How Björn Höcke could be excluded from elections
The AfD has become increasingly radicalized in recent years. A petition is now calling for AfD right-winger Björn Höcke to be stripped of his basic rights. However, it is unclear whether such a procedure would be successful.
In view of the AfD's growing strength, there is currently increasing discussion about whether the party can be banned. Many now see it as a threat to democracy - a meeting between right-wing activists and extremists and AfD officials in Potsdam recently caused a stir.
In addition, the withdrawal of basic rights from prominent enemies of the constitution is now also being discussed. A petition to this effect is specifically directed against the Thuringian AfD party and parliamentary group leader Björn Höcke, whose state association has been classified by the Office for the Protection of the Constitution as definitely right-wing extremist.
What are the chances of such a procedure, who has to apply for it and who ultimately decides? The most important questions and answers.
Under what conditions can someone's fundamental rights be withdrawn?
The deprivation of fundamental rights is regulated in the Basic Law: Article 18 states that anyone who abuses freedom of expression, in particular freedom of the press, freedom of teaching, freedom of assembly, freedom of association, secrecy of correspondence, post and telecommunications, property or the right of asylum "in order to fight against the free democratic basic order shall forfeit these fundamental rights".
Just like the prohibition procedure for political parties regulated in the Basic Law (Article 21), the deprivation of fundamental rights of individuals is intended to protect democracy. In view of the Weimar Republic and the National Socialists' seizure of power, the mothers and fathers of the Basic Law wanted to create a democracy that knows how to defend itself against authoritarian and anti-constitutional efforts.
What is the exact procedure for forfeiting fundamental rights?
The withdrawal of fundamental rights must be applied for by the Bundestag, the federal government or a state government. The case is then heard by the Federal Constitutional Court in Karlsruhe. The parties to the proceedings are heard there - including the person whose fundamental rights are to be revoked.
The forfeiture of fundamental rights is not primarily a punishment, but is intended to ensure that the person concerned can no longer carry out their anti-constitutional activities. The Constitutional Court must therefore determine by means of a "danger prognosis" whether the person concerned really poses a serious danger to democracy.
If the judges affirm this, it does not mean that all fundamental rights will be withdrawn forever and ever. Karlsruhe can also only withdraw individual fundamental rights and also limit this for a limited period of time. According to the Constitutional Court Act, it is also possible to deprive someone of their right to vote, their eligibility to stand for election and their ability to hold public office.
Why is there currently a debate about stripping AfD politician Björn Höcke of his basic rights?
The Office for the Protection of the Constitution has classified the AfD state associations in Saxony, Saxony-Anhalt and Thuringia as "definitely right-wing extremist". Against the backdrop of high poll ratings, the party is now seen by many as a threat to the democratic order. Ways are therefore being sought to put the AfD in its place.
This includes the withdrawal of basic rights - a proposal that has been given a boost by a petition on the WeAct platform. The petition is specifically directed against the Thuringian AfD party and parliamentary group leader Björn Höcke, who can be described as a fascist according to a court ruling.
"Björn Nazi is a Nazi"
The petition appeals to the parliamentary party leaders of the SPD, Greens, FDP, CDU/CSU and Left Party to persuade the Federal Government to submit a corresponding application to the Federal Constitutional Court. Over one million people have signed the petition. However, the petition was not submitted and signed via the electronic platform of the German Bundestag. In the case of petitions submitted directly to the Bundestag, the Petitions Committee must provide an opportunity for a hearing once 50,000 signatures have been collected*.
A state election is due in Thuringia
State elections are due to be held in Thuringia in September. Höcke's AfD is far ahead in the polls: currently at 34 to 36 percent. If the party receives votes of this magnitude, the CDU, SPD and the Left Party would have to form a coalition to keep the AfD out of power - a constellation that was previously unthinkable.
What chances would an application against Höcke have?
In the 1960s and 70s, there were already four attempts to recognize fundamental rights. All of them failed - including the case against the far-right publisher Gerhard Frey, who edited the "Nationalzeitung" newspaper. In 1974, the Federal Constitutional Court rejected an application by the federal government to deny Frey the right to vote and stand for election. Politically too insignificant and not dangerous enough for the free democratic basic order: Karlsruhe has dropped all proceedings to date on these grounds.
However, this could now be different for Höcke, whose name constantly appears in the Thuringian constitutional protection report. Höcke's statements are the basis for the AfD regional association in Thuringia being regarded as anti-constitutional.
Quicker and easier than a party ban
The journalist and lawyer Heribert Prantl advocates using Article 18 of the Basic Law to get to grips with right-wing extremist politicians like Höcke. This would be quicker and easier to handle than banning a party. The evidence situation is simpler with Article 18 of the Basic Law - because you only have to prove the "unconstitutional and subversive actions" of individuals and not of an entire party.
This is also the view of constitutional law expert Gertrude Lübbe-Wolff. "Taking individuals out of the game by depriving them of their eligibility and banning them from political activity in a procedure for the forfeiture of fundamental rights" also makes it clearer than a party ban, in her opinion, "that it is really about protecting the constitution and not about fundamentally excluding political competition".
In principle, the hurdles are high
In principle, however, the hurdles for the withdrawal of fundamental rights remain high. Karlsruhe would have to examine the case independently and could not just refer to the existing constitutional protection reports. This would also include collecting and evaluating new material that confirms Höcke's danger to the free democratic basic order or not.
It is impossible to say for sure what will come out of this. What is clear, however, is that such proceedings could take a very long time, perhaps even years.
*An earlier version of the text incorrectly stated that the Bundestag had to hold a hearing on the petition. However, this only applies if petitions are submitted via the electronic platform of the German Bundestag.
