“Completely Undemocratic Methods”: Leading Media Lawyer Ralf Höcker on the AfD Ruling

The AfD may nevertheless continue to be listed as what is known as a ‘suspected case within the right-wing extremist spectrum’. At the same time, full proceedings are still pending, meaning the matter has not yet been finally decided. Why are there two separate proceedings?

Stage Victory for the AfD

Statement: On 28 February 2026 the Cologne Administrative Court ruled in summary proceedings that Germany’s Federal Office for the Protection of the Constitution may no longer describe or treat the AfD as ‘confirmed right-wing extremist’. According to the ruling, there is a ‘sufficient degree of certainty’ that tendencies hostile to the constitutional order exist within the AfD. However, in the court’s view they do not shape the party to such an extent that the overall picture would justify a ‘constitutionally hostile basic tendency’.

Höcker: There are main proceedings and, alongside them, interim proceedings. The difference is that the main proceedings take longer and normally involve a more thorough examination. Interim proceedings, by contrast, produce an immediate provisional decision in which courts often make a rough assessment of who is likely to prevail in the main proceedings, or whose interests carry greater weight.

What is unusual in this case is that the court already worked so thoroughly in the interim proceedings – setting out its reasoning across more than 50 pages – that it will hardly be able to decide differently in the forthcoming main proceedings. Unless something entirely new and spectacular happens that could shift the case in another direction.

Statement: What are the real consequences for a party and for its members when such investigations or classifications are made? What damage does the AfD suffer from an ongoing procedure in the middle of the ‘super-election year’ of 2026, when numerous state and local elections are due?

Höcker: The damage for parties that are officially branded as hostile to the constitution is of course enormous. Political competitors, the media and public authorities rely on what is presented as a neutral, objective and expert assessment. That became particularly clear in proceedings concerning firearms licences.

In that area especially, authorities rely almost blindly on the ‘reports’ produced by the domestic intelligence services, and courts rarely question them. Naturally that is a problem when a party is competing for voters, especially in a super-election year. It is also a problem when it comes to recruiting members. And it is certainly a problem when potential members work directly for the state in some capacity.

From a democratic perspective this is problematic as well. When you are constantly portrayed in every evening news broadcast and in every magazine article as allegedly confirmed right-wing extremist, it inevitably affects political competition for votes. The result may be severe reputational damage, declining electoral support, falling party funding and a loss of members. In particular, soldiers, civil servants, judges, sports shooters and hunters may distance themselves if membership of the AfD begins to create professional difficulties.

Statement: What difference does it make whether the party is classified as a ‘suspected case’ or as ‘confirmed right-wing extremist’?

Höcker: In principle there are three categories – in fact four if one also includes the absence of any classification. There is what is known as a preliminary review case, a suspected case and confirmed extremist activity.

The difference lies partly in public perception and partly – above all – in the intelligence tools that may be used. If an organisation is deemed to be confirmed extremist, intelligence surveillance is considered easier to justify.

In order for a party or association to be classified as ‘confirmed right-wing extremist’, the evidence must have become so concentrated that one can say the organisation as a whole meets that definition and that the matter is no longer merely a suspicion. That was the category in which the AfD had been placed and in which it no longer stands. Following the Cologne ruling, that designation may no longer be publicly communicated.

The party has therefore been moved back to the intermediate category of a suspected case. Even in that category certain surveillance measures may be used to investigate the party. The intelligence service will continue to look for possible anti-constitutional tendencies. They have been doing so for years – but not very successfully, as the Cologne Administrative Court has now found.

Statement: Are there clear criteria used by the domestic intelligence service when deciding which category applies?

Höcker: No. Federal legislation does not formally recognise this categorisation, which has long been criticised. The courts therefore try to derive individual criteria. Certain standards have developed in constitutional law that guide such assessments. According to those standards, the AfD is not a ‘confirmed right-wing extremist’ organisation.

