'Security package 94': more powers for police and secret services
The fight against crime will be the key issue of chancellor Helmut Kohl's governing ChristianDemocratic party, the CDU, in the lengthy campaign for the election of the Federal Parliament (Bundestag) and the Federal President (Bundesprasident) in 1994.
In what appears to be an early starting shot in the campaign, the new Interior Minister, Manfred Kanther, has presented his "Secursty package 94". A massive extension of police and security service powers, including legalised eavesdropping inside private apartments, speedier and harsher punishment, more restrictions against aliens - these are some of the focal points of the minister's programme which, he says, should "restore citizens' confidence in the rule of law'.
The Minister's drastic measures are likely to find a willing ear among German voters who are feeling increasingly insecure in an increasingly harsh economic and social climate. Those warning of the devastating effect of "security state" policies on civil liberties are facing hard times. Ironically, the recent massive increase in racist violence is used as a welcome pretext for further dismantling constitutional rights.
Measures against common crime
Noting the "particular concern" that rising youth crime is causing to "many citizens", the Interior Minister calls. somewhat vaguely, for strengthening the "educational vigour of family and school'. Young people, Mr. Kanther explains, need "orientation". "moral values". "professional opportunities", and "meaningful recreational activities", enabling them to "find their way in a complicated and changing world". However, the minister, however becomes more specific when listing up the repressive measures he believes are necessary to deal with the rapidly growing number of people, both young and old, untouched by these virtues. Some of the measures proposed are:
Improved and visible police presence by increased street patrols of officers in uniform;
Unburdening the police of non-police tasks;
Intensified cooperation between police and private security enterprises. Training of the latter must be improved and regulated.
Recruiting of aliens by the police for "particulartasks"; A trial period with more systematic use of "voluntary police reserve forces" under police command.
Immediate filling of current vacancies in the police (approximately 14,000);
As a general rule: sw'rfter punishment of offenders, in particular youth and first-time offenders. In view of this, the Interior Minister proposes amendments to the penal procedure law. allowing for the extended use of fasttrack procedures, i.e. by further limiting the right of the defense to adduce evidence whose effect is "to hold up proceedings".
A more repressive juvenile penal law. Besides education, which until now has been the only objective ofjuvenile penal policy in Germany, Mr. Kantherwishes to introduce the "preventive purpose of protecting the public from violent criminals". Youths should be locked up more often. fn the future, young adults (aged 18 and 21), shall no longer benefit from the more lenient juvenile penal law, as they often do now, but be tried as adults. Juvenile penal law shall only be applied as an exception.
Technical means for crime prevention - e.g. in electronic banking, the use of credit cards, anti-theft devices in cars and other private property. must be developed. Private industry and citizens shall bear their part in the burden of property protection by taking their own "appropriate security measures".
"Organised crime": a welcome pretext for more police powers
According to the Interior Minister, criminal organisations with firm leadership and hierarchical structures are "penetrating ever more deep into the economic and social system". Due to the high profits typical of this form of crime. this development is accelerating at an alarming rate. "Organised crime, to a large extent, uses conspiratorial methods", Mr. Kanther asserts, and swiftly draws his conclusion: "In view of this, it is vital to use under-cover hi-tech techniques".
As a consequence, the "Security package 94" includes a long list of proposals, aiming not only at legalising the extensive use of eavesdropping devices, widespread telephone tapping and surveillance of other forms of telecommunication, but also virtually uncontrolled data exchange between secret services and police, the use of under-cover agents (see FECL No.l3, p.2; No.l2, p.4), the "controlled transfer of'dirty money' by the police, the use of "informers" fumed state witnesses (see FECL No.l4, p.3) and secret testimony for the purpose of witness protection (a measure which is likely to benefd mainly the police's own under-cover agents and to fiurther undermine the rights of the defence). All these weapons may be used, ifi and when "organised crime" is involved. At the moment, some of the above measures are already permitted in the framework of special anti-terrorist procedures.
Should the Minister's proposals be introduced, this would require the amendment of at least two central provisions of the German constitution (Grundgesetz).
According to the German section of the FIDH (International Federation of Human Rights), Germany is already the European leader in telephone tapping. Between 1980 and 1992 the number of telephones tapped in the course of penal procedures has increased sixfold.
