Definition of the Informant in Law
The term “informant” describes, in a legal context, a person who provides authorities (in particular law enforcement agencies) or other official bodies with information that helps to solve crimes, avert dangers, or obtain knowledge in the public interest. Informants play a central role in clarifying and preventing criminal acts. The status-based and legal framework for informants is diverse and varies depending on the legal field.
Legal Status of Informants
Distinction from Other Sources of Information
Informants are to be distinguished from witnesses, undercover investigators, and trusted persons. While witnesses testify in court and formally participate in criminal proceedings, informants often remain anonymous and do not appear publicly. Unlike undercover investigators, informants are not officials or police officers but private individuals who provide information voluntarily or for consideration.
Requirements and Motives
The motives of an informant can vary: self-interest (for example, mitigation of sentence in their own case), financial or ideological incentives, or personal protection against dangers. Legally, the motivation of the informant plays a role in assessing the credibility and admissibility of the information.
Legal Framework
Criminal Procedural Law Context
Informants are not formally regulated evidence in German criminal procedure law, although their tips can initiate or influence an investigation. The operational and action frameworks, as well as the protection of informants, are largely derived from the principles of criminal proceedings and the principle of proportionality.
Protection of Informants
The protection of an informant’s identity is crucial to ensure their safety and the effectiveness of investigations:
- Identity protection: The disclosure of an informant’s identity can, in exceptional cases, be refused by the public prosecutor to the courts if serious reasons—such as danger to life and limb—exist.
- Balancing of Interests: The interests of protecting the informant are regularly weighed against the accused’s interest in a fair trial (Art. 6 European Convention on Human Rights, fair trial principle).
- Exclusion from Use as Evidence: Information provided by informants may, in certain circumstances, not be used or may only be partially used as evidence in criminal proceedings, for example if the information was obtained in violation of statutory provisions.
Informant Privilege
The so-called informant privilege describes the right of law enforcement agencies to keep an informant’s identity confidential. It is particularly relevant in the context of telecommunications interception (source-TKÜ), where there is a risk that procedural actions could reveal the identity of the informant.
Police Law Aspects
In police law, the informant is referred to as a “trusted person” or “source.” They provide tips either preventively (for danger prevention) or repressively (for prosecution). The protection of informants is also highly prioritized here. Police laws and internal service instructions provide for measures to protect against reprisals, as well as regulations for remuneration and handling of information.
Legal Bases and the Transfer of Information
Police information gathering through informants is based on police data law (e.g. § 53 BDSG, state law provisions). The transfer of personal data to investigative authorities is strictly regulated and is intended to protect both informants and to comply with the requirements of lawful proceedings.
Informant in Intelligence Law
Intelligence services use informants as part of intelligence gathering, known as “human sources” (HUMINT). The trusted person or informant is particularly protected, both formally and materially; their identity is classified information. In addition, the special regulations of intelligence laws apply (e.g. G10 Act on the Restriction of Mail, Post, and Telecommunications Secrecy), which impose strict requirements for data collection and source protection.
Liability and Criminal Responsibility of Informants
Informants are not fundamentally immune from criminal prosecution. If they provide false information or commit offenses themselves in the course of their activities, they may be held criminally and civilly liable. In individual cases, criminal law allows for the possibility of mitigation or exemption from punishment, for instance in cases of active repentance or regulations for crown witnesses (§ 46b StGB, § 31 BtMG).
Informant Rewards and Incentives
In certain cases, informants may receive a reward or payment for providing information. Such incentives are regulated by law on a case-by-case basis (e.g. in tax law, customs), but must always comply with the principle of proportionality and data protection law. The aim is to encourage the procurement of information while at the same time preventing misuse.
Informants in International Law
Internationally—especially under US and Anglo-Saxon law—informators (often referred to as “whistleblowers”) are protected by extensive statutory mechanisms (e.g. Whistleblower Protection Act, False Claims Act). These provisions guarantee anonymity, set out requirements for rewards, and provide protection against professional disadvantages.
Aspects of Data Protection Law
The processing of data related to informants is strictly bound by the requirements of the General Data Protection Regulation (GDPR) and national data protection laws. The information collected may only be processed for its legitimate purpose and only to the extent strictly necessary. Strict requirements govern the retention and deletion of data.
Conclusion
The term informant denotes a key person in the legal context for obtaining information in law enforcement and risk prevention measures. The legal framework is complex and serves both the effective protection of the informant and the safeguarding of the rights of the accused. The tension between security interests and personal rights makes the activity of informants a sensitive topic, for which comprehensive legal requirements and protective mechanisms exist.
Frequently Asked Questions
What legal requirements must be met before an informant’s statement can be used in criminal proceedings?
