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Betrayal of official secrets by police officers is not “whistleblowing”

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“Whistleblowers” ​​are now protected by the Whistleblower Protection Act. The BGH has now denied that this also applies to a police officer who revealed official secrets to a journalist.

The civil servant’s motives were apparently complex: the ex-member of the board of the German Police Union had revealed information about investigations and internal agency processes to a reporter friend. He claimed that the largely confessed official had particularly wanted to criticize the public prosecutor’s office’s public relations work and damage the public image of unpopular people within the authority’s leadership. The Lübeck Regional Court then sentenced him to a fine of 330 daily rates of 40 each for seven violations of official secrets, including violations of private secrets with intent to cause damage (in one case also violating the most personal sphere of life through taking pictures), as well as for the unauthorized processing of personal data Euro. This involved sharing a photo of a woman’s facial injuries after an attempted rape. On three occasions, however, according to the assessment of the criminal chamber in the Baltic Sea city, the passing on of information did not result in a conviction for violation of official secrecy (§ 353b Abs. 1 StGB) required endangerment of important public interests. In another case, the man did not obtain the punctured information while on duty.

CDU minister had to resign

According to reports from local media such as the “Kieler Nachrichten” and the news portal TAG24, the proceedings were of considerable scope, which they described in juicy details: During a search, the public prosecutor’s office seized the police officer’s cell phone. The investigators then found extensive WhatsApp logs and email traffic. The law enforcement officer is said to have passed on a photo and details of a police operation in the Lübeck prison, as well as data on crimes in the community of Boostedt, where there is a state accommodation for migrants. He is also said to have leaked information about a prisoner who was considered dangerous by the police and was about to be released. The defendant said after his conviction that he was motivated by a “misguided whistleblower idea.” The analysis of these chats therefore played a decisive role in the resignation of Schleswig-Holstein’s Interior Minister Hans-Joachim Grote (CDU).

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All of this was too lenient for the 5th Criminal Senate: it overwhelmingly upheld the public prosecutor’s appeal (judgment of February 15, 2024 – 5 StR 283/23). The Leipzig federal judges viewed the LG’s assumption that the disclosure of information in five cases did not pose the risk to important public interests necessary for a conviction for violating official secrecy to be legally erroneous. The Lübeck criminal chamber acquitted the investigator in three cases and in two cases only convicted him of other, less serious crimes. Their reasoning: In these cases, the passing on of information did not affect any specific measures or procedures carried out by the investigators. But according to the ruling of the highest criminal judges, this classification of important public interests was based on the wrong standard. The Lübeck Chamber assumed that the mere abstract ability of a breach of secret to shake the reputation of the state police and the public’s trust in proper administration was not enough to endanger important public interests. “However, she took neither into account the defendant’s prominent official position nor the continued betrayal of secrets within the framework of a long-term relationship of convenience with a journalist,” said the Leipzig censure.

Conviction overturned

The BGH therefore overturned the guilty verdict. Even the acquittal mentioned at the beginning did not stand because the LG’s reasoning that the defendant in this case had not obtained the information passed on for work purposes, but rather via a chat group and therefore privately, proved to be unsustainable. “The medium of communication alone cannot prove that knowledge was acquired outside of work,” writes the BGH in a press release.

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However, the law enforcement officer’s appeal, which was eager to provide information, was successful in two cases; Otherwise it turned out to be unfounded. The 5th criminal sentence overturned a conviction because it was incompatible with the criminal prosecution for violating private secrets (§ 203 StGB) according to § 205 The criminal complaint required by the injured party under the Criminal Code was missing. In another case, the LG did not substantiate its assumption that the defendant had acted with intent to cause harm. An important note to the other senior judges, whose turn it is now: If the public prosecutor’s appeal filed against the defendant was successful, the verdict may also be changed to his disadvantage (§ 358 Abs. 2 p. 1 StPO).

on BGH, judgment of February 15, 2024 – 5 StR 283/23

Editorial team beck-aktuell, Prof. Dr. Joachim Jahn is a member of the NJW editorial board, February 15, 2024.

Related Links

From the beck-online database

Schmidt-De Caluwe, freedom of the press and aiding and abetting the betrayal of secrets in the sense of § 353b StGB – The “Cicero” case and the decision of the BVerfG, NVwZ 2007, 640

Müller, The duty of confidentiality in the public service, öAT 2012, 102

Günther, public relations work by authorities and external whistleblowing by civil servants, NVwZ 2018, 1109

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