RESOURCE MATERIAL SERIES No. 58

MEASURES OF INVESTIGATIONS IN CASES OF ORGANIZEDCRIME IN THE CRIMINAL PROCESS OF GERMANY
Johan Peter Wilhelm Hilger *I. INTRODUCTION
The aim of my paper is to give you some
information on measures of investigationin the criminal process of Germany, which
can be used for the persecution of cases oforganized crime. I shall explain ,in criticalterms as well, the most importantmeasures for which provision has been
made in the Criminal Procedure Code(StPO). In conclusion I shall indicate whichof the demands addressed to Parliament
have not been taken up, and I shall also
indicate the areas where -perhaps- is aneed for further action.
II. CURRENT POSITION
A. Analysis
Organized crime has also become achallenge to state and society in Germany.
Because of its legal system, of its
prospering economy and its stable currency,
its infrastructure and its geographicalposition, the Federal Republic of Germany
faces special danger from organized crime.
This type of crime is concentrated in certain
offence spheres guaranteeing high criminaI
profits where, at the same time, the-riskof detection is reduced because there are
either no immediate victims or the victims
are not willing to lay a criminal charge andto make a statement to the prosecuting
authorities.
In the first place, the development oforganized crime over the past years wasmarked by an alarming increase in drugtrafficking offences. Internationally* Former Head of Division of Judicial System,
Federal Ministry of Justice, Germany

82

organized drug syndicates brought drugs
into the Federal Republic of Germany bymeans of couriers , builded up marketingorganisations and took steps to launder andrecycle the money earned from drugtrafficking. Money earned from illegal drugtrafficking was quite often transferred toother lines of criminal activity yielding
particularly high profits, for instance in thefield of money and cheque forgery or as
regards the ‘red-light’ crime which islargely impermeable (pimp rings, operationof illegal gambling casinos).
Drug crime is only one part of organizedcrime - even if this part is particularly
important and must be combated withspecial urgency. Also, in other spheres ofcrime we can see the development of a
substantive qualitative change: theincreasingly organized mode ofcommission. To a growing extent, criminalorganisations are coming to the fore in
special spheres of crime such ascounterfeiting money, gang theft and theftby burgling, with handling rings waitingin the background, and particularly as
regards removal of high grade assets toforeign countries, illegal arms trafficking,‘red-light’ crime connected withprostitution and ‘night business’, andextorting protection money. As far as
possible, the activities of suchorganisations are arranged so that themain figures do not stand out
conspicuously. It is usually only the crimesof peripheral figures that can be cleared
up with traditional means of investigation,ie.- of figures lacking insight into thestructure and composition of theorganisation as a whole. These peripheral

116TH INTERNATIONAL TRAINING COURSE
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offenders are interchangeable andreplaceable at will, with the result that
their arrest does not really disturb thecriminal activities of the organisation.
Persons who inevitably know of the crimes
committed are restrained from making
statements by hush money, by orders not
to talk, by threats and by intimidation.
Where a lone offender is caught, theorganisation quite often renders material
support to the members of that person’sfamily and assures responsibility for
defence costs so as to obtain compliance andto prevent disclosure of information
concerning the organisation. Altogether,
the crimes committed show that criminal
offenders - who are usually interconnectedon the international level - exploit personaland business connections with enormous
criminal energy and financial strength inorder to make large illegal profits.
Conspiratorial preparation and executionof criminal offences make the fight against
crime more difficult. Its success depends
on the extent to which the people acting
behind the scenes and the organisersconcerned are convicted of committing
criminal offences and are deprived of thefinancial resources for committing further
crimes.
B. Consequences
Therefore traditional methods ofinvestigation are often inadequate becauseof the special structures found in Organized
Crime and in the light of the progressive
professionalism of the offenders operatingin this sphere. Necessary are instruments
of investigation which are adequate to thestructure and the methods of organizedcrime and which enable the prosecuting
authorities to penetrate the core of criminalorganisations. Furthermore, provisionmust be made for regulations andmeasures for a better guarantee of thesafety of informers, particularly witnesses.
Only when the safety of imperilled
informers is effectively ensured will it bepossible to expect statements from them,with the aid of which those operating
behind the scenes and pulling the stringsin criminal organisations can be brought
to trial and convicted.
III. THE MEANS OF THE GERMANCRIMINAL PROCEDURE CODE
A. General Principles
The German Parliament has taken
appropriate action in the last years and it
has brought in the provisions of thenecessary measures . While the bill was
being discussed before Parliament
individual proposals in the bills were thesubject of fierce controversy. There was lessdoubt about the fundamental need forlegislative measures. However, individual
proposals were criticised for being
constitutionally objectionable, notnecessary or - on the contrary - inadequate.
At least the proposals of the provisions of
the necessary measures of investigation
became law. Demands for more farreaching measures are now being discussed
rarely.
B. General Conditions
In selecting and structuring thestatutory provisions desirable forcombating Organized Crime Parliament
does not have unrestricted freedom of
manoeuvre. First of all, the constitution
sets limits. Provisions allowing
substantive or proceduraI encroachment,
under the criminal law, on basic rights
protected by the constitution 1 are only
admissible if, and to the extent that, a
restriction of basic rights protection ispermissible under the constitution in1

See eg. Article (Art.) 1 (protection of humandignity), 2 (safeguarding the general right ofpersonality), 1o (protection of the privacy oftelecommunications), 13 (inviolability of the home)
14 (guaranteeing property ) Grundgesetz /GG (Basic
Law).

