Agent provocateur

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An agent provocateur [ aˈʒɑ̃ pʁɔvɔkaˈtœʁ ] ( French for ' provocative agent ', lock spitzel ; plural agents provocateurs ) is a person who is usually commissioned by the state to provoke one or more third parties to commit an illegal act. In a broader sense, it is also used to describe an action that strives to strengthen one's own position and legitimize an intervention through the deliberate pretense or provocation of a noticeable act. Because of the risk that the state will act, at least indirectly, as a lawbreaker and provoke acts that would not have been committed without the agent, the use of such agents in democracies is usually strictly regulated by law or by the highest court rulings. Cases are known, including in Germany , in which such agents were used illegally, for example to covertly disrupt social movements and to violently escalate demonstrations .

Criminal law

The use of an agent provocateur by the state usually takes place on behalf of authorities such as the public prosecutor's office , police or secret services and ideally aims to commit an unfinished attempt ( main offense ) with the possibility of the usual preservation of evidence (→ in flagranti ). The aim of such a mission is to lure hidden and dangerous crime out of impunity. An Agent Provocateur comes from the covered employee environment on a regular basis, such as undercover agent , Undercover or unofficial collaborator .

Germany

Anyone who provokes the act of another, and in doing so safely assumes that he will convict the other in the attempt, cannot regularly be punished for inciting this main act because he lacks the necessary double intent with regard to the success of the offense ( Section 26 StGB ).

The earlier case law assumes that the use of V-people and undercover law enforcement officials to combat particularly dangerous and difficult aufklärbarer crime , which also includes the drug trafficking is one, necessary and is permitted. Act-provoking behavior of police lure spiders can only be accepted within the limits set by the rule of law .

The essential evaluation points developed by the Federal Court of Justice (BGH) in its earlier case law are:

  • The basis and extent of the suspicion against the accused,
  • Type, intensity and purpose of the influence,
  • Willingness to act and
  • own, not externally controlled activities of the accused.

In its judgment of May 23, 1984, the 1st Criminal Senate of the BGH did not accept any procedural obstacles due to the inadmissible use of lure spikes, but resolved the case on the part of the defendant's guilt by mitigating the penalty. If an unsuspecting and initially not inclined person is induced to commit a crime in a manner attributable to the state by the person of trust led by a public official and this leads to criminal proceedings, this constitutes a violation of the principle of fair trial pursuant to Art. 6 Para. 1 sentence 1 ECHR . This violation can be found in the grounds of the judgment. According to the earlier case law, it is to be compensated when determining the legal consequences. The amount of compensation for action contrary to the Convention must be expressed separately.

The second criminal panel of the BGH decided differently in the more recent case law : The unlawful provocation of a crime by members of the law enforcement authorities or third parties controlled by them regularly results in a procedural obstacle. This more recent judgment of the 2nd Criminal Senate of the BGH was preceded in particular by the judgment of the European Court of Human Rights (ECHR) in the case of fear against Germany of October 23, 2014.

The Federal Constitutional Court said on this issue: “Taking into account the case law of the European Court of Human Rights, the criminal courts will nevertheless have to consider in future, in comparable cases, an express prohibition of exploitation of the evidence obtained directly through the illegal act provocation, i.e. in particular with regard to the witnesses directly involved in the illegal act provocation to pronounce. "

In its decision in the case of fear of Germany, the ECHR in Strasbourg sets out the following seven guiding principles, on which the deployment of an agent provocateur must be oriented:

  1. It may be permissible to use undercover agents, provided that the operation is clearly delimited and secured. The spread of organized crime calls for effective action, but the right to an orderly administration of justice is so prominent that it cannot be sacrificed for expediency .
  2. The public interest in the fight against crime cannot justify the use of evidence obtained through police incitement, as that would expose the accused to the risk of being deprived of their right to a fair trial from the outset and definitively.
  3. Incitement is present when the police officers do not limit themselves to investigating criminal behavior, but rather induce the person concerned to commit a crime that they would not otherwise have committed. The reason for the prohibition of incitement by the police is that their task is to prevent and investigate crimes, but not to bring about them.
  4. The law enforcement agencies have to prove that there has been no incitement, provided that the claims of the accused are not entirely unlikely. In practice, this burden of proof can be difficult to meet if the covert measures are not formally approved and monitored. Therefore, an understandable and predictable procedure for the approval of investigative measures and their proper monitoring is necessary. In the case of covert measures, judicial surveillance is the most appropriate means.
  5. If authorities or courts make a decision or measure in favor of the complainant, does not meet the principle to take his victim within the meaning of Art. 34 ECHR, unless they have the violation of the Convention recognized expressly or in substance, and reparations made .
  6. In order for a procedure within the meaning of Art. 6 I ECHR to be fair, all evidence obtained through police incitement must be excluded or comparable results must be achieved in another way.
  7. In the case at hand, the evidence obtained through police incitement was used in the proceedings against the applicant and his conviction was based on this evidence. Significant mitigation of the penalty is not a procedure with comparable results to the removal of evidence. As a result, the complainant has not been given sufficient redress for the violation of Art. 6 I ECHR and he can further claim to be the victim of a violation of Art. 6 I ECHR.

