1. Overview on the Main Legislative Changes in the Fields of Criminal, Police and Aliens Law
1.1. New Criminal Offences and Police Measures
1.1.1. Criminal Prosecution of Suspected Terrorists
1.1.2. Ban of Extremist Religious Associations and Expanded Options for Prohibiting Aliens' Associations
1.2. Activities in the Area of Asylum and Aliens Law
2. Mutual Interference Between Criminal, Police and Aliens Law: Selected Is-sues
2.1. New Grounds for Refusal of Residence Approvals and Expulsion
2.2. Restriction of Protection Against Deportation
2.3. New Measures to Deter Presumed Terrorists from Entering into Ger-many
2.3.1. Uniform Format for Residence Approvals
2.3.2. Inclusion of Biometric Features other than Photographs and Sig-natures in Residence Approvals
2.3.3. Storing and Passing On of Personal Data
2.3.4. Enlarged Powers of the Federal Border Guard
2.4. The Grid Search: A Useful Method of Detecting Presumed Terrorists?
3. Concluding Remarks
1. Overview on the Main Legislative Changes in the Fields of Criminal, Police and Ali-ens Law
While the legal approach of fighting terrorism in Germany during the era of left-wing terrorism was mostly a national one and mainly based on criminal measures, the terrorist attacks of 9/11 have led to a new wave of legal activity in the area of counter-terrorism. Germany, like other states, became aware of its vulnerability by being confronted with international terrorism operating on a transnational scale. The focus of the new legislative measures – adopted by two so-called "anti-terrorism packages" of September 19, 2001 and of January 9, 2002 – is thus on prevention and international cooperation rather than on repression and unilateral actions.
1.1. New Criminal Offences and Police Measures
1.1.1. Criminal Prosecution of Suspected Terrorists
However, one of the major changes in the German legal system after 9/11 relates to the exten-sion of prosecution measures to terrorist organizations based exclusively in other countries: Pursuant to sections 129 and 129a of the German Criminal Code, the forming of criminal and of terrorist organizations were criminal acts only in so far as the organizations existed in some formal sense inside Germany. In September 2002, new section 129b was added to the Crimi-nal Code, according to which the criminality was extended to the forming of criminal and terrorist organizations abroad. This amendment though is only partly due to the events of 9/11. The European Union already issued a Joint Action in December 1998 with the intention of making it a criminal offence to participate in a criminal organization in the member states of the European Union to ensure that involvement in a criminal organization based in an EU country could be prosecuted in any EU member state. The decision taken by the German leg-islator goes even further. It was considered that the terrorist attacks in the U.S. had shown that these rules should be extended beyond the borders of the European Union since it was re-garded to be the only way to fight international terrorism effectively. But this right approach comes to its limits given the fact that neither section 129a nor section 129b of the Criminal Code define the term "terrorist organization". The legal concept of terrorism remains quite unclear both in national and international law, even if the International Convention on the Suppression of Financing of Terrorism (1999) has led to the first consensus ever on interna-tional level.
Besides punishing "terrorist offences" which do not need to coincide with acts of terrorism actually carried out by the group, the prosecuting authorities may additionally rely on "ordi-nary criminal offences" such as murder, computer sabotage, causing an explosion by use of explosives and assaults of air and sea traffic. Since the German Code of Crimes Against In-ternational Law has entered into force on July 1, 2002, in cases of large-scale terrorist attacks, one might also consider offences pursuant to section 7 of this Code, i.e. crimes against hu-manity.
1.1.2. Ban of Extremist Religious Associations and Expanded Options for Prohibiting Aliens' Associations
As regards the newly introduced police measures, it is worth mentioning that the provision which prohibited to ban religious groups advocating terrorism was abolished on December 4, 2001. Shortly after, the government took action against such groups, particularly against the so called "Caliph State", a private association led by the famous "Caliph of Cologne", the Turkish national Metin Kaplan. This association which obviously pursued terrorist aims was banned on December 8, 2001.
Also the options for prohibiting aliens' associations have been expanded. Under new section 14 para. 2 of the Act Governing Private Associations it has been made possible to ban aliens' associations, inter alia, to the extent that their objective or activity support, advocate, or are to produce the use of force as a means of enforcement of political, religious or other interests. The enumeration of grounds justifying the ban of aliens' associations is guided by the cata-logue of reasons allowing to restrict or forbid political activities of aliens enshrined in section 37 paras 1 and 2 of the Aliens Act. There are, however, some differences. For example, unlike section 37 para. 2 (2) of the Aliens Act, new section 14 para. 2 (4) of the Act Governing Pri-vate Associations does not require activity in public. The amendment is thus not unproblem-atic, both with respect to the principle of proportionality and of legal certainty.