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RESOURCE MATERIAL SERIES No. 58
Germany, the Basic Law, thus making
encroaching provisions possible; moreover,such provisions are only admissible to theextent that they are absolutely necessary
in the preponderant state interest. Finally,
the general principle of proportionality
must also be complied with.
In addition, any provisions being
planned must fit into existing criminal andprocedural law without there being
inconsistency. In particular, the preexisting standard and system of regulationof the original legislation already in force
must be adhered to.
These conditions made the legislative
work much harder. Provisions demandedfrom the police point of view for criminal
prosecution measures were not feasible, or
not as comprehensively as called for.
Complicated and detailed wording had tobe found for some of the provisions, thecontent and consequences of which are now
only comprehensible to, and capable ofinterpretation by, specialists.
C. Definition of Organized Crime
The Criminal Procedure Code does not
actually define what Organized Crime is.
Also, it does not make the admissibility ofits measures depend on this definition. The
reason for this is that no-one has managed
to develop a formula of words (definition)that is sufficiently accurate, precisely
circumscribed, and yet short enough to be
fit for a statutory definition. This will
become apparent from the following. A
working party comprising representatives
from the police and the judicial- system
worked out in 1990 the following
description of organized crime after
intensive discussions: 2‘The planned commission of criminal
offences, inspired by the pursuit of profit
2

For details see BT - Dr 13/4942.

84

or power, constitutes organized crimewhere such offences are of substantial
importance either individually or as awhole and if more than two participants
collaborate within a division of labour overa longer or indefinite period of time:(a) by using commercial or business-type
structures;(b) by using force or other means suited
to intimidate; or(c) by exerting influence on politics, themedia, public administration, thejustice system or the economy.
This definition does not include criminal
offences of terrorism.
The working party then went on to state
that:“The manifestations of Organized
Crime are multifarious. Besides
structured, hierarchically developed
forms of organisation (often also
underpinned by ethnic solidarity,
language, customs, social and family
background), there are links - basedon a system of criminally exploitablepersonal.and businesss connections between criminal offenders withvarying degrees of commitment
among themselves, whereby it is theparticular criminal interests
concerned that determine the actual
moulding of such links.”
Organized crime is predominantly
observed in the following spheres of crime:(i)drug trafficking and smuggling(ii) arms trafficking and smuggling(iii) crimes linked with night life (above
all procuring, prostitution, slave
trafficking, illegal gambling andcheating)(iv) extorting protection money(v) illegaI smuggling of aliens into thecountry(vi) smuggling(vii) forgery and misuse of means of

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
non-cash payment(viii) manufacturing and disseminating
counterfeit money(ix) illicit removal particularly of highquality motorcars, and of lorry,
container and ship’s freight .
In addition to these spheres of crime
there are also signs of organized crime in
the area of illegal waste management andof illegal technology transfer. This all goesto show : the phenomen of organized crime
cannot be defined in such a way that thedefinition itself would be suitable forinclusion in a statute.
The criminal procedure law therefore
links its provisions to particular groups ofoffences and offence spheres whereexperience has shown them to be preferredfields of activity for organized crime. 3
Furthermore, it falls back on certain types
and forms of commission that have longsince been formulated in criminal and incriminal procedure law and which aretaken to be typical manifestations oforganized crime4.
D. The most important measures ofinvestigation in the Criminal
Procedure Code(i)electronic data matching(ii) telephone tapping(iii) longer-term observation(iv) u s e o f t e c h n i c a l a i d s f o r
surveillance purposes(v) undercover investigators(vi) notification for police surveillance
In the discussions of the parliament thedifficulties referred to in the section on
3

Apart from drug crime, particular account must be
taken here of counterfeiting money, theft andhandling stolen property, illicit gambling , extortion,
slave trafficking and illegal arms trafficking.
4 Particularly commission on a gang and on abusiness basis.

“General conditions” were especiallyencountered in this sphere of regulation.
Understandable demands for practiceoriented provisions and corresponding
solutions for increasing the effectiviness ofcriminal-prosecution must be balanced
against the demand and need for the lowest
possible degree of basic right limitation,
particularly as regards the protection of
personality and of data, and against thedemand for far-reaching measures tosafeguard criminal proceedings and thedemand that defence effectiveness should
by no means be impaired.
How often, in which cases ,with which
results these measures are used byprosecutor and police - we don’t know
exactly in Germany; for we have no or no
detailed statistics for the most of themeasures5.
1. Search by Screening
98a and 98b StPO are the special
statutory basis for so-called screening
searches . It is an automated (machine)
comparison (matching) of personal datacollected for purposes other thanprosecuting purposes and in data files kept
by agencie’s other than the prosecuting
authorities. Matching occurs by using
criminalistic (offender type) checking
criteria specific to the case concerned(screening).
A screening search is only admissible inregard to serious criminal offences set out
in a generalising catalogue (section.98a.I
1) (Such offences are, for instance, criminal
offences of substantial importance in thesphere of illicit trafficking in drugs or inarms, or against life or limb, or committed
by the member of a gang). For a screening
order it will suffice if there is an initialsuspicion (section 152 II) that such an
offence has been committed. The
5

See BT-Dr 13/4437.

