by K. Mader - March 2024

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Part 2:

Consideration of the Federal Republic of Germany with regard to the separation of powers

Separation of powers and the rule of law today

As a thesis, one can attest to the Federal Republic of Germany's lack of separation of powers: The existing in the FRG Interlocking powers is in line with the principles and objectives of the Montesquieu This does not do justice to the doctrine of state organisation described above; indeed, it is disregarded. However, a distinct and practically effective separation of state powers is the basis and a prerequisite for a functioning and long-lasting constitutional state.

All too often, the fact that the "Interlocking of powers" and close co-operation between the powers of the state is described in specialist literature as a characteristic of a modern constitutional state or functioning checks and balances. A distinction must be made between the often-mentioned interlocking of powers, which usually only describes the interaction, such as the fact that the federal or state government may submit draft laws to the responsible parliament for discussion and voting, usually in consultation with parliamentary groups.

There is also the Interdependence of state powers. The interweaving of powers is a close connection that thwarts the idea of the separation of powers. In the literature on the subject, it is sometimes argued that an overly consistent separation of state powers could hinder processes, making it inappropriate or even outdated or unfeasible in modern states.

Strictly speaking, this justifies a delicate state of affairs or even describes the rejection of the principle of separation of powers for our modern states in a coded way.
The frequent glossing over or justification of an alarming state of affairs, especially with regard to the judiciary, is striking. In many cases, reference is made to the vertical and Horizontal separation of powers pointed out. The "vertical separation of powers" represents the separation between the federal and state levels in the federal state.

The Basic Law

In the German Basic Law (Basic Law, GG), the powers of the state at the federal level are described in several articles, and the separation of the powers of the state from one another is not an explicit requirement of the Basic Law.

In particular, Article 20(1) enshrines federalism, as the Federal Republic is a federal state, and Article 28(1) of the Basic Law declares that the constitutional order in the [federal] states must comply with the principles of the [...] constitutional state within the meaning of the Basic Law, which is reflected in the state constitutions. This is to be accompanied by the "vertical separation of powers".

Article 20(2) and (3) states that "all state authority shall emanate from the people" and names the three branches of government as well as their obligation to law and justice. However, the nature of the separation and independence of these state powers from one another is not explicitly described. Article 92 of the Basic Law names the judges as the holders of judicial power, and Article 97 guarantees the independence of the judges.

However, it is premature, even negligent, to conclude from these written words that the separation of state powers will be realised in reality.

The state of the judiciary in the FRG

In the reality of the Federal Republic of Germany, criticising the status quo seems to be seen as sacrilege. This became clear in 2013, for example, when in a public hearing in the German Bundestag a draft law of the Left Party (DIE LINKE) on the creation of the independence of the judiciary was discussed: "Draft law to establish the institutional independence of the judiciary" and, in connection with this, a necessary amendment to the Basic Law, "Draft ... law to amend the Basic Law - establishing the institutional independence of the judiciary". The absolute majority of those invited to the hearing Experts saw no need for reform, judged the initiative to be unnecessary or even fraught with dangers and risks. (https://www.bundestag.de/webarchiv/textarchiv/2013/44141576_kw17_pa_recht_justiz-211924)

Although the Left Party's concern is certainly understandable, it was rejected in the parliamentary decision-making process.

Not only the Left Party, but later also the Alternative for Germany (Alternative für Deutschland, AfD) have made several statements outlining what they see as clear deficiencies in the separation of powers in the Federal Republic of Germany. For example, in a press release dated 20 February 2023, the parliamentary managing director and legal advisor of the AfD parliamentary group criticised the following Stephan Brandnerthat Election procedure for the Federal Constitutional Court judges. According to Brandner's proposal, a panel of judges could separate the legislative from the judiciary in line with the separation of powers. (https://afdbundestag.de/stephan-brandner-richterwahl-fuer-das-bundesverfassungsgericht-reformieren/) In a press release from May 2019, Brandner also criticised the lack of independence of German public prosecutors' offices, on which his party had introduced initiatives in the Thuringian state parliament and the Bundestag. (https://afdbundestag.de/brandner-gewaltenteilung-umsetzen-weisungsgebundenheit-der-staatsanwaltschaften-abschaffen/ , viewed on 3 March 2024)

The Alternative for Germany is not alone in this. The situation of the public prosecutor's office in the Federal Republic of Germany is a difficult case to analyse. European Court of JusticeECJ, a judgement worthy of note. The leader of the AfD party, Alice Weidel, has also made clear comments on deficiencies in the separation of powers in speeches and interviews, for example in a summer TV interview on ZDF in August 2022.

It is striking that in Germany, only representatives of parties that are permanently in opposition in the Bundestag make statements on the separation of powers and the rule of law, point out shortcomings in this regard and take initiatives. People or organisations that are professionally and politically established in the current system do not seem to want to shake things up. This is understandable for personal reasons: If you have successfully climbed a career ladder in a system according to its rules, you want to avoid changes to the system, as this career ladder could possibly disappear as a result.

