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Sign at the courthouse in Münster: AfD expresses "concern of bias"

Photo: Thomas Keßler / OVG NRW.

The AfD's lawyers are apparently trying to force the presiding judge at the Higher Administrative Court of North Rhine-Westphalia (OVG), Gerald Buck, out of proceedings concerning the party. This is reported by the »Süddeutsche Zeitung« with reference to a lawyer's brief.

In it, the AfD lawyers express the "concern of bias", because of which no fair verdict can be expected from the 43-year-old. In the 20-page reasoning, it is said that Judge Buck acts "arbitrarily", he stands for conviction instead of law.

The accusation is explosive because the proceedings at the Higher Administrative Court in Münster are about a kind of "showdown" – about the decision in the long-running dispute over whether the Office for the Protection of the Constitution may classify the party nationwide as a suspected right-wing extremist case. This is related to whether the AfD may be observed by the intelligence services in order to determine whether the party is actually pursuing efforts to undermine the country's free democratic basic order.

In the previous instance, the domestic intelligence service had been proven right. The Administrative Court of Cologne had found that there were sufficient factual indications of anti-constitutional tendencies on the part of the party. The AfD had appealed. Now around 10,000 pages of files on the dispute between the two sides are stored in Münster. The case is being heard by North Rhine-Westphalian courts because the Federal Office for the Protection of the Constitution is based in Cologne.

Rejection petitions submitted before Christmas

Last November, the Higher Administrative Court had set February 27 (and possibly also 28th) as the date for the oral hearing. The 5th Senate, which is responsible for party law, is currently provisionally chaired by Gerald Buck – presiding judge at the Higher Administrative Court since 1 May 2023; He is the full-time chairman of the 18th Senate, which mainly deals with proceedings relating to immigration law.

As the Cologne-based law firm Höcker confirmed to SPIEGEL on request, the lawyers filed motions for rejection against Judge Buck shortly before Christmas for the AfD and its youth organization Junge Alternative. In terms of content, they did not want to comment further "due to the nature of ongoing proceedings and out of respect for the decision that will certainly be made in the near future".

According to the »Süddeutsche Zeitung« (whose account is basically confirmed by the law firm Höcker), the lawyers of the AfD write that the presiding judge »arbitrarily makes himself the lawyer« of the Office for the Protection of the Constitution. In some cases, he conducts "a kind of secret procedure"; In addition, requests from the domestic intelligence service for an extension of the deadline would be generously granted, while requests from the AfD would be rejected.

Vacant position of President of the Court

The composition of the 5th Senate at the Higher Administrative Court for North Rhine-Westphalia already has a political dimension. Normally, it is the president of the court who decides on cases relating to parliamentary and party law. But the position of the president of the Higher Administrative Court in Münster has been vacant for a long time, which is why Judge Buck steps in.

The opposition had accused North Rhine-Westphalia Justice Minister Benjamin Limbach (Greens) of nepotism in the occupation issue. In a special session of the state parliament's legal affairs committee in October, the son of the former president of the Federal Constitutional Court, Jutta Limbach, defended himself against accusations of political influence.

Regardless of how the decision in Münster turns out, it can be assumed that the AfD will try to use it to mobilize: in the event of success, as a winner against what it sees as an instrumentalized protection of the constitution, in the event of a defeat as an alleged victim of state harassment.

If the court follows the lower court, statements by the head of the Office for the Protection of the Constitution, Thomas Haldenwang, indicate that the office could soon brand the party as demonstrably anti-constitutional. This plays into the ongoing discussions about a possible ban procedure against the AfD.

At the weekend, after Federal Justice Minister Marco Buschmann (FDP), MEP Reinhard Bütikofer also expressed skepticism in this regard. He is against an AfD ban procedure, said the Green politician on Deutschlandfunk . When the SPD's top candidate for the state election in Saxony, Social Affairs Minister Petra Köpping, whom pollsters "attest to only three percent support," calls for an AfD ban procedure, this cannot be surpassed in ridiculousness. Democracy couldn't be worse than that.

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Green politician Bütikofer: "Not to be outdone in ridiculousness"

Photo: dts News Agency / dts News Agency / IMAGO

The former Federal Government Commissioner for Eastern Europe, Marco Wanderwitz, concedes that an AfD ban has a good chance. One should not take the failed NPD ban proceedings at the Federal Constitutional Court as a yardstick, said the Saxon CDU politician of the German Press Agency.

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CDU politician Wanderwitz: "It doesn't get any more right-wing radical than this"

Photo: Kay Nietfeld / dpa

Wanderwitz, who is a lawyer and member of the Bundestag, said: "You have to look at the AfD as it is today. The question is: Are they right-wing extremists and are they aggressively fighting the free democratic basic order? I say: In the meantime, the AfD is what the NPD used to be. It doesn't get any more right-wing radical than that. But the AfD is neither permeated by informants nor insignificant. In my view, an AfD ban procedure would have an excellent chance."