The classical counter-terrorism provisions in German legislation are the terrorist offences contained in the German Criminal Code (section 129a, b, and, since recently, also sections 89a ff) and a constantly growing number of sections of the Code of Criminal Procedure (see, e.g., sections 100a ff), which concern special investigation methods as well as special restrictions to the right to defence. Many of these provisions stem from the 1970s and were passed in response to the left-wing terrorism of the Red Army Faction (Rote Armee Fraktion – RAF). Their constitutionality was sometimes challenged, and rulings of the Federal Constitutional Court in some cases led to an amendment of the legislation, adapting them to the constitutional requirements imposed by the Court. Thus, for instance, the Eavesdropping Act or G 10 Act, which authorised extensive telephone tapping (cf. sections 100a and 100b of the Code of Criminal Procedure) was declared null and void by the Federal Constitutional Court in its judgment of 15 December 1970 insofar as the law did not require the person under surveillance to be notified of the intrusion. The Act was subsequently amended in consistence with the Court’s findings, and a later complaint before the European Court of Human Rights (ECtHR) (Case Klass and others vs. Germany) remained unsuccessful. Moreover, during the 1970s several defence counsels were suspected of actively collaborating with suspected terrorists, and these suspicions triggered considerable restrictions to the right to defence in case of terrorist charges, which are still in force today (e.g. restriction of maximum number of defence counsels per defendant to three, exclusion of defence lawyers, control of written and oral correspondence with the counsel, cf. sections 137(1) second sentence, 138a-138d, 148(2) of the Code of Criminal Procedure). A complaint before the European Court of Human Rights of the defendant Croissant was unsuccessful. In this case, Croissant challenged the fact that he was not allowed to be defended by three lawyers of his own choice, but only by two, the third one being assigned ex officio. In another case before the ECtHR, the control of written correspondence between a terrorist suspect and his defence counsel (s. 148(2) of the Code of Criminal Procedure) was scrutinized by the Strasbourg judges who concluded that the provision did not breach Art. 8 of the Convention (Erdem v. Germany). 

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The classical counter-terrorism provisions in German legislation are the terrorist offences contained in the German Criminal Code (section 129a, b, and, since recently, also sections 89a ff) and a constantly growing number of sections of the Code of Criminal Procedure (see, e.g., sections 100a ff), which concern special investigation methods as well as special restrictions to the right to defence. Many of these provisions stem from the 1970s and were passed in response to the left-wing terrorism of the Red Army Faction (Rote Armee Fraktion – RAF). Their constitutionality was sometimes challenged, and rulings of the Federal Constitutional Court in some cases led to an amendment of the legislation, adapting them to the constitutional requirements imposed by the Court. Thus, for instance, the Eavesdropping Act or G 10 Act, which authorised extensive telephone tapping (cf. sections 100a and 100b of the Code of Criminal Procedure) was declared null and void by the Federal Constitutional Court in its judgment of 15 December 1970 insofar as the law did not require the person under surveillance to be notified of the intrusion. The Act was subsequently amended in consistence with the Court’s findings, and a later complaint before the European Court of Human Rights (ECtHR) (Case Klass and others vs. Germany) remained unsuccessful. Moreover, during the 1970s several defence counsels were suspected of actively collaborating with suspected terrorists, and these suspicions triggered considerable restrictions to the right to defence in case of terrorist charges, which are still in force today (e.g. restriction of maximum number of defence counsels per defendant to three, exclusion of defence lawyers, control of written and oral correspondence with the counsel, cf. sections 137(1) second sentence, 138a-138d, 148(2) of the Code of Criminal Procedure). A complaint before the European Court of Human Rights of the defendant Croissant was unsuccessful. In this case, Croissant challenged the fact that he was not allowed to be defended by three lawyers of his own choice, but only by two, the third one being assigned ex officio. In another case before the ECtHR, the control of written correspondence between a terrorist suspect and his defence counsel (s. 148(2) of the Code of Criminal Procedure) was scrutinized by the Strasbourg judges who concluded that the provision did not breach Art. 8 of the Convention (Erdem v. Germany). 


Of special interest are sections 31 ff of the Introductory Act to the Judicature Act. These provisions regulate incommunicado detention for terrorist suspects and convicts. They were occasioned by the abduction of the German employer’s association’s representative Hanns-Martin Schleyer by the RAF in autumn of 1977. The said provisions foresee that a terrorist suspect or convict is not allowed to communicate with his lawyer in privacy for a period of anything up to thirty days, a period that could in theory be prolonged indefinitely, as long as the legal requirements were met. With account of the exceptional situation in which these norms were drafted, the Federal Constitutional Court dismissed a constitutional complaint against them (decision of 1 August 1978). Similarly, the European Commission of Human Rights declared complaints with regards to these measures as manifestly ill-founded (G. Ensslin, A. Baader & J. Raspe v FRG, Decision of 8 July 1978). The provisions are still in force as of today, but have scarcely been applied in practice. (For more information on these provisions, see Anna Oehmichen, Incommunicado Detention in Germany: An Example of Reactive Anti-terror Legislation and Long-term Consequences, German Law Journal [2008] Vol. 9, no. 7, p. 855 ff, online available free of charge at www.germanlawjournal.com.)

