Crime by association - Terrorist law used to criminalise critical research

Over the past years, political opposition and investigative journalism have come under attack by police and secret services in Germany. In line with a general erosion of civil liberties in Europe, exacerbated by the "war on terror" and egged on by shady secret service activities, investigative journalists have been spied on (see Statewatch Bulletin vol 16 no 1), G8 protesters have been criminalised (see Statewatch Bulletin vol 17 no 2), and most recently critical social scientists have been accused of membership of a terrorist organisation for being associated with social movements and using words such as ‘gentrification', ‘precarisation' and ‘Marxist-Leninist' in their publications; words that also appeared in letters by a group claiming responsibility for arson attacks against cars and buildings in and around Berlin since 2001. Next to the social scientists, one of whom was also arrested, three activists were arrested and accused of having attempted to set fire to military vans on an industrial terrain near Berlin. All accused have been charged with membership of a terrorist organisation; the police claims that they form part of a group that calls itself ‘militante gruppe' (militant group, hereafter ‘mg'), but hard evidence to corroborate this claim is still missing. Whilst earlier terrorist proceedings criminalising the oppositional left received little attention from the mainstream media, a mass of protest letters has reached the German public prosecutors office regarding this case. Distinguished professors such as Mike Davis and David Harvey and university and educational institutes such as the Centre for Urban and Community Studies or the Global Union Federation Education International are demanding, in strongly-worded statements, an end to the proceedings and that they are endangering freedom of research and thought. However, next to the worrying trend that people are prosecuted for their writing, the recent arrests have led to the more far-reaching debate about the application of terrorist law to ‘regular' criminal acts. A judge of the Federal Court of Justice asked himself the same question, so that from 11 October onwards, a criminal division of the same court will now deliberate whether the ‘mg' can be classified as terrorist. Since the new definition of terrorism introduced in Germany with the transposition of the EU Council framework decision combating terrorism into national law in 2003, criminal acts would have to "fundamentally threaten" the order of the state to be classified as terrorist, a definition that obviously leaves room for interpretation. The question is whether the arson attacks of the ‘mg', none of which have injured persons or even remotely disrupted public life, can be defined as terrorism. The ruling will therefore not only decide on the imprisonment and defence rights of those accused, but impact on the definition of terrorism in Germany as a whole.

The ‘suspects': investigating social movements

According to the investigation files, the four activist researchers were under investigation since at least September 2006. The three others came under investigation after two alleged meetings between Andrej H. and Florian L. in February and April 2007. In the night of 31 July this year, Florian L., Axel H. and Oliver R. were arrested whilst driving in a car in Brandenburg, after allegedly planning to set fire to army vehicles in the area. The police set off the road, stopped their car, smashed the windows, beat at least one of them whilst he was still in his car seat with his safety belt on, and dragged them out of the window, injuring one in the process. Andrej H., a sociologist with the Humboldt university of Berlin and father of three, experienced a less violent but equally intimidating treatment when police raided his home and arrested him out of the midst of his family at 7am in the morning. All four were flown by helicopter - three of them dressed in Guantanamo-style suits - to the public prosecutors office in Karlsruhe the same night and put into investigative detention. The same day, the homes of three more persons, Matthias B. and two more activist researchers - whereby Andrej H. and Matthias B. research and write on urban gentrification, social and economic poverty - were raided and also charged with membership of a terrorist organisation.

After three weeks of solitary confinement in his cell twenty-three hours a day, with almost no access to lawyers and little contact with family, Andrej H. was released by a judge's ruling; but the arrest warrant is still valid, awaiting decision on the public prosecution's appeal to his release which will be decided by the Federal Court of Justice in October. Florian L., Axel H. and Oliver R. remain in prison, under the same conditions described above, which the authorities can enforce on grounds of the applied anti-terrorist legislation. Apart from stringent prison conditions, their defence rights are severely curtailed and contact with their lawyers takes place only through a Plexiglas window and their correspondence is monitored (see below).

