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Dr. Rolf Gössner

The German "Anti-Terror-Jurisdiction" and the Establishment of the Truth by the Means of the Principal Wittness

The "German Autumn" 1977 - the non-declared state of emergency

The "German Autumn" 1977 can still be seen as the "highlight" or rather the darkest point in the past war German history of imposing dubious law and order strategies. The former Federal Republic of Germany by then was going through its most severe domestic political crisis. The Red Army Fraction (RAF) had declared war against the state by killing numerous representatives of the government and big business. The "well-fortified" state accepted this "war of aggression" by entering into a state of emergency without officially declaring it. A state under the rule of law tried to protect itself by introducing counterterrorism, high security prisons, special police units and machine guns, while the population was only told they had to get used to it. This martial "state under the rule of law" was bordering on the limits of what is still allowed by the German constitution as the former chancellor Helmut Schmidt (SPD) once put it. For many legal experts though it was clear that the government had already acted against the constitution. The introduction of uncontrollable "crisis committees", unlawful contact and news embargos, illegal bugging activities, special regulations in the Stammheim proceedings against the main members of the RAF, rigorous restrictions of the defence lawyer's rights - all these measures were not just illegal and unconstitutional, they also led to a militarization of domestic politics in general and added to the escalation of violence. In that kind of a "frozen" political climate mistrust and suspicion became quite familiar phenomenon. Large parts of the left were suspected of being supporters and sympathizers of the RAF-activities. Censorship and self-censorship were the fatal consequences of this time.

The history of §§ 129 and 129a StGB

Around each anniversary of the "German Autumn" (10 years or 20 years after ...) on can read numerous articles in the press about this "most traumatic phase" of the post war West-German Republic. Most of the journalists though treat this time as a closed chapter of history. But the "German Autumn" is still present as far as most of the special regulations and laws once introduced to fight the RAF have become a regular part of the German Criminal Code. The non-declared state of emergency of the seventies developed into the norm as one can see by looking at various police instruments recently imposed by the government: controls without an initial suspicion, the so called "Schleier-search", video surveillance in public spaces etc.. Most of the anti-terror-laws introduced in the seventies and eighties are still in place in spite of the fact that the RAF stopped its activities at the beginning of the nineties and finally declared its dissolving in 1998. Other groups, considered by the police as "terrorist organizations" and guilty of having carried out violent attacks, also called off their militant politics in the early nineties.

But the criminal norms § 129 (directed against criminal organizations) and § 129a StGB (directed against terrorist organizations) seem to be of too much importance to the state to easily give them up. The history of § 129 dates back to 1871. Since then this criminal law has been used - labelling the enemy either "underground organization" or "association hostile to the state" - to persecute aggravating leftwing organizations (in very rare cases also rightwing groups):

  • In the last quarter of the 19th century victims of the state persecution were members of the Social Democratic Party (SPD) and the working class movement,
  • during the Weimar Republic members of the "Rote Hilfe", the Communist Party of Germany (KPD) and its political surroundings,
  • and later in the Federal Republic of Germany communists, the opposition to remilitarization, so called "terrorists", squatters, members of the animal liberation and anti-nuclear movement, antifascists etc..

The criminal norm § 129 therefore has a long history of politically motivated police investigations and activities, even if the law today is mainly portrayed as an useful instrument in the state's rightful combat against "organized crime" ("organized crime" of the so called underworld or mafia of course and not normal "economic crimes").

The young Federal Republic of Germany certainly did not want to do without criminal norms directed at organizational offences. 1951 the "criminal organization" (§ 129 StGB) was adopted in the Criminal Code. The need for such a law was emphasized by the Federal High Court (BGH) as well as by the Federal Constitutional Court. Both were afraid of the especially dangerous nature of organized forms of crime. The Federal High Court stated: "Law and order in Germany are mainly threatened by people who are members of collectives, who belong to organizations."

