Berlin lawsuit failed
Former AfD MPs can remain judges
10/13/2022, 4:08 p.m
The Berlin Senate Department for Justice fails with its plan to retire the former AfD member of the Bundestag Malsack-Winkemann as a judge. The administrative court based its judgment on the Basic Law.
The Berlin Senate is not allowed to retire the judge and former AfD member of the Bundestag Birgit Malsack-Winkemann. The administrative court of the capital rejected a corresponding application by the Senate Department for Justice. The 58-year-old is a member of the AfD and sat for the party in the Bundestag from 2017 to 2021. After retiring from parliament, she returned to the Berlin judicial service as a civil judge at the district court.
From this she wanted to retire the Senate administration “in the interest of the administration of justice”. The administration justified this with exclusionary statements by former MPs in parliamentary debates and on social media about refugees.
No impairment of case law found
According to the Judges Act, however, a transfer is only possible “to avert a serious impairment of the administration of justice”. This is not the case here, said the presiding judge Jens Tegtmeier. A transfer is only possible if the case law of the judge concerned no longer appears credible. According to Tegtmeier, the service court “could not determine this”.
The three members of the court came to the conclusion that Malsack-Winkemann’s speeches in Parliament may not be legally used. Article 46 of the Basic Law, according to which MPs may not be prosecuted or held responsible for their statements in the Bundestag, prevents this.
Her social media posts, including on Corona, the US election and refugees, are not sufficient to prove her right-wing extremist sentiments that could justify a transfer. In addition, the AfD membership of the 68-year-old is not enough for a transfer. An appeal against the decision can be submitted to the service court, which is located at the higher administrative court.