The federal government wants to establish detailed regulations for the first time for the use of so-called police confidants in criminal milieus or extremist circles. This is provided for in a draft from the Federal Ministry of Justice, which the cabinet approved in Berlin on Wednesday. As with other covert measures, the use of informants in the future will also be “subject to initial and ongoing judicial control.” The draft also contains specific guidelines for cases in which undercover investigators or informants entice people from the criminal milieu to commit crimes, for example in order to avoid being exposed. The bill still has to go through the Bundestag.
The new law is intended to regulate the requirements for the use of informants. “A judge’s reservation will be introduced for operations by informants, and the operations will be subject to regular judicial control,” says the draft. It stipulates a maximum period of ten years for the use of an informant. If the investigators provide good justification, this deadline can be deviated from in individual cases.
According to the new law, informants should only be permitted in certain crimes, such as drug crimes, arms trafficking and state security crimes. “In addition, they may only be used if investigation through other measures is not possible or sufficiently promising,” said the Federal Ministry of Justice. Among other things, someone who is not allowed to be recruited is someone who is a minor or for whom the benefits for working as an informant would be an economic basis for their livelihood.
Justice Minister Marco Buschmann (FDP) said that excesses had been experienced in the past – because the line between right and wrong was not clearly drawn in the law. “Committees of inquiry have revealed that some informants were kept for many years, that it is not clear how much money was flowed, and that crimes were deliberately covered up.” You need informants as an investigative tool. He could not understand the argument that the reform would make their use practically impossible. The regulations were also discussed with investigative practitioners from the Federal Ministry of the Interior.
Persons of trust (informed persons) are not full-time investigators. For example, they are recruited by the police or the Office for the Protection of the Constitution to provide information from their own extremist or criminal groups – usually in exchange for cash. In the best case, they give security authorities access to information from strictly isolated groups, such as organized crime.
The use of informants is considered sensitive – it is repeatedly critically questioned in the public debate. This involves, for example, the question of how trustworthy their information is and allegations that the authorities do not communicate enough about their informants or that they indirectly support criminal activities with their donations to the informants. The federal government’s current draft law is about undercover agents who are used by the federal and state police forces for criminal prosecution. Undercover investigators are to be distinguished from informants. These are police officers who, equipped with a legend, investigate a certain environment.
There was a lot of criticism of the current draft, including from the German Association of Judges (DRB). DRB federal managing director Sven Rebehn said the plans “overshoot the target”. They would impose unrealistic requirements on informants and excessive documentation requirements, which would make deployment significantly more difficult. In his own words, Rebehn hopes for improvements when the draft is discussed in the Bundestag.
The vice-chairman of the Green Party in the Bundestag, Konstantin von Notz, supports the project: “Even in view of the sharp increase in security policy challenges, we need effectively functioning security authorities and intelligence services. They must act on the basis of clear legal bases and be effectively controlled,” he said. But the Green group also reserves the right to make changes, according to him.
However, criticism came from SPD domestic politician Sebastian Fiedler. “There is a need for fundamental changes to the law in several places. This is shown by the broad criticism from practice,” the Bundestag member told “Spiegel”. Fiedler described regulations in the draft as “unpractical”, such as the fact that statements from informants should be recorded in verbatim minutes in the future.
On the other hand, Bavaria’s Justice Minister Georg Eisenreich (CSU) said that the planned new regulations would make the use of informants more difficult and threatened to make an important investigative measure to unmask criminal structures considerably more difficult. “The bill is based on a completely unfounded mistrust in the work of the law enforcement authorities and in particular in the investigative tool of informants,” he said. “The judge’s reservation would require an unforeseeable additional effort for the necessary individual approvals and would further unnecessarily burden our courts.”
Hamburg’s Interior Senator Andy Grote (SPD) also criticized: “This bill is neither based on practical experience nor on the case law of the Federal Constitutional Court, but rather is characterized by a deep mistrust of the law enforcement authorities.” In this form, the law would “massively complicate” the indispensable use of trusted persons in practice, explained Grote. He hopes that the Bundestag will take “the considerable need for revision” into account in its deliberations.