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RESOURCE MATERIAL SERIES No. 58
automated matching of data6 is permissible
as regards persons who fulfil checking
criteria that - depending on the stage
investigations have reached in the case are likely to apply to the offender. The aim
is to filter out, from this mass of non
participants in the offence, those persons
who largely have the “suspect profile” inthe case - which may be founded on
criminalistic experience or on the outcomeof preceding investigations. The method
is to eliminate persons who, althoughfulfilling criteria applying to the offender,
cannot be considered as possible offenders(negative screening search ) in the light of
their other data, or to filter out those
persons in respect of whom criteria
typically applying to the offender are to befound cumulatively (positive screening
search ).7
All private or public agency storing thedata needed for matching, which typifies
screening searches, are under a duty tofilter these data out of its inventory andtransmit them for screening to theprosecuting authorities.

transmission are the subject of a judicial
order. Knowledge based on a screening
search can be used for the purposes ofcriminal prosecution to a limited extent
only, ie. as evidence in the prosecution ofanother criminal offence only when suchoffence is likewise a catalogue offence
under section 98a. In practice today thismeasure is used rarely.
2. Telephone Surveillance
It has been permissible since as long ago
as 1968 to monitor telephone calls in thedetection of serious criminal offences(section 100 a). This measure is only
permissible in the case of a restricted listof serious criminal offences (e.g. in casesof trafficking in human beings,
counterfeiting money, murder, gang theft,robbery, holding to ransom, handling stolen
property on a commercial basis, money
laundering, criminal offences in accordancewith the Firearms Act [Waffengesetz] or the
Narcotics Act [Betäubungsmittelgesetz]).
Furthermore, it is only allowed insubsidiary terms when it would be
7

The admissibillity of the measure islimited by a subsidiarity clause. According
to this clause a prognosis has to be madein terms of success and difficulty in clearing
up the case. If this prognosis shows thatfull clarification of the criminal case byusing other investigatory measures could
nowhere near be achieved with the samemeasure of success as would seem possible
with a screening search, the latter may beundertaken.
Section 98b contains proceduralprovisions relating to screening searches.
In principle, matching and data
6

Name, address, other personal criteria specific to
the individual case, eg.ownership of a particularvehicle, modes of conduct, eg. that payments are
made in cash.

86

Example : if it is suspectet that a criminal offender
was driving a red Toyota motor car, built in 1985,
model X, while escaping after committing theoffence and that the car may have been from thetown Y because the official registration number ofthe vehicle began - according to the observations of
witnesses - with the letters of the town Y , it will bepossible, with the aid of the motor vehicle licensing
authorithy’s data files, to find out which persons in
Y are the owners of such a vehicle. If , moreover, it
is known (eg. by observations of witnesses) that theoffender pays his bills using a certain credit-card,
the data of these vehicle owners (name, address,etc) can be compared by machine with the custemer
data of the credit card company, thus “screeningout” that only very few of the owners concerned are
the same time holders of this credit card.
Traditional criminal procedure methods can thanbe used for further inverstigation of the latter
persons to see wether they come into question as
possible offenders.

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
impossible or much more difficult toascertain the facts or to locate the accusedby other means, in other words using only
other measures. Monitoring concerns theaccused and/or so-called messengers, i.e.
individuals who accept telephone messages
for the accused, pass on his/her messagesby telephone or individuals whose
telephone connection the accused uses.
As a rule, the measure must be ordered
by a judge. Information which could also
be significant for another set of criminal
proceedings may only be used in this otherset of proceedings for evidentiary purposes
if it is also concerned with the detection ofa listed offence. Finally, the documents areto be destroyed when they are no longer
required for criminal prosecution.
Telephone surveillance has been thesubject of constant criticism for years, inparticular in the sphere of legal policy andby data protection specialists. Whilst notdenying the need for such measures, they
do allege that it is being used too frequently.
Indeed, the number of surveillance orders
has grown to more than 8,000 per year overthe past few years.8 This does not mean,
however, that more than 8,000 were setsof criminal proceedings or that more than
8,000 were accused persons. There is also
no information as to how many sets ofproceedings related to the criminal offencesof organized crime.
3. Longer-term Observation
Section 163 f permits longer-term
observation of accused persons and contact
persons. Longer-term observation isobservation planned to last more than 24
consecutive hours or to take place on morethan two days. The measure, which is infact a standard investigatory procedure incases of serious crime, is permissible inrespect of all criminal offences of
8

See BT- Dr 14/1522.

considerable significance, but only if othermeasures which would encroach less on the
person concerned are much less promisingor would lead to a considerable hindrance.
As a rule, the measure is ordered by the
public prosecutor and is then limited in
duration to a maximum of one month. An
extension may only be ordered by a judge.
4. Use of Technical Means ofSurveillance
These provisions (section 100c) were thesubject of great controversy among
politicians, legal scientists and the publicboth before and during the parliamentary
discussions. The main reason for this was
the fact that such measures may constitutea deep invasion of the personal sphere,
particularly the intimate sphere, of thoseaffected. The latter may not only be theaccused themselves but also others who
may be affected by such a measure (contact
persons or those affected by chance).
These provisions9 regulate the following:(i)
production of photographs andvisual recordings during
surveillance ,(ii) use of other technical devices forsurveillance purposes, and(iii) t e c h n i c a l m o n i t o r i n g a n drecording, outside and /or inside adwelling, of words not spoken in
public.
Section 100c regulates which technicalmeans may be used, against whom they
may be used and under what conditions.
(i)9

P h o t o g r a p h s a n d Vi s u a l

The use of mere visual aids like binoculars, therecording of words spoken in public and the mere
monitoring of words not spoken in public, do not
fall under these limiting provisions since they are
permissible without restriction pursuant to §§161,163. Also preserving traces of an offence does
not fall within the sphere of § 100 c.

