Secret service agent activity
Secret service agent activity is a criminal offense in German criminal law , which is legally standardized in § 99 StGB . It covers “simple” intelligence work without being restricted to state secrets . The purpose of the regulation is to protect the interests of the Federal Republic of Germany. It is an abstract dangerous offense .
Legal text
The criminal offense of secret service agent activity has the following wording:
(1) Who
- 1. carries out a secret service activity against the Federal Republic of Germany for the secret service of a foreign power, which is aimed at the communication or delivery of facts, objects or knowledge, or
- 2. to the secret service of a foreign power or to one of its middlemen agrees to undertake such an activity
is punished with imprisonment of up to five years or with a fine if the act is not threatened with a penalty in Section 94 or Section 96 (1), in Section 97a or in Section 97b in conjunction with Section 94 or Section 96 (1).
(2) In particularly serious cases, the penalty is imprisonment from one year to ten years. A particularly serious case is usually present when the perpetrator reports or supplies facts, objects or findings that are kept secret by an official body or at its instigation, and when he
- 1. Abuses a position of responsibility that particularly obliges him to keep such secrets, or
- 2. the act creates the risk of serious disadvantage for the Federal Republic of Germany.
(3) Section 98 (2) applies accordingly.
Offense
Actual act is gem. Paragraph 1 No. 1 the exercise of a secret service activity . According to the case law of the BGH , this is understood to mean an activity whose external appearance corresponds to what is typical and characteristic of the work of agents and other auxiliary persons of such services, namely secrecy and the use of conspiratorial methods. The criminal liability extends according to Section 99 of the Criminal Code applies to activities in all areas and regardless of the qualification of the information, whereby the overall behavior of the perpetrator should be decisive.
The Federal Court of Justice regards as characteristic:
- Sign a letter of commitment
- Use of cover names and cover addresses
- Assignment of a manager
- Conspiratorial meetings
- Camouflaged messaging (code)
- Use of couriers, small transmitters, photomicrographs, and dead mailboxes
The activity must be carried out for the "secret service of a foreign power". This means institutions in the state sector. Classification as a secret service does not depend on the specific form of organization, but on a functional consideration. Therefore, organizations maintained by private companies for industrial espionage alone are not covered, but private companies that are integrated as front companies in the secret service network of a foreign power are.
The activity must also be carried out “for” the secret service. In other words, targeted action is required to provide services. An organizational integration into the service is not required. The perpetrator does not have to be an agent himself in the technical sense .
The activity must be directed "against" the Federal Republic. In the opinion of the Federal Court of Justice, this is not the case if the actual target country of the secret service activity is a third country and the connection to the Federal Republic of Germany is limited to the fact that a German accomplice has his residence and company headquarters here. Likewise, an only indirect impairment of the reputation of the Federal Republic through the participation of a German in an exclusively foreign-related crime, such as participation in procurement projects for the Iranian nuclear program , is ruled out.
The act of paragraph 1 No. 2 is the declaration of readiness for an activity according to Paragraph 1 No. 1 towards the foreign secret service or an intermediary.
Intent
The criminal liability according to § 99 StGB requires intent , whereby contingent intent is sufficient. The offender's objection that he only wanted to develop a pseudo-activity is refuted as soon as he has given the first news.
Justifications
A state of emergency comes into consideration in particular as a justification if, for example, relatively minor acts are suppressed with the threat of the destruction of economic existence, social status or private life situation. In the case of so-called double agents , depending on the circumstances, the element of “against” the Federal Republic may be missing.
Perpetration and participation
Participants are only outsiders, namely instigators . Aid is conceivable for unspecific support activities. The perpetrator, on the other hand, is anyone who develops their own activity, even if this is only of subordinate importance.
See also
literature
- Claus Arndt : The Basic Law and the prosecution of members of the main administration clearing up . In: Neue Juristische Wochenschrift , 1991, p. 2466.
- Claus Arndt: Punishment of spies in the GDR . In: Neue Juristische Wochenschrift , 1995, pp. 1803ff.
- Wilfried Bottke : The prosecution of government criminality of the GDR after the accession of the new countries . In: Ernst-Joachim Lampe (Ed.): German Reunification, The Legal Unit, Working Group Criminal Law , Volume II, Cologne a. a. 1993, pp. 203ff.
- Karl Doehring : On the ratio of spy punishment - international law and national law . In: Journal for Legal Policy , 1995, p. 293ff.
- Alexander Ignor, Anke Müller: Espionage and Law. Comments on the prosecution of the former GDR espionage . In: Strafverteidiger , 1991, p. 573ff.
- Uwe Wolfgang Kasper: The criminal liability of GDR secret service employees . In: Monthly for German Law , 1994, pp. 545ff.
- Pabst: On the concept of secret service activity in Section 99 (1) of the Criminal Code . In: Deutsche Juristen-Zeitung , 1977, p. 427ff.
- Rüdiger Zuck: Spies in East and West . In: Monthly for German Law , 1991, p. 1009.
Web links
- Alexander Hettel and Max Philipp Kirschhöfer, On the current occasion: The criminal liability of secret service espionage in the Federal Republic of Germany [1]
