Karlsruhe puts the protection of the constitution in its place
Created: 04/26/2022Updated: 04/26/2022 15:33
The far-reaching powers of the Bavarian Office for the Protection of the Constitution sometimes violate fundamental rights.
© Peter Kneffel/dpa
Undercover investigators, spying on apartments, online searches: Using the example of Bavaria, Karlsruhe is the first to prescribe in detail what the Office for the Protection of the Constitution must adhere to when secretly monitoring people.
Karlsruhe - The Federal Constitutional Court better protects innocent citizens from being unjustly targeted by the Office for the Protection of the Constitution.
On Tuesday, the judges in Karlsruhe upheld a constitutional complaint against the particularly far-reaching Bavarian law for the protection of the constitution.
According to Interior Minister Joachim Herrmann (CSU), the requirements of the more than 150-page fundamental judgment mean that the other states and the federal government must also revise their laws.
The Bavarian law must be amended by the end of July 2023 at the latest.
Among other things, the regulations on spying and wiretapping of apartments, on online searches and cell phone location, on the use of so-called informants and on longer observations are affected.
They violate fundamental rights such as telecommunications secrecy or the protection of informational self-determination.
Until the reform, the instruments may only be used to a limited extent.
The First Senate directly declared the authority to request information about data from data retention to be void.
“Substantial fundamental rights barriers”
Court President Stephan Harbarth said at the verdict that the Basic Law leaves the legislature "substantial scope to take into account the security policy challenges in the area of constitutional protection".
"At the same time, the constitution sets substantial fundamental rights barriers."
A central point of the decision is that the requirements for the protection of the constitution are in part different from those for the police, which are themselves authorized to intervene.
To put it simply: the Office for the Protection of the Constitution is allowed to do more with surveillance.
The stricter rules apply when it comes to passing on the data obtained to other authorities.
In detail this means:
Secret Surveillance:
As a rule, a “sufficient need for information specific to the protection of the constitution” is sufficient as a prerequisite here.
Unlike the police, there does not have to be a danger.
The only exception: if measures "can lead to the most extensive recording of personality".
Special requirements also apply if bystanders are involved in the surveillance.
The basic rule is: the more deeply a measure interferes with fundamental rights, the more urgent the “need for observation” must be.
In certain cases, an independent body will have to check the measure in advance.
sharing insights
Disclosure to other authorities is only permitted if it serves to “protect a particularly important legal interest”.
The requirements differ depending on which body receives the data.
For example, a law enforcement agency may only receive information from the Office for the Protection of the Constitution when it comes to particularly serious crimes.
The Bavarian law was fundamentally revised in 2016 at the request of the CSU - among other things to improve cooperation between intelligence services and the police.
At the time, Minister Herrmann justified the reform with the growing threat from Islamist terrorism and right-wing extremists.
Immediately after the announcement, Herrmann announced that he would implement the judgment as quickly as possible.
"The federal and state governments will probably have to change their laws," he said in Karlsruhe.
"As far as I know, there is not a single law that corresponds to all of the requirements that have been formulated today."
Bavaria's head of state chancellery, Florian Herrmann (CSU), said in Munich that no powers had been banned.
Rather, the legislature must now regulate the requirements more specifically.
Nationwide Impact
The Society for Freedom Rights (GFF), which coordinated the constitutional complaint, also expects nationwide effects.
"This judgment radiates throughout the republic," said one of her attorneys, Bijan Moini.
GFF spokeswoman Maria Scharlau said in Karlsruhe: "Even offices for the protection of the constitution, which are supposed to protect the constitution, must adhere to the principles of the constitution itself.
Sounds obvious, but first had to be achieved.”
Federal Minister of Justice Marco Buschmann (FDP) explained: "The decision gives us a clear tailwind for the program of our coalition agreement to strengthen civil rights." It was agreed to raise the threshold for the use of surveillance software.
The GFF had won three members of the Association of People Persecuted by the Nazi Regime - Association of Anti-Fascists (VVN-BdA) as plaintiffs, which was mentioned in the Bavarian intelligence report as a "left-wing extremist-influenced organization".
In the recently presented report for 2021, it no longer appears for the first time.
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In 2017, the Greens in the state parliament also filed a lawsuit against the controversial changes in the law with the Bavarian Constitutional Court.
No decision has been made on this so far - but the outcome should now be preordained.
dpa
