Lawyer Accuses Head of Domestic Secret Service of Official Offense: Upholding Freedom of Expression at Risk

Lawyer Peter Schindler has accused the head of the domestic secret service of an official offence. He’s not alone in that. Which is why nothing happens.

You have accused the President of the Federal Office for the Protection of the Constitution, Thomas Haldenwang, of encroaching on the fundamental right to freedom of expression. Have you already filed a complaint?

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Peter Schindler: No, I haven’t filed a complaint, although I thought about it. Instead, I decided to publish an article. Nor am I an activist who now wants to wage a private war against public institutions.

I am concerned with preserving democracy and what is left of it. I think we are not far from what a 2014 Princeton study found for the USA: the USA is no longer a democracy because political decisions no longer serve the wishes of the citizens but the interests of a small business elite.

Coercion is to be classified as an official offense under Section 240 of the Criminal Code. Shouldn’t the courts take action if there is an initial suspicion of criminal coercion in office?

So I think it is rather unlikely that no public prosecutor in the whole of Germany would come up with the idea that the head of the domestic secret service could have acted criminally.

I do not know whether a public prosecutor’s office has initiated preliminary proceedings against Thomas Haldenwang. But I think it’s very unlikely. Public prosecutors in Germany are not free from instructions, but subject to instructions, i.e. the officials of the public prosecutor’s office have to follow the official instructions of their superiors.

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The prosecution is part of the executive branch, so here they would have to start a case against themselves. I hardly believe that a public prosecutor today would want to make himself an object of observation for the protection of the constitution under this enormous state and media pressure with an investigation.

Just think of the two ministerial officials in the Federal Ministry of Economics, who – about what Telepolis reported – were blackened last year by the authorities’ management at the Office for the Protection of the Constitution because they represented a different professional opinion than the new line of the house.

The problem is not only Haldenwang’s statement, but also the concept of a “delegitimization of the state relevant to the protection of the constitution”.

Peter Schindler: A government that fears criticism in a democracy and responds to this criticism with prophylactic framing, stigmatization and the threat of intelligence measures betrays democracy and the rule of law.

The so-called Brokdorf decision of the Federal Constitutional Court contains some very important references to the constitutive importance of freedom of expression for democracy. Among other things, it states

that in a democracy the formation of will must proceed from the people to the state organs and not vice versa; The citizen’s right to participate in the formation of political will is expressed not only in voting in elections, but also in influencing the ongoing process of political opinion-forming, which in a democratic state is free, open, unregulated and fundamentally “state-free”. must.

The Interior Ministry and the Office for the Protection of the Constitution confuse criticism of the government with criticism of the principles of democracy and the rule of law in the concept of “delegitimization of the state relevant to the protection of the Constitution”.

Frau Faeser…

… also Bundesinnenministerin Nancy Faeser (SPD) …

Peter Schindler: … warned early on about radical protests because of high energy prices. I personally ask myself whether future radicalism is being talked about here in order to be able to prevent – possibly massive – criticism of energy prices by the state as “extremist”.

The executive thus further narrows the space for discourse. This can also be seen, among other things, from the fact that the dissatisfaction with current politics articulated in the current opinion polls has nothing to do with poor government work from the point of view of the politicians concerned, but with the fact that the citizens are turning to extremist parties. Politics makes it easy on itself, too easy.

The German state wants to risk less democracy

Now you are not alone in your criticism of the protection of the constitution, but share it with Ronen Steinke, lawyer and editor of the Süddeutsche Zeitung. Why doesn’t the judiciary succeed in putting a stop to the domestic secret service?

Peter Schindler: The judiciary can only act if there are concrete facts. The problem lies elsewhere, or as the saying goes: “The fish stinks from the head on.”

Against this background, the website of the BfV states: “The Federal Ministry of the Interior and Homeland (BMI) exercises official and technical supervision of the Federal Office for the Protection of the Constitution.”

And how the state-citizen relationship is now seen in this SPD-led ministry can be seen from the fact that criticism of government and administrative action is quickly pushed into an anti-constitutional corner.

One believes that one no longer has to deal objectively with the criticism. We’re talking about a state relationship of superiority and subordination, the opposite of what Willy Brandt once said in 1969: “We want to risk more democracy.”

As long as there is no one in the German Bundestag who loudly brings this contrary development into the debates, I do not see any positive development.

It is not enough to demand a committee of inquiry for Chancellor Scholz because of his alleged involvement in the Cum-Ex affair, as an opposition tactic, but an opposition would have to present a counter-proposal to the current policy that follows Brandt’s logic. But that doesn’t happen.

The Federal Office for the Protection of the Constitution justifies the observation on the basis of state legitimacy with the protests against the Corona measures. It says there that at that time “publicly expressed opinions or actions went beyond a (…) legitimate protest”. Who defines that?

Peter Schindler: Here I would like to quote Prof. Murswiek again, there is no better way to put it:

It is the constitutional right of the opposition – parliamentary and extra-parliamentary – to criticize everything the government does – whether that criticism is justified or not. Whether it is justified or not is not decided by the Office for the Protection of the Constitution, but by everyone, especially at the ballot box.”

When the Office for the Protection of the Constitution speaks of “agitation” instead of criticism, it is taking sides with the government. Everyone has the right to voice harsh criticism of the government. Criticism is the lifeblood of democracy. The Office for the Protection of the Constitution is not entitled to denigrate them as “agitation”. “Constant” criticism is not only allowed, it is actually expected from the democratic opposition. A democratic discourse can only develop with thesis and antithesis, criticism and counter-criticism.

So what to do?

Peter Schindler: On the part of the state, the public prosecutor’s offices would have to be removed from being bound by instructions. The ECJ decided in 2019 that the German public prosecutor’s office may no longer issue European arrest warrants because they are bound by instructions. The same applies to their enforcement since 2020. According to the ECJ, the German public prosecutors lack the necessary independence because they are subject to the directives of the justice ministries in individual cases.

And looking at ‘us’ at the citizens: Anyone who notices this anti-democratic development and is not satisfied with it can express themselves on the internet, in family, among friends, acquaintances and colleagues and things can be said clearly call by name. Staying in a comfort zone and believing that things will be fine or that others will fix it is harmful.

The more people articulate their dissatisfaction, the more likely this will lead to a rethink among those responsible for politics. In my view, voting for political and extremist fringes, such as the AfD, is not a solution at all. Such an election, which is intended as a protest, quickly becomes a boomerang that – see Höcke & Co. – would very quickly make life in this country look even more anti-democratic.

No, in my hometown of Cologne, since 1992, since the protests against right-wing violence, people have been saying: “Arsch huh, Zäng ussenander.” This applies to every anti-democratic development.