The Ministry of Justice wants uniform rules regarding informants in the police

To date, there are no uniform rules for the use of informants by the police – unlike the Office for the Protection of the Constitution. The Federal Ministry of Justice is now introducing a draft law to the cabinet. But the plans are controversial.

They are probably the security authorities’ most sensitive investigative tools: the people they trust, also known as informants. This does not mean undercover investigators or infiltrated officials, but rather criminals or extremists who are recruited and often paid by the police and the Office for the Protection of the Constitution to provide the authorities with inside information and thus solve or prevent crimes.

The controversial use of informants is clearly regulated by law at the Office for the Protection of the Constitution – but this is not the case for the German police. The federal government now wants to change this. Or better said: Part of the traffic light coalition, above all the FDP-led Federal Ministry of Justice, is planning to regulate the use of police informants more strictly with clear legal requirements. This was also announced in the coalition agreement.

Law for vote in the cabinet

Today, Federal Justice Minister Marco Buschmann will submit the “Law regulating the use of undercover investigators and confidants as well as provocation of crimes” to the cabinet for a vote. There had previously been a lot of arguments behind the scenes. The SPD-led Interior Ministry, for example, fears that strict rules will make it more difficult or even impossible to use informants in the future.

The current draft law states, for example, that informants should not be able to make a living from money paid by the authorities and that no minors may be recruited. In addition, the use of sources in criminal proceedings should have to be checked and ordered by a court in advance.

If an informant is deployed for longer than five years or has significant criminal records, the deployment must be justified separately. If an informant is proven to be lying or committing crimes themselves, the cooperation should be ended immediately.

Criticism from the police

Police representatives have already expressed concern that if the law is too strict, it will hardly be possible to use sources. Above all, the fact that in the future judges should decide in advance about the use of spies and that details would have to be comprehensively documented and could later be discussed in court is criticized.

“This will mean that no one will be available for this job anymore and we will no longer be able to use this operational tool,” says Oliver Huth, the North Rhine-Westphalia state chairman of the Association of German Criminal Police Officers (BDK). There is a great risk that informants could be exposed through the planned reporting and documentation requirements.

Nikolaos Gazeas sees it differently. The criminal lawyer teaches intelligence law at the University of Cologne. He believes a legal regulation is long overdue. “The use of undercover agents can be one of the most intrusive means of the state, so a legal regulation is constitutionally mandatory,” Gazeas said WDR and NDR.

Gazeas cannot understand the concern that the investigative instrument would be jeopardized by a judge’s reservation or documentation requirements. “The investigating judge does not find out the identity of the informant when he decides on the admissibility of their use. This is clearly regulated in the law,” says the defense lawyer. “What is supposed to result in a risk of exposure is not shown.”

Clear rules defense of Constitution

Unlike the police, the use of informants by the Federal Office for the Protection of the Constitution has been regulated by law and in service regulations for years. In the confidential documents that WDR and NDR Among other things, we were able to see that there is a kind of probationary period for prospective informants in order to check their reliability.

Sources are also formally required in writing. The informants for the Office for the Protection of the Constitution must also have no previous convictions for so-called capital crimes (e.g. serious bodily harm or sexual offenses) and must be mentally stable.

The informant should also be checked regularly and assessed using a special evaluation system. Monetary payments are also clearly regulated: These may not serve as a basis for living. The amount of payment is based on the quantity and quality of the information as well as the risk to the informant.

According to the guidelines, the VP leader – i.e. the contact person for the respective informant – should also find out whether the money from the Office for the Protection of the Constitution is being used to finance terrorist activities, for example. Private contact between informants and employees of the Office for the Protection of the Constitution is prohibited.

Different Service regulations

The police use of human sources, however, is not yet uniformly regulated nationwide: the police authorities usually use recruited informants in accordance with internal service regulations. And they can vary from state to state. In some cases, source management by the police has so far been handled surprisingly unbureaucratically and loosely.

In the past, the deployment of informants has repeatedly raised questions – for example, whether informants might be tempted to commit offensive provocations through the money payments. The Baden-Württemberg State Criminal Police Office (LKA), for example, used an unemployed man as a source in around 30 cases, including a false identity and false papers.

The informant later told the court that, in addition to his daily fees of around 100 euros, he also received a success bonus if a target was ultimately convicted.

Another undercover operation ended fatally: an informant for the Frankfurt police, who was employed in the drug milieu, was first tortured and then murdered in Marbella, southern Spain, in the summer of 2022. Apparently because his spying activities were exposed.

The exact background to the murder of this informant has not yet been clarified. Until recently, the Hanau public prosecutor’s office had been investigating this case and had also questioned the Frankfurt police officers responsible for the informant. Some of the officials refused to make statements.

According to research by WDR and NDR The investigators had linked the man to several drug networks for years. The officers are suspected of having protected the informant from prosecution. While he was spying for the Frankfurt police, the informant allegedly committed crimes himself and organized large-scale drug transport from Spain to Germany. According to the new draft law, such an undercover agent deployment would hardly be possible in the future.