Prosecuting Terrorism Financing in Germany: Bundesgerichtshof (German Federal Court of Justice), Judgment of 14 August 2009 — 3 StR 552/08

Abstract

AbstractThe German Bundesgerichtshof (Federal Court of Justice) has to frequently adjudicate cases related to terrorism. The “War on Terror” has reached the German judiciary shortly after its proclamation as a reaction to the 9/11-attacks. Ever since, German criminal law is grappling with the question of how to harmonize security interests on the one hand with individual rights and liberties on the other. The expansion of the criminal law is a real threat for the previously liberty-oriented criminal law. The court decision discussed in this case addresses a specific aspect of terrorism: the financing of terrorist activities. As there is no special law prohibiting such kind of behavior, the judges had to apply section 263 of the German Criminal Code, which deals with fraud, and combine this with sections 129 a and b of the German Criminal Code, which makes being merely a member of a criminal organization into a criminal offence. A highly sensitive field of law that is put under scrutiny by anti-terrorism measures is procedural law. As secret investigation measures through electronic surveillance become more prevalent and sophisticated, the admissibility of the evidence, which was gained mainly by intelligence, becomes more and more questionable. The court decision discussed in this paper proves the willingness of the Federal Judges in Germany to reduce individual liberty rights in order to enhance the effectiveness of criminal prosecution.