Constitutional Protection Report

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In Germany and Austria, reports for the protection of the constitution serve to inform and educate about anti-constitutional efforts by the issuing authorities.

Germany

Constitutional protection reports are published annually by the interior ministries of the federal and state governments in cooperation with the respective offices for the protection of the constitution . They are part of the public relations work of the federal government or the respective state government.

Federal Constitutional Protection Report

The best-known report for the protection of the constitution, which is valid for the whole of Germany, is published by the Federal Ministry of the Interior (BMI). The Federal Office for the Protection of the Constitution (BfV) creates the rough version, which is then finalized by the Federal Ministry of the Interior. The legal basis for the publication of reports on the protection of the constitution by the Federal Ministry of the Interior is § 16 of the Federal Constitutional Protection Act (BVerfSchG) of December 20, 1990 in the version of June 21, 2005. According to this, the public should be informed "at least once a year in a comprehensive report" about "efforts and activities according to § 3 para. 1 “BVerfSchG. Such efforts and activities are according to the legal definition ( § 3 Abs. 1 BVerfSchG):

  1. Efforts which are directed against the free democratic basic order, the existence or the security of the federal government or a state or which aim to unlawfully impair the performance of the constitutional organs of the federal government or a state or their members,
  2. security-endangering or secret service activities within the scope of this Act for a foreign power,
  3. Efforts within the scope of this Act that endanger foreign interests of the Federal Republic of Germany through the use of force or preparatory actions aimed at it,
  4. Efforts within the scope of this law that are directed against the idea of ​​international understanding ( Art. 9 Para. 2 GG), in particular against the peaceful coexistence of peoples ( Art. 26 Para. 1 GG).

The publication of reports on the protection of the constitution is based on the concept of "protection of the constitution through enlightenment", which was largely co - developed by Hans Joachim Schwagerl . According to their self-image, the reports on the protection of the constitution should make a contribution to the “intellectual and political debate about the various forms of extremism ”.

The reports on the protection of the constitution are divided into right and left-wing extremist efforts (since the Kohl government marked with a brown or red bar on the side), security-endangering and extremist efforts by foreigners (green colored bar on the side), espionage and the work of foreign intelligence services in the Federal Republic , as well as Scientology . The report also lists the legal basis for the work of the Federal Office for the Protection of the Constitution (BfV) and the Military Counter-Intelligence Service (MAD). The reports also contain the note that they do not contain “a conclusive list of all” anti-constitutional groups or objects of observation of the BfV.

historical development

The publication of reports on the protection of the constitution did not belong to the instruments of " arguable democracy " from the beginning , but represents a development that only began in the 1960s. Interior Secretary Ritter von Lex and BfV President Hubert Schrübbers had at the Interior Ministers' Conference on 27./28. May 1960 in Kiel took the view that the constitutional protection authorities could not take on the task of educating the population about anti-constitutional efforts. Instead, the Federal Ministry of the Interior took on the relevant task itself and in April 1962 published a paper on “Experiences from observing and defending against right-wing extremist and anti-Semitic tendencies in 1961”. It was the first forerunner of today's reports on the protection of the constitution. According to Hans-Helmuth Knütter , who had advised the Federal Ministry of the Interior for a long time, the reason for the publication were press reports on allegedly 70,000 right-wing radical youths in the Federal Republic, through which the federal government "improved the German reputation Abroad ”and therefore countered with the statement that there were no more than 2,300 right-wing radical youths at the time (Knütter / Winckler, Der Verfassungsschutz, 2000, p. 40). In 1965 a corresponding publication on “Communist Activities in the Federal Republic in 1964” followed.

In 1969, the public relations department of the Federal Ministry of the Interior first published an “experience report on the observations made by the offices for the protection of the Constitution in 1968” to, as the preface says, “to enable citizens to make a well-founded judgment for themselves about the extent to which the existence and the free democratic basic order of our state are threatened by these efforts. The reporting is to be understood neither as a political argument with these forces nor as a constitutional appraisal of them. "The report in the form of a small pocket book of 152 pages was divided into three main chapters" Right-wing extremist efforts "," Communist and other left-wing extremist efforts "and" Counterintelligence in the FRG in 1968 ”. The first main chapter was mainly devoted to the NPD , the second to the banned KPD and its successor party, the DKP . The national newspaper by Gerhard Frey , the SEW as the West Berlin branch of the SED and the KPD / ML were also mentioned . Under the section “Activities of other left-wing extremist groups”, the Socialist German Student Union (SDS) was dealt with along with four associations that cooperate with it (the Republican Club Berlin , Republican Aid , Socialist Association and Action Center for Independent and Socialist Students ). A separate chapter "Foreign extremism" did not yet exist. However, in the section “Right-wing groups outside the NPD”, reports on right-wing extremist Croatian exiles were among other things. Furthermore, a sub-chapter “Communist Influence Among Foreign Workers” was added to the report. Islamists didn't play a role at that time. This first comprehensive report on the protection of the constitution was followed by further reports every year, initially with the title “Subject: Protection of the Constitution”, and later officially as the “Verfassungsschutz Report”.

