Concept and Nature of Undercover Investigations
Undercover investigations are an essential tool of law enforcement and are primarily used to clarify offenses where open, conventional investigations are not effective or would be associated with significant disadvantages. In such cases, law enforcement authorities, mostly the police, deliberately use covert methods to gather information, secure evidence, or uncover offender structures, without those affected being aware of the investigative measure. Undercover investigations differ from open investigative activities particularly through the deliberate disguise of one’s own identity or the actual investigative purpose.
Types of Undercover Investigations
Undercover Investigator
One of the most well-known applications of undercover investigations is the deployment of a so-called “undercover investigator.” These are police officers who operate under a false identity in order to make contact with suspicious individuals. Their goal is to obtain relevant information about offenders or criminal networks.
Trust Person and Informant
In addition to undercover investigators, trust persons (TP) and informants also play a role. Trust persons are private individuals who deliberately cooperate with investigative authorities without being part of those authorities themselves. Informants typically provide information without institutional affiliation and generally act out of their own motivation or self-interest as sources of information.
Technical Undercover Investigations
Undercover investigations also include covert technical measures, such as clandestine surveillance, the use of video surveillance, wiretapping of conversations (telephone monitoring, “acoustic surveillance”) or the use of so-called IMSI catchers. Online-based undercover investigations (e.g., on social networks or darknet forums) are also becoming increasingly important.
Legal Basis
Statutory Regulations in Germany
The legal requirements for undercover investigations are laid down in various laws, with key provisions found in the Code of Criminal Procedure (StPO). The most important regulations are:
§§ 110a – 110i StPO: Undercover Investigator
These provisions regulate under what circumstances undercover investigators may be deployed. Generally, suspicion of a particularly serious offense is required. Deployment is subject to strict legal prerequisites and judicial authorization. The duration, nature, and method of deployment, as well as the necessity for regular reviews, are legally stipulated.
§ 100a StPO: Telecommunications Surveillance
The surveillance and recording of telecommunications can be ordered as part of undercover investigations, provided a judicial warrant is issued and there is suspicion of a catalogued offense.
§ 100c StPO: Residential Surveillance
Covert acoustic surveillance of private residences (major acoustic surveillance) is a particularly intrusive covert measure and subject to strict requirements. Judicial authorization is also mandatory here.
§ 163f StPO: Surveillance
The law regulates the conditions under which long-term surveillance of a person may take place. This is also possible only for serious offenses and usually under judicial oversight.
State Police Laws
In addition to the StPO, the police laws of the federal states contain further regulations on undercover investigations in the area of danger prevention, which can be used independently of criminal prosecution to prevent future crimes.
European Legal Framework
With the advancing European cooperation in law enforcement and internal security, instruments of the European Union also regulate the exchange and conduct of undercover investigations, for example in the context of Europol, Schengen cooperation or the European Investigation Order (EEA).
Requirements for Deploying Undercover Investigations
Proportionality
Every undercover investigative measure is subject to the principle of proportionality. It may only be used if milder means for clarifying the situation do not seem promising. The measure must be suitable, necessary, and appropriate, meaning the interference with fundamental rights must be in a reasonable relation to the intended purpose.
Specificity and Authorization
Undercover investigations may only be carried out in cases of a substantiated initial suspicion. Usually, the deployment of undercover investigators must be ordered by the court, or, in cases of imminent danger, by the public prosecutor. The authorization must clearly specify the measure, the person concerned, the duration, and the objective.
Duration and Control
The operation must be time-limited and regularly reviewed for continued necessity. The execution and lawfulness of undercover investigations are also subject to judicial oversight and subsequent review by data protection authorities and, if applicable, parliamentary committees.
Rights of the Affected Persons
Notification Requirement
After completion of an undercover investigation, the affected person must generally be informed about the measure (§ 101 StPO). If certain conditions exist, such as endangering life, limb, or further investigations, notification may be postponed or, in exceptional cases, completely omitted.
Legal Protection
There are legal remedies available against undercover investigative measures, such as complaints against an order or actions seeking subsequent judicial protection.
Use of Findings
Exclusion of Illegally Obtained Evidence
Illegally obtained information from undercover investigations may generally not be used in criminal proceedings (“exclusion of improperly obtained evidence”). This particularly concerns cases where the legal requirements have not been complied with or the principle of proportionality has been violated. The case law developed on this is extensive and depends on individual circumstances.
Permission to Testify and Witness Status
Undercover investigators may appear as witnesses in proceedings but often require special permission to testify to protect their cover and personal safety. In some cases, their identities continue to be protected during proceedings.
