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The Federal Government’s Refusal to Provide Information on the Use of Informants with regard to the 1980 Oktoberfest Bombing was in Part Unlawful
Press Release No. 60/2017 of 18 July 2017
Order of 13 June 2017
2 BvE 1/15
The use of covert sources is crucially important to intelligence services for the purpose of gathering information. For that reason, the Federal Government may generally refuse, based on threats to national security interests (welfare of the state – Staatswohl) or to fundamental rights of the persons concerned, to provide information on persons acting covertly if sharing the requested information were to result in exposure of the informants in question. However, the parliamentary right to information may prevail, in strictly limited exceptional cases in which it would be unreasonable to expect, due to the particular circumstances of the case, that this will result in a threat to constitutionally protected interests or an impairment of the functioning of the intelligence services. This is what the Second Senate of the Federal Constitutional Court decided in an order published today. The Court held that the Federal Government in part violated the rights of the parliamentary groups BÜNDNIS 90/DIE GRÜNEN and DIE LINKE as well as the rights of the German Bundestag by refusing, based on national security interests and the fundamental rights of the covertly acting persons, to provide exhaustive answers to enquiries concerning intelligence obtained in relation to the 1980 Oktoberfest bombing.
Facts of the case:
On 26 September 1980, an explosive device detonated at the main entrance of the Munich Oktoberfest. After investigations by the Federal Prosecutor General (Generalbundesanwalt) into the bombing were concluded in 1982, the role of both Karl-Heinz Hoffmann, founder of the so-called “Wehrsportgruppe Hoffmann”, and Heinz Lembke, a militia fighter and member of the “Wehrsportgruppe” who committed suicide by hanging himself in 1981 while in remand detention (Untersuchungshaft), remained unresolved. In December 2014, the Federal Prosecutor General reopened investigations in relation to the 1980 Oktoberfest bombing after a previously unknown witness had come forward.
The parliamentary groups BÜNDNIS 90/DIE GRÜNEN and DIE LINKE challenge the incomplete answers provided in response to two minor interpellations (Kleine Anfragen) [pursuant to Rule 104 of the Rules of Procedures of the German Bundestag] regarding the findings of the intelligence services on the Munich Oktoberfest bombing, and the possible involvement in this regard of informants working for the intelligence services. The minor interpellation of the parliamentary group BÜNDNIS 90/DIE GRÜNEN submitted in 2014 comprised, in particular, questions relating to a possible recruitment of Heinz Lembke as informant of a security agency of the Federation or a Land (federal state). The minor interpellation of the parliamentary group DIE LINKE submitted in 2015 comprised, in particular, questions relating to the volume and organisation of the files on the Oktoberfest bombing, as well as to sources of the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz). Another submitted question asked whether and, if so, how many members of the “Wehrsportgruppe Hoffmann” had acted as confidential informants for the Federal Office for Protection of the Constitution or, respectively, for the corresponding agencies of the Laender. The Federal Government refused to answer some of the questions, arguing that the relevant information was confidential and that disclosure could result in threats to security interests of the Federation or a Land.
Key Considerations of the Senate:
1. Under Art. 38(1) second sentence of the Basic Law (Grundgesetz – GG) and Art. 20(2) second sentence GG, the German Bundestag has the right to ask questions and to receive information from the Federal Government; this right extends to the individual members of the Bundestag, as well as to parliamentary groups in their capacity as an association of members of the Bundestag, and the right generally corresponds with a duty of the Federal Government to give answers. The parliamentary oversight of government and the executive branch lends effect to the principle of separation of powers, as Parliament would not be able exercise its powers of oversight over the Federal Government unless it participates in the Federal Government’s knowledge. Therefore, the parliamentary interest in receiving information is of paramount importance insofar as it relates to uncovering possible unlawful conduct or similar forms of misconduct within the government or the executive branch. At the same time, parliamentary oversight is also a manifestation of the Federal Government’s accountability to Parliament, which is derived from the principle of democracy. Keeping information secret vis-à-vis the Parliament limits its parliamentary oversight mechanisms and may thereby impair or disrupt the necessary democratic legitimation of government.
