FECL 04 (March 1992):

GERMAN BILL ON 'ORGANIZED CRIME' OPENS THE WAY FOR A NEW SECRET POLICE

On April 1949 the allied military governors allowed the West German government to create its own police forces and an intelligence service - under one condition: police and secret service should be strictly separated. The intelligence service should have no police powers. Never again should the barbaric rule of a GESTAPO be possible in Germany.
43 years later, united Germany is proceeding to legalize the nearly unrestricted cooperation between its secret services, police forces and justice. International "organized crime" furnishes the pretext for the building up of a "crime control" machine out of control.

The new concept of cooperation between secret services, police and justice is based mainly on three pillars:

 

Law on the development of data processing and data protection

The data law legalizes covert surveillance and the application of intelligence means such as undercover agents, bugging and secret videofilming. Data obtained by such methods may be stored as far as "this is necessary for carrying out the tasks". This means that there is no need for an initial indication of a criminal act or a concrete threat.

The data can be exchanged between the MAD (military intelligence), the BND (external intelligence), the Verfassungsschutz(federal protection of the constitution: internal intelligence), the criminal investigation offices (federal and lands), the customs and the offices of the public prosecutors, whenever there exists an indication of a delict against state security or when "the adressee needs the data in other respects...for purposes related to public security".

One can easily imagine how the officers of the KGT with their stated intention fully employ all "legally admissible" means will interprete such a vague provision. Moreover the customs and border police forces may collect data on the instruction of the secret services. Thus, the secret service indirectly obtain police powers.

 

The bill on comabatting drug trafficking and other forms of organized crime

In justifying the introduction of ever more repressive legislation the spectre of "terrorism" once took over from the spectre of "communism" only to be gradually replaced by the new spectre of "organized crime" today.

What is organized crime? The President of the BKA (federal office of criminal investigation), Hans-Ludwig Zachert, presents a nightmarish vision: "State and society as a whole are threatened...It can never be repeated enough: Pursuit of profit is the motor of organized crime". Organized crime distinguishes itself by developping "legal" parts within its activity. In Zachert's view the police must therefore intervene "across all borders" already in the "forefront" of crime: "An intensified cooperation for example with employment offices, social administrations, authorities dealing with foreigners, industrial inspection and regulations, insurances, automobile producers, car hirers, financial institutes, credit card companies, the hotel industry, would be desirable. The legal bases for such are still lacking."

With the bill on organized crime, Mr. Zacherts wishes are on their way to being fulfilled.

No attempt is made in the bill to give a clear definition of the term "organized crime". Thus, the door is left wide open for encroachments of fundamental rights, just as happened with the term "terrorism".

The bill enables the confiscation of the assets of a convicted person far beyond the sums involved in a particular proven criminal act.

Police may use secret service methods when investigating. This is made possible by the introduction of strong elements of police law into penal procedure law.

Thus, the use of agents provocateurs with the right to enter into other people's homes is allowed for. These undercover agents may bug or videofilm even unsuspected third persons, when "based on certain facts...it must be supposed, that they have or will have a relation with the delinquent". The identity of undercover agents is held secret, even when they witness in a criminal procedure, when they or third persons could otherwise be exposed to danger.

This far reaching extension of the legal use of undercover agents is justified by the contention that it often proves difficult to produce material factual evidence when dealing with organized crime. Therefore, the role of witnesses becomes all the more important. In other words, undercover agents, acting as witnesses will play a decisive role in convicting a defendant. But they will not appear in court. Their evidence and the circumstances in which this evidence has been produced can not be verified.

Furthermore the penal procedure code for organized crime has been modified in order to facilitate the tapping of telecommunications. The informations thus collected can also be used in other criminal procedures.

Search by screaning (Rasterfahndung) is authorized, when the "exploration of the facts (would) otherwise (be) considerably less promising".

The collection of data on the movements of persons is widely legalized too. According to one officer of criminal investigation, this form of observation is "one of the most important search instruments in the forefront of shaping a concrete suspicion (...) But this picture of the personality of the targeted person can only be complete, when I know, in which regional and personal surroundings this person moves around".

In other words: This form of police observation is not motivated by any concrete suspicion, but aims instead at creating it!

To sum it up, with regard to drug trafficking and organized crime the German penal procedure code has been strongly modified towards the preventive combat against crime (crime control). The new provisions further weaken the already eroded position of the accused in the procedure.

The vague definition of the term "organized crime" implies the risk of wide interpretation. Even larceny committed by a group and illegal game of hazard are thus considered as forms of organized crime.

 

KTG, the coordinating group for combatting terrorism

The group was created by the conference of the Interior Ministers of the Lands on May 3, 1991. The Parliament was informed more than a month later. The KTG could be described as the permanent form of crisis mamagement staffs (Krisenstab). Such crisis staffs have come into action on various occasions in order to cope with particular terrorist threats and distinguished themselves through the temporary non respect of institutional barriers between the Government, police justice and security service, temporary drastic reductions of procedural rights of defendants and strictly controlled media imformation. These crisis staffs lacked a clear legal base for their action.

With the creation of the KTG in conjunction with the abovenamed legal developments, this problem seems to have been solved. It implies the close cooperation of police, secret service and justice on a permanent basis. In an official comment by the Interior Ministers of the Lands it is stated that the exploration and collecting of information "must be carried out in all spheres relevant to terrorism in the recruiting grounds". When one knows that the BKA considers such groups as anti-nuclear activists and even feminist organization as potential recruiting grounds for terrorists, this target description sounds rather chilling. The comment also openly describes the role of the KTG in steering public opinion by a "permanent and event related press and public work for sensibilizing the population". Political "perception management" by a public relations office of both police and secret services? The outlook is frightening.

The possibly dangerous consequences of the ongoing fusion of justice, police and secret services in Germany on European harmonization in these fields need not be mentioned. Official commentators have tried to diffuse public criticism against the creation of "Europol" by insisting that it will have no operational role. But who is able to guarantee that the German crime control policy will not influence the development of Europol and the European Information System?

Nicholas Busch

 

sources: Oliver Tolmein:" Teuflische Arrangements", article in "Konkret" (Hamburg), p. 20 - 23; Helmut Pollähne, Carola Puder: "Ein Gespenst geht um in Europa... Versuch über organisierte Kriminalitäts-Politik", "Forum Recht" 1/92, Recht & Billig Verlag, Falkstr. 13, D-4800 Bielefeld 1; our sources.

 

For more information contact: Heiner Busch, Bürgerrechte & Polizei, c/o FU Berlin, Malteserstr. 74-100, 1000 Berlin 46