Definition and Significance of State Secrets
Ein State Secret is information whose disclosure could endanger the existence or essential interests of a state and is therefore subject to special protection of confidentiality. The term is defined in the legislation of various countries and forms the basis for legal regulations on classified information, security clearances, and criminal penalties for unauthorized disclosure.
Legal Foundations of State Secrets
State Secret under German Law
Term and Legal Definition
Under German law, the state secret is addressed in particular in the Criminal Code (StGB) and the Act on the Conditions and Procedure for Federal Security Clearances (SÜG). The relevant legal definition is found in § 93 (1) StGB:
“A state secret is a fact, object, or knowledge that is accessible only to a limited group of persons and whose disclosure may pose the risk of serious harm to the external security or interests of the Federal Republic of Germany or one of its states, and whose confidentiality has been specifically ordered by the competent authority.”
The definition is closely linked with the terms ‘classified information’ and ‘level of confidentiality’.
Statutory Protection Provisions
State secrets are subject to special protection, which is primarily ensured by the following legal provisions:
- Criminal Code (StGB):
– Sections 93-100a StGB (High treason, endangerment of external security)
– Sections 203, 353b StGB (Violation of personal confidentiality, breach of official secrets)
- Classified Information Directive (VSA):
– Regulates the classification, handling, storage, and transmission of classified information.
- Act on the Conditions and Procedure for Federal Security Clearances (SÜG):
– Specifies the security requirements for persons who have access to state secrets.
Requirements for the Existence of a State Secret
A state secret exists if the following criteria are met:
- Fact, object or knowledge: The content of the information can be of various kinds (e.g., documents, data, procedures).
- Interest in Confidentiality: There is a legitimate state interest in keeping the matter confidential.
- Special Order for Confidentiality: The competent authority must have expressly ordered confidentiality (e.g., classification as classified SECRET or TOP SECRET).
- Endangerment of Essential State Interests: Disclosure must be capable of causing serious harm to the state.
- Limited Group of Persons: Access is restricted to a few, screened individuals.
Distinction from Other Secrets
State secrets are to be distinguished from private secrets (e.g., trade secrets, medical secrets). The scope of protection and criminal consequences are generally stricter for state secrets.
Criminal Protection of State Secrets
Elements of Offense and Criminal Penalties
Criminal protection is provided by specific offenses in the Criminal Code, some of which carry very severe penalties:
- High Treason (Sections 94 et seq. StGB): Treason or disclosure of state secrets to a foreign power is punishable by imprisonment of at least one year up to life imprisonment.
- Disclosure of State Secrets (Section 95 StGB): Even negligent disclosure is punishable.
- Endangering External Security (Section 97 StGB): Also covers preparatory acts and enabling the possibility for information to be accessed.
- Breach of Official Secret (Section 353b StGB): Limited to public officials and others entrusted with an official secret.
Circle of Perpetrators
Criminal law distinguishes between persons who are under special obligation due to their connection to state secrets (public officials, soldiers, confidential informants) and third parties who unlawfully acquire or pass on such knowledge.
Access to State Secrets and Security Clearance
Authorization and Protection of Secrets
Access to a state secret is permitted only to persons with the appropriate security clearance and a confidentiality obligation. The SÜG comprehensively regulates the requirements for such clearances. Reliability, loyalty, and security risks of the persons involved are checked. Technical security measures such as access and information restrictions are also required.
Classification and Labelling
The Classified Information Directive provides for four confidentiality levels:
- FOR OFFICIAL USE ONLY (VS-NfD)
- CONFIDENTIAL
- SECRET
- TOP SECRET
State secrets are generally assigned to the two highest levels of confidentiality.
State Secrets in the International Context
European Union
Within the European Union, there is no uniform definition; however, most member states recognize national classified information regulations. The classification of documents by EU bodies is done according to their own confidentiality levels, but these are based on the standards of individual member states.
International Law and Agreements
At the international law level, the principle of state secrecy is also recognized, for example, within the framework of information exchange agreements, intergovernmental treaties, or security cooperations. Breaches of confidentiality obligations can lead to reactions under international law.
Special Areas of Concern
Whistleblowing and Freedom of the Press
The publication of state secrets by media professionals or so-called whistleblowers regularly leads to a balancing of public interest in information and the security interests of the state. German case law recognizes the importance of press freedom, but sets clear limits in favor of protecting particularly sensitive state interests.