Article 129a procedures are - when considering the groups they have historically targeted and the nature of the charge (posing a fundamental critique against the state) - politically motivated prosecutions (see below). The political background and ideology of those accused is therefore central to the prosecution's reasoning. To understand the current prosecutions therefore necessitates a mention of the political background of the accused. The four ‘activist researchers' in question were all involved in an eastern German dissident movement critical of the political system of the former German Democratic Republic (GDR). Three of the accused were part of the editorial board of the last remaining nonconformist newspaper and public debating forum of the left-wing east German movement called the Telegraph (http://www.telegraph.ostbuero.de/).

After the breakdown of the Communist Bloc and the capitalist transition in eastern Germany, three of them were actively involved in researching and acting against gentrification processes (i.e. the replacement of the lower class population - by way of increase in housing prices - by middle and upper class populations in ‘prime location' urban areas). Especially eastern parts of Berlin underwent large-scale and - for low-income households - devastating restructuring processes that were triggered by the privatisation processes introduced after reunification. The studies conducted on this transition, however, were not only academic in nature but aimed at social change by way of a neighbourhood organisation formed under the name of "We will all stay", which two of the accused formed part of. Moreover, the research conducted by one of the accused showed that more than 50 percent of the 140.000 inhabitants of the gentrified district ‘Prenzlauer Berg' had left the area, concluding that this development "diametrically opposes the council and district policy that claims to aim at rehabilitating and conserving existing social structures". This scientific foundation, illustrating actual social and economic developments that were severely criticised by activists and residents at the time, triggered controversial political debates.

By way of association, the public prosecution is now constructing a causal relationship between the - in essence anti-capitalist - political ideology of those accused and the militant practices of the ‘mg': The construct of the public prosecution therefore goes as follows: the four academics are the intellectual leaders of the ‘mg', the three others form the operational arm of the organisation. This construction is based on two alleged meetings some months before the arrests between Andrej H. and Florian L. The prosecution is not bothered about the fact that it does not know what the two talked about in these alleged meetings, on the contrary: the reason for their failed interception, namely, that Andrej and Florian left their mobile phones at home when they supposedly met, is precisely the evidence: to leave ones mobile phone is conspiratorial and therefore suspicious behaviour likely to involve criminal, in this case terrorist, activity.

The legal basis: the many uses of anti-terrorist law

The anti-terrorist law applied here is Article 129a of the German Criminal Code, introduced by parliament in August 1976 to deal with the militant Red Army Fraction. The Article criminalises membership, promotion and support of a terrorist organisation, rather than criminal acts themselves, so that the construction of a terrorist organisation stands at the beginning of any attempt to prosecute. Because this is an ‘organisational crime', an individual can be prosecuted and punished for all crimes committed by an organisation if he or she is found to be a member, even if no actual involvement in any of those acts is proven by evidence. Initially, the organisation deemed terrorist had to aim at committing serious crimes such as murder, kidnapping or bomb attacks, however, the list of crimes was continuously extended; until 2003, a definition of terrorism was lacking entirely from the legal text.

Article 129a is traditionally used to criminalise left-wing movements. From 1870 onwards, the then feudal Empire criminalised the Social Democratic Party with Article 128 (banning clandestine organisations) and 129 (banning organisations deemed ‘enemies of the state') of the Criminal Code. In the early 1900s similar provisions were used against Communists and Socialists, criminalising promotion such as spreading flyers as "preparation for treason". After the fascist era, the Communist Party was forbidden under a new political crimes law, followed by the introduction of the terrorism Article 129a in 1976.

The core of the anti-terrorism Article is its emergency status leading to the suspension of basic civil rights guaranteed under regular criminal and procedural law. Incarceration is a central element of the law, as suspects are typically put in detention awaiting trial for months and often years, without any indication that they are in danger of absconding. Family fathers with regular jobs and full integration into societal structures, for example, are kept in prison on grounds of scanty evidence and judges usually follow the public prosecution wishes uncritically. Visitation right are almost non-existent: suspects are kept in solitary confinement for 23 hours a day, allowed only one visit a week, whilst even lawyers have to talk to their clients though bullet-proof windows. Often suspects are kept in prisons remote from their homes, making it almost impossible for friends and relatives to visit. Defence rights are severely curtailed; lawyers do not have full access to investigation files which makes the preparation of their clients' defence considerably more difficult, as does the fact that correspondence with their clients is monitored by the judge.

