Right-wing extremists in Germany's judiciary?

"Rechte Richter" ("Right-Wing Judges"; no English edition so far) is a book published in 2022 by journalist and trained lawyer Joachim Wagner. Its subtitle asks the question: "A danger to the rule of law?"

Wagner is referring to cases like that of Jens Maier, who was a member of Germany's parliament, the Bundestag, for the far-right Alternative for Germany (AfD) party between 2017 and 2021. After his spell in parliament, he wanted to return to his post as a judge in the eastern state of Saxony.

This, however, didn't happen, because Saxony's Justice Minister Katja Meier took the matter to court and was successful: Maier, categorized as a right-wing extremist by Germany's domestic intelligence agency, the Office for the Protection of the Constitution (BfV), was sent into early retirement. The verdict is not yet final, however, because the suspended judge can appeal the decision.

Ban on 'enemies of the constitution' in the judiciary

Nonetheless, the minister is glad about her partial victory in the Jens Maier case.

"Enemies of the constitution will not be tolerated in judicial service. All male and female judges and civil servants have to pledge allegiance to the liberal democratic basic order as stipulated by the German Basic Law and have to advocate its observance at all times," she said.

The expectations of justice professionals also, of course, apply to laypersons and thus to Germany's male and female honorary judges (Ger.: Schöffen). Some 60,000 are required for Germany's approximately 750 criminal courts alone.

The application process for the 2023 election of lay judges is currently underway. The participation of lay judges in judicial proceedings is partly intended as a symbolic guarantee that court rulings are handed down "in the name of the people" — a phrase spoken before every verdict that is announced. 

The easy path to becoming a lay judge

To become a lay judge, a candidate must fulfill only a small number of requirements. He or she must have German citizenship and be between 25 and 69 years of age. The candidate must neither be involved in ongoing criminal proceedings nor have served a prison sentence of more than six months. Legal knowledge is no prerequisite.

Low hurdles like these seem to have an enticing effect on those with antidemocratic views. An example: Via social media, the "Freie Sachsen" ("Free Saxonians"), a small right-wing extremist party, openly call on their supporters to apply as lay judges "in order not to leave the judiciary in the hands of left-wing hobby judges."

The Federal Ministry of Justice takes such appeals very seriously. "Reports on right-wing extremists trying to get access to these posts are very disturbing," said Dr. Angelika Schlunck, state secretary to the Federal Ministry of Justice, during an event organized by the German Association of Lay Judges (DVS) in Berlin.

However, such concerns are nothing new. Already during the last round of applications for lay judges in 2018, the AfD, as well as the right-wing extremist National Democratic Party (NPD) and the xenophobic Pegida (Patriotic Europeans Against the Islamization of the Occident) movement, called on their supporters to apply for the influential honorary posts.

Planned amendment to the German Judiciary Act

To prevent infiltration by right-wing extremists, the Federal Ministry of Justice intends to amend Section 44a of the German Judiciary Act (DRiG). Under current legislation, a person must be barred from holding the office of honorary judge if she or he has "violated the fundamental principles of humanity or of the constitutional state" or served "as a full-time or unofficial member of the Ministry of State Security (Stasi — the secret police: Ed.) of the former German Democratic Republic."

Planned legislation by the Justice Ministry specifies that, in addition, people can be removed from the post of honorary judge who "do not provide guarantees that they will advocate the liberal democratic basic order as stipulated by the German Basic Law at all times."

Lay judge playing in a Nazi band

The Federal Constitutional Court already clarified back in 2008 that the obligation of loyalty to the constitution applies to honorary judges as well . This happened in response to a complaint filed by a lay judge who had been removed from office by the Baden-Württemberg State Labor Court. As a member of right-wing extremist band "Noie Werte," the man had performed in over 200 concerts both in Germany and abroad.

Writer Joachim Wagner believes that making generalizations on the basis of isolated cases is wrong: "I wouldn't go so far as to call this an infiltration." He does, however, warn strongly against underestimating the danger. 

"It is immensely difficult to recognize extremists in advance," he says. This is why he advocates preventative measures.

Lower Saxony as a role model?

According to Wagner, the approach adopted in one of Germany's northern states could be a role model. In Lower Saxony, those who apply for the post of honorary judge have to answer one question: "Would you have objections to inquiries about your person being made at the Office for the Protection of the Constitution?" If all other German states followed that example, it would be a step forward, he said at the DVS event.

Jörg Müller, BfV head in the eastern state of Brandenburg, has been surprised about the low formal hurdles for approval of honorary judges for a long time. "I wonder why we're not consulted when it comes to lay judges as we are with the gun control laws." Since 2020, persons who apply for a gun license have been scrutinized by the BfV with the aim of identifying known extremists early on.

This article was translated from German.

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