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RESOURCE MATERIAL SERIES No. 58
Recordings (section 100c I no. 1a
StPO)Such pictures may be taken of theaccused outside a dwelling without his
knowledge. This applies to criminal
offences of all kinds, and also allways tothe police without prior-permission fromthe public prosecution office being needed.
The precondition for taking such pictures
is that any other way of trying to find out
the facts or where the offender is would beless likely to succeed or more difficult toachieve. Practically speaking, this means
general admissibility, limited only by thegeneral principle of proportionality. As
regards persons other than the accused,admissibility is limited only by a strict
subsidiarity clause (much less likely to
succeed or much more difficult toachieve)(section lOOc II 2 ).

(ii)

Other Technical Means Specially
Intended for Surveillance Purposes(section lOOc I no.1b StPO)

They may be used for trying to find out
the facts or where the offender is when acriminal offense of substantial importanceis the subject of the investigation. Suchmeans are homing devices, mobile alarm
units, motion detectors, the use of the“Global Positioning System10” etc.- in otherwords, devices that do not record
conversations.
The use of such means is likewise linked
to a subsidiarity clause with a low
threshold, namely that finding out the facts
or where the offender is residing would beless likely to succeed or more difficult toachieve if some other means were used.
Linking the use of these special
surveillance devices to a “criminal offence
10 OLG Düsseldorf JR 1999 , 255.

88

of material importance” gives those
involved in practice the indispensable
flexibility needed for an effective criminal
prosecution even if certain difficulties do
not seem to be excluded because of thisconcept being really indefinite. It would
not be proper to link use to a catalogue ofparticular crimes because the use of suchmeans must be possible - with a view topractical prosecution needs - in a large
variety of offences. Apart from this aspect,
the concept has become established inlegislation on police matters; otherwise,
there is no alternative of a form of generalclause - with no alternative. It is madeamply clear that the use of such technicalmeans, in a manner consistent with theprinciple of proportionality, should only beallowed in relation to offences above thethreshold of petty crime. In each case anindividual assessment will be necessary
taking into account the general principle
of proportionality.
As for third persons, the measure is only
admissible if it is to be assumed that theformer are connected with the offender orthat such a connection is being set up(contact persons), that the measure willlead to finding out the facts or where theoffender is residing, and that using someother means would be futile or be much
more difficult (section lOOc II 3 )(iii) Monitoring and Recording ofWords Spoken outside a Dwelling,
but not Spoken in Public, byTechnical Means (section lOOc I no.
2)
This provision on the monitoring andrecording of the spoken word is much more
restrictive, and it is modelled in large
measure on the provisions on telephone
tapping (section lOOa, lOOb). The
monitoring and recording, outside adwelling, of words spoken by the accused,
but not in public, is admissible with

116TH INTERNATIONAL TRAINING COURSE
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technical means (eg. using directional
microphones), but only when certain facts
establish a suspicion that one of the serious
offences (eg. murder, kidnapping, hostagetaking, extortion, robbery, gang theft, arms
or drug trafficking), listed in the catalogueof criminal offences in section lOOa
(telephone tapping), has been committed.
A further requirement is that any othermeans of finding out the facts or where theoffender is residing would be futile or bemuch more difficult. Hence, this provision
closely follows section lOOa. In practicethe identical subsidiarity clauses mightlead to difficulties if for instance, telephone
tapping is being planned but it cannot beestablished that clarification by some othermeans would be futile because monitoring
itself might not be entirely unsuccessful.
But usually in such cases it can be said thatclarification would be much more difficult
without the simultaneous use of bothmeasures, for if only one of the two
measures were used clarification would
probably take much longer.
Monitoring the words spoken outside adwelling by a third person who is not theaccused and who is not speaking in public,is only admissible, under even stricter
conditions, in respect of contact persons
from whose surveillance important
indications are (or may be) expected for the
purpose of clarification. Monitoring may
be ordered in respect of nonaccused persons
only if it is to be assumed on the basis ofcertain facts that they are connected withthe offender or that such a connection is
being set up, that the measure will lead tofinding out the facts or where the offenderis residing, and that using some othermeans would be futile or be much moredifficult (section lOOc II 3 ). These threerequirements are cumulative. The higher
threshold of action and the subsidiarity
clause correspond to the provision made insection lOOa (telephone tapping). The
wording is intended to make it clear thatthe mere possibility of contact, or of theestablishment of contact, and of successful
clarification will not be enough; rather,certain facts must indicate a higher
likelihood of there actually being aconnection between the offender and thecontact person, or of such a connection
existing in future, and that successful
clarification is not only seen to be apossibility but is to be expected in allprobability.
Section lOOc III makes it clear thatthese measures may also be applied whenthird persons are inevitably going to beaffected by them. Here it is ensured that
there is no need for such measures to bedispensed with when a person who is not
actually the target of the measure but only
the partner of a target person or a nonparticipant affected by chance is includedin pictures or films or when conversations
are being monitored.
Section lOOd deals with important partsof the proceedings. Monitoring and soundrecording equipment can only be used if a
judge so orders, or where danger isimminent the order may be given by apublic prosecutor or by his auxiliary
officials. In the event of an order by way of
emergency power, an application forjudicial confirmation must be madewithout delay. If confirmation is notforthcoming within three days the orderceases to have effect. The order must be
made in writing, must contain the nameand address of the person against whom
the order is directed and it must also state
the nature, extent and duration of themeasure. The order shall be limited tothree months at the most, and an extension
may be obtained for not more than threemonths at a time so far as the conditions
for an order, as set out in section lOOc I
no.2 , are fulfilled. If these conditions are
no longer fulfilled, the measures must be
stopped immediately. The judge must be