In 1987, the list of crimes that can be committed with terrorist intentions was extended to include: dangerous intervention in train, boat or air traffic with the aim to disrupt arms transports or traffic blockades during militant strikes; the "disruption of public companies" (e.g. sawing down electricity masts) and the destruction of public buildings or police and army vehicles. In 2002, Article 129b was introduced to extend the anti-terrorist provision to include organisation that exist and are active only outside of Germany, but that are supported or promoted by persons living in Germany. This Article is applied predominantly against Islamic organisations but can be applied to any solidarity movements supporting organisation deemed terrorist. In 2003, the EU terrorism definition was introduced in national law, so that it now has to be tested whether crimes, in their nature or context

may seriously damage a country or an international organisation where committed with the aim of seriously intimidating a population, or unduly compelling a Government or international organisation, to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.(1)

In 1989, the Crown Witness Regulation was introduced, offering those accused under Article 129a a deal with the prosecution for a more lenient sentence if they incriminate other persons, the German version of the use of supergrasses in Northern Ireland (2).

It is evident that political opposition continues to be criminalised in Germany by way of anti-terrorist legislation: during the past 30 years, between 5.500 and 6.000 preliminary investigation were carried out by the police on grounds of Article 129a, sometimes against "unknown" persons and often more than one person was under investigation. Around 20.000 persons have been affected by 129a procedures, as suspects and/or relatives and friends. Although exact figures are not recorded and can only be deducted from answers to parliamentary questions, various lawyers estimate that between 1980 and 1989, there were around 3.000 investigative procedures, from then onwards around 200 investigation procedures per year. The majority of procedures concerns supporting and promoting an organisation, not membership. According to official figures, a mean of only five percent of legal proceedings initiated on grounds of Article 129a of the Germany Criminal Code leads to charges being brought against the suspects, the current quota is even lower (3%). The quota in regular criminal investigations is almost 50%. In other words, in 95 percent of the cases, proceedings are dropped because they lack evidence.(2)

The experience of 30 years of the use of Article 129a has shown that house searches lead to the long-term confiscation of files, computers, hard drives and address books; large-scale interception of telecommunication pries into the private lives of whole social scenes, social profiles are made and through GSM monitoring the movements and whereabouts are constantly monitored and finally, activists are forced to spend money and often many years of their lives on unpaid anti-repression and defence work. Rolf Gössner, president of International Human Rights League, sums up the use of Article 129a to law enforcement as follows:

"For the investigation authorities it is not decisive whether the relevant procedure actually comes to court and therefore ends in a conviction; to them the investigation in itself is much more significant. With the complex set of special powers triggered by Article 129a, they have at their disposal a practical instrument to get access to the targeted scenes that are otherwise difficult to enter, to hack into communication structures beyond the individual level, collect data and formulate sociograms of resistance that are used not only for repression but particularly for prevention and operational purposes. The consequences of this strategy of criminalisation are the intimidation of the movement, breaking solidarity and deterrence."(4)

It is therefore fair to say that rather than constituting an instrument to catch criminals, the terrorist legislation in Germany is used not only to spy on but to damage and criminalise opposition movements.

The construction of a terrorist group

The entire legal construction of terrorism will be tested in the current case. The presiding judge of the third criminal division of the Federal Court of Justice, who is responsible for ruling on the public prosecution's appeal to the preliminary release of the arrested sociologist Andrej H., decided that not only the suspension of investigative detention but the very application of the anti-terrorist provision Article 129a in this case had to be tested, and thereby its related investigation and prosecution powers. Florian L., Axel H. and Oliver R. are accused of having attached an arson device to some army vehicles parked on an industrial terrain in Brandenburg. This alleged attempted arson, the police argue, shows similarities to a series of arson attacks against cars and buildings carried out by the militante gruppe (mg), which describes itself as social-revolutionary, communist and anti-imperialist. According to the Federal Crime Police office (Bundeskriminalamt - BKA) website the group has claimed 10 arson attacks since 2001 - some newspapers quote more than 20 claimed attacks - against police and army cars as well as buildings, such as the local tax and unemployment offices and a Berlin police station. Burning cars have indeed become a popular sport in and around Berlin these last years, with 91 cars, typically luxury cars, having suffered this fate this year alone (Die Zeit, 23.8.07); a website has even been set up, dedicated to updating the list of cars targeted (5). However, the authorship of these arson attacks and the ‘mg' itself remain ominous and, with left-wing projects and publications, until now, not having given much attention to their actions, rather insignificant in the broader social movement in Germany.

