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Preventive Measures in Cases of Export of Goods

by Klaus-Peter Ricke

1. Today prevention plays a more and more important role in our society. One can notice prevention in almost every area of human life, for instance in medical science, the environment and politics, especially in the area of police and customs. The reason for the intensive discussion about prevention in our society is the Islamic terrorisms which culminated in the attack on the World Trade Center on 9/11. The United Nations, the European Union and the national states created countless resolutions, regulations and laws to fight against this kind of crime to prevent that this will happening again.

But approximately ten years earlier – 1988/1989 - another crime had happened. The construction of an entire facility in Rabta/Libya to produce poison-gas, built by a German company. The damage for Germany, the German people and the economy was enourmous (in the New York Times one could read: „Auschwitz in the sand“). And so the German legislation created laws and regulations to prevent that this will happening again.

2. This dissertation begins with the description of the case Rabta/Libya in detail and the consequences for our national law and practises (first part). The description of this case, of the disclosure and the worldwide reactions shows the importance prevention has for the area of export and what damage be exists if there are not enough preventative provisions and cooperation between authorities.

3. The second part deals with the basic principles of the law for the police in the area of public security in general and the organisation of the Customs Investigation Service as a special police service, competent especially for prevention and investigation in the area of export. In the last two decades the German legislator has created many provisions which enable the authorities for export control, especially the German Customs Investigation Service to act intensively in prevention. Especially secret measures such as surveillance of letters and telecommunication. These are useful tools to get information before an illegal export can taken place. But there are limits for with these measures and these limits are the provisions of the German Constitution. And So frequently our Federal Constitutional Court (Bundesverfassungsgericht = BVerfG) decides that the special measures were not in accordance with the basic principles of our constitution. Also in the second part the most important decisions are described and interpreted, especially the decision concerning the law of Census of Population (Urteil des BVerfG vom  15. Dezember 1983 – 1 BvR 209/83), the decision concerning the surveillance of letters and telecommunication by the Customs Criminology Office (Beschluss des BVerfG vom 3. März 2004 – 1 BvF 3/92) and the decision concerning the storage of telecommunication transfer-data in advance according the Telecommunication Act (TKG) and the Code of Criminal Procedure (StPO) – Urteil des BVerfG vom 2. März 2010 – 1 BvR 256/08.

3. The third part deals with four preventative measures in the area of export:

- the intervention in special cases according Art 2 Par. 2 Foreign Trade and Payments Act (§ 2 Abs. 2 AWG)
- the intervention in cases of transit of dangerous goods (Art. 6  Council Regulation (EC) No 428/2009 of 5 May 2009 - the so called dual-use regulation)

- the surveillance of letters and telecommunication according Art. 23a et seq. Customs Investigation Service Act (§§ 23a ff. Zollfahndungsdienstgesetz – ZFdG) and

- the preventive seizure of goods according Art. 32b Customs Investigation Service Act (§ 32b ZFdG).

These measures are described in detail from the origin of the law, through the development of the law up to now. There are different examples which explain how the measures work and what problems can exist. Most important is the question if the renewed provisions of the surveillance of letters and telecommunication - necessary after the decision of the Federal Constitutional Court in 2004 - are now in accordance with the Constitution. In this context the author makes some proposals to improve the law.

4. The dissertation ends with a short conclusion and a short view into the future of prevention concerning  the proliferation of weapons of mass destruction and conventional arms.



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