2. The right to information of the German Bundestag, its individual members and parliamentary groups is, however, subject to limitations resulting from security interests of the Federation or a Land (Staatswohl) and from the fundamental rights of third parties.
a) Disclosure of confidential information may pose threats to national security interests. Nevertheless, within the parliamentary system of government established by the Basic Law, the Bundestag and the Federal Government are jointly entrusted with safeguarding such interests. In its Rules on Confidentiality (Geheimschutzordnung), the Bundestag sets out detailed provisions for the protection of official secrets when exercising its parliamentary functions; this can be considered as a suitable means for striking a balance between the executive’s secrecy interest and the parliamentary interest in information. Yet, the Federal Government is not obliged to provide the Bundestag with classified information if the Bundestag does not guarantee the confidentiality considered necessary by the Federal Government.
b) Furthermore, the right to ask questions which is accorded to the Bundestag, its individual members and parliamentary groups, as well as the Federal Government’s duty to reply to such questions, may be limited by the requirement to observe fundamental rights. Informants could face threats to life and limb where responses to parliamentary queries involve the risk that their identity is exposed. Moreover, it is conceivable that the general right of personality (Allgemeines Persönlichkeitsrecht) may be affected. The general right to be valued and respected as a person (Achtungsanspruch) also protects deceased persons from gross disparagement and degradation. Ultimately, assuring confidentiality has a bearing on fundamental rights, given that a breach of assured confidentiality may violate Art. 2(1) in conjunction with Art. 20(3) GG if the required protection of legitimate expectations (Vertrauensschutz), rooted in the principle of the rule of law, is not sufficiently taken into account.
3. When refusing, in part or in full, to provide the requested information, the Federal Government is obliged to sufficiently substantiate its reasons for doing so, thereby allowing the Bundestag to assess and determine whether to accept this refusal to provide answers or to take further steps for the purpose of enforcing its parliamentary request for information. Furnishing reasons at a later stage is not permissible. If [the Federal Government] initially refused, without giving adequate reasons, to provide exhaustive information, any supplementary arguments submitted only in the course of the Organstreit proceedings (dispute between constitutional organs) will not suffice to remedy the violation of rights that the initial refusal entails.
4. According to these constitutional standards, the Federal Government is, in principle, obliged to respond to parliamentary queries concerning activities of the intelligence services. Given the importance of the use of covert sources to intelligence services for the purpose of gathering information, however, the Federal Government may generally refuse – based on threats to national security interests or to the fundamental rights of persons acting covertly – to provide information on such persons, even though Parliament has a significant interest in receiving information in this regard.
a) The protection of covert sources, including confidential informants in particular, does not only serve the interests of the persons concerned. Rather, if information that is specific to particular sources were disclosed, this could also allow insights into the modes of operation and the functioning of intelligence services. Compliance with assured confidentiality is indispensable for working with and recruiting confidential informants and thus necessary for the effective discharge of the intelligence services’ functions. This interest in maintaining secrecy, however, conflicts with a substantial parliamentary interest in receiving information, given that the employment of confidential informants for the purpose of investigating extremist activities, as well as for the purpose of preventing and investigating serious crimes, concerns the security of the state and its population. When furthermore considering the nature and the scope of the means of intelligence made available to the intelligence services, and due to the resulting intensity of interferences with fundamental rights as well as the covert nature of intelligence activity, and the lack of transparency in the subsequent processing of data from the perspective of affected individuals, it follows that parliamentary oversight of the intelligence services serves a particular investigative purpose.
b) It is true that responses to parliamentary queries in relation to the intelligence services’ use of covert sources does not in all cases impair secrecy interests. With regard to questions relating to persons acting covertly, however, the Federal Government will generally be able to invoke conflicting interests pertaining to national security interests and to the fundamental rights of the persons concerned. In particular, questions that potentially concern informants that are still active or questions that relate to current or very recent events may, as a general rule, be regarded as posing a risk of exposing the informants’ identity. Nevertheless, it is conceivable that there are strictly limited exceptional cases in which the parliamentary interest in information will prevail. In this regard, the time that has passed since the events in question is an important, albeit not the only decisive factor. Accordingly, the need for confidentiality may be significantly diminished, or no longer valid at all, where the events in questions occurred a long time ago.
