An undercover investigator (also undercover employee ) is a dedicated employee of a police or customs authority or an intelligence service who is deployed under a permanent legend that has been lent to him . He is to be distinguished from a V-person or an informant , who are private individuals, as well as from a non-openly investigating police officer without legend who only occasionally appears undercover.
The legal bases, powers and use differ according to the purposes of criminal prosecution , hazard prevention and intelligence service and the authority . Undercover investigators are usually civil servants , in the case of the police they are generally law enforcement officers . But there are also public employees in the public service or soldiers ( BND and MAD ) conceivable. Legal definitions can be found in Section 110a, Paragraph 2, Clause 1 of the Code of Criminal Procedure (StPO), Section 45, Paragraph 2, No. 5 of the Federal Criminal Police Office Act and Section 9a of the Federal Constitutional Protection Act (BVerfSchG).
For purposes of criminal prosecution, Sections 110a ff. Of the Code of Criminal Procedure apply to federal and state authorities. Use is only permitted on a subsidiary basis and in the case of serious criminal offenses and requires the approval of the public prosecutor's office . In the event of imminent danger , the police are also authorized to do so, provided that consent is obtained within three days. However, if - as is the more common case in practice - the operation is directed against a specific suspect or the undercover investigator enters an apartment that is not generally accessible, court approval is required. In the case of imminent danger, the approval of the public prosecutor's office is sufficient; but even then, the subsequent judicial approval must be obtained within three days.
Undercover investigators are allowed to take part in legal transactions under their bogus identity (legend) ( Section 110a, Paragraph 2 of the Code of Criminal Procedure), enter an apartment of the authorized person ( Section 110c of the Code of Criminal Procedure) and question witnesses without instruction ( Section 136 of the Code of Criminal Procedure).
For the use of undercover investigators in the area of organized crime , the joint guidelines of the justice ministers / senators and the interior ministers / senators of the federal states on cooperation in the prosecution of organized crime , which are almost identical in the individual states as (state) administrative regulations exist, general cross-purpose regulations for the police use of undercover agents.
Customs only used undercover agents for law enforcement purposes. According to Section 3 (8) No. 3 of the Customs Investigation Service Act , the Customs Criminal Police Office must provide the customs investigation offices and the customs authorities with the necessary operational support from undercover agents.
In court proceedings, the identity of the undercover investigator is usually kept secret, since according to Section 110b, Paragraph 3, Clause 3, Section 96 of the Code of Criminal Procedure, both further use under the false identity and the life and limb of the official (living under the correct identity) are protected can. In order to use the evidence of the investigation results of the undercover agent, they can in principle be heard as " hearsay witnesses ", there is no prohibition of gathering evidence . In practice, however, for the aforementioned considerations, they are represented in court by another "hearsay witness" who represents the undercover investigator's testimony. Upon request, the undercover investigator can also be heard from the courtroom, whereby the voice and his appearance may be technically alienated and voice and image can be transmitted into the courtroom (audiovisual questioning).
The use of undercover agents in the context of security is based on federal and state police laws. For the Federal Criminal Police Office, for example, the legal basis is Section 45 (2) No. 5 BKAG. According to this, the use of undercover agents is a special means of collecting data . The legal basis for the Federal Police is Section 28 (2) No. 4 of the Federal Police Act . There are also legal bases in the police laws of the federal states, e.g. B. in § 20 Police Act NRW.
Undercover agents in the German intelligence services are called undercover employees. ( Section 9a BVerfSchG) They are an intelligence service tool . The legal basis for the Federal Office for the Protection of the Constitution is Section 9a BVerfSchG, for the Military Counter-Intelligence Service Section 5 MAD Act in conjunction with § 9a BVerfSchG and for the Federal Intelligence Service § 5 sentence 2 BND law in conjunction with Section 9a BVerfSchG. The use of undercover investigators by the state authorities for the protection of the constitution is based on the respective constitutional protection laws of the states.
- 2011: It becomes known that undercover agents were employed in the right-wing extremist scene.
- 2014: The undercover investigator Iris P., who was deployed in Hamburg's left-wing extremist scene under the code name Iris Schneider , is exposed.
According to Section 53, Paragraph 3 of the Security Police Act (SPG), security officers can obtain information themselves without disclosing their mandate or instruct other persons (trusted persons) to do so, if the defense against dangerous attacks ( Section 16 Paragraphs 2 and 3 of the DDA) or criminal connections is otherwise would be endangered or made considerably more difficult. According to § 54 Abs. 3 SPG, apartments may only be entered by undercover agents with the consent of the owner. The use of image and sound recording devices is according to undercover investigators. Section 54 (4) SPG is only allowed if the commission of acts threatened with considerable punishment is to be expected. The Federal Minister of the Interior can instruct authorities to produce documents for undercover agents who deceive about their identity ( § 54a SPG).
- 2010: Through her summons as a witness it is revealed that an officer under the code name Danielle Durand was used as an undercover investigator in the animal rights scene.
ECHR case law
The European Court of Human Rights has dealt with the compatibility of the use of undercover agents with the right to respect for private and family life according to Art. 8 ECHR several times:
- Kennedy / UK, May 18, 2010, 26839/05
- Zakharov / Russia, December 4, 2015, 47143/06
In particular, the action of the police as agent provocateur also violates Art. 6 ECHR:
- Teixeira de Castro / Portugal, June 9, 1998, 44/1997/828/1034
- Ramanauskas / Lithuania, February 5, 2008, 74420/01
- Malininas / Lithuania, July 1, 2008, 10071/04
- Geisler, Claudius (Ed.): Undercover investigators and V-persons in criminal proceedings. Wiesbaden: KrimZ, 2001 (criminology and practice; vol. 31). ISBN 3-926371-50-1 ( PDF )
- Use of informants, use of informants and undercover agents. Joint circular of the Ministry of Justice (4110 - III. 15) and the Ministry of the Interior (IV / 2 - 2701) of February 21, 1994 (Brandenburg)
- Article from Stern about undercover agents in political parties
- Video interrogation of undercover agents
- ↑ Joint guidelines of the justice ministers / senators and the interior ministers / senators of the federal states on cooperation in the prosecution of organized crime. In: http://bravors.brandenburg.de/ . July 8, 1992, accessed January 2, 2019 .
- ↑ § 20 Police Act NRW. In: https://recht.nrw.de/ . December 20, 2018, accessed January 2, 2019 .
- ↑ Jana Simon : NSU murders: use of undercover investigators. In: The time . November 22, 2012. Retrieved September 29, 2017 .
- ↑ Hanning Voigts: Rote Flora: Mitten in Herz. In: Frankfurter Rundschau . 5th November 2014.