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Article Germany: Higher Administrative Court Rules Police Officer May Be Suspended Because He "Liked" Internet Posts of the "New Right" Political Movement

On July 27, 2023, the Higher Administrative Court (Oberverwaltungsgericht, OVG) of Berlin-Brandenburg held that the Berlin Police Department was allowed to suspend a police officer who followed and “liked” several posts of the “New Right” (Neue Rechte), a right-wing political movement in Germany, on social media. This decision cannot be appealed and overrules a decision of the Administrative Court (Verwaltungsgericht, VG) of Berlin.

Background to the Decision

The 21-year-old claimant is a detective superintendent candidate in Berlin, meaning he works as a police officer for the criminal investigation department but his appointment as a civil servant is subject to revocation (Beamter auf Widerruf). With his Instagram account (which has since been deleted), he followed different New Right accounts and liked several posts contained on them. (OVG Decision para. 12.) The New Right can be described as “a political orientation to renew right-wing extremism intellectually; it tries to differentiate itself from the ‘old right’ of historical National Socialism.”

The detective superintendent candidate liked posts that included the “vilification and disparagement of Muslims and the equating of Covid protection measures with the persecution of the Jews during National Socialism,” and he followed accounts “that publish swastikas and pictures of Adolf Hitler and disparaged representatives of the Federal Republic of Germany.” (Para. 12.) Among other things, he liked a post that included the following statement: “Today, 77 years ago, Auschwitz was liberated. History is repeating itself, but today it says: vaccination certificate = Aryan certificate … / quarantine camp = concentration camp / vaccine = eugenic measures, genocide / Scholz [current German chancellor] = Hitler …” (VG Decision para. 10, quoting post in German (which included spelling mistakes), shortened.)

For liking these posts, the Berlin Police Department dismissed the police officer candidate from civil service. The German Civil Servants Status Act (Beamtenstatusgesetz, BeamtStG) allows civil servants with revocable appointments to be suspended if there is an “objective reason.” (BeamtStG § 23, para. 4 sentence 1.) In addition, according to the Berlin Regulation on Police Officer Careers, a civil servant with a revocable appointment who proves unsuitable due to their performance, ability, or character must be suspended. (Polizei-Laufbahnverordnung Berlin § 7; VG Decision para. 21.)

The Court’s Decision

The Higher Administrative Court affirmed that the police officer candidate was ineligible for civil service because he liked posts and followed New Right social media accounts. It stated that the Berlin Police Department has discretion in applying the relevant law and in deciding the police officer candidate’s case, and thus the case cannot be fully reviewed by the court. (OVG para. 4; VG para. 22.)

The court stated that all civil servants must follow and defend the liberal democratic basic order (freiheitliche demokratische Grundordnung), a fundamental term in German constitutional law. (BeamtStG § 33, para. 1, sentence 3.) This liberal democratic basic order is expressed in various principles, such as the sovereignty of the people and separation of powers, among others. Nevertheless, it also includes respect for human rights as defined in the Basic Law (Grundgesetz, GG), the country’s constitution. (OVG para. 3.) In addition, civil servants have a “political duty of loyalty,” meaning that a civil servant must identify with the idea of the state they are supposed to serve. A civil servant is allowed to criticize the free and democratic state but cannot question the state itself and its constitutional basis. (OVG para. 5.) For a civil servant, this means “clearly distancing oneself from groups and endeavors that attack, fight and defame this state, its constitutional organs, and the applicable constitutional order.” (OVG para. 5.)

The Higher Administrative Court held that the lower court had erred in analyzing each post the police officer candidate liked individually. It stated that even though one individual post might not be sufficient to create doubts about someone’s loyalty to the constitution, taken together, they might have sufficient weight. In addition, the lower court should have considered the ambiguity of the posts in question in its overall consideration. (OVG paras. 8–10.) In the opinion of the court, it was reasonable for the Berlin Police Department to have doubts about his loyalty to the constitution, in particular because the police officer candidate was unable to plausibly explain why he visited the websites belonging to the New Right and liked their posts; these doubts can make a civil servant ineligible for civil service. (OVG paras. 6, 12.)

Furthermore, the court added that it is irrelevant for this analysis whether the civil servant did his job and the tasks assigned to him well. (OVG paras. 7, 11.) Even though liking social media posts is covered by freedom of opinion, protected by article 5 of the German Basic Law, the Basic Law also requires in article 33, paragraph 5 that civil servants be loyal to the constitution. (OVG para. 13.)

Related Cases

This is not the first suspension of a police officer due to right-wing or discriminatory behavior. In other cases, courts have held that police officer candidates may be suspended for posting far-right chat messages — for example, the Administrative Court of Duesseldorf and the Administrative Court of Berlin.

What differentiates the Higher Administrative Court of Berlin-Brandenburg’s decision from the other decisions is that the candidate did not share far-right posts or create original content, but approved the content of such posts by liking them.

Prepared by Lea Marie Ruschinzik, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

September 13, 2023

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Chicago citation style:

Gesley, Jenny. Germany: Higher Administrative Court Rules Police Officer May Be Suspended Because He "Liked" Internet Posts of the "New Right" Political Movement. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-09-12/germany-higher-administrative-court-rules-police-officer-may-be-suspended-because-he-liked-internet-posts-of-the-new-right-political-movement/.

APA citation style:

Gesley, J. (2023) Germany: Higher Administrative Court Rules Police Officer May Be Suspended Because He "Liked" Internet Posts of the "New Right" Political Movement. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-09-12/germany-higher-administrative-court-rules-police-officer-may-be-suspended-because-he-liked-internet-posts-of-the-new-right-political-movement/.

MLA citation style:

Gesley, Jenny. Germany: Higher Administrative Court Rules Police Officer May Be Suspended Because He "Liked" Internet Posts of the "New Right" Political Movement. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-09-12/germany-higher-administrative-court-rules-police-officer-may-be-suspended-because-he-liked-internet-posts-of-the-new-right-political-movement/>.