Despite police investigating the case for more than five years now, including searching a plethora of houses of anti-G8 protesters in early 2007 - allegedly in the framework of the mg investigation - there have been no investigation successes in relation to the mg and its claimed arson attacks. The three arrested were allegedly caught red-handed in an attempt to attach arson devices on army vehicles at night. A relation to the ‘mg' is deducted by the nature of the incident (attempted arson) and the time of the incident (at night). The police's construction of ‘membership' appears to rest entirely on this , incident, the ‘mg' letters claming responsibility, and the fact that some of the accused knew and met each other. It is probably this lack of evidence that motivated police to use the terrorist provision to make these recent arrests in the first place, as all the evidence against the four sociologists appears to be their publications.

No evidence but criminal by association

In the police files disclosed to the defence so far, there is no evidence against Andrej H., Mathias B. and the two researchers showing their involvement in the mg attacks; yet they are still charged with membership of a terrorist organisation by way of ‘association'. The Crime Police believes that their choice of words in various published articles, such as "reproduction", "political praxis", "gentrification" and "Marxist-Leninist", makes them not only "intellectually capable" of having written the "complex texts of the ‘militant group'", but the association of one suspect with the university gives him access to libraries, which he "can use inconspicuously to carry out the research necessary for writing the texts of the ‘militant group'". One suspect is deemed member of the ‘mg' because he wrote an article about a conference at which speakers discussed a RAF attack from 1972, which was also mentioned by the mg some months before.

The link between the circle of left-wing academics and one of the other three arrested, which at the same time serves as evidence for the construction of "membership", is an alleged meeting between Andrej H. and Florian L., which the Crime Police Authority declares was conspiratorial because Andrej left his mobile phone at home. Further, Andrej's involvement in organising protests against the G8 this summer, is constructed by the police as left-wing extremism.

The police's attempt to ascribe the label of extremism to the diverse G8 summit protests already started in 2005. The ‘mg' was used as a justification to raid the homes of some of the political organisers in early 2007, without any evidence being uncovered. Nevertheless, the police continue to use the G8 summit protests to construct an apparent investigation success in relation to the ‘militant group'. Moreover, the ascription of guilt for allegedly evading surveillance by leaving a mobile phone at home, is a whole new way at looking at the principle of burden of proof, even for terrorist trials. The evidence base is therefore described as a "legally weak and politically dangerous construct" by the defence.

International protest

Although Article 129a procedures have become a rather common policing strategy against political movements in Germany, this time law enforcement might have gone too far. The attempt by police and politicians to criminalise those mobilising against the G8 summit from 2005 onwards, spectacularly failed due to broad civil support for the demonstrators and organisers (see Statewatch Bulletin vol 17 no 2). Protest formed straight after the arrests, with demonstrations and solidarity actions not only in Germany but other parts in Europe. A Coalition for the Immediate End to the Section 129a Proceedings and the release of the accused has been formed, which runs a website dedicated to providing information about Article 129a, case updates and press coverage(see www.einstellung.so36.net/en), and the German Green Party has vowed to raise the issue in parliament. Moreover,

"more than 3,000 urban scholars from universities and academic organizations around the world, together with activists and organizers, have signed open letters protesting the arrests and demanding the repeal of Section 129a. A strongly worded resolution was passed at the American Sociological Association's annual meeting in New York in mid-August; a protest was lodged by the International Critical Geography Group; and another letter of protest was issued by a recent gathering of international urban scholars in Vancouver. Two Britain-based US academics have described the charges and incarcerations as "Guantánamo in Germany."(6)

