The revised Bremen Police Act limits the potential deployment of undercover police officers. Police lawyer Kirsten Fizzy This is considered to be an indication.
LTO: Professor Wiese, the Bremen Police Act now prohibits undercover detectives from engaging in sexual or love relationships. Was there a role model for this?
Mr. Dr. Kirsten Wiese: No, this is an interesting and typical novelty in German security law. Such relationships between undercover investigators have not been explicitly regulated or prohibited.
What exactly did Bremen decide?
The Bremen legislator, Citizens, added the following sentence to Article 47 of the Bremen Police Act (BremPolG): “According to legend, a person conducting an investigation in secret may not perform or engage in any sexual acts against him or enter into any of them romantic relations.”
What is the reason for this addition? Were there scandals in Bremen?
No, but there were scandals outside Bremen. Until a few years ago, undercover detectives with the codename “Iris Schneider” and “Maria Blok” were active in the left-wing scene in Hamburg and began their love affairs there. In 2010, undercover detective Simon Brenner made his way to left-wing student groups in Heidelberg and made “friendships” there. British secret agent “Mark Stone” was active across Europe from 2002 to 2010 and also had sex with women from left-wing groups in Germany. In the early ’90s, undercover detective Joe, who was supposed to investigate the left scene in Tübingen, falls in love with a woman who even became pregnant.
‘Massive interference with personal rights’
So shouldn’t it go that far in Bremen?
Yes, this was probably the intention of the Bremen legislator. The political background to this was that the red-green-red government coalition, which had expanded the powers of video surveillance in amending the Police Act, for example, wanted to create a balance elsewhere with regulations that were particularly friendly to basic rights.
Why don’t undercover agents engage in tactical communications?
Because this is such a massive intrusion into the personal rights of those affected that it can in no way be justified by police purposes. Other constitutional values should take a back seat here. Entering into love and sexual relations is so personal and intimate that under no circumstances should the state force it to manipulate.
When the state, in the form of secret investigators, exploits the love needs of the targeted people or the people they come into contact with in order to be able to obtain information more easily, human dignity is violated. Here the target person is transformed into an object of state action by feigning passion and sexual interest.
Prohibition of all sexual relations and love
If human dignity is violated, this practice should be illegal anyway. So does Bremen need a legal regulation at all?
Perhaps love affairs that are used tactically as taboo is the prevailing opinion. However, I think having an explicit legal regulation makes a lot of sense. This is evidenced by the number of scandals in this area. In addition, the Bremen legislature goes beyond what is constitutionally required.
In which way?
Section 47 II 4 BremPolG prohibits undercover detectives from not only tactical love relationships, but also from all sex and on-duty love relationships.
So the ban also applies to cases involving real affection and sincere desire?
Yes, because it is often not easy to separate tactical purpose from personal feelings. In addition, the vulnerability of the target people is almost no less if the undercover detectives develop real feelings in the role-playing.
Is the use of cunning and deception typical of undercover investigators?
Only to the extent permitted by law. The Bremen Police Act allows participation in right-hand traffic under legend. Entry into the dwelling is justified if the dwelling occupant’s consent is obtained using the explanation. Obviously, access to mental and physical intimacy is not included. In accordance with the revised BremPolG law, this access is now expressly prohibited.
“Prohibition of exploiting the result”
What is the result if the investigator ignores the ban? Can the information obtained in this way be used?
If human dignity is violated, the result should be the prohibition of exploitation under criminal law, especially in the case of purely tactical love relationships. For example, under the Police Act, a search warrant cannot be based on results obtained in violation of human dignity.
How far does the Article 47 II 4 BremPolG ban go? Is hugging forbidden?
A friendly hug as a greeting is definitely not forbidden. But erotic hugs.
What about the kiss
Here, too, a differentiation must be made. The kiss on the cheek is still problem free. On the other hand, a kiss on the mouth usually has a sexual connotation and is therefore forbidden. In my opinion, Para 47 II 4 BremPolG should be broadly understood in terms of its preventive purpose.
Flirting is also prohibited?
If someone is suspected of being a policeman undercover in a criminal scene, they can be subjected to a sexual challenge to see if anyone is breaking the law. Does the term “chastity test” have a whole new meaning here?
That can happen. Just as a secret agent is not allowed to commit crimes, so are romantic relationships prohibited. The legend has to be coherently knit accordingly cleverly. For example, consider referring to a boyfriend or girlfriend who does not tolerate any sexual side activities.
Can an undercover cop flirt?
Friendly behavior to initiate contact is definitely allowed.
What if the undercover cop makes the target person fall in love and become emotionally dependent without having an affair with them?
Since this is also about the tactical exploitation of intimate and intimate feelings, the prohibition under Section 47 II 4 BremPolG should also apply here.
“leave a distance”
What about close friendships? There you often tell each other more personal things than a brief sexual encounter.
Given the purpose of protection, intimate friendships can certainly be understood as “love relationships” within the meaning of § 47 II 4 BremPolG. One also talks about “platonic love”. Alternatively, the prohibition of § 47 II 4 BremPolG can be applied here by analogy. The undercover detective must be able to keep his distance from those affected. The person skimmed should not feel emotionally exploited to the core.
According to Article 36 BremPolG, the collection of data with the assistance of secret investigators may only be requested “unless there are actual indications to suppose that knowledge from the essential sphere of private life is also obtained”. This sounds complicated, but it’s probably stricter than the sex and love ban for undercover cops.
This standard is really very strict. When can it be ruled out that the person conducting the investigation covertly, which depends on the trust of the target person and contact persons, is receiving information from his own core area? The Bremen legislator may have crossed the mark here. But precisely because Section 36 I 4 BremPolG will likely lead to difficulties of interpretation in police practice, I think it is good that there is also the explicitly worded prohibition of sex and love in accordance with Section 47 II 4 BremPolG.
Similar application to whistleblowers?
Now § 47 II 4 BremPolG applies only to confidential investigators, and not to informants. Is this appropriate?
Basically yes. Most detectives are recruited to report their potential crime scene to the police. People cannot be prevented from having love and sex relationships in their usual environment. Otherwise, even the love of the wife may be forbidden. The situation is different when informants are deliberately smuggled into a new landscape for them, where they – like undercover detectives – first have to make contact so they can steal the information. Here, the ban on love and sex according to Article 47 II 4 BremPolG should be applied similarly.
What about the undercover officers from the Bremen State Office for the Protection of the Constitution?
A similar ban should be included in the next amendment to the Bremen Constitutional Protection Act. The federal legislature should also follow Bremen’s example and improve CPC Section 110c and §9a FCC accordingly. The number of undercover investigators deployed by the police or the Office for the Protection of the Constitution is likely to be manageable nationwide, but changes in the law are necessary because tactical love relationships violate human dignity.
Professor of Law Dr. Kirsten Wiese has been teaching police law at the University of Public Administration in Bremen since 2016. As an expert, she was involved in the amendment of the Bremen Police Act, which came into effect in December 2020.