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RESOURCE MATERIAL SERIES No. 58
informed of this termination. Documents
acquired by virtue of the measure are to
be destroyed without delay under thesupervision of the public prosecution office
if they are no longer needed for the purposeof public prosecution ; a record must be
made of the destruction in question.
Subsection 2 provides - just as in the caseof a search by screening - that knowledge
got by monitoring measures may be usedin other criminal cases to a limited degree
only11.
The measure was used until now only
very seldom.12(iv)

Surveillance and Recording withTechnical means of the Spoken
Word not Spoken Publicly within
Dwellings (section 100 c I no. 3 )Of particular significance, indeed
controversy, at least in discussions on legal
policy, and for those affected by such ameasure, is the surveillance and recordingwith technical means of the spoken word
not spoken publicly within dwellings (e.g.
using directional microphones or so-called“bugs”). This measure differs from
telephone surveillance in qualitative terms
because it is not a telephone call which ismonitored, which leaves the dwelling bytelephony, but a conversation carried out
within a dwelling and intended to remain
there, in other words one which is intended
only for those in the dwelling. Here, those
speaking may well trust in the English
saying: “my home is my castle”. For thisreason, particularly strict restrictions
apply here. It is only permissible tomonitor a conversation taking place in adwelling, but not to take pictures or make11 In § 101 there is regulation of the cases where andwhen affectet persons have to be informed of themeasures.
12 See BT -Dr 14/1522.

90

a video of what is happening in thedwelling.
So-called acoustic monitoring ofdwellings is permissible only if specificfacts give rise to a suspicion of particularly
serious criminal offences. Such criminal
offences include, for instance, grievous
trafficking in human beings, criminal
offences against personal freedom, crimes
committed on a gang basis, handling stolen
property on a commercial basis, money
laundering, accepting and offering bribes,
crimes in accordance with the Firearms Act
and the Foreign Trade and Payments Act(Außenwirtschaftsgesetz), criminal
offences in accordance with the Narcotics
Act and the criminal offence of forming acriminal or terrorist association.
This measure may only be carried out if
ascertaining the facts by other means
would be disproportionately difficult or
impossible. It is to be limited in duration
to a maximum period of four weeks, andon principle is only permissible in thedwelling of the accused. It is only
permissible to monitor the dwellings ofother persons if it can be presumed on thebasis of specific facts that the accused is inthese dwellings, that the measure in thedwelling of the accused by itself isinsufficient to research the facts or to locate
the offender, and that this would be madedisproportionately difficult or impossible byother means.
The order must be issued by three judges
of a national security panel at the Regional
Court and confirmed by the presiding judgeof this panel in the event of an urgent
decision.
All individuals concerned by acoustic
monitoring must on principle be informedof the measure (as soon as this is possible
without endangering the purpose of theinvestigation, for instance).

116TH INTERNATIONAL TRAINING COURSE
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The protection of the confidential
conversations of an accused person with aperson entitled to refuse to give evidence
is provided for in particular. There is anexpress prohibition to take evidence inrelation to confidential conversations
between an accused person and aclergyman, Member of Parliament, his/her
defence counsel and, for instance, withlawyers, tax advisors, doctors or journalists
who are entitled to refuse to give evidence.
Knowledge gained from monitored
conversations with relatives who areentitled to refuse to give evidence may only
be used as evidence if, taking account of
the significance of the basic relationshipof trust, this is not disproportionate to theinterest in ascertaining the facts. If, inother respects, it is to be expected that allknowledge obtainable from the measure is
subjected to a prohibition to use theinformation, monitoring is not permissible
from the outset, i.e. it is prohibited to takeevidence in such cases.
In addition, the statute governs thepermissibility of using the information
gained by virtue of monitoring in other setsof proceedings, such as the usability of
information gained by coincidence in othersets of criminal proceedings.
Finally, the accused or the owner of thedwelling may apply for a court to examine
the lawfulness of the order and the natureof its execution once the measure has been
carried out.
In the political debate, amongst otherthings the accusation has been made that
this statutory regulation constitutes amajor step towards the ‘big brother state’.
Against this, it should be stated that
Parliament has done its utmost in legallypermitting this monitoring tool, which isnecessary to suppress organized crime, but
admittedly highly problematic, while

contriving also to protect the freedom of thecitizen from the state, without placing
either interest in jeopardy. The measure
has also only been ordered very rarely, in
only nine sets of criminal proceedings in
1998.13
Finally, it is important to note that theFederal Government is obliged by law to
inform Parliament, i.e. the Deutscher
Bundestag, every year of incidences where
acoustic monitoring of dwellings was
carried out.
5. Use of Undercover Investigators
Sections 110a to 110e StPO regulate theuse of undercover investigators. In afundamental sense there is noconstitutional objection. This measure is
not often 14 used. Its implementation isaccompanied by considerable difficulties.
But it is indispensable in the sphere ofOrganized Crime. The provisions arelargely oriented towards current
operational practice15.
Undercover investigators (legal
definition in section ll0a II 1 StPO) areinvestigating police officers who have a newand lasting identity conferred on them (a“legend”, in particular with a new name, a
new address and a new occupation/
profession). In other words, they
investigate using a false name without
disclosing their status as police officers or
the fact that they are investigating.
Relevant documents can be drawn up,
altered and used for the purpose of building
up and maintaining the legend (section
110a III ). Undercover investigators areallowed to take part in legal transactions
using their legend (section 110a II 2 ), eg.
13 See BT- Dr 14/2452.
14 See BT - Dr 12/1255 ; BT - Dr 14/1522.
15 The statutory provisions are supplemented by

guidelines of the Ministers of Justice and Ministersof the Interior.