1.2. Activities in the Area of Asylum and Aliens Law
Another important point of the new counter-terrorism legislation lies in the area of asylum and aliens law – an area where no legislative changes were considered necessary during the domestic fight against the "Red Army Fraction". In reaction to the tragedy of 9/11, the Ger-man Aliens Act, which provides for the relevant norms, inter alia, on the granting and pro-longation of residence approvals, and on grounds for and restrictions to expulsion and depor-tation, has been significantly amended. Most importantly, new grounds for refusal of resi-dence approvals and expulsion of (presumed) terrorists have been introduced, and the protec-tion against deportation has been restricted. But this is only one purpose. The other is to deter a supposed terrorist already from entering into the Federal Republic of Germany. To this aim, further anti-terrorism measures in the area of aliens law relate to the format of residence documents, the powers of the competent authorities to establish and document the identity of aliens, and the storing and passing on of personal data. In addition, the powers of the Federal Border Guard have been enlarged.
Given these two major lines of German counter-terrorism efforts – the changes in the fields of criminal and police law on the one hand, and the amendments of aliens law on the other – I would like to examine, in the following, their mutual relationship and interferences. Hereby, I will concentrate on some selected issues.
2. Mutual Interference Between Criminal, Police and Aliens Law: Selected Issues
2.1. New Grounds for Refusal of Residence Approvals and Expulsion
First, the options for refusing a residence approval have been expanded. According to new section 8 para. 1 (5) of the Aliens Act, the granting of a residence approval may now also be denied if, inter alia, the alien concerned endangers the free democratic basic order or the se-curity of the Federal Republic of Germany, participates in acts of violence or publicly incites to violence in pursuit of political objectives, or if the alien is proven to be a member or a sup-porter of an organization which supports international terrorism. This provision obviously relates to the newly introduced section 129b of the Criminal Code. Furthermore, it pursues the objective of enhancing the state's capacity to fight impairments and disturbances of its internal and external security. It is questionable though whether the amendment adds anything substantially new. While it is true that former section 46 (1) of the Aliens Act did not ex-pressly relate to the phenomenon of international terrorism, it arguably took sufficient account of the German security interests. Besides, most of the situations provided for by other provisions of the Aliens Act already cover these situations.
Additionally, the grounds for expulsion laid down in former section 46 (1) of the Aliens Act have been included in new section 47 para. 2 (4) which explicitly refers to the grounds for refusal of residence approvals under new section 8 para. 1 (5) of the Aliens Act. As a conse-quence, just like the refusal of residence approvals, expulsion now is provided for if the alien concerned is proven to be a member of an organization which supports international terrorism or if he or she supports such an organization. Expulsion on mere grounds of suspicion is not allowed. The Federal Administrative Court states that in cases of deportations the motive of expulsion fully has to reflect the seriousness of the criminal behavior. Even stricter, the Euro-pean Court of Justice stresses in its Calfa and Nazli judgments that Community law precludes the expulsion of a national of a Member State on general preventive grounds. That means that an expulsion is not allowed when it has been ordered for the purpose of deterring other aliens, especially where that measure has automatically followed a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that con-duct represents for the requirements of public policy.
More importantly, unlike the adoption of measures pursuant to former section 46 of the Aliens Act, expulsion under new section 47 para. 2 of the Aliens Act is no longer at the discretion of the authorities. Even though the taking of action is not absolutely mandatory, it is the general rule now (so called "regular expulsion"). In that context, serious concerns may be raised in respect of new section 47 para. 2 (5) of the Aliens Act in that it provides for regular expulsion of an alien if, inter alia, he or she in the course of an interview with the aliens authorities which serves to clarify reservations regarding entry or continued residence furnishes false or incomplete information on key points regarding links with persons or organizations who or which are suspected of supporting international terrorism. Given that this provision does not require that the contacts to international terrorism are proven, it is arguable whether regular expulsion is proportionate. These doubts remain although expulsion shall only be permissible if the alien is expressly informed prior to the questioning of the security-related purpose of the interview and the legal consequences of furnishing false or misleading information.
