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The Catalan president-in-exile Carles Puigdemont was arrested in Germany on March 25th, 2018. This arrest was carried out by German traffic police, but at the time, Spanish media reported that agents from Spain's National Intelligence Centre (CNI) had informed the German intelligence agency that Puigdemont was about to cross the border. The CNI manipulated phone communications and used a tracking device to determine the position of the vehicle in which the pro-independence leader was travelling. Now, a report drawn up by the German Parliament, the Bundestag, has concluded that such use of these digital surveillance techniques on German territory is illegal.

The report of the scientific service of the Bundestag, to which El Nacional has had access, concludes that the actions of the Spanish secret service in Germany would have been "inadmissible " or even "punishable". The report was prepared at the request of the Die Linke party and concludes that such an action would only be legal if there was prior authorization from the German authorities, which did not exist. "Intelligence activities by foreign intelligence services in Germany are generally inadmissible as an exercise of foreign state power, unless the Federal Republic grants permission," the experts write. And they specify that this also includes the prohibition of telecommunications surveillance in German territory, which would be breached if a foreign power used the Pegasus program against a person passing through Germany.

The report does not specify whether Puigdemont and Boye were indeed spied on by the CNI in Germany, because the German Parliament does not have this information, but it describes what the regulations are on this matter and explains the violatation that would occur in such a case. At the time, Spain's National Police confirmed the state's role but the Spanish government subsequently changed its line and denied any role by Spanish agents or police. And as for the German government, when asked at the time, it stated laconically that it had no knowledge of it. Meanwhile, the arrest of Puigdemont, wanted by Spain under a European Arrest Warrant over the 2017 Catalan independence referendum, ended with a German court refusing to extradite the politician for a charge of rebellion, but rather only for misuse of funds, which Spanish judge Llarena did not accept, and the Catalan president walked away.    

 

 

A further circumstance that enters into play is that one of the people alleged to have been spied on in this case is the lawyer Gonzalo Boye, who has German and Chilean nationality, which means that his fundamental rights in Germany are subject to special protection. The report, however, clarifies that the German state is obliged to protect the personal data of all people residing on its territory, and this would include Puigdemont when he was in Schleswig-Holstein and later in Berlin in 2018. "These obligations to protect exist in the same way for German nationals as for nationals of the EU or third countries", it points out. The report argues that in this case it is about the "fundamental rights of everyone", which must be distinguished from the fundamental rights that involve only Germans, such as freedom of occupation.

The Bundestag document makes it clear that, according to German jurisprudence, the presence of foreign secret services in Germany must be controlled very restrictively. "Foreign services will only be empowered to carry out surveillance measures within Germany, if there is a specific reason for this, and if there are guarantees of the unrestricted application of the protection of fundamental rights in terms of substantive rights and procedure, with detailed legal explananations", it states. The text recalls that the German Penal Code foresees a penalty of up to 5 years' prison if someone carries out intelligence activity for a foreign secret service "against the Federal Republic of Germany", and in the case of espionage on third-party computer systems it speaks of a sentence of 3 years' prison.

Finally, the Bundestag details the different cooperation programs between intelligence services in which Germany is subscribed, all of them dedicated to China, Russia and North Korea. Of these, Spain is only part of the 14 eyes agreement and the Berner Club. The former agreement, which began as the 5 eyes, was born during the Cold War to share information about the USSR, and currently focuses on the Internet. The latter, the Berner Club, includes all EU member states, plus Switzerland and Norway, and is aimed at preventing terrorism.

In the main image, information about Carles Puigdemont on a Berlin subway train in 2018 / Photo: El Nacional