FAQ
Status: 11/08/2022 5:20 p.m
What is in the BND files on the Barschel case? A journalist wanted to know and sued for access to the files. The European Court of Human Rights has now confirmed the embargo.
What exactly was the procedure about?
The affair surrounding the CDU Prime Minister Uwe Barschel is considered one of the biggest political scandals in Germany. Before the state elections in Schleswig-Holstein in 1987, SPD candidate Björn Engholm was spied on with the aim of discrediting him. The then Prime Minister Barschel (CDU) was accused of being responsible. He resigned over the course of the affair. However, he denied the allegation and described himself as a victim of an intrigue. Days later he was found dead.
The prosecutor’s investigation into Barschel’s death came to the conclusion that he had committed suicide. The circumstances of death are still disputed. Iranian arms dealers, an Eastern European secret service, a German mafia organization – there are many rumors about alleged murderers. And there are BND files on Uwe Barschel. The “Bild” chief reporter Hans-Wilhelm Saure has been complaining for years about personal insight into these files. Saure says of his motives that he wanted to know what the BND knew about Barschel’s death. He was also interested in the rumors that Barschel was an agent of the secret service of an Eastern European country.
What did the ECtHR judge?
The European Court of Human Rights dismissed the lawsuit by a slim majority of four judges to three. Accordingly, the four judges saw no violation of freedom of information in the case. They argue that the BND secret service provided the “Bild” journalist with some information. However, the journalist was concerned with personal access to the Barschel files. However, he did not adequately justify why he absolutely needed this access to the original files. The member states of the human rights convention also have discretion when it comes to secret service files. Security interests could restrict access to files. As the court explained, the disputed BND documents date from the years 1991 to 1995. With a statute of limitations of 30 years, some are already accessible, the rest would have to be by 2025.
Why don’t all the judges agree with the verdict?
Three judges, including the chairman of the chamber, considered the lawsuit to be well founded. They criticize that the “Bild” reporter only received rough information from the BND. It was as if someone wanted to read a book and was only allowed to read the table of contents. Access to original documents is extremely important for journalists and researchers and is protected by freedom of information. The practice of working with real documents is “older than the lost library of Alexandria” – according to the somewhat flowery formulation of the judges. You also criticize the legal situation in Germany. “Bild” journalist Saure made a similar statement: the intelligence services were granted loopholes in German law, and that urgently needed to be changed.
What is the legal situation with secret service files?
The Freedom of Information Act regulates claims to information from private individuals against government agencies. However, the intelligence services are expressly excluded from this, so that this law does not contain any claims to secret service files. However, a claim to information against the intelligence services can exist according to Section 11 Paragraph 6 of the Federal Archives Act. The prerequisite for this, however, is that the documents are older than 30 years. But even after 30 years, the intelligence services can invoke source protection and withhold files. They may say that inspecting the files reveals too much information about how they work. Both the long protection period of 30 years and the exceptions for intelligence services have come under criticism. Most recently, Jan Böhmermann and the ZDF magazine “Royale” caused a stir when they published classified NSU reports by the Hessian intelligence agency before the end of a 30-year protective letter.
Az. 8819/16