Separation requirement between the police and intelligence services

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The requirement of separation between the police and intelligence services , or separation requirement for short , is a principle of German law according to which the police and intelligence services should be separated in terms of their tasks, organization, powers and data processing.

history

From 1815, in addition to the criminal police, a political police force was formed in the states of the German Confederation to combat political crimes. In the period that followed, federal bodies emerged that were only authorized to collect and evaluate information. From 1848 until the founding of the Reich in 1871, the activities of the political police were again concentrated on the level of the individual states. After the founding of the Reich, the central office of the Prussian state police took over the tasks of a central office on the basis of an agreement between the Reich and the states. She herself had no executive powers, but coordinated the exchange of information between the countries. In the Weimar Republic, the state police were responsible for protecting the state by means of intelligence services. From 1920 onwards, a Reich Commissioner subordinate to the Ministry of the Interior and then the Reich Ministry of the Interior itself took on the task of observing anti-constitutional efforts with intelligence means. Neither body had any executive powers, i. That is, they were not allowed to search, confiscate, question or even arrest.

From 1933 onwards, the Secret State Police (Gestapo) gradually took over the tasks of the political police across national borders and comprehensively. The federal states later also lost their responsibility for the rest of the police. The supraregional Gestapo was given extensive executive powers and was no longer bound by applicable law. By proclamation by the Allied Control Council, the Gestapo was dissolved in 1945 and the rest of the police in 1946. In the period that followed, the police were to be rebuilt exclusively in the occupation zones and their responsibility initially only extended to security and criminal prosecution.

The so-called police letter, a letter from the military governors of the West German occupation zones of April 14, 1949 to the Parliamentary Council in the middle of the final deliberations on the Basic Law, is considered to be the birth of the separation requirement.

On the basis of the Federal Constitutional Protection Act (BVerfSchG) from 1950, a central domestic intelligence service was created at federal level with the Federal Office for the Protection of the Constitution (BfV) , which had no police powers. Likewise, state authorities for the protection of the constitution (LfV) were set up, which, according to state laws, also have no police powers. For the first time in German history, the constitutional protection authorities were completely separated from the police authorities.

Legal derivation and scope

The derivation of the separation requirement is controversial.

Constitutional law

The requirement to separate the police and intelligence services was first addressed in the police letter to the Parliamentary Council of April 14, 1949 . According to this, the intelligence service to be set up should not have any police powers. In their letter of approval for the Basic Law, the Allies explicitly referred to this police letter.

The Basic Law speaks in Article 73.1 No. 10 GG and Article 87.1 GG of the police and the protection of the constitution. A separation between the police and the protection of the constitution is not required by the wording of the two norms. It is not mandatory to conclude that the list of tasks laid down there (cooperation between the federal government and the states in the areas of a) the criminal police, b) the protection of the free democratic basic order and c) ...) in the plural is a clue that that the legislature assumed separate positions (so-called plural argument). The wording of Article 87, Paragraph 1, Sentence 2 of the Basic Law merely states that various bodies can, but need not, be set up. Art. 87.1 sentence 2 GG and Art. 73.1 no. 10 GG only regulate the legislative and administrative competence of the federal government, that is, a question of mere competence.

The Federal Constitutional Court has stated in individual decisions that the separation requirement can be derived from the Basic Law, in particular from the rule of law , the federal principle and the protection of fundamental rights , but has not decided the question because of its lack of relevance in the specific case. The reference to the lack of a comparable separation requirement in other constitutional states such as France , Austria , Switzerland , the United States , Denmark and Sweden does not speak against a separation requirement immanent in the German constitutional state. The rule of law is not a universally valid and unchangeable principle, but is shaped nationally by legal tradition and historical experience and is therefore subject to changes over time.

Ordinary law

In Section 2, Paragraph 1, Clause 3 and Section 8, Paragraph 3 of the BVerfSchG, the Federal Office for the Protection of the Constitution (BfV) is assigned the prohibition of affiliation to a police station and the exclusion of police powers and, in a third set of rules, certain areas of responsibility (cf. § 3 BVerfSchG). The interplay of these three regulatory areas, which can be found in the special laws of every German intelligence service, results in the separation requirement from a functional, competent and organizational point of view.

The first component of the separation requirement relates to the functional separation of the BfV from the police authorities and follows from the assignment of tasks in § 3 BVerfSchG in connection with the respective police laws. If the police authorities are basically limited to averting danger and criminal prosecution, the BfV searches for information, in particular about efforts against the free democratic basic order of dangers that arise in advance. Despite these different areas of responsibility, there are points of contact and overlap, especially in preventing and combating political crimes.

In connection with these different assignments of tasks, there is also the requirement to separate the two authorities by competency. Section 8 (3) BVerfSchG prohibits the constitutional protection authority from using police means. From this it is partly concluded that the separation requirement also indicates that the police authorities are denied intelligence services. The background to this view is that the legislature wanted to prevent the emergence of an overpowering federal office by limiting the powers of the BfV. In this respect, a BfV with full police powers is just as inadmissible as a central federal police station which is authorized to use intelligence resources extensively . According to the prevailing opinion, however, the police authorities are entitled to use intelligence resources within the limits that are drawn by their assignment of tasks through the competence standards mentioned.

