|Statewatch article: RefNo# 31736
|Statewatch Journal; vol 21 no 3 July-September 2011
|In February 2011, anti-fascist groups prevented a right-wing demonstration from taking place in Dresden. It has since emerged that prior to the event, police used controversial ‘thought-crime’ legislation to launch an unprecedented operation to intercept all telecommunications data in certain parts of the city.
On 19 February 2011, a broad anti-fascist coalition succeeded in stopping one of the largest right-wing demonstrations in Germany. This was the second occasion on which the far right demonstration, which included many overt fascists, was prevented from marching in Dresden due to widespread resistance (see Statewatch Volume 21 no. 1). This was not only a blow for the extreme right but also for the German state, which had deployed a massive police operation for the right-wing demonstration. It has since been revealed that the authorities also organised a massive interception of counter-demonstrators’ telecommunications data prior to the event in order to criminalise them with charges using ‘thought-crime’ legislation.
The use of Article 129 of the German Criminal Code (hereafter 129 StGB) is a long-standing interception and prosecution tool used by the German authorities against the left. It grants the police and prosecution services far-reaching powers to fight serious crime (whereby group membership rather than proof of an individual’s guilt is sufficient to trigger the police powers and in some cases secure convictions). What has become known as the ‘handygate’ scandal (handy being a German reference to a mobile phone) has been widely discussed in the media and in regional and national parliaments, because some of the anti-fascist activists whose phone data was intercepted, and who now face prosecution, are also parliamentarians and lawyers. Furthermore, data collected through interception methods is unlawfully being used in criminal prosecutions.
Police repression of anti-fascist coalition
The Bündnis Dresden Nazifrei (Coalition for a Nazi-free Dresden) called for decentralised street occupations and blockades around the square from which the fascist march would start. The police tried to clear the road for the march but a mass of people prevented them by blocking the streets. The police claimed that some demonstrators were violent and attacked them, leaving more than a hundred officers injured. The blockade lasted for five hours, after which the permit for the demonstration lapsed and demonstrators returned to their buses and trains and were escorted by police out of the city. It became clear that the police were actively targeting counter demonstrators.
That evening, the Saxony regional crime police authority authorised the Spezialeinsatzkommandos (SEK, special riot unit) to raid a centre shared by the left-wing Die Linke party and a youth centre (Haus der Begegnung), which had functioned as the media centre for the coalition. Masked police officers arrested 22 people, among them the coalition’s official spokesperson, and searched offices and rooms, confiscating computers, telephones and other technical equipment. The offices of a lawyer, a Member of Parliament (Die Linke), a migrant association, a youth centre and a private apartment were also raided.  On the same day, the police failed to intervene when a large group of right-wing demonstrators attacked an alternative housing project (‘Praxis’) in the Löbtau neighbourhood with stones, bottles and sticks. Police regulating traffic watched on and did nothing to intervene.
Handygate scandal: repression and prosecutions
In March and April 2011, 20 houses were searched in the regional states of Saxony and Brandenburg. Seventeen people were charged under Article 129 StGB with forming part of “an organisation with the intent of committing a criminal offence.” The process of criminalisation continued on 5 May, when the ‘Praxis’ housing project - the same building that was attacked on 19 February - was raided by 150 policemen carrying automatic weapons.
During the course of legal proceedings against people who took part in the anti-fascist blockades, it was revealed that the police had set up a large and unprecedented operation to gather information from mobile phone providers. This became clear from prosecution files on those facing charges, most of whom were accused of “obstructing a legally permitted demonstration.” Police presented data obtained from mobile phone providers to show their involvement. The newspaper Die Tageszeitung described the case of Christian Leye, assistant to MP Sevim Dagdelen (Linkspartei), who was ID-checked by police during the protests and later summoned for obstruction.  His prosecution file showed that the police had provided data on 15 calls he made during the blockades, with the exact location of each call and who he had called (so-called telecommunications traffic data).
It became clear that the police had systematically collected all telecommunications traffic data in certain parts of the city, and were using this information to prosecute demonstrators. This interception (Funkzellenauswertung, FZA)  lasted for at least four hours. Another person who learned that his phone data had been collected and included in a prosecution file was the Green party parliamentarian, Hans-Christian Ströbele. He is also a lawyer so should have had legal protection against data collection of this kind. Both the Left party (Die Linke) and the Green party (Bündnis 90 / Die Grünen) have requested a special debate in the Saxony regional parliament about the police’s conduct.
The most conservative estimate is that the traffic data of at least 40,000 people was 'harvested' by police, totalling approximately one million data records. The Green party has urged those who used a phone in the targeted area on the day to make an official request for information on whether their personal data were collected and if so, to file a complaint against this unlawful infringement of their privacy.  According to the anti-fascist coalition Dresden Nazifrei, hundreds of people have filed information requests. 