At the state level, Hesse took on a pioneering role with the establishment of a unit for the education of the population in the Hessian Ministry of the Interior in 1968/69, which from 1973 was called “Unit for informative protection of the constitution”. In North Rhine-Westphalia , on the other hand, state constitution protection reports have only been published since 1977. For a long time there was no legal authorization for the publication of reports on the protection of the constitution, which was only incorporated into the constitutional protection laws of the federal and state governments quite late.

With the decision on the constitutional complaint of the newspaper “ Junge Freiheit ” against its mention in the constitutional protection report of the state of North Rhine-Westphalia, the Federal Constitutional Court set stricter criteria for public reporting to the constitutional protection authorities and interior ministries. A mere preliminary suspicion or vague clues will no longer be sufficient for naming associations and publications in reports on the protection of the constitution. The Freiburg constitutional lawyer Dietrich Murswiek came to the conclusion in an investigation presented in December 2009 that the reports on the protection of the constitution had been unconstitutional since the JF judgment. As a justification, Murswiek refers to the fact that in the reports on the protection of the constitution of the federal and state governments (with the exception of Berlin and Brandenburg) either no or not sufficiently clear distinction is made between suspected cases and cases of proven hostility towards the constitution. Murswiek concludes that almost all of the countries, without exception, have learned nothing from the Karlsruhe decision, which had called for a clear distinction.

(Constitutional) legal problems of the constitution protection reports

For the first time, the Federal Constitutional Court took a position in the so-called “extremist decision” of May 22, 1975 on the practice of constitution protection reports. The Federal Constitutional Court considered the publication of reports for the protection of the constitution to be constitutional and unproblematic, also with regard to political parties and the blocking effect resulting from Article 21, Paragraph 2 of the Basic Law (prohibition monopoly of the Federal Constitutional Court), the legal measures of the state against an "anti-constitutional" party before a ban by the BVerfG excludes:

“The fact that the decision on the unconstitutionality of a political party, reserved for the Federal Constitutional Court, has not yet been passed does not prevent the conviction that this party is pursuing anti-constitutional goals and must therefore be fought politically. A party that, for example, programmatically propagates the dictatorship of the proletariat or affirms the means of violence to overthrow the constitutional order, if the circumstances should allow it, pursues anti-constitutional goals, even if those entitled to apply under § 43 BVerfGG prefer not to initiate the party prohibition procedure, because the political debate with it is sufficient or can protect the free democratic order in the sense of the Basic Law more effectively than a formal party ban. Therefore it is constitutionally unobjectionable and required of the government's political responsibility that it submit its annual report on the development of anti-constitutional forces, groups and parties to parliament and the public. In so far as this results in factual disadvantages for a party (when gaining members or supporters), it is not protected by Art. 21 GG. The same applies to factual adverse effects that result indirectly from the restrictions set out in Article 33 (5) of the Basic Law for access to civil service and for remaining in civil service. "

The Federal Constitutional Court confirmed this view in the decision of October 29, 1975. The NPD had sued against its mention in the Federal Constitutional Protection Report 1973. The second Senate of the Federal Constitutional Court stated:

“The report 'Verfassungsschutz' 73 'published as part of the public relations work of the Federal Ministry of the Interior does not represent an administrative' intervention 'against the NPD, nor does the publication of this report make the NPD legally unconstitutional. The statements in the report objected to by the applicant that the NPD is `` a party with unconstitutional objectives and activities '', is `` right-wing extremist, right-wing extremist, an enemy of freedom and a threat to the fundamental order of freedom '', are rather value judgments that the Federal Minister of the Interior, in fulfillment of his constitutional duty to protect the free democratic basic order, and, within the framework of his resulting responsibility for the observation of anti-constitutional groups and activities. There are no legal consequences associated with these value judgments. Insofar as this results in factual disadvantages for a party, it is not protected by Art. 21 GG. "

The Federal Constitutional Court only saw the prohibition of arbitrariness as the limit for reporting:

"According to this, the government would be forbidden from publicly suspecting a political party that is not banned with persistently unconstitutional objectives and activities if this measure would no longer be sensible with a reasonable appreciation of the thoughts that dominate the GG and therefore the conclusion that it was based on irrelevant considerations . "

State Office for the Protection of the Constitution

The state offices for the protection of the constitution also issue annual reports for the protection of the constitution, which illuminate the work of the authority in the relevant federal state and name and assess the existing (and known) dangers. The constitution protection reports are freely accessible on the website.

Availability of reports

The Open Knowledge Foundation Deutschland eV accepts published reports in PDF format as well as collects, scans and archives the previous book editions of the federal and state governments and makes them searchable and available for download at verfassungsschutzberichte.de. The offices for the protection of the constitution are published on their website. In earlier years only book editions that could be ordered were available and older reports published online are usually depublished after some time, which is why Open Knowledge Foundation Germany eV took over the archiving.