Constitutional Framework
The Basic Law guarantees the freedom of information (Art. 5 GG), but at the same time, with restriction provisions and the protection of state interests, ensures that the essential functions or security interests of the state are not endangered.
References and Further Information
- Criminal Code (StGB), §§ 93 et seq., 203, 353b
- Classified Information Directive (VSA)
- Act on the Conditions and Procedure for Federal Security Clearances (SÜG)
- Basic Law for the Federal Republic of Germany (GG), Art. 5
- Federal Ministry of the Interior: Guideline for the Protection of Classified Information
Summary
The state secret constitutes a legally comprehensively defined and protected matter, whose central importance lies in the safeguarding of a state’s external and internal security. Access is limited to strictly screened groups of persons, the legal provisions are precisely regulated, and violations are subject to significant criminal consequences. Within the tension between protection of secrets and the public’s interest in information, careful balancing between security and transparency plays a particularly important role.
Frequently Asked Questions
How is the protection of state secrets regulated under German law?
The protection of state secrets is regulated comprehensively in the German Criminal Code (StGB), in particular in Sections 93 et seq. The decisive factor is that both revealing and passing on state secrets to unauthorized third parties or foreign powers is punishable if this is capable of endangering the external security or essential interests of the Federal Republic of Germany. In addition to the Criminal Code, there are specific provisions in the Security Clearance Act (SÜG), and various administrative regulations, such as those on the confidentiality of classified information. Classified information is categorized into specific confidentiality levels, each of which entails differentiated organizational, personnel, and technical security measures. A violation of these provisions can have both criminal and disciplinary consequences.
What penalties apply for violating state secrets?
German law provides for severe penalties in Section 94 StGB for the disclosure of state secrets. The penalties range from imprisonment of not less than one year up to life imprisonment, if the act caused the risk of serious harm to the external security of the Federal Republic of Germany. For less serious offenses, such as negligent disclosure of a state secret under Section 95 StGB, the law provides for imprisonment of up to five years or a fine. Furthermore, attempt, incitement, and aiding and abetting can also be punishable. In addition to criminal consequences, disciplinary measures under service law are possible, up to and including removal from office.
Who is authorized to access state secrets?
Access to state secrets is restricted to a clearly defined group of persons who have been checked for reliability and integrity as part of a security clearance under the SÜG. This primarily includes public sector employees, soldiers, civil servants, as well as selected employees of public sector contractors, insofar as necessary for the fulfillment of their official duties (so-called ‘need-to-know’ principle). Access authorization is regularly reviewed and can be revoked at any time if reliability is in doubt.
How is it determined which information is considered a state secret?
Whether information is considered a state secret is decided by the competent authorities, such as constitutional bodies, ministries, or security authorities, based on legal provisions and administrative regulations. The decisive criterion is whether the relevant information is capable of endangering the external security or other essential interests of the Federal Republic of Germany if disclosed to unauthorized third parties. Classification usually takes place by assigning one of the four confidentiality levels: ‘For official use only’, ‘Confidential’, ‘Secret’, and ‘Top Secret’. The exact classification must always be documented and justified.
Are there statutory exceptions to confidentiality protection, for example for whistleblowers?
Confidentiality protection under German law provides only a few exceptions. A legal justification may exist if disclosure of a state secret is necessary to fulfill a legal obligation, for example in the context of procedural obligations to testify or pursuant to a corresponding court order. Whistleblowers do not have blanket protection, but must always comply with the strict statutory framework. Disclosure of state secrets to the public, for reasons of public welfare (‘whistleblowing’), is regularly punishable and is only justified under very limited circumstances, for example within the emergency provisions of the Criminal Code. A careful balancing of interests is always required here.
What rights do affected individuals have if they are suspected of leaking secrets?
Those accused of violating state secrets have, in principle, the same rights in criminal proceedings as any other accused persons; they are in particular entitled to remain silent and to be represented by legal counsel. However, the investigative authorities are required to exercise special sensitivity in cases involving protection of classified information: such investigations are often conducted by specialized branches of the Federal Criminal Police Office or the State Security. The proceedings may also be conducted partly in camera in the interest of national security. In most cases, suspects are also advised that they may not disclose further information so as to prevent additional damage.