Statement: The report intended to prove the party’s alleged status as ‘confirmed right-wing extremist’ had already been criticised when it first appeared, particularly because its quality was widely regarded as poor. There were no secret intelligence findings, only quotations from public statements and screenshots from Facebook. Could such a report ever have withstood serious judicial scrutiny? At the time many observers suspected that the classification by the Interior Ministry – then led by the Social Democratic Party (SPD) – was essentially a political decision.

Höcker: From our perspective we can now say that the suspicion of political motivation has effectively become a confirmed finding. Even Saxony’s interior minister Armin Schuster (CDU) described the report as a ‘politically motivated knee-jerk decision’ by the former coalition government and by the then federal interior minister Nancy Faeser.

We have always argued that the classification was politically motivated. In our view, established parties were trying to sideline a new competitor by portraying it as hostile to the constitution, using the instrument of an intelligence report produced by a state authority.

It must always be emphasised that the domestic intelligence service does not act independently or neutrally. It is subordinate to the Interior Ministry. It therefore did precisely what Ms Faeser demanded and what she released to the public shortly before leaving office.

Statement: Let us remain for a moment with the report presented by Nancy Faeser on her final day in office before the change of government. At the time there were said to have been serious reservations within the ministry itself because the report had allegedly not been adequately reviewed. Critics argued that the outgoing government wanted to push the classification through quickly in order to pave the way for a ban on the AfD before handing the ministry to the incoming government led by the CDU. How did the court assess the report in terms of its overall quality?

Höcker: The court examined not only the report from May 2025 – roughly 1,100 pages with more than 3,230 footnotes – but also, according to its press statement, more than 7,000 pages of correspondence between our firm and the lawyers representing the domestic intelligence service. In addition there were further files amounting to around 1.5 terabytes of data. The authority’s last major submission was filed as recently as 18 February this year.

Yet even all of that was not sufficient for the court to consider the classification of the AfD as ‘confirmed right-wing extremist’ lawful. That is quite a damning verdict on the report.

Remigration as a Controversial Issue

Statement: Let us go through the central allegations against the party. There is first the so-called ‘ethnic concept of the people’. According to the authorities, the AfD promotes an understanding of the nation based not on citizenship but on ethnic origin, meaning ancestry. Critics argue that this would contradict the guarantee of human dignity in Article 1 of Germany’s Basic Law because citizens with a migration background would be treated as ‘second-class Germans’.

Second, there is the accusation of ‘inhumane and xenophobic agitation’ and a supposed high density of racist or anti-immigrant statements by senior party officials, particularly directed against Muslims and migrants.

Third comes the concept of ‘remigration’, meaning the claim that the AfD intends to deport even naturalised migrants.

Finally there is the allegation of ‘delegitimising the state’, according to which the party allegedly seeks to undermine the constitutional order, state institutions and democratic processes, along with a supposed radicalisation of the party as a whole.

Höcker: One can summarise the judgment as a severe setback for the domestic intelligence service. The Cologne Administrative Court examined all these accusations and rejected them – every single one. They simply do not shape the party as a whole.

On the issues of the concept of the people and remigration in particular, the court held that both unconstitutional and constitutionally permissible interpretations may exist. Germany’s constitution itself uses the term Volksdeutsche. The court therefore limited itself to the finding that the party as a whole cannot be characterised as right-wing extremist and did not examine each individual category in detail, because taken together they were not convincing.

Some of the accusations also fall into categories that were newly invented. The concept of ‘delegitimising the state’, in the broad interpretation now used by the intelligence service, did not previously exist. One has to say clearly that these are newly created categories that may primarily serve to discredit certain AfD positions.

In the knowledge that the traditional categories were insufficient, new and lower-threshold extremism categories were introduced. Yet even those did not hold up. The court examined in detail the material the intelligence service had assembled – and none of it proved convincing.

Statement: Some quotations from AfD members could nevertheless be considered unconstitutional.

Höcker: That will have to be examined individually. But it is clear that individual statements cannot define the overall character of a party in such a way that the entire organisation is declared hostile to the constitution.

