§129a-Detentions: Disproportionate use of terrorism-laws

As part of proceedings led by the Federal Prosecutor since 2006 on the grounds of ‘membership of a terrorist association’ under § 129a Abs. 2 Nr. 2 StGB (German Penal Code), three of the accused individuals defended by us were arrested in the night of 30-31st July 2007 and charged with attempted arson against at least three Federal Army trucks on the premises of the MAN company in Brandenburg. On that night the three accused had been observed by the police. On 31st July 2007, house searches took place at the homes of four other Berlin persons, in the course of which one further accused person was arrested. On 1st August 2007 the Judge in charge of investigations at the Federal High Court (Bundesgerichtshof) issued arrest warrants against the three persons arrested in Brandenburg and against the individual arrested in Berlin.

The current proceedings, especially the justification for the arrest warrants, demonstrate once again how the prosecution authorities in Germany utilize the terrorism-laws against certain suspects and population groups, i.e. in a completely disproportionate manner and without any due process scruples. In the present case, under normal legal proceedings the three persons arrested in Brandenburg would have been charged with attempted arson under §306 StGB (German Penal Code). The accused individuals, who have never been convicted to date and lived in stable social situations, would not have been taken into pre-trial confinement as there is no risk of flight. It already seems mistaken to describe the attempted arson of three vehicles without risking the endangering of human life, as terrorism. After all, even the broadly defined paragraph §129a StGB itself (‘membership in a terrorist association’) requires demonstration that the offences are destined to “damage a state or an international organization considerably through the method of their perpetration or through their effects”.

But above all, the defense is outraged about the assumption exposed in the arrest warrants that the seven suspected persons acted in a terrorist association.

With regard to one of the three persons arrested in Brandenburg, it is stated that, although “there is no police record” for that person, “this does not speak against the assumption of suspicion of membership in a terrorist association”. As can be inferred “from the writings of the ‘militante(n) Gruppe (mg)’, this complies precisely with “the requirements expected by this association from its members”. The arbitrariness of this justification is documented by the fact that, in the case of another one of the accused, information from a preliminary proceeding already running against him was withheld from him. On the basis of surveillance, the prosecution authorities proceed from the assumption that there have been contacts between one of the arrested persons in Brandenburg and the person arrested in Berlin. The only two meetings between these two persons are alleged to have been arranged in a conspiratorial manner. The authorities do not have any knowledge about what was supposedly discussed in these meetings in February and April 2007. But they draw far-reaching conclusions from these alleged meetings:

“This conspiratorial behavior between H and L can only be explained by L also being involved in the terrorist association ‘militante(n) Gruppe (mg)’ and the meetings arranged in a conspiratorial way being related to this”.

In the argumentation of the Federal Prosecutor in Karlsruhe these two conspiratorial meetings are not only constitutive for the terrorism charge, but also the only link between the three persons arrested in Brandenburg and the four other suspects living in Berlin. The points of suspicion against the four Berliners can barely be surpassed in absurdity. It is stated, among other things, that:

  • “One of the social scientists (…) published an academic paper in 1998 in the journal (…) containing key words and phrases which are also used in texts of the ‘militante(n) Gruppe (mg)’. The frequency of analogies is striking and cannot be explained by thematic overlaps”.
  • “As a political scientist holding a PhD, he is intellectually capable of authoring the sophisticated texts of the ‘militante(n) Gruppe (mg)’; besides, as an employee in a research institute, he has access to libraries which he can use inconspicuously in order to do the research necessary to the drafting of texts of then militant group”.
  • “Further evidence pointing to membership in the militant group is the fact that he reported, in June 2005, in an article in the journal (…) on a failed attack carried out in 1972 by the terrorist association ‘RZ’, in which a janitor died (…); this same attack was mentioned in a text by the militant group of spring 2005”.
  • “As the holder of a PhD scholarship (…), as (…), possesses the intellectual and material prerequisites necessary for the authoring of the comparatively sophisticated texts of the militant group”.

As further circumstantial evidence, it is alleged, stereotypically, that some of the accused had multiple contacts with the militant extreme left wing scene of Berlin. One of the persons arrested in Brandenburg is also accused of growing up in Berlin-Reinickendorf until 1992 and therefore of having good knowledge of the local area, which were necessary for the attacks of the militant group that have taken place in the areas of Berlin-Reinickendorf and Wedding since 2001.

The use of terrorism charges against the seven accused in this new § 129a-proceeding is highly speculative and not tenable. The decision to detain four of the accused is scandalous. The actions of the Federal Prosecution and of the Investigation Judge at the Federal High Court demonstrate once more how German criminal prosecution authorities use the exceptional anti-terrorism legislation in a disproportionate and legally indefensible way against unpopular suspects.

Republikanischer Anwältinnen- und Anwälteverein e.V.
Haus der Demokratie und Menschenrechte
Greifswalder Straße 4
10405 Berlin