Concept and Legal Foundations of Illegal State Secrets
Illegal state secrets represent an important concept in German criminal and security law. The term refers to facts, objects, or knowledge requiring confidentiality, the dissemination, publication, or procurement of which violate applicable law and, in particular, may endanger the security of the state. The following provides a detailed presentation of the complex legal framework surrounding this concept.
Definition and Distinction
Definition of State Secret
A state secret is a fact known only to a narrowly defined group of people and for which the state has a legitimate interest in maintaining confidentiality. Disclosure, dissemination, or revelation of such information can significantly endanger both the external and internal security of the state.
What are “Illegal State Secrets”?
Illegal state secrets are those pieces of information that are unlawfully acquired, disclosed, or distributed. Their illegality arises from the disregard of legal provisions that govern the protection of such information. Essentially, the provisions of the Criminal Code (StGB) are central here. The illegal use, disclosure, or procurement of such secrets can be subject to criminal sanctions.
Legal Foundations
Criminal Code (StGB)
The primary regulation for the protection of state secrets can be found in Sections 93 et seq. of the Criminal Code (StGB). These sections define which information is considered a state secret and which actions are punishable.
- Section 93 StGB: Definition and Scope of Protection for State Secrets
- Section 94 StGB: Treason through Disclosure of State Secrets
- Section 95 StGB: Breach of Official Secrets and Special Confidentiality Obligations
- Section 96 StGB: Disclosure of State Secrets by Foreign Agents
- Section 97 StGB: Penalties for Negligent Disclosure of State Secrets
Accordingly, illegal state secrets specifically refer to information disclosed in violation of the confidentiality obligations established in these regulations.
Other Relevant Provisions
In addition to the Criminal Code, other laws are also relevant, such as the Act on the Preconditions and Procedures for Federal Security Checks (Sicherheitsüberprüfungsgesetz, SÜG), the Federal Office for the Protection of the Constitution Act (BVerfSchG), the Information Security Act (ISiG), and various sector-specific confidentiality provisions found in special laws, for example in military or intelligence law.
Elements of Offenses and Scope of Protection
Protected Interest: State Interest and Security
The central protected interest under these provisions is the state’s interest in maintaining the confidentiality of security-relevant information. This includes, in particular, military, foreign policy, or security-related matters.
Elements of the Offense
The criminal offense of disclosing illegal state secrets includes the following elements:
- There must be a fact that qualifies as a “state secret” as defined by Section 93 StGB.
- There is an unlawful disclosure, dissemination, procurement, or publication of the information.
- The act is committed in a manner that can endanger the external or internal security of the state.
Possible Perpetrators
Perpetrators may include public officials, public service employees, persons with special confidentiality obligations, as well as private individuals or foreign agents.
Criminal Consequences and Sanctions
Overview of Criminal Penalties
Depending on the severity of the violation, criminal consequences range from imprisonment to significant fines. For example, Section 94 StGB (treason) can be punished with a prison sentence of at least one year up to life imprisonment.
Sentencing and Sentencing Range
Decisive factors for the severity of the penalty include, among others, whether the disclosure was intentional or negligent, the extent of the harm caused, and the motives of the offender. The required level of confidentiality also plays a role in determining sanctions.
Special Aspects and Borderline Cases
Intelligence Activities
This topic is particularly relevant in connection with intelligence services. The illegal trade or disclosure of state secrets by domestic or foreign agencies poses a significant threat to national security and is subject to especially severe penalties.
Whistleblowing and Freedom of the Press
The legal assessment of whistleblowers who disclose state secrets for moral or societal reasons represents a complex balancing act between the public interest, freedom of the press, and the protection of state secrets. The boundaries between permissible and punishable conduct are often fluid here and depend on the circumstances of each individual case.
Distinction from Other Legal Interests
Not all confidential information is automatically a state secret. Trade and business secrets that do not affect the state’s interest in protection fall under other protective regulations, particularly the Trade Secrets Act (GeschGehG).
Criminal Procedure and Administrative Aspects
Investigation Proceedings
If there are indications of the disclosure of illegal state secrets, the investigative authorities often initiate special investigative proceedings. Special measures for averting danger and protecting sensitive information are also employed.
Professional Consequences
Public officials found guilty of breaching confidentiality obligations must expect professional consequences, up to and including removal from service.
Significance for National Security and Society
Prevention and Awareness
The protection of state secrets is an essential component of the state’s security architecture. For this reason, extensive preventive measures exist in the form of security checks, classified matter regulations, and training for particularly vulnerable professional groups.
Debate on Transparency and Oversight
The tension between confidentiality obligations and the public’s right to information regularly gives rise to societal and political debate regarding the proper balance between state secrecy and democratic oversight.
Summary: Illegal state secrets refer to information requiring confidentiality, the disclosure or use of which is unlawful and may endanger the security of the state. The legal foundations comprehensively regulate the elements of the offense, categories of perpetrators, criminal penalties, and special protective mechanisms. The issue lies at the intersection of state security interests, individual responsibility, and societal transparency—and thus remains of utmost relevance in the German legal system.
Frequently Asked Questions
Which legal regulations apply to the handling of illegally obtained state secrets?