Agents provocateurs at demonstrations

Again and again there are discussions about agents provocateurs smuggled in by the police to escalate demonstrations, such as B. at the demonstrations against the G8 summit in Heiligendamm or possibly against Stuttgart 21 . In an interview in 2012, a police officer who wished to remain anonymous said

“I know that during explosive large-scale demonstrations we smuggle covert officials who act as tactical provocateurs, as masked stone throwers, among the demonstrators. On orders, they throw stones or bottles in the direction of the police so that they can begin the evacuation. "

Decisions of the Federal Constitutional Court

BGH judgments

  • BGHSt 32, 345 - crime provocation by police lure spy, full text
  • BGHSt 45, 321 - Offense provocation by confidant, full text
  • BGHSt 47, 44 - Offense provocation by confidant, full text
  • Decision of the 2nd Criminal Senate of the Federal Court of Justice of June 10, 2015, 2 StR 97/14 - Criminal proceedings: procedural obstacle in the case of a provocation contrary to the rule of law, NJW 2016, 91 with comment Ulrich Eisenberg

Austria

The Austrian Code of Criminal Procedure contains an express ban on the use of lure spikes in Section 5 (3) of the Code of Criminal Procedure. Nevertheless, the Supreme Court has always refused to draw procedural or substantive conclusions for the criminal proceedings against persons tempted to commit a crime from a violation of this provision.

Judgments of the ECHR

  • Teixeira de Castro v Portugal, judgment of 9 June 1998, 44/1997/828/1034
  • Ramanauskas / Lithuania, judgment of February 5, 2008, 74420/01
  • Malininas / Lithuania, judgment of July 1, 2008, 10071/04
  • Scholer / Germany, judgment of December 18, 2014, 14212/10
  • Furcht / Germany, judgment of 23 October 2014, 54648/09 , NJW 2015, 3631

Examples

Germany
  • In the course of the NPD ban proceedings in 2001, it became known that key NPD persons were V-men of the Office for the Protection of the Constitution and that their statements were made as the reason for the application for a ban.
  • During the protests on June 6, 2007 against the G8 summit in Heiligendamm near Rostock, the police smuggled police officers disguised as Black Block into a demonstration. After other demonstrators became suspicious, three of the officers withdrew behind the lines of the police, the fourth was disguised and was recognized as a member of a Bremen evidence and arrest unit. The mere presence of these disguised police officers is illegal, since according to § 18 and § 12 of the Federal German Assembly Act, police officers who have been dispatched to demonstrations must identify themselves to the demonstration leader.

Other countries

  • The tsarist secret police Okhrana used agents provocateurs in the revolutionary movements of Russia, one of the best known was Yevno Fischelewitsch Asef . He betrayed his comrades to the police for money, but at the same time organized assassinations such as that of the Russian interior minister Vyacheslav Konstantinovich von Plehwe in 1904 and of the Grand Duke Sergei Romanov , an uncle of the tsar, in 1905.
  • In the USA, until the abolition of the “sodomy laws” in the 1960s and 1970s , it was routine for the police to induce male homosexuals to engage in (then illegal) sexual acts by luring them in public toilets and similar places, only to then immediately accuse them the lewdness (German: indecency) to arrest.
  • During the 1973 uprising in Thailand , members of a special unit fired from a rooftop at both demonstrators and police officers.
  • In the riots in Ukraine as part of the Euromaidan, there are indications that snipers from the Maidan movement were hired to fire on their own demonstrators with the aim of escalating the protests.
  • The Australian police operated the child pornography platform "ChildsPlay" from October 2016 to September 2017 . The founder and actual operator of the site, a Canadian with the code name "WarHead", was identified and arrested at the end of September 2016. Instead of shutting down the site, it was taken over by the Australian police and operated for eleven months - ostensibly with the aim of convicting as many producers and consumers as possible of child pornography. During this time, "ChildsPlay" swelled to over a million registered users, and a wealth of child pornographic images and films were distributed worldwide with the help of this platform.