Test case: terrorism and democracy

The outcome of the case will be interesting insofar as it might test the limits of anti-terrorist legislation, notorious for its deliberate lack of delimitation and applicability. From the start, in declarations by the broad solidarity campaign with the accused, the abolition of Article 129a stood at the centre of the demands. Since its institution in 1976, civil liberties groups and political activists have pointed to the undemocratic nature of the anti-terrorist law and the destructive effect it has on social movements, freedom of expression and the criminal justice system as a whole. By outlining the effects of anti-terrorist laws in Northern Ireland, Paddy Hillyard warns that UK and EU anti-terrorist legislation will have disastrous effects on civil society without hampering terrorist activity, and in the case of Northern Ireland, it even increased levels of violence and hampered political settlements.

All anti-terrorist provisions share certain core elements of emergency law: organisations are banned, poorly defined criminal offences are introduced such as "aiding and abetting", freedom of speech with regard to these organisations is curtailed, and supergrasses and informers are used to spy on movements. In this way, two parallel but interrelated criminal justice systems are formed: one for those suspected of terrorist activities and another for those suspected of "ordinary crime". These parallel worlds, however, are conflated through daily police and judicial practice, undermining basic democratic principles that should protect citizens from unchecked state powers:

"The development of a separate criminal justice system to deal with political violence has corrupted the ordinary criminal justice process in three significant ways. First, powers and procedures, for example, relating to the length of detention under anti-terrorist legislation were subsequently incorporated into the ordinary criminal law. Secondly, antiterrorism legislation was constantly used to deal with ordinary criminal behaviour. Thirdly, the whole criminal justice system became discredited as the rule of law was replaced by political expediency and the Northern Ireland judiciary did little to uphold the independence of the law." (7)

Whilst there are significant differences between the former civil war situation in Northern Ireland and related human rights abuses against political activists and the current political situation in Germany, the general observations cited above also apply to Germany. It will be interesting to observe if the judiciary is willing and able to uphold its independence in this case. Various criminal law professors have demanded a restrictive interpretation of Article 129a, to apply only when "the state as a whole" is threatened by, for example, "large-scale attacks on energy supplies" and not "setting fire to individual vehicles", as in the current case. Some judges have commented that current legislation excludes acts with "merely subordinate consequences without significant effects felt" (8). Surprisingly, the current minister of justice, Brigitte Zypries, went even further in her delimitation of the definition of terrorism. When asked which terror attacks could threaten the polity and democratic foundation of the German state, she replied: "an attack such as 9/11 would be a terrible tragedy, but it would remain a criminal act and would not question the existence of our state" (Der Spiegel no. 39/2007, 24.9.2007).

Even if ignoring the lack of evidence linking the accused to the ‘mg', according to these statements and the current evidence supporting the prosecution's case, the group in question would not even constitute a terrorist organisation.

All relevant information on the case is available on the website of the campaign Immediate End to the Section 129a Proceedings http://einstellung.so36.net/en. The campaign is asking for donations and financial support for its anti-repression and solidarity work.

Sources:

(1) Council Framework Decision of 13 June 2002 on combating terrorism, OJL 164/3, 22.6.2002

(2) "The 'War on terror' - Lessons from Northern Ireland" (2005) by Paddy Hillyard, Statewatch Bulletin, vol 15 no 5.

(3) Der Terror-Paragraph - 1976 trat der Strafrechtsparagraph 129a in Kraft: eine juristische Mehrzweckwaffe (2006) by Heinz Jürgen Schneider, junge Welt, 18.8.2006.

(4) see above

(5) http://www.brennende-autos.de/

(6) German GWOT Misfire, by Neil Smith, The Nation, 24 September 2007, http://www.thenation.com/docprint.mhtml?i=20070924&s=smith

(7) Paddy Hillyard, Statewatch Bulletin, vol 15 no 5.

(8) Der Spiegel, 27.08.2007, http://einstellung.so36.net/de/ps/221

Source: Statewatch | 08.10.2007