If, over the course of several generations, responsible individuals or institutions have come to terms with a system throughout the entire structure of the state, however flawed it may be from certain points of view, it must be regarded as extremely entrenched. The will to reform has no opportunity to develop.

Only the Left Party parliamentary group in the Bundestag spoke out in favour of its above-mentioned bill in the recommendation of the Legal Affairs Committee, dated 26 June 2013. The BÜNDNIS 90/DIE GRÜNEN (Green Party) parliamentary group abstained. The other three parliamentary groups rejected the Left Party's bill. The Alternative for Germany (AfD) did not yet have a parliamentary group in the Bundestag in 2013. The Left Party's request is not unjustified in principle. Numerous experts, including lawyers, are in favour of a clear or fundamental independence of the German judiciary from the executive. However, this was not sufficiently emphasised by the experts invited to the hearing in the Bundestag. This can be explained to some extent by the rules for inviting experts to such parliamentary hearings and the reluctance of those invited to appear or speak uninhibitedly on certain topics.

In the Federal Republic of Germany, the professional careers of judges essentially depend on the judgement of the ministry or minister. Judges are aware that their behaviour and working methods must be adapted to the liking of the government, a minister and possibly even certain party lines if they do not want to risk a break in their career.
This allows the government to influence the promotion or appointment of judges according to its own standards. This means that the courts cannot be assumed to be independent. In detail, the federal states have different compositions of the committees for the election of judges. In some federal states, the Ministry of Justice is involved. The composition of the committees for the election of judges is not regulated in the Basic Law. The federal states themselves decide on this, usually with the involvement of members of parliament and members of the government.

A detailed explanation of the appointment, promotion and dismissal of judges in Germany can be found in the 'Scientific Service of the Bundestag', "Appointment, term of office and promotion of judges and public prosecutors". On the legal situation in Germany with regard to ordinary jurisdiction File no: WD 7 - 3000 - 043/22; completion of the work: 31 May 2022
(https://www.bundestag.de/resource/blob/902980/fa44b4a2bd35820f5a087513c2bc7207/WD-7-043-22-pdf-data.pdf).

This elaboration states the following with regard to the appointment of federal judges: "Pursuant to Article 95 (2) of the Basic Law, the appointment of judges to the supreme federal courts is decided by the federal minister responsible for the respective subject area together with a committee for the selection of judges. The Committee for the Election of Judges consists of the ministers of the Länder responsible for the respective subject area and an equal number of members elected by the Bundestag for the respective legislative period ..."

Court presidents also supervise their court as ministerial officials bound by instructions and thus sit between the chairs of the executive and the judiciary. Serious critical statements on the state of the judiciary and the lack of independence were made in the first years after the founding of the FRG, without this having any consequences for further developments. (https://www.gewaltenteilung.de/gewaltenteilung-in-deutschland-die-steckengebliebene-reform/).

Personal union: the link between the legislative and executive branches - parliamentarians as part of the government

"However, legislative bodies must not fulfil an executive function in any way; they must not become tyrannical. If enforcement were taken over by those who make the laws, there would be no more freedom."

• Charles-Louis de Montesquieu, "De l'Esprit des Lois"

*

Cross-power dual or even multiple functions are no exception in the Federal Republic of Germany. If you take a look at the governments in the FRG, you will find that a dual function is more the norm: A large number of Minister is currently (and was) also a member of the Bundestag.

Parliamentary state secretaries even have to be members of the Bundestag. Similar conditions apply in the federal states. This means that these Government members of the largest or most influential party groups in the coalition in the Legislature on. According to political theory, the legislature is primarily responsible for exercising control over the government in addition to participating in legislation.

But these Members of Parliament in dual function As a rule, this is of course the opposite of government control. Instead, they support "their" government from within parliament and cooperate with ministries. The "hand-in-hand working" between ministries or the government cabinet and government parliamentary groups is part of everyday business. But is this situation also legitimate in terms of the separation of powers and the rule of law?

This becomes clear in the creation and parliamentary treatment of draft laws, which are obviously introduced by the government and parliamentary coalition in agreement and joint co-operation. The Opposition has no de facto opportunity to exert any significant influence; its criticism goes largely unheard in the parliamentary process. Only in the further course of the procedure, after the vote in the Bundestag, does an often factually critical statement appear from the Bundesrat (Federal Council), insofar as its consent is required.

As members of the government are also members of parliament and of the influential coalition groups, they exert influence on the parliamentarians of the relevant coalition groups - and therefore on parliament as a whole due to the majority ratios - or work together with the coalition groups. These "Government deputies" are also entitled to vote in parliament, which illustrates the undermining of the separation of legislative and executive powers. Participation in government and voting rights in the government cabinet (EXECUTIVE) as well as in parliament (LEGISLATIVE) is not in the least compatible with the separation of powers.

