In the fight against organized crime and terrorist groups, the federal and state police have relied on informants for many years. These are insiders in rocker gangs, for example, who are recruited to spy for money. The Federal Ministry of Justice has now submitted a draft to regulate this activity in the future in accordance with the rule of law. So far, there are hardly any laws in this area. The draft bill from the House of Federal Minister of Justice Marco Buschmann (FDP) is the Süddeutsche Zeitung before.
According to this, the police should primarily get new guidelines on who they can recruit as an informant. Minors should be taboo, according to the draft. People who have been convicted of a crime in recent years or who have received a prison sentence for a misdemeanor should also be taboo in the future – unless, exceptionally, it is about solving a homicide.
This should make it more difficult for the police in the future to recruit informants in prison by offering them early release. However, it is also likely to create considerable obstacles for the police in recruiting particularly high-ranking – and therefore valuable – informants in criminal groups.
A novelty: The investigators should only work with an informant for 5 years
In addition, the investigators should not be allowed to work with an informant for more than five years in the future. That means a big change. So far, similar regulations on informants have only existed in the area of the protection of the constitution – there, in the course of the investigation of the NSU scandal, it had come to light how close and conspired the personal relationships between agents for the protection of the constitution and their informants were. That is why the rule now applies there that the supervising agent has to change every two years. However, there is no absolute time limit. What the FDP Ministry of Justice now wants to strictly order the police to do would be a novelty at this point.
Other planned regulations reflect things that are more likely to be taken for granted. According to the draft, anyone who takes part in a dropout program, for example from the right-wing extremist scene, should not be allowed to be recruited by the investigators as an informant. In practice, this has not been the norm up until now. Because anyone who comes out as a dropout already loses confidence in their criminal scene. The police should also not use a person as an informant who “does not have the required reliability, especially because it can be expected that they will not follow the instructions of the law enforcement authorities,” it says.
A major change is that the use of informants may in future be ordered “only at the request of the public prosecutor’s office by the court”. So a new rule of law control should take effect here. The Federal Constitutional Court last complained in April 2022 in its decision on the Bavarian Constitutional Protection Act that the domestic secret service has so far recruited its spies on its own without external control. While the Office for the Protection of the Constitution is now planning to have the recruitment of informants approved in advance by a secret control council, the ordinary courts would take on this role in parallel with the police.
It is a sensitive legal area
It is noteworthy that the draft from the Ministry of Justice, on the other hand, also wants to give informants a great deal of freedom – and this in particular in an area that is particularly sensitive in terms of the rule of law. In the future, informants should be allowed to “provoke” their criminal accomplices to commit crimes. If the investigators secretly look on, they can then use this as a basis to initiate criminal proceedings against the accomplices who, as the draft law puts it, “let themselves be tricked” into committing crimes.
It may not be about acts of violence, but about theft, drug or propaganda offenses, for example. The prerequisite is: The informant must not “affect” his accomplice “considerably”. Rather, he may at most give him a little impetus to action.
What does that mean in practice? As has often been the case in the past, one would probably argue about this in court. Because the draft bill from the FDP Ministry also makes it clear: If an informant exaggerates and actually has a “considerable” effect on an accomplice in order to urge him to commit a crime, then the state must not prosecute this crime. Reason: “unlawful provocation”.