »Americanization« described.
"We Europeans should avoid this descent and preserve the peoples," wrote Höcke.
Attorney Roth argued that the "wing" influence on the party was significant.
Numerous state associations, especially in the east, are now dominated by the nationalist current of the AfD.
But not only the "wing" represents an ethnic understanding of the people that is difficult to reconcile with the Basic Law, according to Roth.
A “higher birth rate among the local population” is already being propagated in the AfD basic program.
Leading representatives of the party used words that are common among right-wing extremists, such as "Umvolkung" or "Population exchange".
The AfD honorary chairman Alexander Gauland has attested to the national football team that "it has been a long time since German" in the "classic sense" - meaning players with a migration background or dark skin color.
The attorney for the AfD, lawyer Christian Conrad, accused the Office for the Protection of the Constitution of “investigating in a one-sidedly incriminating manner”.
A more than a thousand-page report from the AfD office may contain individual statements that crossed the red line.
In most cases, however, only assumptions are made and statements are taken out of context, he argued.
Many statements are not as clear as the Office for the Protection of the Constitution portrays them.
CSU politicians like Horst Seehofer have also expressed criticism of Islam without being targeted by the domestic secret service, said Conrad.
The AfD's attorney-in-fact played down the meaning of the "wing".
The "wing" is "Mr. Höcke, with maybe a handful of other people" - how the Office for the Protection of the Constitution came to a number of 7,000 "wing" members is incomprehensible.
In any case, the trend does not play a major role in the party, which has around 30,000 members, Conrad claimed.
As a merger, the "wing" dissolved in April 2020.
Futile attempts at appeasement
Höcke is the chairman of a small state association, said AfD party leader Tino Chrupalla.
Höcke was made big in the media "also with statements from which I would distance myself".
The AfD's attempts at appeasement were useless, at least not on the central issue.
The court found that the "wing" had been formally dissolved.
However, some of its protagonists continued to “exercise significant influence within the party”.
Both the representatives of the "wing" and the youth organization of the AfD, the "Junge Alternative" (JA), propagated an "ethnically understood concept of the people", according to which "foreigners" should be excluded as far as possible.
The court also considered the observation of the AfD as a “suspected case” to be justified because the party as a whole is in a directional dispute “in which anti-constitutional efforts could prevail”.
The fact that long-time co-party leader Jörg Meuthen left the AfD in January and complained of “clearly totalitarian echoes in the party” may also have played a role in the decision.
The AfD was successful with two other lawsuits, which, however, now appeared less relevant.
The Federal Office can no longer describe the »wing« as a »secure extremist effort«.
However, it was less about substantive arguments.
Rather, the Federal Office could not prove with the necessary certainty that the party current continued to exist after its dissolution and could therefore be treated by the Office for the Protection of the Constitution as an independent object of observation.
Nor can the office continue to claim that the »wing« has around 7,000 members.
A corresponding estimate by the authority did not appear to the judges to be well-founded enough.
"We were surprised by the court's verdict," said party leader Chrupalla.
Of course he was also disappointed, "that's quite clear".
He announced that they would consider taking action against the verdict.
The decision can be appealed to the Higher Administrative Court in Münster.