The "big eavesdropping attack"
Since the entry into force of the law on organised crime (Gesetz zur Bekampfung des Rauschgifthandels und andererErscheinungsformen derorganisierten Kriminalitat; see FECL No.4, p.3) in July 1992, such far-reaching measures as the Rasterfahndung ("screening" of suspects by electronically matching their data with the data of non-suspects stored in public registers accessible to the police), the use of undercover agents is legalised in investigations relating to drug trafficking and other forms of "organised crime". The same law also provides for what German commentators have nicknamed"mini-eavesdropping" (KIeiner Lauschangrif - secret video- and audio- surveillance and recording outside private apartments.
This restriction is rather cosmetic, as it does not prohibit the police from listening or filming into private apartments from outside with high-sensitivity directional devices. But police and security circles are still not satisfied and insist on the legalisation of "major eavesdropping" (Grosser Lauschangrif, i.e. the use of eavesdropping and other surveillanceequipmentinside private apartments. The Federal Parliament has so far hesitated to introduce such a provision, on the ground that it might constitute a breach of article 13 of the German const'rtution (inviolability of the home).
Mr. Kanther now openly calls for the amendment of this article providing for the "big attack".
Towards a new secret police?
Police and security service access to electronic data registers (e.g. the Central Register of Foreigners, register of car-owners, etc.) shall be simplified and legally regulated.
The Minister further says that, "as for , telecommunication-technical foreign intelligence" Germany's external secret service, the BND. should collect and forward to "German security authorities' any information on international terrorism, arms and drug trafficking, as well as "international money laundering activities" (see FECL No.l3, p.6). Such a practice would mean the end of the principle of a strict separation of the roles of police and secret services. According to this principle, the police may not use the comparatively unrestricted intelligence methods of the secret services permitting the latter to collect information on anybody (including non-suspects) and by any means, while the security services may not have police powers.
In the view of the founding fathers of Germany's post world-war II democracy, this separation was mint to effectively prevent the setting up of a non-accountable secret state police with powers comparable to the Third Reich's infiamous Gestapo.
Mr. Kanther does not seem to have such proDlems with the past. In his view, the constitution does not prohibit the secret services from handing out information to the police, as long as the latter is alone in charge of executive action.
If the BND's proposed role of collecting and forwarding crime relevant information to the police violates the constitution, the latter must be changed. So Mr. Kanther advocates another amendment, this time of article 10 of the German constitution guaranteeing the privacy of letters, mail and telecommunicationst.
Pro-active criminal investigation
The BKA (Federal Office of Criminal Investigation) is further to be empowered to collect information on persons already before a crime is committed. ti there are "grounds to suspect" that they will commit a serious crime. Moreover, the BKA must have a right to investigate. "even when there are only vague indications that an offence has been committed". Thus. this proposal aims for further extending police powers beyond the field of punishable behaviour.
Shift of the burden of the proof
"Human smuggler gangs" which illegally bring immigrants into Germany are particularly mentioned as a typical form of "organised crime". They are to be combatted by improved border surveillance and increased penalties. Those convicted of numan smuggling should have their assets confiscated. ;f it can be assumed that they originate from illicit atNrty. Should Mr. Kanther's proposal become law, Ns would imply a shift of the burden of the proof onto the accused.
Measures against violent crime and political extremism
A number of proposals are presented mainly as a means to cope with mounting racist violence. Yet it is difficult to see how they should not affect every citizen's rights and liberties.
Measures similar to those with pertaining to "organised crime" are proposed: Improved intelligence activity by the extended admissibility of mail and telecommunications surveillance and by allowing the internal secret service, BVS, to use "technical means even inside private apartments for the necessary gathering of information in the field of terrorism, violence-inclined extremism and counter-espionage"; "Securing and improvement" of the exchange of information between the BVS and "other administrations" by the communication of data. Mr. Kanther is aware of the fact that this would require a "change of data protection regulations in respect of the [BVS] that, according to practical experience, handicp [its] work".
The crime of breach of the public peace, so far limited to persons committing violence from within a crowd, shall be extended to include non-violent participants who fail to disperse when requested to do so by the police. Such a change would further massively restrict the freedom of demonstration, by making peaceful participants in mass demonstrations accountable for violent acts committed by small groups of rioters.
Associations must be held responsible for the act and statements of their members, so long as it is not obvious that the persons concerned have not acted as members of the association. The burden of the proof is with the association.