It can occasionally be observed how ministers move from the government bench to their parliamentary seats in the plenary chamber. Where is the separation of state powers required for a constitutional state? The same applies to the Federal Chancellor: apparently nobody finds it disturbing when the former Chancellor, Angela Merkel (CDU, Christian Democratic Union), was part of the CDU/CSU parliamentary group in the Bundestag or is now Chancellor Olaf Scholz (SPD, Social Democratic Party of Germany) as the head of the executive is also a member of the SPD parliamentary group and can advocate for the government's concerns or agenda at parliamentary group meetings and is also authorised to vote in the legislature. As already mentioned, the parliamentary state secretaries a connecting roller.

With the personal interdependence between government (executive) and parliament (legislative), we find the opposite of the separation of powers. Montesquieu is being thrown overboard.
Even if the members of the government do not always make full use of these options and rights, these avenues are open to them, and when it comes down to it, the government votes in parliament.

With all of the above in mind, it should be borne in mind that often the Minister of Justice at the same time Members of Parliament This is not unusual for the Federal Republic of Germany. This means that the interweaving of powers in relation to the judiciary is complete. In the 19th parliamentary term of the Bundestag, 2017 to 2021, for example, there was one Minister of Justice at federal level, Christine Lambrecht, and two Parliamentary State Secretaries in the Ministry of Justice (Christian Lange and Rita Hagl-Kehl), all three of whom were also SPD members of the Bundestag at the time.

The Parliamentary State Secretaries (officially: "Parliamentary State Secretary to the Federal Minister", in short: ParlSt) are often the subject of public disputes. In fact, they are to be regarded as non-voting members of the government; constitutionally and formally, however, they are not. They even have to be members of the Bundestag at the same time, with the exception of the Parliamentary State Secretaries in the Chancellery and the ParlSt to the Foreign Minister, both of whom may bear the title of Minister of State.

While the main issue today is the large number of ParlSt and the associated costs (in April 2022 there were 38 - German Bundestag - Current number of Parliamentary State Secretaries: https://www.bundestag.de/presse/hib/kurzmeldungen-890468), their office in the 1950s was a cause of public controversy in principle. Over the decades, the perception of the ParlSt shifted towards a purely material or monetary view.

The Parliamentary State Secretaries' main tasks also include representing or supporting the relevant minister in Bundestag committees or the parliamentary group's working groups. This means that the questionable function of liaising between the powers of the state is part of their job. The "Act on the Legal Relationships of Parliamentary State Secretaries (ParlStG)" regulates the details of this official relationship.

In the 20th legislative period, since 2021, the situation is similar to the 19th period. The Federal Minister of Justice, Dr Marco Buschmann (FDP), is also a member of the Bundestag. This means that this minister once again forms a link across all three branches of government: he is authorised to vote in the government cabinet as well as in the Bundestag and is also head of the Federal Ministry of Justice (BMJ). This gives him far-reaching powers in the judicial system. However, he "only" has one Parliamentary State Secretary (Benjamin Strasser, FDP). It is noticeable, however, that the "Traffic light coalition" - SPD, FDP, Greens - the total number of Parliamentary State Secretaries has recently increased significantly.

The function of Parliamentary State Secretaries represents an organised, additional undermining of the separation of powers, not only in the area of justice, but in all departments. From the point of view of the ministers concerned, their support and assistance function is understandable as desirable. However, measured against the standards of the rule of law, this position with its tasks and powers must at least be viewed critically and even rejected outright.

Analogue structures largely continue in the federal states. The regulations on parliamentary state secretaries are different and inconsistent in the German federal states. There is no difference in the practice that members of parliament can be members of the government at the same time. This raises the question of the meaning and effectiveness of the vertical separation of powers. Such a total linking of state powers or state organs, which according to theory should be separate, cannot be justified on the basis of practical requirements; there is not even the slightest hint of separation and independence here.

With regard to the three (traditional) branches of government, the fact that the members of governments - at state or federal level - are not only frequently also members of parliament, but often also have a special role to play within their own organisations, is a further complicating factor. Party one Leadership role or top positions and also have close ties across the federal and state levels through party memberships and connections via international network organisations, instead of a so-called vertical separation of powers.

It can have significant consequences if ministers or chancellors, as members of the parliamentary group, also have the authority to issue directives or guidelines within a large party, for example as members of the executive committee or other party committees, and from there influence two or even all state authorities with their party agenda, at both federal and state level.
The demand to maintain a separation of (party) office and parliamentary mandate is not unjustified. However, not even the Green Party, which in its first few years issued this as a bold slogan and objective, has stuck to it in the long term; the earlier declarations have fizzled out in the reality of political parties in the Federal Republic.

