Strong criticism from Munich's Justice Department
for Federal Constitutional Court
January 21, 2000
by Ekkehard Mueller-Jentsch
It is rare enough for a judge to describe a decision by the Federal Constitutional Court as a "legal catastrophe." Yesterday that is what happened repeatedly. This was in connection with the case involving an attorney, Tersteegen (following report), who is a professed Scientologist and, in any case, wants to know what files Constitutional Security has on him. Constitutional Security is maintaining a stubborn silence. It does even want to tell him whether a dossier on him exists. Nevertheless, State Attorney Peter Samberger offered to have the case heard under appeal, presenting the files exclusively to the judges presiding over the court.
In a different case, the Karlsruh federal judges stated that it was unconstitutional for an agency to keep a file or information secret for reasons of state security (i.e., P 99 VwGO); that was ruled to be a violation of Article 19 paragraph 4 of the guarantee of rights determined by Basic Law (file number: 1BvR 385/90). In a provisional time limit set at the end of 2001, the contents of the file may be viewed only by court judges. The court judges, however, may not reveal what they have learned that way, neither may they let their secret knowledge influence them in the basis for their decision.
"A secret private trial by a team of judges," is how Ernst Lange described that yesterday; he is presiding judge of the 17th chamber of the Munich Administrative Court, he said that would not be possible in reality. "A terrible decision."
In the clutches of Constitutional Security agents
An attorney believes he has been mistakenly identified as a member of the PDS
January 21, 2000
Chief State Attorney Peter Samberger has complete respect for the professional abilities of attorney Gerd Tersteegen: "If I ever have problems with the state, I'd want to have Dr. Tersteegen along with me." At the same time, Samberger has little understanding for the papers which have brought him to the confines of the Munich Administrative Court as Tersteegen's trial opponent. Tersteegen - on inquiry - received information from the State Office for Constitutional Security (LfV) that he was supposedly a member of the PDS in 1995.
Tersteegen energetically disputes that. Because the State Office has steadfastly refused to delete Tersteegen's alleged PDS membership from its computer, the attorney sued. "What would you say," he asked Samberger, "if you were on file in the Constitutional Security Agency's computer as a KPD member?" The state attorney reacted calmly, "As long as it had no effect, it would make no difference to me."
As far as Gerd Tersteegen is concerned, there is no question of an effect if the wrong people were to believe that he were a PDS member. He often represents officials who are suing their employers, and if one of these potential clients believed Tersteegen was a PDS member, he would presumably look for a different lawyer. Therefore Tersteegen insists that the information on him be deleted. The State Office for Constitutional Security, however, stubbornly refuses: it alleges the information is correct. As evidence they provide two copied sheets entitled "Members of the County/Regional association of the PDS," augmented with the handwritten word "Munich", with 73 black-outs and one name which has not been blacked out, "Tersteegen Dr., Gerd, 81679 Munich."
"We obtained the lists from an undercover agent," LfV Administrative Director Josef Peintinger told the court. Nothing more was revealed. "And you believe everything this secret agent said?" asked Tersteegen. "Yes," said Peintinger, "we do have actual evidence." "What kind of evidence," Tersteegen responded, "These slips of paper?" No, said Peintinger, there was "other verifying information," but it could not be shown to the court because it was secret. In response, Tersteegen has a letter which he shows the court from the Bavarian PDS State Association that certifies that he was not in 1995 nor was he ever a member.
That did him no good; the Constitutional Security agent would not give in. Now the court has to decide.