Mr. Kanther pays particular attention to extremist violence originating from foreigners and their organisations. "Security package 94" calls for increased police surveillance of "extremist foreigner associations", for barring foreigners and their associations from political activities, and for the consequent application of provisions in foreigner legislation permitting expulsion and deportation in presence of a threat to democratic order and security.
The deportation of foreigners accused of involvement in criminal activities shall be permitted even before the conclusion of a criminal procedure.
More to come
Mr. Kanther leaves no doubt that the proposals named in "Security package 94" are simply the beginning of a what he sees as a public crusade against "insecurity".
The minister explickly mentions that his department is considering allowing undercover agents to commit crimes in service: shifting the burden of the proof in connection with the forfeiture of assets beyond the extent of respective provisions in the law on organised crime; a further aggravation of foreigner law pertaining to deportations and expulsions, as well as the "creation of using new techniques for intercepting telecommunications".
As a matter of fact, some of the Minister's thoughts have already become policy proposals of his party friends. At the Christian Democrat Party Convention on 12-14 September, the party's federal board called for:
The forfeiture of all assets secured by prosecution in criminal cases, 'rf and when their legal acquisition is not proven;
the wider use of search by data screening;
the setting up of a permanent working group on "organised crime" by the conference of the Interior Ministers of all German lender (federal states);
stiffer prison penalties for "drug criminals";
the introduction of a 14 day "preventive detention" for violently-inclined persons (in particular would-be rioters);
more effective European anti-crime cooperation by the swift setting up of Europol and a "European office of public prosecution", both with executive powers.
Ban on electronic mailboxes?
More recently, Eduard Lintner, Parliamentary State Secretary at the Interior Ministry and a member of the Bavarian Christian-Social Union (CSU), surprised the public with further ideas apparently being mulled over inside the ministry. this time concerning "better control" by security authorities over modern forms of telecommunication.
In a radio interview, Mr Lintner pointed out at a growing trend among right wing extremist groups and organisations to make use of "modem communication techniques that are accessible to everybody - such as mobile telephones, infio-telephones, [electronic) mailboxes and suchlike". Asked how this could be prevented, the state secretary said: "Well, one should, indeed, consider, ifi - as I would put it - higher levels of communication tecnniques or the use of these things could not be prohibited. But, considering our constitutional situation, this is of course a juridically very difficult question that can not be answered off the cuff'. Commenting on Mr. Leitner's remarks, the FIFF, a German association of computer experts recalls that the observation of right wing extremism is already part of the duties of the BVS. "Nonetheless, so far only a small number of [these] organisations are under observation in few Lander. Already surveillance of electronic mailboxes and other sophisticated communication devices is part of this observation activity. In carrying a out, the Federal Office for Security in Information Tectnology (BSI) is engaged to lend assistance".
"Why then Leitner's proposals? How, in concrete terms, can "sophisticated levels of communication techniques" be banned? Does the Interior Ministry intend to introduce pro-censorship in the use of electronic mailboxes, telephone-answering machines and mobile telephones? Will the Interior Ministry soon require an opinion certificate from those who buy socalled `sophisticated communications devices'?"
Sources: Innere Sicherheit geht alle an Sicherheitspacket '94, communication by Federal Interior Minister Kanther, 30.9.93; Leitantrag des CDUBundesvorstandes zur inneren Sicherheit am Parteitag der CDU, 12 - 14.9.93: FIFF-press release, 22.10.93; interview with Eduard Leitner on "Saarlandischer Rundfunk", 30.9.93; Suddeutsche Zeitung, 1.10.93; Innenpolitischer Rundbrief No. 4/1993; Die Welt, 1 .10.93; Neue Zurcher Zeitung, 1.10.93. "Innere Sicherheit", by Internationale Liga für Menschenrechte, Berlin, September 93; Solms: Thesenpapier zur Inneren Sichefieit, FDP/Bundestagsfraktion, Bonn, 2.9.93: SPD-Presseservice, Pressemitteilung zur Inneren Sicherheit, 10.9.93. Contact for further information: Ingrid Koppe MP/Christian Busoid (the Greens), Bundeshaus HT220, D-53090 Bonn, Tel: +49/228 167482; fax: +49/228 1686660; Internationale Liga fur Menschenrechte e.V., Tel: +49/30 3243688; Fax: +49I30 3240256.