Other special features of the Federal Republic of Germany

The justice system as a whole must be considered separately in two complexes: The Case law (judiciary) by the courts or the judges working there - i.e. the Judicial power - and on the other hand the Public prosecutor's office. The main tasks of the public prosecutor's office include prosecution, investigation, indictment, monitoring the legality of the execution of sentences and co-operation with other law enforcement authorities - including internationally. It is obvious that objectivity and neutrality are important.

The public prosecutor's office in the Federal Republic of Germany is in any case a case worth examining in detail. However, this will only be done here to the extent necessary.
The European Court of Justice (ECJ) has ruled that German public prosecutors are not independent enough from the executive and are therefore no longer allowed to issue European arrest warrants. According to the ECJ ruling, one of the requirements for the execution of a European arrest warrant is that it is issued by an independent "judicial authority". This is not the case for German public prosecutors, as it cannot be ruled out that a European arrest warrant may be issued in individual cases on the instructions of the justice minister of the respective federal state. German public prosecutors are therefore not independent of the executive. In Germany, the Public Prosecutor General heads the public prosecutor's office. He in turn reports to the respective Minister of Justice of the federal state and is therefore not considered independent. The executive is authorised to issue instructions to him. (Deutsche Welle: "ECJ: German public prosecutors not independent27 May 2019") The ECJ has thus certified the dependence of this part of the judiciary on the executive.

There is also an academic debate about the extent to which the public prosecutor's office in Germany is subordinate to the ministries of the interior or (also) to the ministry of justice.

In addition, the Committee on Legal Affairs and Human Rights of the Council of EuropeIn 2009, under the chairmanship of Sabine Leutheusser-Schnarrenberger, it issued a comprehensive report calling on Germany, alongside the Russian Federation, the United Kingdom and France, to implement comprehensive reforms in the justice system. Among other things, an introductory summary of the report states that the committee demands "in Germany, the establishment of "judicial councils", as exist in most other European countries, so that judges and public prosecutors have a greater say in the application of the justice system and the exclusion of the possibility for justice ministers to issue instructions to the prosecution authorities in individual cases." Point 4.2.3. states: "in both countries, the independence of prosecutors is significantly less developed than in the UK; a clear regression in practice has recently been deplored by senior prosecutors and elected representatives of judges and prosecutors in France". (Original, English: "in both countries, the independence of prosecutors is considerably less developed than in the United Kingdom; a marked regression in practice has recently been deplored by senior prosecutors and elected representatives of judges and prosecutors in France„)

The following recommendation is summarised for Germany under point 5.4. and the associated sub-points - English-speaking Original:

The Assembly calls on Germany to:
5.4.1. consider setting up a system of judicial self-administration, taking into account the federal structure of the German judiciary, along the lines of the judicial councils existing in the vast majority of European states, as a matter of securing the independence of the judiciary in future;
5.4.2. gradually increase the salaries of judges and prosecutors and to increase the resources available for legal aid (as recommended for France in paragraphs 5.3.2. and 5.3.3. above);
5.4.3. abolish the possibility for ministers of justice to give the prosecution instructions concerning individual cases;
5.4.4. strengthen in law and practice the supervision by judges of the exercise of the prosecutors' increased powers, in particular in the fight against terrorism

Translation of (with apologies if this appears a second time in the English version):
The Assembly calls on Germany to,
5.4.1. to consider the establishment of judicial self-administration, taking into account the federal structure of the German judiciary, modelled on the judicial councils that exist in the vast majority of European countries, in order to safeguard the independence of the judiciary in the future;
5.4.2. gradually raise the salaries of judges and public prosecutors and increase the funds available for legal aid (as recommended for France in points 5.3.2. and 5.3.3.);
5.4.3. abolish the possibility for the Minister of Justice to issue instructions to the public prosecutor's office for individual cases;
5.4.4. to strengthen judicial supervision of the exercise of the public prosecutor's extended powers, particularly in the fight against terrorism, both in law and in practice. (Report: Document 11993, 7 August 2009: https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=12276&lang=en; https://www.gewaltenteilung.de/europarat-pressemitteilung/)

If the Federal Republic were to become a candidate for EU membership today, the situation of the judiciary would certainly be an obstacle and the FRG a questionable candidate for accession. Since Germany was one of the founding members of the EEC, EC and thus the EU, this was never an issue. The current demands for reform are being tacitly ignored. They found no resonance in this country and went under with the few press reports at the time.

It is remarkable how, in view of the situation here, other countries, such as Poland or Hungary, are accused of making the judiciary dependent and jeopardising the rule of law because of their judicial reforms. In the Federal Republic of Germany, the first step should be to work on Rule of law in one's own country or to establish them at all before pointing the finger at other countries.

The horizontal and vertical separation of powers in the FRG

The traditional separation of powers into the legislative, executive and judicial branches of government is Horizontal separation of powers refers to. In a federally organised state such as the Federal Republic of Germany, these should be found at federal level as well as in the federal states.