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RESOURCE MATERIAL SERIES No. 58
they may also enter into contracts andfound undertakings. Using their legend
they may also enter dwellings whenallowed to do so by the person with a rightof entry (section 110c ); but any pretence ofa right of entry going beyond this isinadmissible. In certain circumstances theidentity of an undercover investigator canalso be kept secret in the relevant criminal
proceedings (section 110b III, section 110dII ). Acting as an undercover investigatoris not a ground justifying their commissionof criminal offences oneself.
Pursuant to section llOa I StPO the useof undercover investigators is alreadyadmissible where there is an initialsuspicion (section 152 II StPO), but only
in respect of certain criminal offences in a
general catalogue. These are offences ofsubstantial weight in the sphere of drug orarms trafficking, of forging money or trade
marks, of state security, or those offencesthat have been committed on a business or
habitual basis, by the member of a gang or
in some other organized way, as well as
those offences where there is a definite riskof repetition. Here the subsidiarity clauseapplies, ie. that trying to find out the facts
using some other means would be futile or
be much more difficult. In the case ofserious crimes committed without risk ofrepetition, being crimes that are not partof the general catalogue, the use ofundercover investigators is admissible
where the offence is of great significanceand other investigatory measures would be
futile. All in all, the catalogue of offencesin respect of which this measure isadmissible is not fully identical to thecatalogue of other measures.
The use of undercover investigators is
also admissible in a search for a person
accused of a catalogue offence. Further, it
is admissible for an undercoverinvestigator to carry out several mandates
at once, eg. in several criminal cases, or92

repressive mandates in addition topreventive ones in each case the relevant
requirements for applying the measuremust be fulfilled, and in the case last
mentioned the restrictive provisions of the
StPO must be complied with also when
they are stricter than police law. The
carrying out of a mandate is not to suffer
on account of such multifunctional activity.
During operative action the undercoverinvestigator has all powers generally at thedisposal of police officers under the StPOor other statutes16. In practice the use ofundercover investigators is increasingly
running into difficulties. Groups ofcriminals into which undercoverinvestigators are supposed to be infiltrated
are increasingly cutting themselves offfrom “strangers” (as new members).
Moreover new members of the group haveto undergo unlawful “tests of innocence”.
Undercover investigators then fail the test
because as a matter of principle they are
not allowed to commit any criminal
offences.
Section 110a III provides that documents
may be drawn up, altered and used for.an
undercover investigator ’s operational
activities if this is indispensable forbuilding up or maintaining his legend (eg.
passports, driving licence,school.certificates, etc.). This authorisation
to draw up the necessary documents does
not, however, mean that changes can bemade in public books and registers.
Section 110b I, II deals with questionsof competence in respect of operations. On
principle, an operation is only admissible
with the consent of the public prosecution
office. Only where there is imminent
danger and the public prosecutor’s decision
16 Knowledge acquired by an undercover invest. may

be used in other criminal proceedings to a limited
degree only- § 110e.

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cannot be obtained in time may theoperation be ordered by the police. The
public prosecutor’s consent then has to beobtained without delay. The operation is
to be stopped if the public prosecution officedoes not give its consent within three days.
Pursuant to section 110b II a judge’s
consent will be required if the undercoverinvestigator is not only on the “scene” toclear up the circumstances of an offence orto get information on an offender whose
identity is still unknown but is alsodeliberately operating against a specificaccused person- whether by finding out thefacts or where he is residing; the same
applies if, during an operation, theundercover investigator enters a dwellingto which there is no general access. Only
where there is imminent danger will the
public prosecutor’s consent suffice. If thelatter’s consent cannot be obtained in time,
the police may approve the operation
although they have to obtain the publicprosecutor ’s consent without delay.
Furthermore, the public prosecutor has toobtain the judge’s consent, and if he does
not give his consent within three days, themeasure has to be stopped.
Consent by the public prosecutor and thejudge must be given in writing and for alimited period. No provision has been madefor a maximum period. The period will begoverned by the circumstances of theindividual case. An extension is possible
so long as there is fulfilment of thepreconditions for the operation.
Section lI0b III deals with individualquestions concerning the secrecy of anundercover investigator ’s identity,
particularly in criminal proceedings. The
principle that applies is that theundercover investigator’s identity can be
kept secret after the operation has been
stopped. What is meant here is true
identity, ie. his real name and otherpersonal particulars, including the fact that
he was (is) an undercover investigator. He
can continue to act in legal transactions
using his legend. The decision on secrecy
is at the discretion of the police. The publicprosecutor and the judge who areresponsible for the decision on consent to
the operation may, however, demand thatthe undercover investigator’s true identity
be disclosed to them. Moreover, in acriminal case, ie. in an operation or in othercriminal proceedings where the undercoverinvestigator is due to appear - eg. as awitness, his true identity must on principle
be disclosed at the main court hearing.
Keeping a true identity secret is only
possible in accordance with section 96
StPO, ie. when it is to be feared that
disclosure would threaten life, limb orliberty of the undercover investigator orsome other person, or that it would
jeopardise continued use of the undercoverinvestigator. The decision on secrecy istaken by the highest service authority
having due regard to all the circumstancesof the individual case. Sweeping generalsecrecy is not allowed since every instanceof secret identity and its relevant treatmentin the files might reduce the legal
protection of the person affected. When thedecision is being made the legal interests
at variance must be carefully weighed andthe facts of the case assessed as a whole.
Where facts requiring secrecy so permit,
the criminal court shall be informed at thetime the prohibition is declared - for the
court must be able to examine thelawfulness of the prohibition at least as
regards manifest errors. Reasons for theprohibition must be explained to the courtso that it can work actively to eliminate
any barriers and provide the best evidence
possible.
If the true identity of the undercoverinvestigator is not protected, pursuant tosection 96 StPO, by a decision of the highests e r v i c e a u t h o r i t y, t h e u n d e r c o v e r