In order to avoid circumventing the competency separation between the constitution protection and police authorities, an organizational component is to be found in the separation requirement. According to this, the BfV may not be affiliated with any police station. Since the requirement of the separation of powers is partly reciprocal, this also applies to the organizational separation. From a legal point of view, it cannot make a difference whether the agency for the protection of the constitution is attached to a police station or vice versa. Both would be inadmissible, since an organizational merger would in fact mean an accumulation of powers and competencies.

All federal states have opted for a regulation similar to the BVerfSchG in their state constitutional protection laws. In addition, the states of Brandenburg and Saxony have decided to regulate the separation requirement in their state constitutions. This means that there is also a separation requirement at state level that is independent of the federal level.

Useful examples

The informational component of the separation requirement shows that an unrestricted transfer of any information between the intelligence services and the police authorities is not permitted. Neither the police nor the intelligence services should have access to information that is not necessary for the fulfillment of their tasks. The separation requirement does not, however, dictate that cooperation between intelligence services and the police should cease where this is necessary for the mutual fulfillment of tasks. This is shown by the diverse data transmission standards between the security authorities .

In the area of ​​the intersection of the legal assignments of tasks of the respective authorities, information is permitted. This is also a prerequisite for transmission according to the constitutional protection laws. The admissibility of the establishment of joint situation centers and central files is thus limited insofar as they are used exclusively for the cumulative fulfillment of statutory tasks by intelligence services and police authorities. The creation of corresponding central files and situation centers therefore represents a special form of permissible information transfer.

Finally, it follows from the organizational component of the separation requirement that no personnel may be functionally employed by either one or the other authority. This does not rule out the possibility that evaluation employees of the intelligence services and the police under one roof - as practiced in the Joint Anti-Terrorism Center (GTAZ) of the federal and state governments and in the Joint Analysis Center Terrorism / Extremism (GATE) in the state of Brandenburg - perform security tasks side by side by constantly comparing information. This comparison and the joint evaluation are in turn based on the relevant transmission standards of the constitutional protection and police laws. The organizational affiliation of all these employees to the joint head of a police or intelligence agency is not permitted.

Other states

A comprehensive separation as in German law was and is alien to the domestic intelligence services of the USA, France, Denmark, Austria and most other countries. The principle also exists in Switzerland, however, and the British domestic intelligence service MI5 was limited in its executive powers insofar as it was not authorized to be arrested by the police.

literature

  • Christoph Streiß: The requirement to separate the police and intelligence services in the light of current security law challenges . Peter Lang Verlag, 2011, ISBN 978-3631607503 .
  • Alexander Dorn: The separation requirement from a constitutional historical perspective: for the inclusion of national intelligence service competencies in the Basic Law of May 23, 1949 . Duncker & Humblot Publishing, 2004. ISBN 3428111575
  • Helmut Albert: The “separation requirement” - a development concept that is outdated for the police and the protection of the constitution? ZRP 1995, 105 ff.
  • Christoph Gusy : The legal requirement to separate the police and the protection of the constitution. DV 1991, pp. 467-490
  • Christoph Gusy : The constitutional requirement to separate the police and intelligence services. ZRP 1987, pp. 45-52
  • Helmut Roewer: Separation of police and constitutional protection authorities . DVBl. 1986, p. 205 ff.

Web links

Remarks

  1. ↑ Wording of Article 83, Paragraph 3 of the State Constitution of Saxony: "The Free State does not maintain a secret service with police powers. The use of intelligence resources is subject to review by organs and auxiliary organs appointed by the parliament, unless this operation has been subject to judicial control. The details determine Law."

Individual evidence

  1. ^ Letter from the military governors on the Basic Law ("Polizei-Brief") of April 14, 1949 (German translation)
  2. ^ The separation requirement - Part 1: Political catchphrase or constitutional requirement? ( Memento of May 23, 2007 in the Internet Archive ) by Government Director Dr. jur. Jens Singer, Die Kriminalpolizei September 2006
  3. ↑ a b Alexander Dorn: "The separation requirement from a constitutional historical perspective: for the inclusion of national intelligence service competences in the Basic Law of May 23, 1949", Duncker & Humblot, 2004. ISBN 3428111575
  4. ^ Schmidt, Zeitschrift für Rechtssppolitik , 1979, p. 190
  5. ↑ Decision of the Second Senate of the Federal Constitutional Court of January 28, 1998 with the file number 2 BvF 3/92, paragraph 88 or BVerfGE 97, 198 (217) . Internet projects Prof. Dr. Axel Tschentscher, LL.M., MA. January 28, 1998. Retrieved April 9, 2018.
  6. ↑ BVerfG judgment of January 28, 1998 (AZ: 2 BvF 3/92) in BVerfGE Volume 97, p. 217
  7. ^ Therese Steffen Gerber, Martin Keller: Federal Police. In: Historical Lexicon of Switzerland . January 27, 2010 , accessed June 13, 2019 .