In the seventies the Criminal Code was amended by § 129a, seen as the adequate answer by the state to the challenges of "terrorist activities". § 129a StGB is more or less a copy of § 129 StGB. Both norms are supposed to address criminal offences of organizations. That means that a suspect can be found guilty for a criminal act whithout proving that he or she was personally involved in it. The mere supposed membership in or even the support of an incriminated group can be enough evidence for persecution and convictions. These kinds of "collectice criminal offences" are usually unknown by the German Criminal Code.

With the amendments "support and advertisement of a terrorist organization" § 129a StGB proved to be a sharp weapon in the state's battle against leftwing activities. More than 85 percent of preliminary proceedings according to § 129a StGB were taken because of suspected supportive activities in favour of "terrorist organizations", and these were usually verbal "offences".

"Open Sesame!" - Special authorities and instruments to investigate political movements

In the eighties the use of § 129a StGB was further intensified and mainly applied against the growing social and political leftwing movements. The investigating authorities considered the popular and strong resistance against state and industrial projects like nuclear plants or airport extensions as a new and unpredictable "terrorist danger". Besides the older organizations (RAF, Movement June 2nd), the political police had more and more "after-work terrorists" as the loosely structured "Revolutionary Cells" and numerous upright community groups and activists in its sights. Thousands of members and activists of the movements against genetic engineering, animal experiments, urban destruction and later anti-fascists and anti-racists became victims of the anti-terror-jurisdiction. Dubious laws and verdicts helped to artificially multiply the numbers of "terrorists" within a short period of time. In the eighties there were 3.300 police investigations involving tenthousands of suspected "terrorists, supporters and sympathizers". Between 1990 and 1998 there were still 1.500 similar preliminary proceedings.

Two different standards applied

§ 129 StGB was hardly ever used to investigate and persecute rightwing violence and neofascist organizations in the eighties, while from 1980 to 1990 at least 36 people in West-Germany had been killed in fascist attacks. 3.300 preliminary proceedings against leftwing "terrorist" activities compared to the number of 134 against rightwing "terrorist" activities involving 400 suspects show the blindness of the state authorities towards the growing danger of the militant neofascist movement in Germany. Even after unification, when the rightwing terror against minorities could not be neglected any longer, the police and the courts rather prefered to ignore the growing organizational structures of the neofascist movement. Between 1990 and 1997 we had only 24 legal proceedings (3 every year) against rightwing organizations compared to 1.230 (155 every year) against leftwing groups in Germany.

The "Anti-Terror-System"

A conspicuous high number of §129a-proceedings against leftwing movements had to be abandoned sooner or later because most of them proved to be insubstantial. There are several reasons for that: First of all, with §129a-investigations the police tries to collect as many information as possible about the political and personal activities and networks of leftwing groups and persons. The collection of information seems to be more important than the sentencing of suspects. Secondly, § 129a StGB can be understood as a kind of key to open sesame, a bag full of further special police and intelligence instruments and methods: control of letters, the tapping of phones, longer term observations, the systematic use of undercover agents and of the crown or principal wittness, and since 1998 the use of electronic bugs in private homes, intensified raids, special control points in public space, dragnet and screen searches. A whole system of special authorities only designed to enable the police to produce detailled pictures of movements, contacts, habits and lifestyles of suspected groups and individuals, including their friends, relatives and somehtimes absolutely unsuspicious persons. In the eighties, almost 50.000 individuals were registered as suspected "terrorists" or "hostile to the state" in the police computer file "Inner Security" (PIOS) and in the INPOL-System.

Soziograms of resistance: The fight against the "new confusion"

Back to § 129a StGB: This legal norm serves, as shown above, mainly as a flexible instrument to investigate and collect information, therefore transfering "the battle against terrorism" into a fight against leftwing resistance in general. This is no accidental product of the development of the German Criminal Code, but an intended result. It has to do with a growing and more confusing array of political and social resistance movements and activities over the decades, ranging from absolutely peaceful forms of protest to "militant" acts of civil disobedience as the squatting of houses and construction sites of nuclear plants, blockades of military depots and transports, to violent acts against objects as building contracters and suppliers and militant anti-fascist activities in the nineties. The transition between these different forms of actions and scences of resistance became more "fluid" and made it harder for the police to clearly define the main "enemies" and "suspects", who sometimes were even part of the respected bourgeois class.

