Matthias Monroy

In Germany there is no legal definition of „Gefährder“. They are persecuted for acts they have not yet committed. The Federal Government now wants to exchange more data on this group of people throughout the EU.

Actually, the police should prosecute suspects or defendants of a crime. Its tasks also include the prevention of a „concrete danger“, such as that emanating from persons called „troublemakers“ in police jargon. With the „Gefährder“ a third police target group has been sneaking into German law for two decades, as Heiner Busch expressed it in the magazine CILIP. This marked the beginning of a new stage in the shifting of criminal prosecution to the preliminary stage: threats are being prosecuted that have not yet even occurred.

Before the attacks on the World Trade Center in 2001, football fans or political activists were referred to as „Gefährder“, but now the category is mostly used in connection with terrorism. There is no legal term for it, instead it is a working definition, which the heads of the state criminal investigation offices and the Federal Criminal Police Office vaguely outlined for the first time in 2004. According to this concept, a „Gefährder“ is a person in respect of whom „certain facts justify the assumption that they will commit politically motivated crimes of considerable importance“.

Questionnaire to all Member States

A legal definition of the concept of a „Gefährder“ that is binding for all police forces of the Federal Government and the Länder could only be given after prior amendment of the Constitution, write the Scientific Services in the German Bundestag in an assessment. Before that, the Federal Government would have to be given the legislative power for the entire police law.

Despite the legal uncertainty, Germany also wants to establish the term at EU level and thus facilitate the prosecution of this group of persons. Within the framework of the German EU Presidency, the German Ministry of the Interior has drafted corresponding conclusions which are currently being discussed in the Council working group on terrorism. They are based on a questionnaire which the Ministry distributed to all Member States in the summer.

The draft avoids the attempt of an EU-wide definition of a „Gefährder“, as this would first have to be anchored in the police law of many Member States, like in Germany. However, the conclusions should develop „a shared understanding and common criteria“ for classification. The purpose of their decision is to ask the Council Presidency (i.e. Germany by the end of the year) to draw up proposals for these criteria and to submit them to the Standing Committee on Operational Cooperation on Internal Security (COSI) for approval.

„Identify threats earlier, prevent crimes, target resources better“

In English, „Gefährder“ are described in EU documents as „persons considered a potential terrorist or violent extremist threat“. The German proposal provides for their data to be increasingly entered into European databases and information systems. The aim is to enable Member States‘ authorities to „identify threats earlier, prevent crimes and target resources better“.

Secret services may also use the information. In the framework of the „Counter Terrorism Group“, all domestic services of the Schengen States already maintain a real-time information system on „Islamist terrorism“ in The Hague, through which information on individuals is exchanged. This is likely to be largely the group of people whom the Federal Ministry of the Interior wants to call „Gefährder“.

European police and secret services issue alerts for discreet surveillance of persons who are to be regarded as a „potential terrorist or violent extremist threat“, in the jointly operated Schengen Information System (SIS II). These entries are increasing significantly each year, particularly in France. It would be possible in future to label these records with a „Gefährder“ marker. A similar category was recently introduced in SIS II as „terrorism related activity“.

Performance monitoring by Europol

The planned conclusions firstly call on Member States to make full use of existing instruments for the exchange of information on „Gefährder“. The European Commission should review this in consultation with Europol and the Counter-Terrorism Coordinator and make suggestions for improvement.

Only in one sentence does the German paper mention how the European authorities should commonly handle the „Gefährder“. Accordingly, the Council of Ministers should also emphasise in its conclusions the „potential added value of operational meetings“. Europol is to provide an encrypted communication system for cross-border agreements on measures against the affected persons.

Image: Europol operation with the Spanish police against a „Djihaidist cell Information to this effect also comes from intelligence services in the USA (Policia Nacional on Twitter).