Finally, it is worth of note that to furnish or use false or incomplete information in order to procure a residence title is a criminal offence according to section 92 para. 2 (2) of the Aliens Act, so that expulsion is already permissible, at the discretion of the authorities, under section 46 (2) of the Aliens Act. Besides, discretionary expulsion in cases of possible links to terrorist organizations or other groups willing to use force is also possible according to new section 46 (1) of the Aliens Act. As rightly noted in the German academic literature, it is questionable why one and the same behavior shall justify at the same time a discretionary expulsion ac-cording to section 46 (1) and (2) of the Aliens Act on the one side, and a regular expulsion pursuant to section 47 para. 2 (5) of the Aliens Act on the other.
2.2. Restriction of Protection Against Deportation
The second issue I would like to deal with is the introduction of new grounds for not granting protection against deportation. Pursuant to section 51 paras. 1 and 2 of the Aliens Act, admit-ted asylum seekers and aliens who enjoy the legal status of foreign refugees in the federal territory or are recognized as foreign refugees, according to the 1951 Geneva Convention Relating to the Status of Refugees, outside the federal territory may not be deported to a state in which their life or liberty is under threat on account of their race, religion, nationality, membership of a certain social group or political convictions. While so far, exceptions to the prohibition of "refoulement" had only been permissible if, for serious reasons, the alien is to be regarded as a risk to the security of the Federal Republic of Germany or constitutes a risk to the general public because he or she has been validly sentenced to a prison term of at least three years, the second anti-terrorism package has added another ground for not granting pro-tection against deportation. According to new section 51 para. 3 (2) the protection against deportation shall not apply if, for serious reasons, there are justifiable grounds to assume that the alien has committed a crime against peace, a war crime or a crime against humanity, or that he or she committed a serious non-political crime outside the territory of Germany prior to being admitted as a refugee or that he or she has committed acts in contravention of the objectives and principles of the United Nations.
The interference of this amendment with the German Code of Crimes Against International Law as well as with articles 5 and 7 of the Rome Statute of the International Criminal Court is evident. Furthermore, new section 51 para. 3 (2) of the Aliens Act does not only implement SC Resolution 1373 (2001) but also takes up the language of art. 1 F of the 1951 Geneva Convention. New section 51 para. 3 (2) is strangely placed though: neither art. 1 F of the 1951 Geneva Convention nor paragraph 3 (f) of Council Resolution 1373 concern restrictions to the protection of refugees having already been admitted, but refer either to the applicability of the provisions of the Geneva Convention or to the granting of the refugee status. Hence, the risk is high that the exception established in new section 51 para. 3 (2) might violate the principle of "non-refoulement" stated in art. 33 para. 2 of the 1951 Geneva Convention.
In any case, the new grounds for restriction of the protection against deportation have to be interpreted in a restrictive way. Otherwise, the right to asylum established by art. 16a para. 1 of the Basic Law would be undermined. Furthermore, it has to be emphasized that new sec-tion 51 para. 3 (2) of the Aliens Act does not exclude examining the existence of obstacles to deportation pursuant to section 53 of the Aliens Act. Thus, the alien concerned may still not be deported to a state where he or she would be in concrete danger of being subjected to tor-ture (section 53 para. 1) or where he or she undergoes the risk of being imposed to death pen-alty (section 53 para. 2). These provisions, in conjunction with section 53 para. 4 of the Aliens Act, reflect the Soering and the Chahal jurisprudence of the European Court of Human Rights according to which extradition or expulsion of an individual which incurs the risk to be subjected to torture at the one hand, or to inhuman and degrading treatment by being kept on death row for a prolonged period in a third State on the other hand, violates art. 3 ECHR.
Therefore, it is not astonishing that it is still under discussion whether the Turkish national Metin Kaplan who had been sentenced in November 2000 in connection with the murder of a religious rival in Berlin and who furthermore planned an aircraft attack on the Atatürk mau-soleum in Ankara, will be extradited to Turkey. One of the preconditions of this extradition had been the abolition of death penalty in Turkey which has now been achieved. But, in August 2003, the Administrative Court of Cologne rendered a judgment according to which Kaplan's extradition would violate section 53 para. 4 of the Aliens Act in conjunction with article 6 para. 1 ECHR. In the opinion of the Court, the Turkish criminal proceedings contra-vene the rule of law. The proceedings before the Federal Administrative Court, however, are still pending.
