On the Charges Filed Against the German Government

Last week, the German-based Chaos Computer Club (CCC), Europe’s largest association of hackers, and the International Federation for Human Rights (ILHRpressed charges against the German government, as well as against the directors of the country’s three intelligence agencies. As Tara already blogged on Monday, the hackers and human rights activists blamed the Merkel administration to have illegally aided the National Security Agency’s (NSA) and the Government Communication Headquarters’ (GCHQ) intelligence collection activities, which Snowden revealed to be also directed at German nationals.

In detail, CCC and ILHR accused

[…] German secret agents, their supervisors, the German Minister of the Interior as well as the German Chancellor of illegal and prohibited covert intelligence activities, of aiding and abetting of those activities, of violation of the right to privacy and obstruction of justice in office by bearing and cooperating with the electronic surveillance of German citizens by NSA and GCHQ.


A lawyer and long-time member of the CCC further elaborated that

[e]very citizen is affected by the massive surveillance of their private communications. Our laws protect us and threaten those responsible for such surveillance with punishment. Therefore an investigation by the Federal Prosecutor General is necessary and mandatory by law.



These allegations refer to the following German statutory offenses (all hyperlinked with their official English versions), of which the central one is introduced first:

1. Section 99 of the German Criminal Code:
Working for a foreign intelligence service
  (sub-section 1)

(1) Whosoever

1.  engages in intelligence activity for the intelligence service of a foreign power against the Federal Republic of Germany which is directed toward communication or supply of facts, objects or knowledge; or
2.  declares to the intelligence service of a foreign power or one of its intermediaries his willingness to engage in such activity,

shall be liable to imprisonment not exceeding five years or a fine unless the offence is punishable under section 94, section 96(1), section 97a, or section 97b in conjunction with section 94 or section 96(1).


2. Sections 201 et seq. (Chapter 15) of the German Criminal Code:
Violation of privacy

3. Section 258 of the German Criminal Code:
Obstruction of justice 

The complainants also requested summons of Edward Snowden as an expert witness, who should be granted safe conduct and protection from extradition to the United States.



The criminal complaint is currently under scrutiny by Germany’s Attorney General (no Cabinet member in Germany).  While all the alleged offenses are liable to public prosecution, procedural law allows the Attorney General to abstain from prosecution for political reasons, or the Federal Minister of Justice (Cabinet member) to instruct the Attorney General to do so:

Section 153 d of the German Code of Criminal Procedure:
Dispensing with Court Action on Political Grounds
(sub-section 1):

(1) The Federal Public Prosecutor General may dispense with prosecuting criminal offenses […], if the conduct of proceedings poses a risk of serious detriment to the Federal Republic of Germany, or if other overriding public interests present an obstacle to prosecution.



Based on these substantive and procedural considerations, I leave the prediction on the complaint’s chance of success to everybody themselves. Recalling the political context of the potential criminal proceedings, I’m closing this blog entry with a statement that the Attorney General made in a radio interview last November:

“I am aware that already the launch of criminal proceedings on political and diplomatic levels could come with serious consequences.”


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One Response to “On the Charges Filed Against the German Government”

  1. […] Federation for Human Rights filed a criminal complaint against the German government (we blogged about that matter 8 weeks […]

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

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