Moreover, in order to track the members of the RAF, the Federal Police Office developed a special investigation tool: the “grid search” or data mining (Rasterfahndung), i.e. a computerized search of certain databases containing the personal data of a large group of the population by applying specific criteria that suspects typically meet. These criteria are indiscriminately applied to all personal data, and, in a second step, those persons who meet the criteria are identified as potential suspects. The method was used in the 1970s but only obtained a legal basis in 1990 in the police laws of the federal states (for preventive purposes), and in 1992 for the federation (see Section 98a, 98b of the Code of Criminal Procedure). These provisions have been updated in the police laws of several federal States and re-applied again after September 11 for the purpose of identifying so-called sleepers (persons that have not been conspicuous yet but who are ready to commit a terrorist attack anytime in the near future), applying criteria such as ‘male, aged 18 to 40, (ex-) student, Islamic religious affiliation, native country or nationality of certain countries’. In view of the very vague criteria applied with regards to Islamic terrorism, this method has not proven successful and, in addition, it has met much criticism by academia and civil rights organizations for its discriminatory nature. In addition, many of them raise questions of constitutionality. With respect to the police law of North Rhine Westphalia, the Federal Constitutional Court held in its decision of 4 April 2006 that a preventive police grid search as stipulated under section 31 of the Police Law of North Rhine Westphalia of 1990 was only compatible with the fundamental right of informative auto-determination (a specific form of the right to privacy under German constitutional law regarding personal data) if strong legal interests were jeopardized, such as the Constitution, the security of the Federation or of a Federal State, or the life, limb or freedom of a person. It further held that a general situation of threat, such as the one existing after the attacks of September 11, 2001, does not suffice to justify the this method.

In 1992 and 1998, further special investigation measures were introduced in the context of the fight against organized crime (but equally applicable to other serious offences such as terrorism) the technical optical or acoustical observation in public places (1992), and inside private houses (1998), cf. section 100c, 100d of the Code of Criminal Procedure and the amended Article 13 of the German Constitution governing the inviolability of the home. In both cases, the Constitutional Court found some of the provisions to be unconstitutional, with regards to monitoring of telecommunications traffic through German intelligence service (cf. judgment of 14 July 1999), and with respect to the acoustic surveillance within private premises (judgment of 3 March 2004, see also comment by Jutta Stender-Vorwachs, The Decision of the Bundesverfassungsgericht of March 3, 2004 Concerning Acoustic Surveillance of Housing Space, German Law Journal [2004] Vol. 5 No. 11, p. 1337 ff, online available free of charge at www.germanlawjournal.com). The German legislator reacted by amending the respective provisions, taking the rulings of the Constitutional Court into account.

In the aftermath of 9/11, in addition to these criminal law provisions, many other legal statutes have been amended in response to the new perceived terrorist threat. These new provisions range from special powers for the Federal Office of Criminal Investigations and the three German secret service agencies (Federal Intelligence Service, Military Counterintelligence Service, and Federal Constitution Protection) over ID and Passport regulations, Telemedia and Communication, Insurance Supervision to Foreigner’s law. Thus, whilst before September 11, 2001, counter-terror legislation was restricted to criminal law, it has now spilled over to a variety of legal branches. As a consequence, many provisions adopted in the context of counter-terrorism affect not solely terrorist suspects or convicts, but the population as a whole.

With respect to the ‘Hamburg Cell’ involved in the planning of the events of September 11, the rulings of the Higher Regional Court of Hamburg and of the Federal Court of Justice in the cases of Mounir El Motassadeq and Abdelghani Mzoudi are of special interest. In the cases, both defendants were accused of having provided substantial support to the suicide pilots of September 11. It was difficult to establish with the required certainty to which extent the defendants were actually aware of the concrete plans of the attacks. The issue in both cases was thus the amount of circumstantial evidence necessary for the conviction. While Motassadeq was eventually convicted to 15 years, Mzoudi was acquitted of all charges. The acquittal of Mzoudi was the result of the dilemma the judges faced in attempting to deliver justice while lacking sufficient basis of information to do so. German and foreign secret services apparently only disclosed part of the information at their hands, for reasons of state secrecy (cf. Loammi Blaauw-Wolf, The Hamburg Terror Trials – American Political Poker and German Legal Procedure: An Unlikely Combination to Fight International Terrorism, German Law Journal [2004] Vol. 05, no. 7, 791 ff, online available free of charge at www.germanlawjournal.com). 

