Germany: Conference demands correction of anti-terror laws
01 August 2008
The 59th German Lawyers Congress (
Deutsche Anwaltstag), which hosted 1,800 participants between 1 and 3 May in Berlin, has issued strong statements against the attack on civil liberties posed by the war on terror. The departing deputy chairing judge of the Federal Constitutional Court, Winfried Hassemer, said that the criminal procedural law had witnessed an exorbitant increase of undercover investigations, an extension of investigations to cover non-suspects and blanket surveillance. He said this was the "tip of an iceberg that reaches deep into the foundations of state and society". The president of the German Lawyer's Association (
Deutscher Anwaltverein, DAV), Hartmut Kilger, added that Germany's security legislation had undermined attorney-client privilege and confidentiality.
Freedom and security were the central themes of the conference, with workshops discussing the gradual abolition of individual and professional privacy through data collection and retention, freedom of the press, online raids and interception of communication between lawyers - and other professionals who are under a duty of confidentiality - and their clients. Further, the results of the two-year-old freedom of information act (
Informationsfreiheitsgesetz, IFG) were discussed, and a debating competition took place under the motto's "Rights are not Commodities" and "Against the Surveillance State!"
Winfried Hassemer's opening speech in particular criticised new interception legislation for only granting professional confidentiality to criminal defence lawyers whilst all other lawyers are subjected to a check of proportionality of the interception measure. The reform of the police laws regulating remits and powers of the Federal Crime Authority proposed by Interior Minister Schäuble will not only compromise confidentiality by allowing for the interception of lawyers, but foresees secret online raids and an extensive interception package. DAV president Kilger said that "all planned measures represent a deeper and wider breach of the constitutional right to privacy and place all citizens under blanket suspicion of being potential criminals". Although the constitutional Court, in a ruling on a complaint, lay down that there was a right to computer privacy as well as privacy of the home and thereby restricted the remits of the police to carry out online raids, Kilger argued that it is questionable how far the restrictions imposed by the court will actually be adhered to by law enforcement authorities. The draft reform law denies professionals who have duties of confidentiality, such as lawyers and priests, the right to refuse to provide information on their clients (art. 20 u BKAG-E). Kilger also questioned the alleged purpose of the measure, drafted in the name of anti-terrorism, by pointing out that "it is not very likely that terrorists will reveal their plans of an attack or hostage-taking to a priest, lawyer or Member of Parliament".
Furthermore, art. 20 u para 4 BKAG-E allows for interception of the telecommunication of all professionals who are allowed to refuse to give evidence, by making legal the interception of all "contacts" or "associates" of suspects if they are "responsible for a threat". This implies also that those who are in contact with terrorist suspects through their profession, such as lawyers, priests, doctors and members of parliament, can be intercepted. The wording of the exceptional clause "responsible for the threat" is undefined and therefore open to interpretation. The explanatory statement introducing the new law, says Kilger, follows the logic that nothing may remain private in the face of terrorism, therefore opening up all private spheres to state interception and intrusion.
More information on the congress can be found on: http://www.anwaltverein.de; DAV Press release, 1.5.08; dpa 2.5.08; DAV-Depesche no 18/08, 8.5.08