The "new political confusion" drove some of the leading police officers and law and order proponents almost out of their mind. Even with the very sophisticated system of new surveillance methods and techniques they failed in really controlling and understanding the structures of the new social movements which were usually non-hierarchic and without a clearly established ideological background. Even the domestic intelligence services showed signs of frustration. "With these kind of people there are limits to our work. They are not as well organized as the DKP (German Communist Party). This is the main mistake and a big disadvantage for us," said the head of the secret service in Hessia, talking about the autonomous movement in 1988. What was left to the police and intelligence system was the "cracking" of communication structures and the drawing up of "soziograms of resistance groups" by using secret police methods.

The use of the crown or principal wittness - Dealing with the truth

Until 1999 the principal wittness was part of the special system of instruments and regulations accompanying § 129a StGB. The crown or principal wittness is quite the reverse of a "normal" wittness. Burdened with guilt, the principal wittness tries to buy his or her freedom from the state (that feels pressured itself to succeed in fighting terrorism) by betraying his or her former comrades. The career of a principal wittness usually starts in custody while awaiting the trial. This is a specific difficult psychological situation for every suspect, which can be easily exploited by police authorities. Quite often interrogations are used by the questioning officers to make false promises or to put massive pressure on the suspect, urging him to become an accomplice of the investigating state authorities. With this highly disputable role reversal from suspect to wittness the already fragile "equality of weapons" between the public prosecutor and the defence in the trial is completely destroyed. Sometimes, when the principal wittness - due to "security threats" or "unattainability" - has not to attend the trial at all and his/her statements are introduced to the main hearing via the protocols of interrogations or via "wittness by hearsay", the suspects and their defence lawyers have no chance at all to question the credibility and reliability of the evidence given. Especially the lack of "credibility" is always undermining the evidence of a "bribed" wittness in a fair trial. Every principal wittness who is promised a mitigation of the sentence or even exemption from punishment, who is interested in the protection and support by the state authorities, is automatically driven into such a deeply dependent relationship that he or she might feel the pressure to say more than her or she really knows.

In a legal proceeding the Chied Federal Prosecutor once promised a remission, a new identity and financial support to the principal wittness. After three months of giving evidence the wittness told a magazine (Der Spiegel) that he felt that the police wanted information from him he could not give. He even denounced two of his friends of being members of the "Revolutionary Cells", while he later said in the Spiegel-interview that this "was another lie" he had made up "when being in a deep crisis". He further tried to explain this feeling of being down: "Although I hated to be a traitor and felt more bloody awful day by day, I knew that I was completely governed by the questioning police officers. (...) I was afraid that they might drop me and therefore I felt that I had to do a good job and offer them more facts and details."

This kind of pressure to deliver as many facts as possible is typical for the situation of every principal wittness. If one tries to judge the credibility of such an evidence one always has to keep in mind the extreme pressure produced by the investigating authorities, the existential interest of the principal wittness to be spared from punishment and to enjoy further help by the state: a new identity, face operation, bodyguards, finanial help to starth a new life etc..

When betrayal for the sake of personal advantages is sanctioned by the state, false evidence is more or less unavoidable.

Even if the German government decided in 1999 that the principal wittness should no longer be allowed as a legal instrument in § 129a-proceedings there were no efforts to rehabilitate the obvious victims of principal wittnesses in the past. The abolishment though of the principal wittness in anti-terrorist-trials is not enough. We should also call for the elimantion of the whole system of special legal norms accompanying § 129a StGB. Especially when we look at the recent initiatives to create a new § 129b, which would allow German police authorities to prosecute "any criminal and terrorist organization in the European Union" (before that the Federal Court had ruled that at least parts of the organization had to be located in Germany), there is no reason for a civil rights movment to lean back and relax.

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