In Germany sexual relationships in police investigations are not permitted and that includes foreign undercover officers operating in the country. Two years after Mark Kennedy was exposed, the Federal Ministry of Interior has now confirmed that such is not allowed.
Getting this far was not easy, and it is thanks to never-ending efforts of activists involved and Member of the German Parliament for Die Linke Andrej Hunko, that the issue kept coming up. It was through their questions, for instance, that we know about the contracts fixed between the German authorities and the British for Kennedy to spy on summit gatherings. Both Mark Kennedy and “Mark Jacobs” went to Germany on several occasions, they were deployed to collect information about preparations of the G8 summit in Heiligendamm in 2007 and the 2009 NATO summit in Strasbourg, for instance.
Earlier this week, the MP wrote a letter to the UK Home Secretary Theresa May to raise some legal issues, to hold her to account and to urge her to provide the necessary information. His letter focuses on the issue of the possible sexual relations abroad, but it touches upon European police cooperation, the lack of regulation and accountability too.
Right from the start, the Germans were more clear about police officers having intimate relationships on the job. Asked if undercover investigators in Germany had sexual relationships with persons they were investigating or with their contacts, the head of the Federal Criminal Police Office (Bundeskriminalamt), Jörg Ziercke, told the Bundestag Committee on Internal Affairs in January 2011, that that would be “absolutely unacceptable”.
Still, the Federal Ministry of the Interior claimed that, because no one involved has made a complaint, they do not have any information as yet. Apart from the fact that this consequently and unacceptably makes the burden of proof the responsibility of the victims, it seems to be a rather lame excuse because we also know that Kennedy was invited as an undercover officer by the German authorities and thus worked under their supervision. Like in the UK, they must have known.
However, in trying to evade a more detailed answer, the Federal Government made an interesting point, saying that any German party has the rights to have the “actions”of undercover investigators “referred to the courts” (Minutes of plenary proceedings 17/83).
Andrej Hunko now writes to Theresa May that in his view
both the German and the British authorities have an obligation here. After all, it is possible that persons involved may not yet have learned the true identity of the police officers Mark Kennedy or “Mark Jacobs” and may still think of the two men as good friends or partners. It is also conceivable that individuals investigated by the British police officers have not yet heard about the inquiries and court proceedings in the UK.
Answering more recent parliamentary queries, the Federal Ministry of the Interior wrote on 18 January 2013 that “entering into relationships of that kind as part of an investigation” is not permitted (Written Question 1/166). It is not allowed in any area of the Federal Government’s responsibility, including all German authorities. The Ministry emphasises that this also applies to foreign police agents operating in Germany.
The Federal Ministry of the Interior and the Federal Criminal Police Office (Bundeskriminalamt) as the international point of contact responsible for exchanges of undercover investigators must, therefore, obtain clarification from the British authorities as to whether Mark Kennedy or “Mark Jacobs” also used personal and sexual relationships in Germany in order to obtain information. And the same applies to any of their fellow-officers.
Hunko writes May that everyone thus affected by the undercover officers in Germany must be informed and told of the option of bringing criminal proceedings in Germany and a civil action in the United Kingdom.
I would further ask you to listen to the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association and to press for a judge-led public inquiry. I would like to see German authorities playing a part in that inquiry.
The MP also wants to know about the modified wristwatch Kennedy routinely used to record conversations in a room, to analyses with his superiors. The Federal Ministry of the Interior told him, it is not known whether he did this in Germany too.
As you know, spying operations like that require a warrant. So it may be that there has been yet another infringement of law here. I would thus ask you to take action on this too and liaise as appropriate with the German Land (federal state) police forces for which Mark Kennedy worked.
To German Länder (counties) that we know of had agreements on with the British police, Mecklenburg-Western Pomerania and Baden-Württemberg. But Kennedy also worked in and around Berlin, where he spent time “to sustain his cover story” according to the Federal Ministry of the Interior.
However, we still do not know who he was working for there. In order that action may also be taken against any infringements of law by British police officers in the capital of Germany, I would also ask you to say who was responsible for ordering their deployment in Berlin and which German authorities received reports about it.
The MP is extremely critical of the growing internationalisation of police work. In his letter he emphasises that the Kennedy case shows that “due legal process, above all, is rendered difficult or even totally impossible by cross-border cooperation.”
So I view this as a judicial precedent and I call on the British Government and the Federal Government to work energetically for its resolution.
Mit freundlichen Grüßen
Sex not allowed – German original paragraph
In der Antwort auf meine neuerliche Parlamentarische Initiative schreibt das Bundesinnenministerium am 18.01.2013, dass das “Eingehen derartiger Beziehungen aus ermittlungstaktischen Gründen” unzulässig sei (Schriftliche Frage 1/166). Ausgeschlossen wird dies für den gesamten Geschäftsbereich der Bundesregierung, mithin alle deutschen Behörden. Unterstrichen wird, dass dies auch für in Deutschland operierende ausländische Polizeikräfte gilt.