On 24 June, Saxony regional government defended the data collection operation in the report Bericht zur Erhebung und Auswertung von Mobilfunkdaten . Regional ministers of justice (Jürgen Martens, from the Freie Demokratische Partei) and interior (Markus Ulbich, from the Christlich Demokratische Union Deutschlands) acknowledged that data from all phones in certain areas was collected. They claimed that because this only concerned traffic data (i.e. information on callers and those called, but not personal data on individuals or the content of their calls) it was within legal remits. The only failure on the prosecution’s part, they conceded, was to include this information in their files. This led to an increase in public criticism because it was now evident that the data used in legal procedures went much further than ministers had said. When the extent of the interception became clear ministers blamed the police for misinforming them and the Chief of Police, Dieter Hanisch, was fired.
The legal defence group Initiativgruppe, which formed to monitor the scandal, said "the pattern is that [the authorities] only admit to what cannot be denied anymore."  New facts appeared almost daily and the newspaper Tageszeitung revealed on 28 June that the police might even have listened to 'live' phone conversations, using a so-called IMSI-catcher.  This led to debate in the regional parliament on 29 June, where regional interior minister Ulbich initially denied that such methods had been used, but when confronted with evidence to the contrary stated  that "he could not rule out that such an instrument had been used in criminal investigations." The next day both the media and politicians called for his resignation. Ulbich read a statement in the regional parliament from the Dresden prosecutor’s office (Staatsanwaltschaft) declaring that the data operation was legal within the framework of investigations into the “forming of a criminal organisation” (the infamous Article 129 StGB, used regularly to prosecute left-wing political activists by declaring them part of a criminal organisation).
On 1 July, the case went national after a debate in parliament at which it became clear that at least 300,000 individuals’ phone data had been collected and in 45 cases had been used in a prosecution.  The precise method used by police is unclear, nor is it known what type and how much data from how many people was collected and stored. The Saxony data protection officer (Datenschutzbeauftragte), Andreas Schurig, will lead an investigation and publish the results before 10 September.
Police criminalise a youth pastor
One of the demonstrators who spoke out against the prosecution of anti-fascists and the data collection operation was Lothar König, a 57-year-old youth pastor from Jena, in the regional state of Thuringia. He had been present at the protests in his Volkswagen van. A few days after speaking out in the weekly magazine Der Spiegel, his house was raided and searched by 30 police officers. Curiously, the officers were employed by the Saxony regional state and were not officially authorised to act independently in Thuringia. This was explained by the authorities as the result of a 'miscommunication' between the two forces. The pastor was not home at the time of the police raid, and he was not arrested, but his van and many possessions were confiscated.
König was accused of a violent breach of the peace (“aufwieglerischen Landfriedensbruch”) with police claiming that he called for stones to be thrown at them through a sound system on the roof of his van. The day after the raid on his home, 600 people demonstrated in Jena against his criminalisation and many organisations and prominent people spoke out against his persecution, including fans of local football club Carl Seiz Jena. 
Thought crime and Article 129 StGB
At a court hearing on 19 August, the Dresden public prosecutor announced that the charges against König under Article 129 StGB would be dropped.  He will still be prosecuted for an aggravated breach of the peace (during protests against the fascist march in February). Many others, however, are still being prosecuted under Article 129 StGB.  Two police raids on 12 April and 2 May resulted in charges against 41 people, brought on grounds of Article 129 StGB. Many more people are accused of aggravated breach of the peace (schwerer Landfriedensbruch, Article 125a StGB), incitement to commit crimes (Aufruf zu Straftaten, Article 111 StGB), property damage (Sachbeschädigung, Article 303 StGB) or causing bodily harm (Körperverletzung, Article 223). Article 129 (and its anti-terrorist extensions, Articles 129a and 129b) is controversial because the definition of a “crime” is vague and includes the act of 'recruiting members for such an organisation.' Furthermore, under Article 129 people can be prosecuted even when there is no evidence that individual crimes have been committed - being part of the presumed organisation suffices. Therefore, the provision is also called a “thought crime Article” (Gesinnungsparagraph) by critics.
 see 'State and police repression against broad antifascist coalition in Germany' in Statewatch Bulletin Volume 21, no. 1
 Taz 19/06/11: Mal eben ausgespäht http://www.taz.de/!72708/
 Background information in German: http://euro-police.noblogs.org/2010/03/funkzellenauswertung/
 Bericht zur Erhebung und Auswertung von Mobilfunkdaten http://www.medienservice.sachsen.de/medien/news/160218/assets
 Taz 28/06/11 http://www.taz.de/!73377/
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