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investigator must, on principle, testify as
a witness in criminal proceedings using hisreal name. If necessary, he can be afforded
protection by the provisions on the generalprotection of witnesses . If his true identity
is kept secret during the criminal
proceedings, the undercover investigator
will generally testify as a witness using his
legend. If this is not enough to eliminate
danger, the undercover investigator can beprohibited from taking part altogether byanalogy to section 96 StP0.
6. Police Surveillance
Finally, section 163e regulates police
surveillance for the inconspicuous
ascertainment and collection of facts for the
purpose of drawing up a (selective) pictureof movements on the part of the person,
being kept under surveillance. As a rule,the object is to identify connections andcross links within a group of criminals.
This measure is applied as follows : thepersonal particulars of persons undersurveillance are noted during police checks
that have already been ordered and are inforce for other reasons and where thechecking of personal particulars ispermitted (eg. border or airport controls).
The data thus collected are then evaluated,giving a picture of place-to-placemovements by the person undersurveillance, particularly as regards thejourneys undertaken by that person.
Surveillance of an accused person isadmissible in respect of all criminal
offences of material importance wherefinding out the facts using some othermeans would be much less likely to succeed
or be much more difficult. By virtue of thesame subsidiarity clause other persons may
also be covered if it is to be assumed thatthey are linked with the offender or are
setting up such a link and that police
surveillance would also be qualified bysuccess. Vehicle registration plates may

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also be covered for surveillance purposes.
The data of accompanying persons may
also be reported (section 163e III ). The
judge is responsible for making the order,
and in emergency cases the publicprosecutor; in the latter case, the order willcease to have effect if not confirmed by ajudge within three days.
IV. FURTHER DEMANDSADDRESSED TO PARLIAMENT;FURTHER NEED FOR ACTION
A. Conduct Appropriate to theMilieuIn the last years there were also calls
for a statutory provision allowing
undercover investigators to commit
criminal, offences where this is indispensable in connection with theiroperations. Here consideration was given
to the possibility of, for instance, allowing
them to take part in illicit games of chanceor to commit other criminal offences not
encroaching on the protected legal interestsof other persons.
This demand was not followed up. An
important argument here was that a statebased on the Rule of Law should notdescend to the level of crime not even forthe sake of fighting Organized Crime. In
any case, a provision of this kind would nothave solved the problems concerned for
genuine ‘tests of innocence’ with the objectof testing whether a new gang member isan undercover investigator (eg. bydemanding that he commit a rape or inflict
bodily harm on persons who are not
involved) would not be hindered by this.
B. Informers
There was also discussion whether - asin the similar case of.undercoverinvestigators - a statutory provision mightalso be necessary to allow the use of
informers to help clear up serious criminalcases. Informers are persons who are not

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
on the staff of a prosecuting authority but
who are nonetheless willing to assist theprosecuting authorities, on a confidential
basis and for sometime in clearing up
criminal cases; their identity should
generally be kept secret.
The Procedure Code has no statutory
provisions on this. This is - so I believe not necessary, and indeed it would bewrong. Informers are simply normal
witnesses no more and no less. They haveno special powers. What they know has tobe used by the prosecuting authorities justlike the knowledge of other witnesses.
Special protection is possible for informers
in terms of the provisions relating to theprotection of witnesses.
C. Precursory Investigations
Sometimes there is a discussion of thequestion whether clearing up cases ofOrganized Crime might be intensified byso-called precursory investigations.
According to section 152 II StPO criminal
investigations begin only when there is an
initial suspicion, ie. when there aresufficient factual indications. The latter
will be given if , on the strength of concrete
factual circumstances, there is a certain
probability, being at least a slightprobability, that a criminal offence might
have been committed. This probability
must go byond the general theoreticalpossibility of crimes having beingcommitted.
And this is the very point where the callfor admissible precursory investigations
crystallises. This demand is aimed at“acquiring” suspicion, ie. at firstestablishing an initial suspicion. Here one
has terrain in mind where, on pastexperience, the commission of crimes or thedetection of an initial suspicion is to be
expected, eg. in big insurance companies
where indications of insurance fraud might
be found through examining a large

number of files, or in large industrial
enterprises where cases of criminal breachof trust might come to light when a large
number of files are studied; for want ofrelevant experience or of the necessary
expertise, the undertakings in question
would not have discovered these cases atall.
I have fundamental legal policy
misgivings about a statutory provisionpermitting such precursory investigations
below the threshold of an initial suspicion,
for the limiting function of an initialsuspicion in terms of section 152 II StPO
is of material importance in a state basedon the Rule of Law. It protects an
individual against being made the objectof exploratory enquiry for no reason.
Investigations below the threshold of an
initial suspicion would derogate from thecitizen’s rights of personal liberty.
Furthermore, regulation, under criminal
procedure, of precursory investigations
would entail numerous problems of detailrequiring solution in the Criminal
Procedure Code.
D. International Co-operation
International co-operation is just as
important. It cannot be confined to mutual(bilateral) legal assistance between states.
What is important is that there should bea multilateral exchange of experience anddata, and especially that common
strategies should be evolved to fightOrganized Crime.
INTERPOL and EUROPOL could be
helpful here. Very important is especiallythe international co-ordination oftransfrontier suppression. Numerous
problems emerge in this connection
problems concerning data protection,difficulties over sovereign rights, problems
resulting from differences of system as well
as from differences in the legal standard
found in the various countries. But I am

