German judiciary and the far-right

A judge was among the 25 suspects arrested in an early morning raid last week for planning to overthrow the government in a far-right coup. Birgit Malsack-Winkemann, a former member of the federal parliament, the Bundestag, for the far-right populist Alternative for Germany (AfD) had allegedly been earmarked as justice minister in the new government.

During her time as a lawmaker, she spoke out against immigration and labeled refugees as "disease-importing migrants" in her Bundestag speeches. Still, after failing to be re-elected in 2021, Malsack-Winkemann was able to return to her job as a civil judge in the chamber responsible for building matters in Berlin.

Berlin city government Justice Minister Lena Kreck (Left Party) wanted to force her into retirement over her misogynist statements about refugees.

But the upper administrative court ruled in favor of the judge and found that while some of her statements made in parliament may have been extreme and incendiary, her statements on social media, for example, did not show "in quantity or quality" that the 58-year-old former MP would be affected by a political bias making her unfit to work in the judiciary.

"It is not so easy to subject a judge to disciplinary measures or even remove them from the service. The purpose of this is to ensure that the government or politics, in general, do not influence the judiciary," law professor Marion Albers from the University of Hamburg told DW.

Speeches in parliament are protected by the Basic Law under Article 46, which states that they may not be used as evidence in court to prosecute a lawmaker. The only exception are defamatory personal insults.

Tip of the iceberg

But Malsack-Winkemann is not the first member of the judiciary whose far-right leanings seem to have collided with her work in the German justice system. Thomas Seitz, an AfD lawmaker and his party's parliamentary spokesman for legal affairs, is a former prosecutor from the southwestern state of Baden-Württemberg.

On his Facebook account, Seitz had published racist statements, in response to which his home state dismissed him from the judicial service arguing that his comments gave grounds to doubt his loyalty to the constitution. A court followed the justice ministry's reasoning that the terms and images Seitz had used violated the duty of political moderation, neutrality, impartiality, and loyalty to the constitution which is mandatory for civil servants.

Earlier this month, Jens Maier, a judge from the eastern state of Saxony who joined the AfD in 2013 and belongs to the extreme-right wing of the party was sent into early retirement. Like Malsack-Winkemann, he too was an MP in the Bundestag between 2017 and 2021 and wanted to return to work as a judge after losing his seat.

The ruling to push through his earlier retirement recurred to a number of speeches he had given at rallies prior to him becoming an MP, as well as social media posts that cast doubt over his neutrality.

He called Germany's remembrance of the Holocaust and Nazi dictatorship "a cult of guilt" and expressed appreciation for Nazi party policies. On Twitter, he wrote that if suspects feared "AfD judges," then "we have done everything right." Saxony's domestic intelligence has Maier on a list of extremists.

Freedom of speech and freedom of opinion are enshrined in Germany's post-war constitution, the Basic Law. Just like any other citizen, judges have their freedom of opinion, they can be a member of a party, they can publicly make political statements — as long as these do not suggest the person does not subscribe to the basic values and beliefs enshrined in the constitution.

However, judges must not let their political beliefs interfere with their work. A judge must apply the law without bias and may not allow his or her political convictions to lead them to bend the law.

"From my point of view, cases such as those of Birgit Malsack-Winkemann and Jens Maier are just the tip of the iceberg,"  justice expert Andreas Fischer-Lescano from the University of Kassel told DW. "The problem of right-wing extremists in public service is not just one that applies to police and the military, but it affects all areas of public service, including teachers and judges."

Due to Germany's federalized system, procedures to hire, check and dismiss members of the judiciary vary from state to state. Since 2016, for example, the southern state of Bavaria has been screening candidates for the judiciary. The state of Brandenburg also now wants to check all applicants for all civil service professions, including teachers or judges to see whether they have taken part in anti-constitutional protests, whether they have displayed anti-constitutional symbols or incited hatred, or committed violent acts against the state authorities.

Screening civil servants

But a return to tougher screening isn't the way forward, said Fischer-Lescano.

In 1950, the government of West Germany's first chancellor, Konrad Adenauer, issued a decree ordering that opponents of the "free democratic basic order" be dismissed from the civil service. The so-called Adenauer decree was directed primarily against left-wing and communist organizations and reflected the radical anti-communist purges of the McCarthy era in the United States.

In 1972, at the time of the far-left terrorist movement RAF in Germany, the government of Willy Brandt introduced the "Radikalenenlass" (anti-radical decree). This mandated checking civil servants and applicants and employees of the civil service for their loyalty to the constitution.

Some 3.5 million civil servants and applicants were checked until the decree was abolished in the 1980s for being excessive and disproportionate. Around 1,250 teachers, postal workers, or train drivers were not hired and 260 were dismissed. Most of them for far-left activism.

"Everyone who entered the public service was under a general suspicion of extremism, with equal effect on far-left and far-right," recalled Fischer-Lescano. He rejects suggestions for new, far-reaching snooping , or restrictions on freedom of expression."I don't think a return to this kind of procedure would be helpful. What we need instead is better means to apply the existing laws to defend democracy," he says.

German Interior Minister Nancy Faeser has proposed simplifying the procedure to remove a judge from office. Fischer-Lescano agrees: "This wouldn't mean abolishing legal recourse, just speeding up the process."

Law professor Albers also sees another problem with screening applicants to the civil service: "There can often be a long gap between the time when people are hired, and when problems arise."

"People are usually hired in their early 30s. But if you look at Maier and Malsack-Winkemann they had reached their late 50s, and early 60s when they turned out to be radical right-wingers. So if they become radicalized while holding office, you have to ask yourself: Is it really the recruitment criteria that need to be changed?”

Germany's judiciary has a history of problematic connections with the far-right. High-ranking former Nazi party members held on to positions of power in the judiciary of post-war West Germany.

A government report released in 2016 revealed that more than half of the leadership of the first post-war West German justice ministry were former members of the NSDAP, including dozens of former paramilitary SA members.

Now, more than seven decades since the founding of former West Germany, raids on far-right extremists, suspected of plotting to overthrow the German government have again prompted questions about far-right extremists in modern-day Germany's judiciary.

Edited by Rina Goldenberg

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