The Vertical separation of powers describes the division between the federal and state levels in the federal state, in the Federal Republic of Germany between the federal level and the federal states. This type of state structure is intended to balance the powers across the federal levels. However, this could only work if these levels also had a certain degree of separation and independence from each other and there were no major "bracketing effects" between the federal and state institutions.

The Federal Council

The Federal Council As a second chamber of parliament at federal level, it assumes the parliamentary representation of the federal states. Some Western states have a second parliament (a second chamber) or a bicameral parliament. In the Federal Republic of Germany, however, the Bundesrat, as the second chamber of parliament and federal legislative body, is not directly elected by the citizens. Instead, the Bundesrat is made up of members of the governments of the federal states, usually the minister presidents and other government representatives of the federal states. The federal states each delegate three to six members to the Bundesrat, depending on their size.

Provided that Opposition groups have a political "foot in the door" at federal level (in the Bundestag) through government participation in one or more federal states, they may be able to influence legislative decisions at federal level via the Bundesrat. The consent of the Bundesrat is required for new federal laws that require approval. However, the Bundesrat itself can also submit draft federal laws to the Bundestag.

The extent to which the Federal Council consolidates the vertical separation of powers and actually fulfils an intermediary role between the federal and state levels cannot be described with certainty in a nutshell. It is highly likely that there is a consensus that without the Bundesrat, the deficiencies in the separation of powers described above would be more serious. However, here too, the parties form the link between the powers and the political federal and state levels. Party interests and party silos weaken a political system based on the separation of powers unless they are stopped.

The Federal Constitutional Court

The Federal Constitutional Court (BVerfG) of the Federal Republic of Germany plays a special role in the attention it receives from politicians and the media and has an essential function. It is comparable to the constitutional courts of other countries, but has a particularly high status. As a rule, decisions of the constitutional courts or constitutional tribunals in most countries are only of a recommendatory nature. In the Federal Republic of Germany, the decisions of the Constitutional Court are legally binding.

The German Federal Constitutional Court is divided into two chambers of 8 members each. Half of its 16 members, the federal constitutional judges, are appointed by the Bundestag and half by the Bundesrat through nomination and election. After the election, the elected members are sworn in as constitutional judges by the Federal President. However, the right to nominate candidates is reserved for the parliamentary groups, with the parliamentary groups of the so-called people's parties, SPD and CDU/CSU, traditionally taking turns to nominate candidates. With a certain regularity, however, they cede the right of nomination to the Alliance Greens (B90/The Greens) and the FDP. As a rule, the SPD occasionally leaves a proposal to the Greens and the CDU/CSU to the FDP.

As can be seen from this, the right to nominate candidates goes to the two current Opposition parties, THE LEFT and AfDover. (How this will develop in the future with the newly emerging parties, Sahra Wagenknecht Alliance and the ValuesUnion Party remains to be seen. An opposition that is growing in numbers and importance cannot continue to be suppressed in this way).
Their candidates would not have a chance of being elected anyway, which is safe to say with the required two-thirds majority.

It is not possible to apply as a candidate yourself, which means that parliamentary groups or parties - certain parties - are solely responsible for selecting candidates. It is therefore entirely up to the leading, established party factions in the Bundestag - and thus indirectly to the party headquarters of some parties or party-affiliated representatives in the Bundesrat - to determine the highest judges of the Federal Republic.

As you can see from this one example Party affiliation and party-affiliated localisation play a significant role in the Election of constitutional judges and thus the composition of the supreme court as a whole. And not only that: it is also questionable from the point of view of the traditional separation of powers if the legislature appoints important members of a key area of the judiciary without at least having an external right of nomination or the opportunity to freely apply to become a constitutional judge.

In addition, the Federal Constitutional Court is supposed to scrutinise the executive as well as the legislature. However, if the legislature, in conjunction with the executive, itself appoints or elects the constitutional judges who control it and these judges were often previously members of parliament themselves, this control can be characterised as weak. A questionable connection of interests or a contradiction to the claim of separation of organs and persons is obvious here.

It is also tricky when the Bundesrat, as a legislative body made up of representatives of the executive (the federal states), elects the other half of the constitutional judges and the influence of the same parties comes to bear as they have majorities in the Bundestag as well as in the state parliaments and form the governments.

In any case, this way of selecting judges for the highest court calls into question the principles of the rule of law. This is not to say that this control of the legislature and executive by the Federal Constitutional Court is excluded, but it must be regarded as insufficiently established due to the system, and there is a risk of alignment with party and government lines as well as government objectives.

In recent years, there has even been increasing criticism that the BVerfG is encroaching on the legislature, i.e. in the opposite way, as one must fear from the above description. Professor Dr Dr h.c. Dietmar Willoweit: "Today, it is obvious to defend the independence of the legislative power against presumptions of jurisdiction. It has gained so much ground at the expense of parliament that doubts must arise as to the constitutional admissibility of judicial practice." And Willoweit continues: "There is no need for individual evidence here to recall such well-known phenomena as the invention of new fundamental rights by the BVerfG or the instructions of this court for legislation that conforms to the constitution." (JuristenZeitung, 17th year, 6 May 2016, p. 431).
It is open to speculation to what extent these assaults or presumptions only appear as such on the surface but are possibly based on agreement or arrangements in the background. In any case, this phenomenon is highly questionable.

