Anyone who wants to initiate a research project on Islamist radicalization in prison naturally needs suitable test subjects. Not an easy task, as you can imagine – and so a research team from Erlangen tried to get potential inmates to talk with two promises. The first was a financial “thank you”, albeit of a very clear nature, the respondents received three euros.
The second may have been far more important. “First of all,” the researchers wrote, “we want you to know that what you tell us will not affect your sentence or your time in prison.” The detainees, it was assured, would not have any problems because of your statements. The reason for this sounded plausible: “We have a duty of confidentiality” – one should “not tell anything about what you tell us”. This promise, so to speak written in writing, was signed by “Prof. Dr. M. Stemmler”, the holder of the chair for psychological diagnostics, methodology and forensic psychology at the Friedrich-Alexander University of Erlangen-Nuremberg.
A 26-year-old from Iraq, who was imprisoned in the Bamberg prison for drug offenses, apparently found this sufficiently trustworthy in October 2019. Especially since all of this was funded by the German Research Foundation (DFG), project number 367171077. So he agreed to an interview and was confronted with a request from the research team: It would be easier for them if they were allowed to record the conversation. “Except for us, no one would listen to the recording,” the 26-year-old was assured. He consented; one of Professor Stemmler’s employees created an electronically secured audio file.
Professor Mark Stemmler holds the Chair of Psychology at the University of Erlangen. One of his specialties is criminology.
(Photo: Sonja Och)
Three and a half months later, the Munich Public Prosecutor’s Office obtained a far-reaching decision. The search of Mark Stemmler’s chair at the Erlangen Institute for Psychology, including the seizure of material relating to the said 26-year-old Iraqi, was ordered. The responsible investigating judge found that such a thing was not forbidden. After all, the material did not emerge from a treatment relationship – but from a scientific research project.
Investigators used the testimony of a former fellow inmate of the 26-year-old as the reason for the confiscation. He apparently accused the Iraqi of “being a member of a terrorist organization abroad.”
On January 31, 2020, Stemmler, head of the “Islamic Radicalization in Prisons” project, received a visit from the State Criminal Police Office. The university lecturer first discussed this with the university management, then released the required material – especially the tape recording – “to prevent further searches of the premises,” according to the constitutional complaint that the Erlangen scientist has meanwhile filed in Karlsruhe. Stemmler objected to the research material being taken away, explains the procedural representative Helmut Pollähne. This, however, without success. The tape was confiscated.
Colleagues protested “in the strongest possible terms”
Can investigators do that? After all, it was not just the test subjects who were assured of absolute confidentiality – the researchers themselves also have to assure this. They undertake not to “pass on information about criminals to third parties”. They are also informed that breaches of private secrets will be prosecuted and imprisonment threatened. And then scientists can be forced to give out exactly such information?
The reaction in the research scene is corresponding. In a “fire letter” extremism researchers protested “in the strongest terms” against the actions of the Bavarian authorities. You see the constitutionally guaranteed research freedom of a university teacher violated. Especially since the research material was not confiscated to prevent an imminent crime. The damage caused by this is “foreseeably large” – after all, the confidentiality of the spoken word in research interviews is of central importance. The paper is signed by leading institutions for extremism research, a total of eight colleges and universities.
A statement by the responsible general public prosecutor’s office in Munich, which houses the Bavarian central office for combating extremism and terrorism, shows that the intervention is not considered to be commonplace there either. The investigators were always aware that the process in Erlangen represented “an encroachment on freedom of research”. Nevertheless, one considers this to be “justified” and “particularly proportionate”. After all, there was initial suspicion of a serious crime. “Nevertheless, I would like to point out,” explains spokesman Klaus Ruhland, that “the present access to research data was an extremely rare individual case”.
Ruhland also points out a key point that not many people are likely to be aware of. According to the Code of Criminal Procedure, pastoral workers and psychotherapists, lawyers, doctors, pharmacists and members of parliament have the right to refuse to testify – as do “persons who are involved in the preparation, production or distribution of printed matter”. However, the latter is generally interpreted as a right for journalists – whereas for “researchers and scientists” such a right to refuse to give evidence does not exist, as Ruhland explains. The Munich Higher Regional Court agreed with this interpretation. In July 2020, the researcher was not entitled to a “simple legal right to refuse to give evidence”, so the confiscation was lawful in this respect.
The privacy policy has been changed
Mark Stemmler has lodged a constitutional complaint against this. According to the Basic Law, the freedom of the scientist is protected just as unreservedly as the freedom of artistic activity, he argues. In both cases there is “absolute freedom” from any interference by public authorities. With the confiscation in Erlangen, the Bavarian investigators not only actually interfered with this freedom of research. The intervention also justifies the concrete risk of “not being able to carry out future similar projects because potential interview partners refuse to take part”.
In fact, Stemmler has meanwhile changed the data protection declaration for interviews in detention. There is no longer any assurance that what the prisoners say in the interview has “no consequences” for their sentence or time in prison. Even that they supposedly have “no problems” is no longer guaranteed, as before. Instead, a passage now points out that it is “very unlikely, but not impossible, that the public prosecutor’s office will access this data”.
Fortunately, Stemmler reports, so far only a few prisoners have “dropped out” of the interviews – and certainly only those “who have read the data protection declaration from A to Z”. Apart from that, all criminologists should now use the said passage. A slide during a criminology conference recently even read: The Stemmler case “changed everything”.
According to a spokesman, it is not yet clear when the Federal Constitutional Court will decide on the case. What is certain, however, is that the confiscation of the research material was not crowned with success. As early as August 2020, the Attorney General’s office dropped the case against the 26-year-old – insufficient evidence of the crime.