Limits and Criticism
Interference with Fundamental Rights
Undercover investigations amount to significant infringements of fundamental rights, particularly the right to informational self-determination, telecommunications secrecy, and inviolability of the home. For this reason, they are subject to strict legal requirements and ongoing legal oversight.
Potential for Abuse
There is a tension between effective law enforcement interests and the protection of private liberties. Critics point to potential abuse, especially if judicial control is inadequate or legal definitions are unclear.
International Differences
The handling of undercover investigations is regulated differently internationally. In some countries, such measures are more broadly permitted, while in others they are more strictly limited.
Conclusion
Undercover investigations are an indispensable tool in modern law enforcement for the clarification and prevention of crimes, particularly in the area of serious and organized crime. However, their legal requirements, execution, and oversight are tightly regulated to ensure a balance between law enforcement interests and the protection rights of affected individuals. The use of undercover investigations always involves significant intrusions into fundamental rights and therefore requires particular care in legislation and practice.
Frequently Asked Questions
Who authorizes an undercover investigation and is it subject to judicial review?
The authorization of an undercover investigation in Germany is generally carried out by the head of the public prosecutor’s office or, in certain urgent cases, by their representative. The legal basis for the use of undercover investigators is in particular § 110a of the Code of Criminal Procedure (StPO). A judicial order is required when the measure lasts over an extended period or when serious infringements of fundamental rights are anticipated. Judicial review is carried out upon request by the competent investigating court, which strictly examines the prerequisites for the measure, such as proportionality and the existence of an initial suspicion of a crime of considerable significance. Moreover, the court remains authorized to review the continuation, scope, and necessity of the measure during its implementation in order to prevent misuse.
For what types of offenses may undercover investigations be used?
Undercover investigations are only permitted for offenses of considerable significance. According to § 110a (1) StPO, this particularly includes offenses such as organized crime, terrorism, drug trafficking, human trafficking, serious sexual offenses, murder and manslaughter, as well as certain forms of corruption. Minor or petty offenses generally do not justify the use of an undercover investigator. The assessment of whether an offense is “of considerable significance” depends on the specifics of the case and requires a detailed review of the circumstances, the societal harm, and the criminal structures in the background.
What limits does the law impose on the actions of undercover investigators?
Despite their special role in gathering and clarifying evidence, undercover investigators are bound by strict legal limits. They are not permitted to commit offenses to obtain evidence (so-called crime provocation, incitement, or participation in crimes are generally inadmissible). Likewise, any form of surveillance, such as wiretapping or entering homes, is only allowed under special statutory authorizations and usually requires additional authorization by a judge (§§ 100a ff. StPO). They are also subject to the principle of proportionality: the measure must not be disproportionate to the seriousness of the offense and the importance of the expected evidence.
Must affected persons be informed afterwards about undercover investigations?
There is, in principle, a post-notification requirement according to § 101 (1) StPO for measures that are associated with a significant infringement of fundamental rights. After completion of the undercover investigation, or if the purpose of the measure is no longer endangered, affected persons have the right to be informed of its execution. However, there are exceptions: Notification can be omitted if overriding public interests, the protection of the investigator’s identity or sources, or ongoing investigations would be endangered. A judicial review of this exception is possible upon request.
How are the gathered pieces of evidence from undercover investigations used in court?
The use of evidence obtained from undercover investigations is subject to strict requirements. Evidence gathered in violation of legal provisions may be subject to an exclusionary rule. This means such evidence may not be used in criminal proceedings. Decisive criteria are particularly the maintenance of proportionality, authorization of the measures by a competent authority, and compliance with information and documentation requirements. The admissibility of the evidence is ultimately determined by the court during the trial. In the case of serious procedural violations, such as illegal crime provocation, this can even lead to a complete acquittal.
What role does data protection play in undercover investigations?
When deploying undercover investigators, data protection is of high importance. All collected and stored data is subject to the provisions of the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR), where applicable. The collection, processing, and storage of personal data are only permissible as far as it is strictly necessary for the purposes of criminal prosecution or danger prevention. Unauthorized disclosure or sharing of information is strictly prohibited. After conclusion of the investigation, personal data not required for further prosecution must be deleted without delay. The data protection officer of the respective authority is responsible for monitoring compliance with the laws and, if necessary, informing the data subjects about their rights.
Are there legal options for affected persons to oppose undercover investigations?
Affected persons have various legal protection mechanisms. Upon being informed of an undercover investigation, they can lodge a complaint against the measure (§ 304 StPO) and request that the lawfulness of the measure be reviewed. It is also possible to file a request for judicial determination of the unlawfulness of the measure and to assert claims for damages in the case of unlawful interference. Moreover, after notification, there is the possibility to request inspection of the files and to obtain information on the scope and reasons for the measure. The review or deletion of unlawfully collected data can also be enforced by the courts.
