German Federal Constitutional Court strengthens academic freedom

According to the Federal Constitutional Court, if confidential research data on
According to the Federal Constitutional Court, if confidential research data on criminal behavior is used for investigative purposes, this endangers criminological research and thus the prevention of crimes. © Matthew Ansley on Unsplash

The court emphasized the importance of confidential data collection on criminal conduct

The German Federal Constitutional Court has strengthened academic freedom in the wake of a case in which prosecutors had seized confidential interview data from a criminological re­search project. According to the Max Planck Institute for the Study of Crime, Security and Law, criminology research should be reassured by the Court underlining the importance of confi­den­tial data collection. Dietrich Oberwittler, criminologist at the Institute, had highlighted the negative consequences of research data being seized in an official statement on the Constitu­tional Complaint challenging the seizure of research documentation.

The case in question involved a professor of psychology at FAU Uni­ver­sity Erlangen-Nuremberg conducting in­terviews with prisoners as part of the DFG-funded re­search project "Islamistic radicalization within prison settings" with the aim of establishing why prisoners turn to extremist positions and radicalize whilst in prison. All subjects had been assured that data collection would be confidential.

However, audio files and transcripts of a - supposedly confidential - interview were seized by prosecutors when a fellow inmate informed on one of the prisoners. This was soon followed by a criminal inves­ti­ga­tion into the alleged membership in a terrorist organization of said prisoner.

Researchers are not members of the clergy

The researcher responded by lodging a complaint with a higher regional court, which was dis­missed on the grounds that, according to German law, academic researchers do not belong to the group of professions (such as members of the clergy) who have the right to refuse to testify. For the same reason, the professor was said to not be exempt from search and seizure.

The psychology professor went on to lodge a constitutional complaint with the German Federal Constitutional Court. Whilst the complaint was not admitted for procedural reasons for failure to meet the deadline, the Court did issue a verdict on the seizure of the data in question, clearly highlighting the importance of academic freedom. According to this reasoning, empirical research necessarily requires data collection, and it can be difficult if not impossible to obtain meaningful sensitive data without guaranteeing confidentiality; in turn, state-enforced disclosure of research data stands in the way of such research.

In addition, the Constitutional Court emphasized the important role of research for rational crime prevention by pointing out that insights into unreported cases and dynamics which foster crime are crucial in this context, meaning that this type of research is needed to effectively prevent crime - something that would be made more difficult or impossible by granting law enforcement access to such data.

Since the Constitutional Court dismissed the complaint on formal grounds, the case had no legal consequences. The material could therefore be used for prosecution. However, it can be strongly assumed that prosecutors will be very cautious in the future, because otherwise the Constitutional Court would probably rule against it again. "Unfortunately, there is still no "mandate" to the government to clearly regulate this by law," says Dietrich Oberwittler of the Max Planck Institute for the Study of Crime, Security and Law.

Statement of the Max Planck Institute

In: Kriminologie - Das Online-Journal Criminology - The Online Journal 5 (2), 139’154 (2023).
(Abstract in English, full text in German).

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