Legal scholar’s landmark report argues for AfD constitutional ban

The legal director of Germany’s Society for Civil Rights (GFF) has resigned after nearly a decade in the role, concluding his tenure with the publication of a 900-page legal analysis that could alter the national debate over whether the far-right Alternative for Germany (AfD) should face a constitutional ban. Dr. Bijan Moini led the team responsible for the report, which he described as his final project before leaving the organization. The study presents a detailed argument that a ban on the AfD would likely succeed under Germany’s constitutional framework.

The report, developed over months by a cross-disciplinary group, marked a shift for the GFF, which typically engages in strategic litigation rather than producing high-profile policy studies. Moini explained that the AfD’s potential threat to minority rights and democratic institutions justified the effort. The analysis highlighted the party’s repeated violations of constitutional principles, particularly those related to human dignity.

While referencing the 2017 Federal Constitutional Court ruling that blocked a ban on the National Democratic Party (NPD), the Gutachten argued that the AfD’s rhetoric and organizational ties to extremist groups crossed established legal boundaries. However, legal experts like Sophie Schönberger, a second reviewer, raised questions about how the human dignity clause in Germany’s Basic Law might be interpreted in this context.

The Gutachten’s release immediately intensified political calls for a ban. The Green parliamentary faction cited the report in a statement issued the same day, while SPD leader Lars Klingbeil referenced it in a newspaper article. Even CSU interior minister Alexander Dobrindt indicated that his office was reviewing the findings. Despite this political attention, the legal debate remains unresolved. Three months after publication, few senior constitutional scholars have thoroughly examined the report’s arguments, leaving its implications for Germany’s political future largely unaddressed.

Moini noted the reluctance among legal experts to engage with the report. “It’s striking how few leading constitutional lawyers have commented on this,” he observed. “The discussion is still dominated by the same conservative voices that have long opposed any ban.” According to him, the Gutachten’s significance lies not in immediate legal action but in forcing a broader examination of the AfD’s influence within German politics.

Harassment Surge Follows Gutachten’s Release

The publication of the report also brought personal consequences for Moini and his team. Following its release, they faced a surge of online harassment, including racist slurs, threats, and targeted attacks in right-wing media outlets. Moini’s name appeared over 40 times in a single article on Tichys Einblick, a conservative publication with known AfD sympathies.

While most of the abuse was verbal rather than physically threatening, its cumulative effect was deeply unsettling. “If we’re already afraid to speak out while still living in a free country, what does that say about the future?” Moini reflected. For him, the harassment showed the Gutachten’s central argument: the AfD’s ascent represents not only a political threat but a test of Germany’s democratic resilience.

The Gutachen also addressed a practical challenge to a party ban: the lack of clarity regarding what happens if a banned party is already governing. German law does not automatically dissolve a government following a ban, though it would dismantle legislative majorities. In Saxony-Anhalt, where the AfD holds influence, state election laws specify that the Landtag must decide how to handle lost mandates, potentially requiring individual assessments. For Bundestag seats, the loss is automatic, though legal precedent suggests exceptions might apply. The ambiguity stems from the party ban mechanism’s original purpose: preventing extremist groups from gaining power in the first place, rather than addressing scenarios where they have already done so.

Legal Gray Areas in Banning a Governing Party

Moini emphasized that the legal framework was not designed for this situation. “The wording itself suggests it’s a preventive measure,” he said. If the AfD were banned while in government, its collapse could plunge states into constitutional instability, with no uniform rules for resolution. Even if the Bundesverfassungsgericht issued a ban, successor parties could emerge quickly. The Gutachen warned that if former AfD members formed a new group with identical personnel and policies—such as joining Team Freiheit or the Werteunion—it could trigger a §33 Abs. 2 Parteiengesetz procedure, allowing faster legal action. However, if they created an entirely new party, the ban would not automatically extend, requiring separate legal challenges under Vereinsverbots (association bans) rules.

The Gutachten’s team included four members with migration backgrounds, a detail that became a recurring target of criticism after its release. In a post-publication interview, Moini was asked whether this background influenced the report’s findings. He dismissed the suggestion outright, calling it outrageous that some assumed individuals without direct experience of the AfD’s exclusionary policies could approach the analysis with greater objectivity. “If former constitutional judges, who face no threat from the AfD, write on this topic, are they the objective ones?” he asked, framing the question as a test of societal trust in assessing democratic threats.

AfD’s Rhetoric Mirrors Attacks on Researchers

The harassment directed at Moini and his colleagues also highlighted a broader pattern: while they faced personal attacks, the AfD’s own rhetoric had long targeted minorities, educators, and NGOs—the very groups the Gutachten warned the party would undermine if given power. “The abuse we received was nothing compared to what others endure daily,” Moini noted. The report documented how AfD politicians and affiliated groups routinely dehumanized refugees, LGBTQ+ individuals, and people of color in public statements, social media posts, and party-affiliated forums. The team’s research required examining thousands of such examples, which Moini described as overwhelming in volume but necessary to establish a factual foundation for the legal analysis.