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Home  >  Counter-Terrorism  >  Germany
 
Germany

Germany

Counter-Terrorism

 

The classical counter-terrorism provisions in German legislation are the terrorist offences contained in the German Criminal Code (section 129a, b, and, since recently, also sections 89a ff) and a constantly growing number of sections of the Code of Criminal Procedure (see, e.g., sections 100a ff), which concern special investigation methods as well as special restrictions to the right to defence. Many of these provisions stem from the 1970s and were passed in response to the left-wing terrorism of the Red Army Faction (Rote Armee Fraktion – RAF). Their constitutionality was sometimes challenged, and rulings of the Federal Constitutional Court in some cases led to an amendment of the legislation, adapting them to the constitutional requirements imposed by the Court. Thus, for instance, the Eavesdropping Act or G 10 Act, which authorised extensive telephone tapping (cf. sections 100a and 100b of the Code of Criminal Procedure) was declared null and void by the Federal Constitutional Court in its judgment of 15 December 1970 insofar as the law did not require the person under surveillance to be notified of the intrusion. The Act was subsequently amended in consistence with the Court’s findings, and a later complaint before the European Court of Human Rights (ECtHR) (Case Klass and others vs. Germany) remained unsuccessful. Moreover, during the 1970s several defence counsels were suspected of actively collaborating with suspected terrorists, and these suspicions triggered considerable restrictions to the right to defence in case of terrorist charges, which are still in force today (e.g. restriction of maximum number of defence counsels per defendant to three, exclusion of defence lawyers, control of written and oral correspondence with the counsel, cf. sections 137(1) second sentence, 138a-138d, 148(2) of the Code of Criminal Procedure). A complaint before the European Court of Human Rights of the defendant Croissant was unsuccessful. In this case, Croissant challenged the fact that he was not allowed to be defended by three lawyers of his own choice, but only by two, the third one being assigned ex officio. In another case before the ECtHR, the control of written correspondence between a terrorist suspect and his defence counsel (s. 148(2) of the Code of Criminal Procedure) was scrutinized by the Strasbourg judges who concluded that the provision did not breach Art. 8 of the Convention (Erdem v. Germany). 


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