Of special interest is also the Aviation Security Act of 2005, which was passed in response to a pilot entering the Frankfurt sky without permission and threatening to crash into the building of the European Central Bank. The pilot could be arrested before any harm was done. The Aviation Security Act authorised the armed forces to shoot down a hijacked aircraft. It was declared unconstitutional and thus null and void by the German Constitutional Court before even entering into force (judgment of 15 February 2006).

In the summer of 2006, two suitcase bombs were found on German regional trains. The there-after named ‘suitcase bombers’, Youssef Mohamad al-Hajdib and Jihad Hamad were accused of having prepared these bombs and placed them on the trains to retaliate for the Mohammed caricatures published by the Danish newspaper Jyllands Posten. According to the Higher Regional Court of Düsseldorf’s assessment, the bombs did not explode because the defendants did not have the necessary chemical expertise. However, in the Court’s view, their intention of causing the death of an unknown number of persons could be established beyond reasonable doubt. The Düsseldorf Court held that the statements of the defendant Jihad Hamad before the Lebanese authorities had not been obtained by torture and therefore could be used as evidence in court. Although this matter was raised again as a ground for appeal by the defence, the Federal Court of Justice did not discuss this question in its decision of November 2009. In response to these events, the legislator introduced an anti-terror database allowing the information exchange between the intelligence services and the police with respect to terrorist suspects and their ‘contact persons’.

Another case before the Düsseldorf’s Higher Regional Court concerned the so-called ‘Sauerland-group’, i.e. the concerted action of four persons suspected of being members of the Islamic Jihad Union and of having planned to commit explosives attacks against US-American institutions in Germany, in the context of the pending decision of the German parliament regarding the prolongation of the German mission in Afghanistan. The defendants had acquired consecutively 12 barrels of hydrogen peroxide. This amount, concentrated and combined with flour, could produce an explosive mixture of 550 kg, which equals to an explosive force of 410 kg TNT. The German Federal Office of Criminal Investigations found the hydrogen peroxide barrels and secretly exchanged the contents by a nonhazardous agent. When the defendants started to boil the presumed hydrogen peroxide in order to concentrate it, they were arrested in a vacation resort in the region of Sauerland, Western Germany. They were convicted by the Higher Regional Court of Düsseldorf to 12, 11 and 5 years of imprisonment, respectively. The charges included membership to a foreign terrorist organization, preparation of causing an explosion, attempted murder and conspiracy to murder. As neither the defendants nor the prosecution lodged an appeal, the judgment became final on 12 March 2010. In its preface to the judgment, the Düsseldorf Court stressed the exceptionally abundant amount of incriminating evidence, and the also exceptional comprehensiveness of the defendants’ confessions, which facilitated a quick termination of the trial within eight months.
Another accomplice of the ‘Sauerland Bombers’, Kadir T., was charged with support to a foreign terrorist organization and convicted by the Higher Regional Court of Frankfurt to one year of imprisonment. He was placed on probation because he had meanwhile distanced himself from the jihadist movement.
In response to these incidents, a number of new offences have been introduced, such as propaganda for terrorism and recruitment, preparation of a serious violent offence endangering the state, and establishing contacts for the purpose of committing such an offence (sections 89a, 89b, 129a (5) of the Criminal Code). In addition, a number of wide-ranging investigation tools have been granted to the Federal Office of Criminal Investigation, including the possibility of computer surveillance through cookies or Trojan horses (cf. Law of 25 December 2008 introducing section 20k of the Federal Office of Criminal Investigations Act). The new provision takes account of a former ruling of the Federal Constitutional Court in relation to a similar provision of the police law of the federal state of North-Rhine Westphalia, in which the Constitutional Court had held that online searches of suspects were only allowed if there was a concrete and imminent danger for ‘pre-eminent important legally protected interest’, such as the life, limb or freedom of a person or the foundations or existence of the state or the foundations of human existence.

Other cases not directly related to terrorist offences but interesting in this context are the ECtHR’s ruling in Gäfgen vs. Germany, concerning the admissibility of evidence obtained through threat with a treatment contrary to Article 3 of the European Convention of Human Rights, and the decision of the German Federal Constitutional Court of 18 July 2005 declaring the Act implementing the European Framework Decision of 13 June 2002 on the European Arrest Warrant as null and void. Similarly, with respect to the Directive 2006/24/EC on the retention of communication data, the German Constitutional Court partially allowed an injunctive relief against some of the implementing provisions (judgment of 11 March 2008).

Prepared by Consultant: Anna Oehmichen, November 2010 

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