The Office for the Protection of the Constitution - VS

Another special feature of the FRG: the offices for Defence of the constitution (Verfassungsschutz, VS for short). In addition to the Military Counterintelligence Service (MAD) and the Federal Intelligence Service (BND) is the VS with its network from the Federal Office for the Protection of the Constitution (BfV) and the State Offices for the Protection of the Constitution (LfV) one of the secret services of the Federal Republic of Germany. Both the state offices for the protection of the constitution and the Federal Office for the Protection of the Constitution are managed by President of the Federal Office for the Protection of the Constitution.

The President of the Federal Office for the Protection of the Constitution is nominated by the Federal Minister of the Interior in consultation with the Federal Cabinet, i.e. the Federal Government, and subsequently appointed by the Federal President. The BfV President is appointed for an indefinite period of time. He can only be dismissed by the Federal President at the request of the Federal Government or at the suggestion of the Federal Minister of the Interior. The President of the BfV therefore reports directly to the Federal Government.

The situation is similar in most federal states with the presidents of the state offices for the protection of the constitution. Here, a new president is proposed for the respective LfV in consultation between the government cabinet and the interior minister, i.e. after consultation within the state government. In some federal states, the president of the Office for the Protection of the Constitution is elected by the state parliament. One difference to the federal level is that the new President of the Office for the Protection of the Constitution is appointed by the Interior Minister of the federal state itself. Given the key and high-profile role of this secret service, its influence and its often criticised and mostly non-transparent way of working, this direct appointment by the state parliament is not a good idea. connection as well as the dependence of the Office for the Protection of the Constitution on the executive to view.

The German public was made aware of the inadequacy of this election procedure for the President of the Federal Office for the Protection of the Constitution in 2018 through the influence of then Chancellor Angela Merkel. Merkel used her influence to prevent the candidate Armin Schuster, who was already considered a certainty due to previous agreements between the Federal Minister of the Interior, Horst Seehofer, and some leading members of parliament. Schuster was apparently unpopular with Merkel because he had criticised her immigration and refugee policy in the past. As a result, Thomas Haldenwang (CDU) was appointed as the current President of the Office for the Protection of the Constitution. Haldenwang attracts attention from the outset because he makes it clear in words and deeds that he is fighting right-wing opposition on a massive scale. He openly declares war on certain opposition groups and acts accordingly in an offensive and high-profile manner.

Since its inception, the Office for the Protection of the Constitution has been accompanied by scandals. Abuse of the influence of the offices for the protection of the constitution against the opposition or certain media or individuals is also a frequent accusation and has been proven in some cases.

One of the working methods of the VS is to infiltrate so-called "V-men", today usually referred to as "V-people". V-man stands for "confidant". V-men are undercover investigators who are often recruited as liaisons and often belong to the organisation being investigated or spied on or the associated environment or are infiltrated there in a planned manner. However, their task is not only to investigate and spy, i.e. to obtain information, but also to actively engage in criminal activities in order to remain undetected, maintain trust and even exert far-reaching influence on events and people.
This became public in the well-known case of the failed NPD ban proceedings from 2001 to 2003 (NPD - National Democratic Party of Germany). The Federal Constitutional Court rejected the application to ban the party because the extensive activities of the VS within the party made it impossible to distinguish which actions and statements were actually the activity of the NPD itself and which were due to the activities of infiltrated Verfassungsschutz V people. This means that through years of activity, apparently even decades, the VS has significantly influenced and shaped the party itself in a way that fundamentally moulded its character and nature, which means that it is or was to a large extent a product of the VS rather than undergoing an independent development.
It is impossible to understand how this party would have looked and developed without the work of the VS. It is reasonable to assume that the NPD would have been a different party without the VS.

This is just one example of many that, when measured against constitutional standards, must give rise to serious doubts about the meaning and purpose and, above all, the working methods of this German domestic intelligence service or intelligence network. And it is therefore particularly difficult when government politicians and indirectly party functionaries are able to influence such an organisation and there is a serious lack of transparency.

The Office for the Protection of the Constitution (VS) was founded in 1950 on the initiative of the three Allied High Commissioners of the occupying powers in the Western occupation zone and the still young Federal Republic of Germany.
Doubts about the purpose, working methods and methods as well as possible misuse of the VS come from various sides, from different political camps or parties.

