State party surveillance in order to detect endeavours hostile to the constitution. Appeals for failure to exhaust domestic remedies are inadmissible.
Alternative für Deutschland v. Germany 04.07.2019 (no. 57939/18)
German party surveillance suspected of hostile endeavours against the Constitution. Non-exhaustion of internal remedies.
The case concerned public comments by the Federal Office for the Protection of the Constitution
about its suspicion of endeavours hostile to the constitution by the applicant party. The Court found in particular that Alternative für Deutschland had failed to use domestic remedies and that there had been no special circumstances dispensing it from its obligation to pursue those remedies.
The applicant party, Alternative für Deutschland (AfD), is a German political party that was founded
on 6 February 2013. It has participated in elections to the European Parliament, the Federal
Parliament (Bundestag) and parliaments of the Länder.
The Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz; the
Office) is Germany’s domestic intelligence service responsible for the surveillance of endeavours
hostile to the constitution (verfassungsfeindliche Bestrebungen). In October 2018, in a hearing
before the Federal Parliament, the Office’s president stated that it was actively gathering
information on the AfD in order to enable the authorities to decide whether to put the applicant
party or parts of it under surveillance.
In January 2019 the Office announced that the applicant party’s youth organisation, Junge
Alternative, as well as a sub-structure of the AfD called Der Flügel, were suspected of endeavours
that were hostile to the constitution (Verdachtsfall). In particular, there was sufficient evidence of an
anti-migration and anti-Muslim attitude; their programmes contained positions which clearly
violated human dignity, and members of the sub-structure had ties to extremist groups. At the same
time, the Office stated that there was no such suspicion for the party as a whole, but that the Office
would continue to monitor the AfD at the level of a preliminary suspicion (Prüffall).
In February 2019 the Cologne Administrative Court decided in favour of the applicant party, finding
that there was no basis in domestic law for the Office for the Protection of the Constitution to have
considered the applicant publicly in such a category (Prüffall).
THE DECISION OF THE COURT…
The applicant party argued that the case-law of the highest domestic courts, the Federal
Administrative Court and the Federal Constitutional Court, rendered any remedy at the national
The Court noted that the AfD had cited decisions in which those courts had indeed held that
informing the public of suspicions of endeavours that were hostile to the constitution was in
principle permissible under the Act on the Protection of the Constitution and the Basic Law.
However, these courts had obviously exercised strict scrutiny in assuming that in the circumstances
of one of those cases in particular those conditions had not been met. By failing to use the available
domestic remedies, the AfD had not provided sufficient opportunity for that scrutiny to be exercised
in its case. The Court also noted that the decisions cited by the applicant party had concerned
differently drafted provisions and periods. The AfD had therefore failed to provide case-law related
to the provisions applicable in its case.
Finally, events subsequent to the lodging of the complaint, in particular the Cologne Administrative
Court’s decision of February 2019, were valuable proof of the effectiveness of the applicable
remedies. The Court could not therefore establish that the remedies provided for by the domestic
system had not offered sufficient prospect of success.
The Court was not satisfied that there were no accessible and effective remedies or that there were
special circumstances dispensing the AfD from its obligation to pursue those remedies. Accordingly,
the complaints under Articles 10 and 11 as well as Article 14 in conjunction with Articles 10 and 11
had to be rejected for non-exhaustion of domestic remedies.
As to the complaint under Articles 6 and 13, the Court noted that the AfD had had domestic
remedies available to it and hade made use of them. This complaint therefore had to be rejected as
manifestly ill-founded. echrcaselaw.com.