Interestingly, the current situation of Abdelghani Mzoudi is quite similar. Mzoudi was arrested in Hamburg, in October 2002, on suspicion of having provided logistical support to the so called "Hamburg terror cell" of Al Qaeda. While in February 2003 the Hamburg Regional Court had delivered a 15 year prison sentence against the Moroccan Mounir El Motassadeq who was charged with membership in a terrorist organization, attempt of complicity in mur-der and grievous bodily harm, Mzoudi was acquitted for want of evidence on February 5, 2004. Because of the appeal lodged by the prosecution, Mzoudi is likely to remain in Ger-many for a while. Nevertheless the alien authorities are already examining whether he might be deported to his country of origin, Morocco, later on. This is, however, not unproblematic. Mzoudi applied for asylum in Germany in December 2003.
On the contrary to the aforementioned cases, the Federal Constitutional Court, by orders of November 5, 2003, declared the constitutional complaints of two alleged Yemeni terrorists who had been arrested in January 2003 at the airport of Frankfurt unfounded. The Court, inter alia, held that the Higher Regional Court of Frankfurt did not violate fundamental rights when it granted the request for extradition to the U.S. The Court noted that, in cases of mutual as-sistance concerning extradition, the requesting state is, in principle, to be shown trust as con-cerns its compliance with the principles of due process of law and of the protection of human rights. This, the Court stated, is all the more valid, because the U.S. gave an assurance that the two persons would not be tried before a military court or before another extraordinary court.
2.3. New Measures to Deter Presumed Terrorists from Entering into Germany
2.3.1. Uniform Format for Residence Approvals
As regards the measures taken to deter presumed terrorists from entering into Germany, new section 5 para. 2 of the Aliens Act provides for a uniform format for residence approvals, containing a serial number and a zone for automatic reading. This amendment implements Joint Action 97/11/JHA concerning a uniform format for residence permit adopted by the Council on December 1996, and thus can only be partially explained as a reaction to 9/11.
2.3.2. Inclusion of Biometric Features other than Photographs and Signatures in Resi-dence Approvals
On the other hand, new section 5 para. 4 of the Aliens Act actually is a direct response to this incident. Similar to the amendments to the Passport and the Personal ID Card Acts, the provi-sion allows for the inclusion of biometric features other than photographs and signatures in residence approvals. However, different to the Passport and the Personal ID Card Acts, sec-tion 5 para. 6 of the Aliens Act provides that the precise details shall be subject to a statutory order issued by the Federal Minister of the Interior. It is arguable why in the area of aliens law, a statutory order pursuant to article 80 of the Basic Law is deemed sufficient whereas comparable regulations relating to passports and ID cards may only be enacted by way of a formal federal law.
2.3.3. Storing and Passing On of Personal Data
According to new section 5 para. 7 of the Aliens Act, the data incorporated in the residence approval may not only be used for the purposes of verifying the document's authenticity and establishing the identity of a person, but may also be stored, passed on and used by public authorities in pursuit of their tasks. To this aim, the powers of the aliens authorities concern-ing the establishment and documentation of identity have been broadened pursuant to new section 41 para. 3 (4) and (5) of the Aliens Act. Furthermore, new section 18 para. 1a of the Federal Protection of the Constitution Act obliges the aliens authorities to transfer person-related data to the authorities for the protection of the constitution if facts justify the assump-tion that this could be necessary to protect the constitution, particularly when the individual concerned presumably belongs to a terrorist organization. These amendments implement paragraph 3 (a) of SC Resolution 1373 (2001) in which the Council calls upon all states to find ways of intensifying and accelerating the exchange of operational information. Never-theless, one may wonder whether the aliens authorities will indeed be able to judge on the existence of a threat to the constitutional order.
Further new powers of the aliens authorities relating to the establishment and documentation of identity are laid down in new section 41 paras 2, 4 and 5 of the Aliens Act. These measures pursue, however, the objective of implementing the EC "Eurodac" Regulation of December 11, 2000.
In this context, it is also worth of note that, in February 2003, the Spanish government put forward a proposal for an EC Directive requiring all airlines to collect and pass over passenger data for vetting. The purpose of this proposal is to combat illegal immigration and terrorism. The information collected would permit to know immediately and with certainty the evolution of migratory flows, to make an appropriate quantification of people which remain illegally in the European Union and to proceed to their localization and expulsion. To the same aim, radiologists all over Europe are currently creating new security concepts using x-ray techniques at the Union's external borders.