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confident that these problems may besolved.
V. FINAL REMARKS
I would like to conclude by proposing
several ideas for discussion:(i)
In the suppression of organizedcrime, Parliament is faced with atension - ultimately irresolvable between two opposing interests,
typified by the classical wordingof the Federal Court of Justice: “Itis not a principle of the Code of
Criminal Procedure that the truth
must be found at any price” on the
one hand, and on the other, by theaccurate claim that a state
governed by the rule of law is
obliged to protect its citizens
against wrongdoing.
(ii)
It is a part of the essence ofcriminal and criminal procedure
law that criminal prosecution isthereby set limits as a kind of“Criminal’s Magna Charta”. Thisis a restriction placed on the state
powers of punishment. It isessential to an open, pluralistic
society that there should be adebate on where these restrictions
should be drawn. It is just as
frequent for their inviolability to
be rashly claimed as the contrary.
(iii) Organized crime is not merely aphantom, it is a socially-damaging
manifestation of crime whichmust be taken seriously. The
extent of the threat that it posesis evaluated differently in thelegal and criminal policy
discussions, as is the priority
given to the preventive measures.
There is, and can be, no doubtingthat society must defend itself
against organized crime by all
appropriate means.
(iv) To this extent, the repressive

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approach pursued by criminal andcriminal procedure law must be
supplemented by a preventive
approach, to which the samepriority must be attached, and theshortcomings in execution must be
remedied.
(v)
Organized crime cannot becovered by elements of criminal
offences, but only described from
criminological and criminalistic
points of view. Indications ofspecific shortcomings may result
from such a description, in both
criminal and criminal procedurelaw.
(vi) The Federal Republic of Germany
has already made available thenecessary legal provisions, byvirtue of the statutes alreadyenacted, for those measures,
which are needed to suppress
organized crime in Germany. The
concessionary nature - and in partalso the complexity - of theregulations is also a consequenceof the basically irresolvabletension between ensuring
individual freedom and fighting
crime effectively.
(vii) In criminal procedure law, theincreased permissibility ofundercover investigation
measures is directed against theconspiratory nature of organizedcrime. Witness protection, which
gives the preventive component
greater priority, is geared towards
the aspect of threat andintimidation, which is inherent inorganized crime.
(viii) In an overall evaluation, therepressive concept developed by
Parliament so far appears to be
self-consistent. Its measurestarget the right problem areas.
Whether or not it is sufficient inquantitative terms is the subject

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSof debate in terms of legal andsocial policy.
(ix) P a r l i a m e n t h a s t o d a t esatisfactorily balanced the
opposing interests of safeguarding
freedom whilst at the same timefighting crime. The statutes haveneither made of the criminal
prosecution authorities a toothlesstiger, nor has the rule of law
protected itself to an excessive
degree. This however does not
rule out individual criticism,corrections or additions after acareful analysis has been carriedout.
(x)
It is, however, difficult to discuss
this issue predominantly from thepoint of view of mere effectivenessand with the dominance of therepressive approach to criminaland criminal procedure law.
(xi) The danger ascribed to the abilityof organized crime to destabilise
the free social order is two-fold. It
consists not merely of Mafia
structures infiltrating society. It
may also lie in the fact that an
exaggerated set of defence tools
calls into question our personal
freedom.
(xii) It is now a matter of intensifying
the work of the criminal
prosecution authorities on thebasis of the clear preconditions forstatutory permissibility, and ofusing all permissible tools toeffectively suppress organizedcrime.
(xiii) Time will tell whether further
statutory regulations arenecessary to facilitate additional
measures. In order to evaluate
this question, reports from thecriminal prosecution authorities,
describing successes anddifficulties encountered inpractice, are indispensable.

Experience reports from foreign
criminal prosecution authorities
and knowledge based on legal
comparisons should be included in
the assessment wherever possible.
(xiv) One should bear in mind in
performing this assessment thatthe previous statutory provisions
and the tools permissible inaccordance with them do impose
limits on what is possible andfeasible in a state based on therule of law. Effective criminal
prosecution is also restrained by
the rule of law. It is not enough toensure criminal prosecution, no
matter what the price, even whenprosecuting organized crime.
Human rights, freedom, generalrights of privacy, including dataprotection and other basic civilrights, must be respected. These
core rights may not be violated
l i g h t l y.
H o w e v e r, w h e r eParliament may restrict theserights, such restrictions are also
to be limited in scope to the degree
indispensable for effective
suppression of organized crime.
(xv) It is now a priority to examine how
and in which areas - taking
account of the above idea international cooperation to
suppress organized crime can be
expanded and intensified.
Effective international
cooperation is, ultimately, more
important than respecting
national sovereignty rights.
Within the framework ofinternational cooperation, one
should strive to optimise theinternational coordination ofcross-border suppression oforganized crime. One should also
strive - whilst respecting theabove principles - towards a
uniformity of procedures,

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standards and techniques tosuppress organized crime.
However, where the national legal
standard is higher, it should not
be significantly reduced throughcompromises in favour ofinternational standardisation,
cooperation and coordination.

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