Strict requirements must be met under German criminal procedural law when statements from an informant are to be used in criminal proceedings. As a basic rule, information from informants must be assessed for reliability and credibility. Judicial authorities, especially investigative authorities, must ensure that the information collected is not only anonymous and vague but also sufficiently substantial and verifiable. For example, informants must not give statements under deliberately induced deception or threats, since such statements would be inadmissible under § 136a StPO (Criminal Procedure Code). Furthermore, the identity of an informant is often to be protected, resulting in special circumstances regarding witness testimony (§ 68 StPO). In this context, the balance between the protection of the informant and the accused’s right to a fair trial must be maintained, particularly the right to confront the adverse witness according to Article 6(3)(d) of the ECHR (European Convention on Human Rights).
To what extent must the identity of an informant be disclosed to the accused?
Disclosure of an informant’s identity is a complex legal balancing act. Under German law, law enforcement is obliged to grant the accused and their defense counsel access to information relevant to the defense (right to access files, § 147 StPO). However, the identity of informants may be kept anonymous on grounds of danger prevention or to protect personal rights under certain conditions. An informant may, under § 68(2) StPO, be questioned as a witness under a cover identity when circumstances, especially their identity, must be kept secret to protect the life, limb, health, or freedom of the witness or another person. Nevertheless, the court must safeguard the accused’s right to a fair trial and may only allow secrecy if the specific dangers are clearly and credibly presented.
What special protection mechanisms exist for informants under German law?
Informants benefit under German law from various protective mechanisms designed to shield them from dangers arising from their cooperation with law enforcement agencies. These include measures under the Witness Protection Act (ZSchG), such as protection of identity, relocation, or assuming a new identity. Furthermore, informants may, under certain conditions, exercise the right to refuse to testify (§ 53 StPO for certain professional groups). In cases of particular risk, the court may also order questioning during investigations to take place behind closed doors (§ 171b GVG), the blocking of personal data in the files (§ 68(3) StPO), or the avoidance of physical confrontation between the witness and accused (§ 247 StPO). All these measures are subject to proportionality and must always safeguard the accused’s right to truth and defense.
Are informants criminally immune if they themselves are involved in crimes?
Informants do not enjoy general criminal immunity, even if they provide useful information to investigative authorities. Exoneration from prosecution would only be conceivable within the framework of statutory provisions, such as the possibility of mitigation of punishment (§ 46b StGB, crown witness regulation) or discontinuation of proceedings under §§ 153 ff. StPO for trivial matters or in connection with witness protection. In order to benefit from such advantages, the informant must have made a significant contribution to uncovering or preventing serious crimes; the law requires substantial cooperation in disclosing further information, not merely the provision of isolated tips. In any case, criminal prosecution of the informant’s own participation in crimes, taking into account their contribution to law enforcement, is a matter for the discretion of the responsible authorities and courts.
What evidentiary issues can arise from informant statements?
Statements from informants are often associated with a degree of uncertainty that can affect their evidentiary value. The problem is that informants often have a personal interest in the outcome of proceedings, for example to hide their own crimes or to obtain benefits such as reduced sentences. Such self-interest can lead to deliberately false, exaggerated, or selectively untruthful statements. Courts are therefore required to subject informant statements to especially careful credibility checks and critical evaluation under the principle of free consideration of evidence (§ 261 StPO). Potential influence by investigative authorities (so-called ‘agent provocateur’) or the risk of collusion are further factors that complicate assessment. Therefore, convictions should only be based on informant statements if the statements are sufficiently corroborated by objective evidence.
Are communications between informants and investigative authorities subject to special legal control?
Communication between informants and investigative authorities is legally monitored, particularly to ensure that no impermissible pressure is exerted on the informant and that the obtained statements conform to rule-of-law principles. Questioning must be conducted only in accordance with statutory provisions and must be documented. Questioning under unlawful conditions, such as deception or threats, leads to inadmissibility of the statement. Moreover, § 163f StPO strictly regulates the use of trusted persons and undercover investigators and requires judicial authorization for long-term measures. Full documentation of the cooperation ensures subsequent legal review and the fairness of proceedings. Secret agreements, informal rewards, or shortcuts in the investigative process are regarded critically as they may undermine transparent and verifiable fact-finding.
Can statements from informants be used in civil or administrative proceedings?
Statements from informants are primarily a tool for criminal prosecution. Their transfer into the area of civil or administrative law is possible in principle but subject to specific restrictions. In civil proceedings, for example, the principle of free evaluation of evidence applies (§ 286 ZPO), but here too the credibility of the informant’s statement and the potential for self-interest must be critically assessed. In administrative proceedings, the so-called principle of official investigation applies, meaning the authority must investigate matters independently and assess the credibility of the sources (§ 24 VwVfG). Sensitive personal data and protected identities must be preserved in accordance with data protection and freedom of information law. Standards of the right to be heard and fairness apply here also, so that anonymous or unverifiable recommendations by an informant may not automatically serve as the basis for an administrative or judicial decision.