2.3.4. Enlarged Powers of the Federal Border Guard
Lastly, the area of competences concerning the Federal Border Guard's task to avert dangers that impair border security has been expanded. According to new section 2 para. 2 (3) of the Federal Border Guard Act, the Guard's responsibility within the border zone now includes an area of up to 50 km landward of the territorial sea limit. The aim of this amendment is to pro-vide for an efficient border control in the territorial sea area where particularly in bays the general 30 km border zone limit in former section 2 para. 2 (3) of the Federal Border Guard Act often did not reach land. Even if this territorial extension of competence might be useful, the connection of this new provision to the fight against terrorism is only a loose one. In this regard new section 4a of the Federal Border Guard Act is far more important. It attributes to the Guard the new task of maintaining and restoring security on board of German aircrafts. So far, the competence of the Guard had been restricted to the respective airfield ground. The in-flight authority of the aircraft commander, however, remains unaffected.
2.4. The Grid Search: A Useful Method of Detecting Presumed Terrorists?
Finally, I would like to refer to the problem of how to detect presumed terrorists who already are admitted as residents or asylum seekers in Germany. Following the events of 9/11, the Permanent Conference of the Ministers of the Interior has repeatedly stressed the need for the use of the grid search method in order to identify possible "sleepers" of Islamic-fundamentalist terror organizations in Germany. The grid search method allows for compari-son by machine of personal data related to individuals fulfilling certain presumed characteris-tics of criminals with other data in order to exclude individuals not under suspicion or to identify individuals who meet other characteristics significant to the investigations.
The competences to make use of this method for preventive purposes have been introduced into the police laws of most of the German Länder already before 9/11. Under the over-whelming majority of the legislations, the preventive use of the grid search has so far de-pended on the existence of an imminent danger. However, following 9/11, some of the German Länder initiated amendment proceedings regarding their legislation on the use of the grid search method for preventive purposes, due to different interpretations of the term "imminent danger" by German courts. Now, the use of this method has to be simply necessary for the preventive fight against crimes of considerable significance.
Given the fact that the grid search regularly interferes with the right to informational self-determination of third persons, it is doubtful whether such changes in the legislations of the Länder may be considered as being constitutional. As a general rule, preventive measures affecting the rights of third persons can only be taken in states of necessity. Under the princi-ple of proportionality, the existence of a mere danger or even of an "abstract danger" usually is not regarded sufficient in order to trigger police powers vis-à-vis third persons. While ex-ceptions to this rule might be justified for the purpose of preventing the commission of serious criminal offences, it is problematic whether the exceptions can carry the preventive use of the grid search in the absence of an imminent danger. Also, it has to be taken into account that a discrimination of individual parts of the population is practically unavoidable. Furthermore, the effectiveness of the grid search is doubtful. Situations of imminent danger demand resolute action on the part of the security authorities rather than time-consuming comparisons of personal data. Last not least, it is unclear what to do with the results of the grid search: The characteristic of so called "sleepers" is that they live quietly, dispose of a residence approval and do not arise any suspicion. As a consequence, the method is not very likely to produce any usable results, neither regarding criminal prosecution nor with respect to the area of aliens and asylum law.
Nevertheless, in most of the cases decided after 9/11, the German courts have upheld the grid search method. Particularly, they have affirmed the proportionality of the measure at least as long as it had been limited to persons who were nationals of a state considered by the security authorities to be suspicious, were born there or were followers of Islam. The Administrative Court of Mainz even regarded sufficient that the danger did not directly concern German ter-ritory or German nationals but was related to a possible commission of terrorist crimes abroad. By doing so, the court relied on the principle of universal jurisdiction over serious criminal offences as stipulated in section 6 (2) and (3) of the Criminal Code, which, mutatis mutandis, also allowed for preventive measures with regard to those extraterritorial crimes.
3. Concluding Remarks
Summing up, there is no doubt that the national sovereign state is the ultimate guarantor for the security of its citizens and that it has the duty to protect and to ensure their human rights. As the terrorist threat does not stop at the borders of Germany, it is thus merely logical that the fight against terrorism has led not only to the introduction of new terrorist offences and police measures reflecting the international character of terrorism but also to amendments of asylum and alien laws where above all the grounds for refusal or residence approvals, expul-sion and not granting protection against deportation have been expanded.
Despite the valuable interferences between these areas, some of the new provisions might fail the constitutional test of proportionality and legal certainty. This already is deplorable in it-self. In addition, uncertainties and contradictions in national law might impede further steps towards an unified European Asylum Law as well as towards further international cooperation on the fight against terrorism. But still it has to be taken into account that the principle of proportionality is open to some flexibility and that it is a relational notion. In particular, its operation in the area of counter-terrorism depends to a large extent on the perception of threat and the individual emphasis between liberty and security.