Because of his long-standing anti-constitutional activities, a law graduate and functionary of a neo-Nazi party in Bavaria was not allowed to complete his legal clerkship. The BVerwG decided rightly. The verdict still comes too late.
The plaintiff entered the courtroom shortly after 10 a.m. on Thursday in a three-piece suit and with a braided beard. Matthias B. inconspicuously pushed his way through the waiting crowd of spectators in front of the entrance to the large meeting room in the Federal Administrative Court (BVerwG) and took a seat right at the front. With a self-assured movement he threw on his robe – ever the lawyer. After all, he is now the plaintiff himself.
The BVerwG’s ruling, which the court will announce a few hours later in the evening, does not change this. The applicant for a legal preparatory service must also meet minimum requirements with regard to the duty of loyalty to the constitution, even if it is not structured as a civil service position. The Senate has thus rejected B.’s lawsuit.
A long “political vita”
After completing his law studies at the University of Würzburg, B. wanted to complete his legal clerkship in Bavaria. However, the President of the Bamberg Higher Regional Court rejected his application for admission in March 2020 – he was unsuitable due to his long-standing anti-constitutional activities.
B. was a member of the NPD from 2005 to 2012, and at times even served as district chairman. From 2009 he was also part of the core structure of a comradeship that was part of the “Free Network South”. The neo-Nazi network was banned in 2014 – many members, including B., then found their way into the small party “The Third Way”. In the party, which was oriented towards historical National Socialism, B. was a formative figure with a prominent function, according to the Bavarian Office for the Protection of the Constitution. After B. was not admitted to the traineeship, he defended himself against this at the Würzburg Administrative Court (VG). The VG’s ruling described political activity as a “continuous chain of activities aimed against the free, democratic basic order”.
The long path through the instances
B. left no opportunity for legal protection unused against his non-admission to the traineeship. So he tried in vain for urgent legal protection and was also unsuccessful before the Würzburg Administrative Court, the Bavarian Administrative Court and the Federal Constitutional Court. LTO reported on this in detail.
After being rejected, he also applied for legal preparatory service in Thuringia and Saxony. Here too, he sued in vain – until the Saxon Constitutional Court (SächsVerfGH) ruled in favor of the plaintiff and ordered him to be retroactively hired as a trainee in Saxony (decision of November 4th, 2021, ref. Vf. 96-IV-21). He has now passed the second state examination there and has been working as a lawyer ever since. And in Bavaria.
Nevertheless, B. wants to know that he was wrongly rejected in Bavaria back then. The BVerwG allowed the appeal due to the fundamental importance of the case.
“The death penalty. I’ve always been against it.”
The venerable large meeting room of the Federal Administrative Court was well attended this morning. There were a striking number of students and trainee teachers in the audience – some perhaps even former colleagues of Matthias B.
Right at the beginning, the presiding judge Markus Kenntner asked the plaintiff whether he now wanted to distance himself from certain program points of the “The Third Way” party. A little taken aback, he replied that he could think of one thing: “The death penalty.” He has always been against it, but he doesn’t know whether it is still in the party program, after all, he has not been involved in the party in recent years.
The rest of the negotiation was extremely sober and polite in manners. The Chairman emphasized the plethora of serious legal issues to be discussed that day.
Like a particularly tricky study group case
It was initially questionable whether there was a sufficient legal basis for the non-approval. The Bavarian training court based its state law on the law to secure the legal preparatory service. The law regulates admission to the traineeship, but does not provide any substantive requirements for this. However, it refers to federal civil service law. The only thing that provides clarity is Section 7 Paragraph 1 No. 2 of the Civil Service Status Act, according to which only those who “offer the guarantee that they will at all times stand up for the free, democratic basic order in the sense of the Basic Law” may be appointed to a civil service position. From the Senate’s point of view, it was initially questionable whether the state law was even sufficiently defined.
As if that wasn’t enough, the chairman raised the question of whether the state law would itself become civil servant law through its reference to the Civil Service Status Act – the Federal Administrative Court, as the appellate court, is not responsible for reviewing the correct application of state law. Both the plaintiff’s lawyer, lawyer Christina Reinhart from the law firm of Andreas Wölfel, who repeatedly represents scene leaders, and the legal team from the defendant Free State of Bavaria, then had to ask the chairman to repeat his statements again. All those involved in the process agreed that civil service law is very complicated.
For lawyers present in the audience, today’s hearing may have reminded them of solving particularly tricky cases together in their exam learning group.
Minimum level of fiduciary duties for trainees
The Senate was also interested in the question of what constitutional minimum standard should be set for trainee teachers’ duties of loyalty to the state. The plaintiff’s lawyer emphasized that the public law training relationship in which the traineeship is completed in Bavaria should, however, be subject to lower standards than those prescribed for civil servants by the BeamtStG.
The defendant’s representatives emphasized that the constitutional minimum is that trainees do not actively fight the constitution. That’s what you might expect. The general duty of loyalty to the employer also means that trainees who are not civil servants do not have to defend the free-democratic basic order, but are not allowed to fight it under any circumstances. The value decisions of the constitution prohibit “the state from lending its hand to training those who would seek to destroy the constitutional order,” said the representatives from Bavaria. They quoted the lower court with this.
The plaintiff and his lawyer took the position that the SächsVerfGH also took in its much-discussed judgment. Accordingly, the threshold can be found in the Federal Lawyers’ Act (BRAO). According to Section 7 Sentence 1 No. 6 BRAO, admission to the legal profession must be denied to anyone who criminally fights the free-democratic basic order. There should be no stricter rules for access to the traineeship than for access to the legal profession.
Enemies of the Constitution as fully qualified lawyers?
The difficult question remained as to what would result from the fact that aspiring lawyers would first have to acquire the “qualification for judicial office” through their traineeship. At the end of the meeting at midday, the presiding judge Kenntner emphasized once again that these regulatory areas do not fit together and that there is a need for clarification here.
Finally, the question was discussed as to whether activities for a party that was anti-constitutional but had not already been declared unconstitutional could be taken into account when deciding on admission to the traineeship. The plaintiff took the position that political activity for a legal – i.e. not banned – party had led to a “professional ban” here. However, the Senate made it clear that there is a solid line of case law on this issue and that such activities may be taken into account when hiring.
When the plaintiff was presented with a phrase from one of his written statements during the hearing, which stated that he “couldn’t discard his political convictions like a used shirt,” B. quickly replied: Of course he kept his convictions – he only had his Activity changed. But this is not crucial because “we do not live in a state of mind”.
With its ruling, the Federal Administrative Court determined that trainees are also temporarily part of the administration of justice and are therefore not allowed to actively work against the basic values of the constitution.
Now the path through the authorities for B. may be over. The Federal Constitutional Court had already rejected a constitutional complaint from him in 2020.
Roman Fiedler is a research assistant and doctoral student at the University of Leipzig.
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BVerwG rules late on “III.-Way” lawyer: . In: Legal Tribune Online, October 10, 2024, (accessed on: October 11, 2024)
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