Decisions of the Federal Constitutional Court

The Federal Constitutional Court has so far issued three decisions on the report on the protection of the constitution:

  • BVerfG, decision of May 22, 1975, Az. 2 BvL 13/73, BVerfGE 39, 334 : extremist decision
  • BVerfG, decision of October 29, 1975, Az. 2 BvE 1/75, BVerfGE 40, 287 : Decision to mention the NPD in the report for the protection of the constitution
  • BVerfG, decision of May 24, 2005, Az. 1 BvR 1072/01, BVerfGE 113, 63 : Junge Freiheit

Austria

The Federal Office for the Protection of the Constitution and the Fight against Terrorism is the publisher of the Austrian Constitutional Protection Reports .

Switzerland

The Federal Intelligence Service (FIS) publishes the annual report on Security in Switzerland .

literature

  • Christoph Gusy : The constitution protection report . In: New Journal for Administrative Law (NVwZ) 1986, p. 6ff
  • Christiane Hubo: Protection of the Constitution of the State through intellectual-political debate - A contribution to the action of the state against the law , Diss. Verwaltungshochule Speyer, Cuvillier Verlag, Göttingen 1998
  • Hans-Helmuth Knütter, Stefan Winckler (ed.): The protection of the constitution. In search of the lost enemy . Universitas, Munich 2000 (p. 39ff)
  • Lars Oliver Michaelis: Political parties under the observation of the Office for the Protection of the Constitution - The arguable democracy between tolerance and preparedness for defense , Univ.-Diss. Hagen 1999, Nomos Verlagsgesellschaft, Baden-Baden 2000 (series on political parties, vol. 26) (esp.p. 38ff, 116ff, 181ff)
  • Dietrich Murswiek : State warnings, evaluations, criticism as encroachments on fundamental rights - For economic and opinion control through state information action . In: Deutsches Verwaltungsblatt 1997, pp. 1021-1030
  • Dietrich Murswiek: The constitution protection report - the sharp sword of militant democracy. On the problem of suspicion reporting . In: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2004, pp. 769–778
  • Dietrich Murswiek: Expressions of opinion as evidence of an anti-constitutional objective. On the legal requirements and practice of the constitution protection reports . In: Stefan Brink, Heinrich Amadeus Wolff (Ed.): Common good and responsibility . Festschrift for Hans Herbert von Arnim on his 65th birthday, Duncker & Humblot, Berlin 2004, pp. 481–503
  • Dietrich Murswiek: New standards for the protection of the constitution report - consequences of the JF decision of the BVerfG . In: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2/2006, pp. 121–128
  • Dietrich Murswiek: The protection of the constitution report - functions and legal requirements . In: Janbernd Oebbecke, Bodo Pieroth (ed.): Islam and the protection of the constitution (Islam and law, vol. 6), Frankfurt a. M. 2007
  • Klaus Riekenbrauk: The constitutional enemy provision in the published reports on the protection of the constitution of the federal and state governments - a contribution to the protection of the constitution of a new kind , Univ. Dissertation Münster 1986
  • Hans Joachim Schwagerl: Protection of the Constitution in the Federal Republic of Germany , CF Müller Juristischer Verlag, Heidelberg 1985 (p. 232ff)
  • Jürgen Seifert : Freedom of Association and Statutory Declarations of Disrepute . In: Joachim Perels (Ed.): Basic rights as a foundation of democracy , Suhrkamp, ​​Frankfurt a. M. 1979, pp. 157-181
  • Jürgen Seifert: It has increasingly become a partisan instrument, comparing reports on the protection of the constitution from the federal and state levels . In: Frankfurter Rundschau , August 28, 1981
  • Reinhard Scholzen : Guardian of the constitution or floppy hats? The work of the Federal Office for the Protection of the Constitution in the field of tension between increasing tasks and decreasing resources . In: Die Polizei, 3, 2002, pp. 70–75.
  • Reinhard Scholzen : Anti-Western hatred in the name of the prophet. Islamism and Islamist terrorism as reflected in the reports on the protection of the constitution . In: Global campaign against terrorism. A challenge for the German-American partnership, publisher: German Society for Defense Technology. Berlin 2002, pp. 18-27.

Web links

Individual evidence

  1. ↑ Schwagerl, Protection of the Constitution in the Federal Republic, 1985, p. 242.
  2. ↑ Constitutional protection reports are unconstitutional . In: FAZ , December 10, 2009
  3. ↑ a b c BVerfG, decision of May 22, 1975, Az. 2 BvL 13/73, BVerfGE 39, 334 , 360 - extremist decision .
  4. ↑ BVerfG, decision of October 29, 1975, Az. 2 BvE 1/75, BVerfGE 40, 287.
  5. ^ Open Knowledge Foundation Germany eV Verfassungsschutzberichte.de . Retrieved July 19, 2020.
  6. ↑ Publications: reports on the protection of the constitution on the website of the Federal Ministry of the Interior , accessed on June 30, 2018.
  7. ^ Jörg Breithut: Research help: Network activist starts archive for reports on the protection of the constitution. In: Spiegel Online . 2nd November 2019 .;