The AfD's election victory in Saxony-Anhalt has reignited an old debate: Should the justice ministries' right to give political instructions to public prosecutors be abolished? The German Association of Judges warns against political abuse of criminal prosecution. The AfD itself is currently calling for abolition and wants to do exactly the opposite when in power. – A comment from Reiner Matzinke.

The success of the AfD in the state elections in Saxony-Anhalt has reignited the discussion about the independence of the judiciary. With 43.8 percent of the vote, the AfD became the strongest force in the Magdeburg state parliament and is only three seats away from an absolute majority. This brings a previously theoretical scenario within reach: a party that is classified by the security authorities as “certainly right-wing extremist” could for the first time hold leading positions in the interior and justice ministries of a German federal state.

The Association of Judges warns against political abuse

In view of this development, the German Association of Judges (DRB) has reiterated its call for the abolition of the ministerial right to issue instructions to public prosecutors. “There must be no legal gateways for political abuse of criminal prosecution in Germany,” warned DRB Federal Managing Director Sven Rebehnalready months ago. The mere “evil appearance” that a justice minister could direct investigations “shakes people’s trust in the rule of law and in the work of the criminal justice system.”

In Germany, public prosecutors are subject to the authority of the respective federal and state ministries of justice. Theoretically, a minister can order or prevent specific investigations. In practice, this right has rarely been used, but the power creates scope for political influence. As Rebehn emphasized, the influence “doesn’t even have to be expressed in concrete terms”: all that is needed is an atmosphere in which prosecutors fear that their chances of advancement depend on the political desirability of their decisions.

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The EU Commission has repeatedly called on the federal government to redefine its powers. In the coalition agreement of the failed traffic light government, it had already agreed to “adjust” the ministerial right to issue instructions on a case-by-case basis, but nothing had happened.

The AfD: Demand abolition, plan use

The attitude of the AfD itself is particularly explosive. In the past, the party has called for the abolition of the right to issue instructions - a step that contradicts its own plans. If the AfD comes to power, it wants to use the public prosecutor's office precisely for political purposes.

During the election campaign for Saxony-Anhalt, top candidate Ulrich Siegmund announced a “remigration and deportation offensive” and promised to take action against refugees from day one. The AfD plans to use criminal prosecution as an instrument of political debate - against migrants, against critical voices but primarily against their political enemies. There are numerous points in their election program that aim to appropriate state institutions for their own agenda.

The AfD and its network

Against this background, the fact that the AfD is calling for the abolition of the right to issue instructions is not an expression of constitutional conviction, but rather a tactic. As long as the party is not in power, it wants to end the political leadership's control over the judiciary. As soon as it governs itself, the judiciary should be made submissive.

The warning from the Minister of Justice

Federal Justice Minister Hubig has also taken a position in this tense situation. She called on civil servants in Saxony-Anhalt to resist illegal instructions from a possible AfD-led state government. This is their duty.

In fact, however, the constitutional hurdles for illegal instructions are high. Prosecutors are bound by law and justice. They may not follow an instruction that violates the constitution or applicable law. But in practice there is a lot of scope: Where does political control end and where does unlawful influence begin? Is there a difference in this case? And is it worth confronting political forces and destroying your own career? In principle you should be against it, but is it worth risking everything for this particular case?

A realistic scenario and its consequences

If the AfD actually assumes government responsibility in Saxony-Anhalt, the right to issue instructions could become a central area of ​​conflict. An AfD justice minister could try to stop investigations against fascists or advance cases against political enemies. Whether civil servants resist would then be primarily a question of the individual case and personal courage.

Hubig's call is therefore more than a symbolic gesture. It is an attempt to mark a boundary of bourgeois rule before it is crossed. But the debate shows a fundamental problem: the right to give political instructions exists and the judiciary is vulnerable to political influence. The AfD has recognized this and is using it for its own purposes.

But it should not be forgotten that the German state is already actively dismantling our basic democratic rights. Interior Minister Dobrindt from the Union is calling for an upgrade“real secret services”, theFreedom of the press in Germanyis acutely threatened and more and more areas of our lives should from now onbe monitored- all of this without AfD participation and in times when the numbers of right-wing violencecontinually increase.

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The fact that high-ranking state officials are resisting possible AfD instructions could actually force the fascist party to adopt more moderate policies. At the same time, it is important not to have any illusions - the German state is already taking tougher action against its political enemies, and our basic democratic rights are already being more severely restricted. To take action against this, we primarily need pressure from below, a lot of protest and the building of a movement that advocates for an anti-fascist and just future.

The postPolitical authority under pressure: How the AfD is making the judiciary sweatappeared firstperspective.