In a party with tens of thousands of members, there will always be eccentric individuals. That is true of every party. If that were sufficient, any party could be banned. Our firm even produced a report examining statements made by members of the Christian Democratic Union. If the same criteria used by the intelligence service against the AfD were applied to other parties, they would quickly find themselves under similar scrutiny.

That alone shows that different standards have been applied. Some are labelled unconstitutional while others are not. That is obviously absurd.

Statement: So the principle of ‘in dubio pro reo’ does not apply?

Höcker: That principle comes from criminal law. But the underlying idea can certainly be applied to democracy. If a party cannot clearly be shown to be unconstitutional as a whole, then a democratic system must assume that it is not. Fortunately, the court’s decision now confirms precisely that.

Statement: In many federal states the AfD continues to be monitored by regional intelligence services. Germany has domestic intelligence authorities at state level as well. In Thuringia, Saxony, Saxony-Anhalt, Brandenburg and, since February 2026, Lower Saxony, the regional AfD organisations are classified as ‘confirmed right-wing extremist’. Two questions: are you handling those cases as well, and does the current ruling affect those proceedings or classifications?

Höcker: At present we are handling the case in Lower Saxony. Since it is ongoing, I cannot comment further.

Exclusion on Numerous Levels

Statement: The debate about banning the AfD is one aspect. But even today the strongest opposition party is being hindered in political participation at many levels. There are also other initiatives – beyond those of the federal intelligence service – aimed at restricting the AfD’s political role through legal means. Critics suspect that such measures are intended to anticipate a ban that would probably fail in court.

For example, the AfD has not been granted any committee chairmanships in the Bundestag, nor the position of deputy president of the Bundestag, which is usually allocated to parliamentary parties.

In Ludwigshafen, an AfD candidate for mayor was prevented from standing for election on the grounds of alleged extremist views. How do you assess such developments?

Höcker: It is quite obvious that the much-discussed ‘firewall’, the political ostracism of the AfD, forms part of a strategy pursued by the other parties. Some of them openly admit as much.

In a democracy, however, all this must be judged against the principle of equality. Political parties may not be treated unequally, and individuals cannot be denied access to public office in an undemocratic manner, especially on the basis of an alleged confirmed extremism that in fact does not exist.

These are additional legal battlegrounds on which the conflict continues and where discrimination occurs. We may well see further legal disputes in these areas.

Statement: Courts in North Rhine-Westphalia have already had to intervene when authorities attempted to revoke firearms licences from AfD members because of their party affiliation.

In Rhineland-Palatinate, the state government wants to deny AfD members access to public service. Applicants for jobs in the public sector – police, judiciary, schools or administration – must declare in writing that they do not belong to an extremist organisation, with the AfD listed as such. Is this still democracy, or already its erosion?

Höcker: In my view these are completely undemocratic methods that no longer have anything to do with the rule of law. I consider them unconstitutional and expect that this will eventually be recognised. I assume there will be further court cases brought by individuals, by regional AfD branches or by the party as a whole to end this unequal treatment.

Statement: Finally, a prediction. Will there ever be a formal attempt to ban the AfD in Germany? Or will the authorities refrain because they fear it would fail?

Höcker: That would be the sensible course. After this decision by the Cologne Administrative Court, a ban has become legally even less plausible than before. The threshold for banning a political party is considerably higher than that for classifying it as ‘confirmed right-wing extremist’. In my view such proceedings would have no chance of success.

The intelligence service, the federal government, the Bundestag and the Bundesrat would therefore be well advised to devote their resources to other matters rather than searching for things that simply are not there.

Instead of initiating pointless, unlawful and anti-democratic proceedings, parties should deal with the AfD in the same way they deal with any other party: by engaging in substantive debate and by trying to persuade voters that their own programmes – whether from the CDU, SPD, FDP, Greens, The Left or anyone else – are the better option. The AfD does the same. Ultimately, voters should decide.

Statement: That is a fitting closing remark. Thank you for the interview.