The expert of the Federal Prosecutor’s Office confirms in advance the assessment of the interception protection. The Federal Ministry of Justice instructs Range to stop the expert opinion
The expert commissioned by the Attorney General’s Office is back from his summer vacation, unexpectedly quickly, and causes dramatic effect in the political theater, to which the investigation for treason against netzpolitik.org.
The unnamed outside expert retained by the Office of the Attorney General in the matter bamboozled the expert community with his assessment that the documents, which were released on 15. April on netzpolitik.org were published to "a state secret acts".
The expert has thus confirmed in advance the legal conclusions of the Federal Prosecutor’s Office and the Federal Office for the Protection of Interrogation, Attorney General Range said today in a public statement.
How the expert justified this in detail remains unclear. After all, he had to deal with a toll that is high, as can be read among lawyers who refer to the relevant Fischer Criminal Law Commentary.
Secrets from the intelligence field are only state secrets in the sense of § 93 StGB, if their betrayal had at the same time effects on the super security and the threatening disadvantage would also be severe, which is only the case if it is clearly significant for the overall super power position of the Federal Republic of Germany.
In addition to the surprising appearance of the expert and his unusual legal apprehension, there is another unusual thing, as the Attorney General notes. The Federal Ministry of Justice had given him the instruction to stop the expert opinion immediately and to withdraw the expert opinion order. He had followed this instruction, according to Range. Not without drama, however:
To influence investigations because their possible outcome does not appear politically opportune is an unacceptable interference in the independence of the judiciary.
The rage of the Attorney General is unveiled, whether he has the right to do so on the basis of his authority to ie directives is a matter of controversial opinion. Sahra Tacke, spokeswoman for ZDF’s justice policy, pointed out that an instruction must be legally binding. Without, however, explaining what legally bound means more precisely in this case.
In the professional organ Legal Tribune the commentator attests to it "Confusion of terms" and declares in addition:
One can argue with good reasons against the right of the ministers of justice to ie instructions to the public prosecutor’s offices, the demand for its abolition resounds again and again. However, the independence of the courts, and not that of the prosecuting authorities, is constitutionally binding – the Attorney General certainly knows this, too.
Politically, the process is unique. Now more than ever, one wonders who will be forced to resign as a result of the affair. The investigation against netzpolitik.org rests meanwhile, it is not discontinued. Even if the OSCE is now also advocating an end to the investigations.