The Office for the Protection of the Constitution is increasingly confronted with the accusation that it is protecting the major parties but not the constitutional order in the country. It is also accused of acting unilaterally, Government protection and means of Fighting the opposition is explained. The extent to which these evaluations and assessments are justified needs to be analysed in detail. In any case, it is highly questionable that the Office for the Protection of the Constitution, both at state and federal level, reports to the respective government and that the responsible government can appoint the President of the Office for the Protection of the Constitution. It is no secret that governments or interior ministers (in the case of Berlin, the interior senator) have sometimes issued direct instructions to offices for the protection of the constitution. Such cases have been publicised. Such a large and influential domestic intelligence service must not be firmly linked to the executive in this way. This also means that the parties close to the government have influence.

Critics of the VS and its actions include constitutional lawyers, representatives of some parties and also the left-wing lawyer and civil rights activist Rolf Gösser, who was observed by the VS for 38 years due to "contact guilt". A final judgement by the Administrative Court of Cologne in 2011 found that the long-term surveillance of Gösser by the VS was unlawful.
This judgement was confirmed in 2018 by the Higher Administrative Court of North Rhine-Westphalia in Münster. Such cases are not isolated instances. Rolf Gösser himself compares the Office for the Protection of the Constitution and its methods with the state security of the GDR (Staatssicherheit, StaSi).

Political parties

As there was no parliamentarianism and no political parties as we know them today in Montesquieu's time, political parties and their factions in parliaments could naturally not be taken into account in his theories. The reality of state and social structures has developed towards more complexity and thus deviates in part from the ideals and assumptions of Locke and Montesquieu. If we want to theoretically discuss the current situation of the rule of law and state structure, measured against today's realities, we cannot avoid considering other forces in addition to the three state powers described by Montesquieu. These forces must be considered as additional factors in the overall structure of state and international mechanisms of action. Parties are one such factor.

In modern states, political parties form a link between the powers of the state. They are often ascribed the role of a further force or power with a critical finger pointing, as their representatives fulfil tasks or exert influence in all areas of state structures and strongly influence the opinion-forming of the electorate, alongside the leading media.

In recent years, the role and the various opportunities for parties to exert influence have been increasingly criticised in Germany.
The well-connected members or leaders of parties - mainly the larger, established parties - are represented in parliaments, governments, councils (e.g. broadcasting councils of the public media institutions), administrations and have connections to other influential organisations and multipliers (lobby organisations, associations, federations, political non-parliamentary groups and others). The sphere of influence of parties or certain important party members extends into the economy or media, or they are networked with increasingly influential, internationally active non-governmental organisations (NGOs).

In many countries, especially in Germany, party affiliation or at least a good connection to certain parties is also decisive for appointment to certain judicial positions or a successful career as a judge, as explained above. As far as public prosecutors are concerned, the situation is similar in the FRG. Especially in the Federal Republic of Germany, the position and influence of the parties cannot be overestimated. In 'Konrad Duden: Richterwahl und parteipolitische Einflussnahme - Vergleichende Anregungen zum Schutz der Unabhängigkeit des Bundesverfassungsgerichts und der obersten Bundesgerichte' (German), the author makes an international comparison between the situations in different countries and possible dangers of the influence of strong parties (Konrad Duden, 'Richterwahl und parteipolitische Einflussnahme. Comparative suggestions for the protection of the independence of the Federal Constitutional Court and the supreme federal courts'; ISSN 0033-7250 - © 2020 Mohr Siebeck. - here online to find.

Last but not least, party proportionality and parliamentary group strength have an impact on numerous committees. These include parliamentary committees. These are filled according to the size of the party parliamentary groups, which means that the larger parliamentary groups, which generally form the governing coalition and are therefore naturally close to the government, also have a preponderance in parliamentary committees. This marginalises the influence of the opposition groups, which have fewer votes, in such committees that are important for the parliamentary, legislative role, as is also the case in parliamentary votes and allocated speaking time or the right to make proposals. The long arm of the government thus extends far into parliament.
Of course, it can be argued that this balance of power reflects the will of the voters. In parliamentary reality, however, it is clear that the opposition is in many respects at a loss compared to the coalition parties and that, as a consequence, the will of the voters of opposition parties is at best insufficiently recognised. This suppression of the will of the voters can be particularly pronounced when two or even three parliamentary groups deliberately push relatively strong opposition groups into a corner via coalitions.

According to Article 21 (1) sentence 1 of the Basic Law, the parties participate in the decision-making process of the people. The Basic Law thus grants the German parties the status of a constitutional body. What sounds so harmless here has been a far-reaching reality in Germany for decades in an exaggerated form.
This is supported by the now lavish state funding of political parties in the form of a lump sum for election campaign costs, donation subsidies and, last but not least, the funding of party-affiliated foundations (in most cases actually organised as registered associations) - all together around 800 million euros per year, of which 20 parties receive funding. Of course, the majority of this goes to the parties in the Bundestag; of these, the Alternative for Germany (AfD) receives by far the smallest share, as its party-affiliated foundation currently receives no funding and efforts are openly being made to maintain this in the future, contrary to the usual rules and practices.
It will now be exciting to see how the newly founded parties will be dealt with in the coming years: The Sahra Wagenknecht Alliance (BSW) and the spin-off from the CDU, the Values Union Party (Werte Union).

