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The first senate of the Federal Constitutional Court in Karlsruhe: New regulation required by July next year at the latest
Photo: Uli Deck / dpa
The best way to see who won and who lost before the Constitutional Court is the so-called cost note: "Half" of the "necessary expenses" - i.e. in particular the statutory lawyer's fees - the Free State of Bavaria has to reimburse the complainants, explained the President of the Federal Constitutional Court , Stephan Harbarth, at the end of the judgment tenor.
So a half victory for both sides: On the one hand the Bavarian legislature, represented by the Minister of the Interior Joachim Herrmann and a Ministerialrat, who in the course of the negotiation as the actual originator of the Bavarian Constitutional Protection Act and its chains of paragraphs, which even the constitutional judges could hardly understand had become visible.
On the other side are the three complainants, including a doctor and a communications scientist, who are assigned to the left-wing extremist spectrum by the Bavarian Office for the Protection of the Constitution as members of the “Association of People Persecuted by the Nazi Regime – Association of Anti-Fascists”;
their lawsuit was coordinated and accompanied by the Berlin »Society for Freedom Rights«.
This is probably one of the reasons why there was fundamental agreement on both sides: the constitutional court considers the activities of the authorities for the protection of the constitution "fundamentally important and correct and necessary," according to Herrmann;
At the same time, however, there is now a great need for reform, not only in Bavaria, because, to his knowledge, there is "not a single law that corresponds to all of the requirements that have been formulated today" for the federal and state authorities for the protection of the Constitution.
The legal counsel for the complainants, the Mainz constitutional lawyer Matthias Bäcker, took a similar view: the constitutional court had recognized “an increasing need for monitoring” and was also “somewhat more generous” in the use of intelligence resources than hoped, but clear limits had now been set, and this resulted in a »great pressure for new regulations«.
The 153-page landmark judgment is particularly noteworthy because the Constitutional Court had previously only issued such clear guidelines for secret investigative measures by the police, and only occasionally - using the example of the foreign telecommunications reconnaissance of the Federal Intelligence Service - also for the secret services.
Now the court caught up on this for the protection of the constitution.
The central idea of the justification from the pen of the constitutional judge Gabriele Britz is: Because the secret services predominantly collect information and use it to make assessments, but do not have any "operational follow-up powers", i.e. do not act directly as an official authority, certainly not with coercion, they are involved in their activities in the to make lower demands in individual cases than, for example, with the police.
However, an additional, more stringent justification is required if the Office for the Protection of the Constitution transmits its information to other services or authorities - it may only do so if this "serves to protect a particularly important legal interest" and if the receiving authority should also have been allowed to collect the data , i.e. if the – usually stricter – requirements are met there.
Specific Requirements
However, the Office for the Protection of the Constitution is also not allowed to act without specific requirements – and depending on the authority, these must be of varying severity.
According to Harbarth in his introduction, there are special requirements if actually uninvolved persons are included in the surveillance as contact persons.
Depending on the "intensity of intervention" of the respective measure, it could also "be necessary," according to Harbarth, to "subject it to an inspection by an independent body" in advance.
In addition, as the judgment repeatedly states, surveillance is all the more difficult to justify the longer it lasts without revealing anything really incriminating.
more on the subject
Judgment from Karlsruhe: Bavarian law for the protection of the constitution is partially unconstitutional
Justice: With the rule of law against the secret service by Dietmar Hipp, Karlsruhe
The judges of the First Senate classified a total of eight provisions of the Bavarian Constitutional Protection Act, which was amended in 2016 and revised again in 2018, as "unconstitutional".
The judgment declares the
query of traffic data due to data retention
to be "void", i.e. without the possibility of rectification, even if this is currently on hold in this country: the telecommunications providers are not "obliged or even entitled" to transmit this data to the State Office for the Protection of the Constitution.
Other regulations are "incompatible with the Basic Law", so that they can only be applied further under the detailed guidelines set by the judges, and at the latest until July 31 next year - until then, the Bavarian legislature has the task of making a comprehensive to make new arrangements.
These are in detail:
Surveillance of living space
: because it is »not geared towards the goal of averting a danger«;
there is also no regulation that the monitoring of living space by the Office for the Protection of the Constitution has to take second place to corresponding measures by the police.
In addition, the requirements for the protection of the "core area of private life" - that is, that highly personal and intimate content is not recorded or at least not further processed - are not met.
Online search
: for the same reasons as far as the conditions for intervention are concerned;
the protection of the core area is given for the “survey level”, but not for the “evaluation level”.
Locating cellphone terminals
: »because the authorization allows long-term monitoring of the movements of those affected«, but does not provide for sufficient prerequisites for intervention.
Use of undercover employees and informants
: "because there are no adequate thresholds for intervention" and there is no limit to the group of people who may be specifically monitored.
Observation outside of the home
: because "particularly intervention-intensive observations" are not subject to any additional requirements, i.e. they are not limited to cases that require special monitoring.
For the last three powers, there is also a lack of "independent prior control" - for example by the G10 Commission, which also exists in Bavaria and whose competence would have to be expanded;
or a new body similar to the
Independent Control Council
, which was set up at the request of the Karlsruhe judges for BND foreign telecommunications reconnaissance.
The provisions on the transmission
of data to domestic and foreign bodies as well as regulations on the
further processing of data within the authority
were also declared incompatible with the Basic Law
;
Above all, the "particularly complex reference chains" - with references from one norm to the next, sometimes over six levels - exceeded "the extent permitted under constitutional law".
Legally put to the test
Most of the constitutional protection laws of the federal states and also that of the federal government have similar problematic regulations, says plaintiff representative Bäcker.
The Bavarian law was even more "in the middle to upper range".
Only the Bavarian one could be directly challenged in court, as it had recently been completely amended.
The other laws would now have to be “put to the test” in terms of legal policy.
The plaintiffs themselves are likely to benefit from the verdict: You can find their political activity "as you like," says Bäcker, "but they are not terrorists, and they won't be either."
In any case, organizations like the Association of Those Persecuted by the Nazi Regime, "who basically never do anything forbidden," should no longer be under the surveillance of the Office for the Protection of the Constitution.