See also

Web links

Individual evidence

  1. ^ Rengier: Criminal Law General Part . 10th edition. 2018, § 45 Rn. 71 .
  2. ↑ BVerfGE 57, 250 [284]; BGHSt 32, 115 [121/122] with further references
  3. ^ Judgment of the Senate in GA 1975, 333, 334; also BGH NStZ 1984, 78 mwN
  4. ↑ NJW 1980, 1761; 1981, 1626; Defense Attorney 1981, 276; NStZ 1981, 70; 1984, 78
  5. ^ BGH judgment of May 23, 1984 , Az. 1 StR 148/84, full text
  6. ^ BGH, judgment of November 18, 1999 , Az. 1 StR 221/99, BGHSt 45, 321, full text.
  7. ^ Judgment of the 2nd criminal senate of the BGH of June 10, 2015, 2 StR 97/14, NJW 2016, 91 with comment Ulrich Eisenberg
  8. ↑ Neue Juristische Wochenschrift (NJW) 2015, 3631. See also [1]
  9. ↑ dpa / AFP / mkl: Proceedings against dealers because of V-people stopped. In: The world . June 10, 2015, accessed December 21, 2016 .
  10. ↑ Decision of the BVerfG of December 18, 2014, NJW 2015, 1083
  11. ↑ European Court of Human Rights (Section V), judgment of October 23, 2014, 54648/09 in the Furcht case / Germany, NJW 2015, 3631
  12. ↑ a b anr / flo / dpa / ddp: Police confirm the smuggling of civil servants. In: Der Spiegel . June 8, 2007, accessed December 21, 2016 .
  13. ↑ Florian Gathmann, Björn Hengst: Protester accuses undercover plainclothes police officers as agitators. In: Der Spiegel . June 8, 2007, accessed December 21, 2016 .
  14. ^ Bettina Wieselmann: S21 Initiative: New allegations against police officers. In: Badische Zeitung . October 8, 2010, accessed December 21, 2016 .
  15. ↑ Jörg Heuer: We are burned by politics. Police officers tell. In: Hamburger Abendblatt . October 18, 2010, accessed on December 21, 2016 (paid).
  16. ↑ We are being burned by politics. Police officers tell ( memento from December 25, 2012 in the Internet Archive ). In: Hamburger Abendblatt . (PDF file; 154 kB), October 18, 2012, archived on the website of the Federal Working Group of Critical Police Officers
  17. ↑ BVerfG, decision of October 19, 1994, file number (Az.) 2 BvR 435/87 , NJW 1995, 651.
  18. ↑ BVerfG, December 18, 2014, Az. 2 BvR 209/14 , 2 BvR 240/14, 2 BvR 262/14, NJW 2015, 1083
  19. ↑ See legal sentence RS0119618 and the corresponding decisions of the Supreme Court.
  20. ^ Stefan Aust : The Baader Meinhof Complex . P. 72, Goldmann, 1998, ISBN 3-442-12953-2 .
  21. ↑ Ulrich Chaussy : The three lives of Rudi Dutschke. A biography. P. 253, ISBN 3-472-86576-8 .
  22. ↑ Hinrich Lührssen: "Magic Fire" with dark figures . In: The time . No. June 25 , 1987 ( zeit.de [accessed December 21, 2016]).
  23. ↑ Freia Peters: The policeman who shouted "Get on the cops". In: The world . June 8, 2007, accessed December 21, 2016 .
  24. ^ Assembly Act, Section 3 . In: dejure.org .
  25. ↑ Kullada Kesboonchoo Mead: The Cold War and Thai democratization. In: Albert Lau: Southeast Asia and the Cold War. Routledge, Abingdon (Oxon) / New York 2012, pp. 215-240, at p. 233.
  26. ↑ Julia Smirnova: Who shot the demonstrators on the Maidan? In: The world . March 6, 2014, accessed December 21, 2016 .
  27. ↑ https://www.stern.de/panorama/stern-crime/australien--es-war-die-groesste-kinderporno-site-der-welt---und-die-polizei-steckte-dahinter-7652922. html