The well-known German constitutional law expert Professor Hans Herbert von Arnim has achieved the repeal of many laws through successful lawsuits, writings and expert opinions on party finances, parliamentary salaries and the remuneration of members of government. Hans Herbert von Arnim has also put his finger in the wounds with numerous books over the decades. He is regarded as one of the most knowledgeable and influential critics of the influence and financing of parties and the party felt in Germany. In his most recent book "Die Angst der Richter vor der Macht" (The judges' fear of power), first published in 2015, new edition 2020, von Arnim once again gets to the bottom of the problem based on his experiences, including criticism of the Federal Constitutional Court.

The profound interlinking of state powers - in connection with the parties' influence on the opinions, knowledge and ideological orientation of the population - creates a system that is sometimes referred to as "articulated democracy". Former Federal President Richard von Weizsäcker declared in an interview in 1992: "The parties have made the state their prey", the parties are "obsessed with power".

Has Germany really learnt from history?

In this country, reference is all too often and fervently made to recent history - the 'Third Reich' and the 'German Democratic Republic' (GDR). We should learn from the mistakes of the past, it is repeated from various sides on all conceivable and also less appropriate occasions.
Today, the Basic Law and de facto the entire state system assigns parties, of all things, such a degree of influence as described above.

As a lesson from history, it is imperative to keep a watchful eye on parties, their hierarchies and influence and the urge to dominate the state! Did not the National Socialist Workers' Party of Germany (NSDAP) - authorised by parliament - implement a dictatorial leader principle combined with party rule from 1933 onwards? In 1933, referendums in this far-reaching form would not have been able to achieve anything like this; indeed, it is possible that the seizure of power would not have taken place through direct democracy. From this we can conclude that even democratically established parliaments are no sure bulwark against the emergence of a dictatorship.

Likewise, the GDR was a party state, which, also as an arbitrary rule with the Socialist Unity Party (SED), created and maintained a party dictatorship. As in all dictatorial, socialist and communist states, the party and its functionaries were at the centre, and they were able to act largely untouched by constitutional structures, ordered by separate state powers and the distribution of power.
What both systems have in common is that, in the absence of a separation of powers, the party leaders, party cadres and party functionaries directed state affairs and processes, determined careers, controlled ministries, the judiciary and secret services and thus realised a totalitarian form of rule.

It becomes dangerous for a constitutional state and thus for freedom and justice when relatively small groups of people, inspired by the belief that they are doing the only right thing and have history or morality on their side, can push through their ideological or personal goals largely unchecked.

The fact that there is a lack of critical awareness in Germany of all places today of the dangers that can emanate from parties and party power leads to the conclusion that the endeavour to learn from history is obviously being ignored in some respects. However, we need to be more specific here. The dangers of parties are often pointed out today when it comes to opposition parties. As far as the existing structures and the influence of the established parties that have existed for decades are concerned, people are blind in at least one eye.

Other external forces and influencing factors

In an increasingly complicated political world with further national but above all international or supranational players, an expanded view of important influencing factors and institutions relevant to decision-making and today's important additional forces must be considered in detail:
The EU and other supranational organisations of which a country is a member or with which it is contractually bound (e.g. UN with all its sub-organisations, NATO, OSCE, etc.),
Non-governmental organisations,
Transatlantic and supranational network organisations,
Lobby organisations.

Of course, it is important to question the extent to which the EU's influence on political processes and legislation in the European member states can be justified under the rule of law. It also has a massive indirect influence on opinion-forming and social development.

Just because citizens have been told for decades that the progression of "European integration" to such an extent is progressive, important and would serve certain noble goals and promote peace and the economy, this does not mean that the increasing all-encompassing influence of the EU Commission and the ECJ and other institutions on all areas of life and the associated Dismantling state sovereignty and rule of law can be legitimised. After all, unelected persons, some of whom are hardly known to the citizens, exercise a power over politics in the member states that is highly questionable.

This must also be scrutinised if the German Federal Constitutional Court approves such "progress". In this context, it is important to consider the independence and objectivity of the Federal Constitutional Court. Above all, it should not be overlooked that the European Union itself does not have a sufficiently democratic structure that conforms to the rule of law: Key EU officials are not democratically elected - the composition and working methods of the influential Commission are not subject to the co-determination of voters in the member states and lack transparency. On the other hand, the sovereignty and powers of democratically determined state bodies are being undermined. Certainly, the value and impact of the EU and its various institutions cannot be dealt with conclusively here; that is not the task of this paper. However, it is clear that the EU itself and its influence must also be viewed critically if the rule of law and the state of the separation of powers in the European states are to be analysed.

to part 3