NEW LAW ON `FIGHT AGAINST CRIME':INTELLIGENCE SERVICE TO COOPERATE WITH POLICE
On 21 September, The German Federal Parliament, the Bundestag, adopted a new Law on the Fight against Crime (Verbrechensbekämpfungsgesetz). Among other things, the legislation establishes a new role for the German foreign secret service, the Bundesnachrichtendienst (BND), restricts the right of the defence to present evidence to the court and extends provisions on "repenters" turned States' witnesses to "organised crime". The law is presented as a compromise between Christian Democrat "internal security" hardliners and Social Democrat and Liberal opponents, but many commentators agree that, by adopting the law, the parliament has opened the door wide to the further abolition of constitutional guarantees. The law will enter into effect on 1 December.
Combatting crime with the BND
Under the new law, the German foreign secret service, BND, may now communicate information on certain forms of serious crime, such as terrorism, arms and drug trafficking to the prosecuting authorities. Unlike the police, who are prohibited from investigating people not suspected of a crime, the Secret Service is not subjected to such legal restrictions and is equipped with sophisticated electronic and computerised equipment permitting the almost unlimited interception and analysis of international (including wireless) telecommunications.
To evaluate the mass of intercepted communications the BND makes use of computerised "filters" that sift all conversations for "key terms" - e.g. particular names, facts and objects.
Interior Minister Kanther's bill initially provided for the communication of all this information related to organised crime to the prosecution authorities and would have given the BND the right to actively participate in criminal investigations upon demand of the public prosecutor. In the "compromise" text adopted by parliament, the latter provision was dropped as a whole and the BND may hand out only fact- and object-related and not person-related intelligence to the police. In practice, it might, however, prove difficult to check whether these restrictions on police-secret service cooperation are being respected or not.
Repenters turned States' witnesses
The "repenter regulation" (Kronzeugenregelung) was introduced into the German code of penal procedure in the 1980s (see FECL No.14, p 3). It allows for a massive reduction of sentences of "repenting" defendants turned States' witnesses. Until now, however, the use of the provision was limited to terrorist crimes. The new law on the fight against crime now makes the regulation applicable even to "organised crime". However, in view of the elasticity of this term, the judiciary is likely to make wide use of the scheme. Opponents of the regulation have claimed that the use of repenters, rather than improving criminal investigation, frequently leads to miscarriages of justice.
Restricted rights of the defendants
The new law contains a series of provisions restricting the rights of the defence:
- Accelerated procedures are allowed in the presence of "unequivocal evidence" and an expected sentence of at least 6 months imprisonment.
In offences punishable with less than a year's imprisonment (i.e. the large majority of cases) the court is no longer bound to examine evidence upon request of the defence.
The expulsion of young foreign offenders aged 16 - 21 is facilitated. A more sweeping regulation in the original draft, which would have extended this measure to youths under age 16, was dropped.
In promoting their "tough on crime" policies, the Christian Democrats made wide use of public concern about the rise of racist crimes. It is against this background that another facet of the new law must be seen: the penalty for denying the Holocaust has been increased from three to five years - a measure that has little relevance to the main measures of the new act.
Interior Minister Kanther's 'Offensive 2000'
On the very day of the adoption of the law on the fight against crime by parliament, the Interior Minister, Manfred Kanther, announced that he considered the law in its present form as an "indication of direction" and a first decisive step towards "changed methods in fighting against new phenomena of criminality". Brushing aside liberal concerns about a "Big Brother" society, the Interior Minister said that today's issue was no longer the protection of citizens against the "authoritarian state of the 19th century", but against a "parallel society of crime". Kanther welcomed the Social Democrats' decision to finally give up their "obstruction" against the government's push for increased internal security by accepting a compromise, but made it clear that he advocated the speedy introduction of all the controversial measures dropped within the compromise agreement by means of a "Law on the fight against crime No. 2". This would:
- legalise so-called "major eavesdropping" (Grosser Lauschangriff: i.e. the use of eavesdropping and other surveillance equipment inside private apartments; see FECL No.20, pp.1-4);
allow the confiscation of assets presumed to originate from criminal activity;
establish a role for the German internal intelligence service, the Bundesverfassungsschutz, in combatting crime.
Sources: Süddeutsche Zeitung, 14.9.94, 20.9.94, 21.9.94.The Ministry of the Interior has presented these measures and others in a document, "Offensive 2000", on "priorities in fighting international crime and in long term security concepts".
Comments
Heribert Prantl writes in the Süddeutsche Zeitung (Munich):
"The intelligence service is a secret state power. It has at its disposal an enormous arsenal of intelligence-gathering weaponry: It can eavesdrop, snoop, recruit, go undercover and deceive, make use of bugs and directional microphones. In short, it may do everything the police may not. This is why, hitherto, the engagement of the intelligence service (or rather the intelligence services, as there are three of them in Germany) in fighting ordinary crime was taboo. The future law on the fight against crime which has just been negotiated as a compromise between the governing coalition and the SPD [Social Democratic Party], undermines this taboo.
"Had the CDU/CSU [Christian Democrats] alone had their say, things would have gone much further: under the initial proposals the BND [foreign secret service] was to become a genuine criminal investigation authority, responsible for criminal detection by screening inside Germany. The secret service was to be empowered to launch investigations attack against a multitude of citizens: in order to intercept a particular telephone call of a suspect, thousands of phone users were to be tapped and filtered. After lengthy negotiations, the SPD managed to stop this project.
"What remains is a still objectionable extension of the BND's field of activity. Since its creation, its task has been limited to providing information important for strategy foreign policy planning - in other words, to help secure the external security of Germany. Henceforth the BND's competence has been extended to cover information related to drug-related crime, currency counterfeiting and money laundering. For this purpose, the BND may switch on its "electronic vacuum cleaner": As soon as a certain key-word is mentioned in international telephone communications, the recording machine is automatically switched on. If indications of criminal offences emerge, they are handed over to the prosecuting authorities. (...) The fact remains: the secret service becomes a supplier of information to the prosecution, the collaboration and interlocking between police and secret service has started. The door, hitherto locked by law, between police and secret service has been opened. The crack opened by the new law on the fight against crime may appear insignificant, but, from now on, it will not be difficult to open the door wider. This is the big danger with the new law".
In the Frankfurter Rundschau Ferdos Forudstan notes that the new law has "abolished the right of defence lawyers to demand the examination of evidence" and he stresses that the "repenter regulation" permits organised criminals to "make deals between state and crime". Commenting on the approval of the "compromise" law by the SPD and the FDP (Liberal Party), he remarks that the FDP's concern for the State of Law appears to operate only "in times of relatively satisfactory economic statistics". As for the SPD, "civil rights and liberties are not in good hands" with this party. "Historically committed to a rigorous workers' socialism, traditionally a state-oriented party belonging to the authoritarian part of the left, [the SPD] has a long track record in helping undermine constitutional principles".
The best policy on crime, the author continues, is the fight against unemployment, poverty and a society that is drifting apart. Such understanding can be found in the programmes of the SPD, but in practice, the party is rather silent about its own proposals for long term solutions: "Out of a permanent fear of being defamed as a security risk by the CDU/CSU and of therefore not being elected, the comrades are striving ... to outdo the coalition [the government of Chancellor Helmut Kohl] in restricting fundamental liberties."
Sources: Süddeutsche Zeitung, 14.9.94; Frankfurter Rundschau, 22.9.94.