In a new judgment, the Federal Constitutional Court limits the powers of intervention, declares the law partially unconstitutional – and also criticizes its incomprehensibility.
The latest judgment from Karlsruhe restricts the state’s monitoring options.
The Bavarian state government probably got there a little vigorously when it granted the Office for the Protection of the Constitution extensive powers in 2016, thanks to which one could, among other things, bug living rooms and locate cell phones, search computers and access stored data. That went too far, the Federal Constitutional Court has now ruled on a constitutional complaint – and declared the Bavarian Constitutional Protection Act to be partially unconstitutional.
The judges have two points in particular to complain about: The exchange of collected data is insufficiently regulated and far too extensive, and because of its many cross-references, the law is also incomprehensible.
The court recalled a principle that is often forgotten by the German legislature: the requirement for legal clarity. “Confusing cascades of referrals are not compatible with the fundamental rights requirements,” said Court President Stephan Harbarth on Tuesday when the verdict was pronounced. So to speak: the topic is the secret service. In a democracy, however, the content of the legal basis must not remain secret and must not actually exclude the citizen through cumbersomeness.
Unclear division of tasks
In essence, it is about the following: There is a division of tasks between the police and the Office for the Protection of the Constitution. The Office for the Protection of the Constitution observes, collects information and spies out anti-constitutional activities. In doing so, he provides politicians with information on which to base their actions. When things get concrete and serious, it’s the police’s turn.
Their job is to prevent and prosecute criminal offenses and to ward off threats to public safety and order. To do this, it can take a number of measures – including against individuals and compulsorily. The better data she has at her disposal, the easier it is for her. You will also receive corresponding information from the Office for the Protection of the Constitution.
But it is precisely here that the Basic Law has put in place barriers. In order to protect citizens from abuse of power by the state, their data cannot simply be exchanged between the authorities. Otherwise, the police could obtain information that they are not allowed to collect themselves. The Office for the Protection of the Constitution knows more than it can tell the police.
In the language of the Karlsruhe court: “The transmission of personal data and information by a constitutional protection authority to other bodies – at least if the data was collected by means of intelligence services – requires without exception that the transmission serves to protect a particularly important legal interest and that the transmission threshold satisfies the criterion of hypothetical reassessment.”
Freedom or security, the old tension
That may be good for the protection of fundamental rights, but it is bad for the fight against terrorism. The Office for the Protection of the Constitution is not even allowed to “track the movements of the cell phone device of an observed person over a longer period of time”, as stated in the third guiding principle of the 153-page judgment. “The question moves in the field of tension between two heart concerns of our constitution, the defensive democracy on the one hand and the protection of personal freedom on the other hand, and is at the same time embedded in a spectrum of new information technology possibilities,” explained Harbarth.
The defeat in Karlsruhe is a defeat for the Christian Socialists in Bavaria, who single-handedly pushed through the law in 2016. At the hearing in December, Interior Minister Joachim Herrmann presented the extended powers of the Bavarian Office for the Protection of the Constitution as a necessary conclusion to be drawn from the NSU complex. The NSU was a neo-Nazi terrorist organization that committed ten murders, 43 attempted murders and other criminal offenses in Germany between 2000 and 2007. Several state offices for the protection of the constitution and the federal office had made this possible through inaction. However, Herrmann did not get through with his argument.
The Society for Freedom Rights (GfF) can look back on the procedure it has coordinated as a success. The GfF is a non-profit association that tries to achieve the widest possible protection of fundamental rights and freedoms through strategic lawsuits. Its chairman Ulf Buermeyer was, among other things, a research associate at the Federal Constitutional Court under Harbarth’s predecessor, Andreas Vosskuhle.