Matthias Monroy

In order for state protection departments to be able to cooperate better at EU level in the area of politically motivated crime, they need common definitions of the persons to be prosecuted. A corresponding initiative to this end comes from Germany. This way, threats are prosecuted that have not even occurred yet.

Under the Treaty on the Functioning of the European Union, neither the Commission nor the Council has powers to coordinate intelligence services. Nevertheless, for the past five years the police agency Europol has been “exploring” ever closer cooperation with the European “Counter Terrorism Group” (CTG), in which the domestic services of all Schengen states work together. The EU’s “Intelligence Analysis Centre” INTCEN in Brussels, which should actually only read secret service reports from the member states, is also being given further powers.

In order to be able to observe and, if necessary, prosecute target persons by police forces and intelligence services alike, a new category must be created. For the police traditionally deal with suspects or accused of a crime, police laws in Germany also know the category of “Gefährder” who are accused of a concrete, perceivable danger. Intelligence work, on the other hand, is based on the mere suspicion that someone might pose a danger in the future.

Unclear criteria for classification

For suspicion-based police work, the term “Gefährder” was introduced into German state protection departments 20 years ago. It is an innocent, i.e. not judicially convicted but potentially dangerous person in the field of politically motivated crime. Certain facts must justify the assumption that the person will commit politically motivated crimes of considerable importance. Which criteria are used for this waxy classification remains secret.

In Germany, this currently concerns 73 persons in the area of right-wing extremism, for so-called left-wing extremism the number is 9, according to the Federal Police (BKA). 607 persons are considered “Islamist threats”. The BKA now determines the ranking of their dangerousness with the RADAR-iTE, known as the “risk assessment tool”. In an eight-stage prognosis model, the state protection departments process biographical information as well as “violent behaviour”, “behaviour towards authorities and other institutions”, “handling weapons and affinity with weapons”, “connections to terrorist organisations and the radical scene”, “crisis-like, social and psychological conspicuousness” or “new life plan”. The information can also come from secret services abroad.

“Gefährder” are not defined in any German law. The term was agreed upon by the state criminal investigation offices and the BKA in 2004 in a working group. Normally, those affected do not find out that they have been targeted by the police and services. Instead, the formula allows them to be observed and bugged or their whereabouts determined with the help of ankle bracelets. They are also stored in various databases, including the anti-terrorism file, the Germany-wide police information system (INPOL) and the case file created there. Further alerts can be issued in the form of investigation-supporting or person-specific “tips” (EHW or PHW). If foreign nationals are involved, they should be deported if possible.

Questionnaire and Conclusions under the German Presidency

Since its creation, the term “dangerous person” has been criticised by civil rights organisations and lawyers for its vagueness. Nevertheless, it is now to be introduced at EU level. The initiative was launched by the German EU Presidency a year ago. Initially, the Federal Ministry of the Interior had sent out a questionnaire and drafted conclusions. However, the EU member states did not adopt the paper.

A corresponding paragraph was found a little later in a declaration against terrorist attacks in various countries of the European Union. It calls on member states to “make full use” of existing databases and to continuously input information on “threats”. This way, police and services can alert each other when such a person is detected in another member state or when crossing an external EU border. So far, only the domestic intelligence services operate such a real-time information system within the framework of the CTG on “Islamist terrorism” in The Hague.

The “Conclusions on Internal Security and a European Police Partnership” became more concrete shortly afterwards. In these, the Council Working Group on Terrorism is called upon to develop standards for the category of “Gefährder”. The EU Commission and Europol are to support this “continuous strategic dialogue”.

Commission draws up “Gefährder compendium”

The result is a so-called “compendium”, the contents of which are to remain secret. It is an overview of which terminology is used in the EU member states for “Gefährder” or similarly designated persons. The EU documents speak of “persons considered a potential terrorist or violent extremist threat”.

The “compendium” also describes how “Gefährder” are prosecuted in detail. In some countries, for example, the suspicion of an intelligence service or the assumption of a state protection department is sufficient. Some authorities are only allowed to store data on people who are on trial or have been convicted. There are also differences in whether the persons concerned are accused of a terrorist offence or whether they may also be accused of other criminal offences. Finally, it is also of interest whether the information for the classification as a “Gefährder” may only come from authorities of one’s own country, or whether indications from other member states, from Interpol or from third countries may also be used.

The initiative is now being taken further. On the basis of the “compendium”, Europol is to establish criteria for storing the persons concerned in Europol databases or the Schengen Information System (SIS II). Within the framework of an Article 36 search, they could then be alerted for “discreet checks”. Currently, the EU Parliament and Council are discussing a new Europol Regulation, according to which the agency itself should issue alerts in the SIS II. After the EU member states have agreed on the criteria, Europol is to count “Gefährder” in various phenomenon areas and, like the BKA, publish regular statistics for the entire EU.

French court criticises call from German BKA

The case of Luc Śkaille has recently shown how cross-border persecution as a “Gefährder” can be expressed. The journalist, who also works for Radio Dreyeckland in Freiburg, wanted to report on the G7 summit in Biarritz in 2019. However, French authorities arrested him twice and deported him. Śkaille filed a complaint against the measure and has now been proven right by the Paris Administrative Court.

It came out that he was classified as a “Gefährder” by the German Ministry of the Interior, the BKA apparently reported this to the police or secret services in France. In Germany, Śkaille is stored in police databases because he was allegedly involved in “unpeaceful acts” at the Hamburg G20 summit in 2017. The domestic secret service in France, in turn, knows him because he was detected during protests against a nuclear waste repository in Lorraine. Similar to the German security authorities, the French services keep a list of suspected but not necessarily convicted persons in the so-called “Fiche S” files. Foreigners can also be stored there, but it is unclear whether this also affected Śkaille with German citizenship.

The court in Paris criticised the accusations of the BKA and the French domestic secret service in its reasoning for the judgement. Activities that are only worthy of a fine and mere suspicions would not suffice as justification for the classification as a “Gefährder” and the associated reprisals, Śkaille summarised the sentence. The French Ministry of the Interior must therefore pay the plaintiff’s court costs, lawyer’s fees and travel expenses.

Image: Those who protested the police at the G20 in Hamburg could be deported as “Gefährder” at the G7 in France (Montecruz Foto).