5. As regards the question whether Heinz Lembke worked as an informant and, if so, for which agency, the parliamentary group BÜNDNIS 90/DIE GRÜNEN may claim a particularly weighty interest in information. The information in question was requested with a view to determining, in the context of a future legislative framework governing the use of confidential informants, whether informants – including those that operated in the past – have been involved in right wing terrorist offences. The reasons submitted by the Federal Governments fail to justify its refusal to provide an answer. Heinz Lembke can no longer act as an informant in current or future operations nor is it ascertainable that pending or future intelligence operations or investigations would be jeopardised. Moreover, the Federal Government failed to provide plausible reasons for its assumption that the general functioning of the intelligence services would be impaired in the case at issue. Especially in light of the fact that Heinz Lembke passed away in 1981 already, the Federal Government did not put forward any reasons that would justify a refusal to provide an answer for the purpose of protecting fundamental rights.
6. a) As far as the minor interpellation of the parliamentary group DIE LINKE is concerned, the Federal Government similarly only partially fulfilled its duty to give answers. It has not been reasonably established how it would be possible, based [only] on figures, broken down by year and by responsible agency, on the number of incidents in which intelligence was received from the sources in question, to deduce information on the identity of individual informants or on the present-day modes of operation of the intelligence services. Given that the requested information does not bear a sufficiently specific connection to persons acting covertly, there is no reason to assume that constitutionally protected interests of potential informants or third parties would be at risk.
b) The Federal Government’s reasoning that responding to questions concerning informants among the members of the “Wehrsportgruppe Hoffmann” would allow insights into to the present-day modes of operation and organisation of the intelligence services, does not appear to be comprehensible, particularly considering the time that has passed since then. Similarly, due to the particular circumstances in the case at hand the likelihood that individual informants will be exposed is so insignificant that it cannot justify limiting the parliamentary right to receive information. Given that the “Wehrsportgruppe Hoffmann” comprised approximately 400 members at the time of its dissolution in 1980, it would not be possible to deduce information on individual persons.
c) With regard to the questions concerning the Federal Intelligence Service (Bundesnachrichtendienst – BND), however, a different conclusion is merited. The risk of exposing potential informants employed by the Federal Intelligence Service in the “Wehrsportgruppe Hoffmann” would already be significant if the Federal Government were to confirm the mere existence of such informants. It appears that, in particular, possible informants that could have potentially worked for the Federal Intelligence Service would likely have belonged to the successor organisation “Wehrsportgruppe Ausland”, which, based on the findings of agencies for the protection of the Constitution, had 15 members only. Given this small number of members, the risk of exposing informants by responding to the relevant questions in the affirmative would rise significantly. Consequently, the Federal Government was entitled to refuse to answer the relevant questions; the Federal Government was also not obliged to provide the requested information under the Rules of Confidentiality of the German Bundestag.
d) In terms of the question requesting information on the total number of informants within the “Wehrsportgruppe” working for the Federal Office of Constitutional Protection or for the Laender offices for the protection of the Constitution, respectively, it is hardly conceivable that information on the present-day modes of operation of these agencies or on the identity of individual persons can be deduced more than 30 years later and based on this number alone. The need for confidentiality, however, arises where the requested information concerns the question of how many informants had been working for which Land agency. This information would allow to narrow down places of residence of potential informants at that time or the specific local branches of the “Wehrsportgruppe” to which potential informants belonged; this would significantly increase the risk of exposure. Accordingly, it cannot be denied that interests pertaining to national security interests, specifically the effective functioning of the intelligence service, would be impaired.