The legal regulations regarding the handling of illegally obtained state secrets in Germany are primarily found in the Criminal Code (StGB), specifically in Sections 93 et seq. of the StGB. These paragraphs define what constitutes a state secret and criminalize the unauthorized acquisition, use, dissemination, and publication of such information. Of particular importance is Section 94 StGB, which governs the offenses of treason and provides for severe penalties for the disclosure of state secrets. Provisions of the Code of Criminal Procedure (StPO) also apply, for instance when the illegal origin becomes apparent during criminal investigations, and the Courts Constitution Act (GVG), especially concerning the exclusion of the public and protection of secrets in criminal proceedings. Handling data that has been illegally diverted from state sources must always be considered with the balance of law enforcement interests, protection of secrets, and personal rights in mind. There are also specific protective regulations in the Federal Office for the Protection of the Constitution Act (BVerfSchG), the Security Clearance Act (SÜG), and the Freedom of Information Act (IFG), although the latter explicitly excludes interests relating to confidentiality. These regulations regularly conflict with fundamental rights such as freedom of the press (Art. 5 GG) and public interest, requiring a case-by-case constitutional balancing of interests.
What penalties are imposed for the dissemination of illegal state secrets?
The dissemination of illegal state secrets is subject to sometimes severe penalties. Under Section 94 StGB (“treason”), the transfer of state secrets to a foreign power or for the endangerment of the Federal Republic is, as a rule, punishable by imprisonment of at least one year up to life imprisonment. The severity of the penalty depends on the seriousness of the endangerment and the degree of intent. Attempting to betray a secret is also punishable. Those who possess such secrets and do not take reasonable steps to prevent further dissemination are likewise subject to penalties. In moderate cases, such as unauthorized handling or careless disclosure, Section 95 StGB allows for prison sentences of up to five years or fines. The especially serious aspect is the national interest—if the dissemination is likely to significantly impair the state’s external security, it is classified as a felony. Intentional and repeated offenses are punished more harshly than negligent or first-time violations.
Under what conditions is the disclosure of state secrets permissible despite the threat of punishment?
There are narrow exceptions under which the disclosure of state secrets may be legally permissible despite the general threat of punishment. A key role is played by the existence of a so-called “justifying emergency” under Section 34 StGB. In this case, there must be an immediate, present danger to a higher legal interest (e.g. human life), and the protection of this interest must outweigh the public interest in maintaining secrecy. Exceptions may also apply in the context of investigative journalism, particularly through journalists’ right to refuse to give evidence under Section 53 StPO, although this does not automatically protect public publication. In addition, statutory disclosure obligations to certain authorities, for example in the context of administrative assistance, may exist, but are strictly regulated and carefully weighed. The legal boundaries of such disclosures are, however, extremely narrow, and there is no comprehensive protection of trust. The exculpatory effect of these exceptions is also subject to strict judicial review.
How are illegal state secrets treated in criminal proceedings?
If, in the context of a criminal trial, evidence arises consisting of unlawfully obtained state secrets, its admissibility is fundamentally restricted. The court must weigh the interest in effective criminal prosecution against the state’s interest in secrecy. Frequently, such information is subject to an absolute exclusion of evidence if confidentiality is imperative, for example where a state secret under Section 96 StPO would be endangered. The court can decide not to introduce certain information into the proceedings at all, to conduct the trial in camera, or even to suspend the proceedings entirely because of confidentiality concerns. Defense counsel and defendants only have access if overriding state interests are not affected. The use of illegally obtained information may also affect the rights of third parties or co-defendants and touches on principles such as a fair trial and the right to be heard.
What role does freedom of the press play in dealing with illegal state secrets?
Freedom of the press is constitutionally protected by Article 5 of the Basic Law (GG) and is also significant in the context of dealing with illegal state secrets. Journalists fundamentally have the right to report on matters of public interest, even when using secret state documents. However, the Federal Constitutional Court has repeatedly clarified that freedom of the press is limited where overriding legitimate interests, such as the integrity of the state or the security of the Federal Republic, would be endangered. In investigations against journalists relating to the publication of state secrets, the right to refuse to give evidence under Section 53 StPO applies, although this does not necessarily prevent criminal investigations against informants (so-called whistleblowers). The protection derived from protecting informants is not absolute, but must be balanced on a case-by-case basis against protection of secrets and public safety. International standards, such as those set by the European Court of Human Rights (ECHR), influence the legal assessment, but always require a proportionality review in the specific case.
What obligations do civil servants and public officials have in connection with illegal state secrets?
Civil servants and other public officials are obliged to maintain secrecy under the Federal Civil Servants Act (BBG), the Civil Servants Status Act (BeamtStG), and other special laws. They may not disclose state secrets without authorization or pass them on to third parties. In particular, they have a duty of confidentiality (§ 67 BBG), the violation of which can result in disciplinary and criminal consequences. Should a civil servant become aware of the illegal dissemination of state secrets, they are required to report it immediately to the appropriate authorities (e.g. a supervisor or the security department). Failing to make such a report can be treated as a breach of duty or even a punishable “failure to report planned crimes” (§ 138 StGB). However, there are specific exceptions, such as when disclosure serves to avert significant danger or occurs in the context of cooperation with investigative authorities—but these only apply under strict conditions.
To what extent are whistleblowers protected by law when handling illegal state secrets?
The protection of whistleblowers when dealing with illegal state secrets is only limited in Germany. Although the EU Whistleblower Directive (EU 2019/1937), implemented through the Whistleblower Protection Act (HinSchG), has expanded the framework for protecting whistleblowers, significant restrictions remain in the area of classic state secrets: The disclosure of information classified as state secrets is, as a rule, criminally prosecuted even for whistleblowers, unless there is a special justification—such as the justifying emergency previously described. While the HinSchG provides for protection mechanisms for whistleblowers, these are explicitly limited when overriding confidentiality obligations or special secrecy provisions are affected. International standards, such as those required by the ECHR, always require a careful and case-specific balancing of the public interest in disclosure with the need to protect state secrets. Currently, however, comprehensive criminal protection for whistleblowers in the handling of strictly confidential state information is not guaranteed.
