BVerfG, 1 BvR 1215/07, 2013
- 2013
- Germany
Topics
Public securityLegal bases
Germany: Constitution of 1949, Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland (GG))Courts
Federal Constitutional Court, GermanyLaws
Proportionality Right to respect for private and family lifeFacts
The complainant challenges the Act on Setting up a Standardised Central Counter-Terrorism Database of Police Authorities and Intelligence Services of the Federal Government and the Länder (Counter-Terrorism Database Act – ATDG). This legal act stipulates the creation of a common database for police and intelligence services and allows vast competences for the respective agencies in adding personal data and the processing of such data. The complainant challenges the legal act upon a violation of the right to freely develop one’s personality, the right to privacy of correspondence, posts and telecommunications, the inviolability of the home and the legality of restriction of basic rights.
Legal grounds
Article 2.1 in conjunction with Article 1.1, Article 10, Article 13 and Article 19.4 of the GG.
Findings
The Court ruled several provisions of the Act unconstitutional and obliged the lawmaker to remedy the shortcomings. The Court considered the infringement of the principle of separation of information between law enforcement and intelligence services as generally justified, as the Act only legitimizes an exchange of data for the fulfilment of operational duties only in urgent and exceptional cases. However, it held several provisions as either incompatible with the constitution or disproportionate. First, § 2 sentence 1 no. 1 ATDG covers members, supporters, and support groups of terrorist organisations. However, the provision enlarges this circle to persons who merely support a support group, without clarifying that a conscious support of activities which support terrorism is required. This violates the principle of the clarity of legal provisions and is incompatible with the prohibition of disproportionate measures. § 2 sentence 1 no. 2 ATDG is also not fully compatible with the Constitution. The provision, which is meant to cover individuals who might have an affinity to terrorism, combines a number of ambiguous and potentially broad legal terms. § 2 sentence 1 no. 3 ATDG is unconstitutional. According to this provision, the basic data must be stored in the database if contact persons do not know about the protagonist's connection to terrorism. The provision is neither compatible with the principle of clarity of legal provisions nor with the prohibition of disproportionate measures. The provision on what is known as reverse search is not compatible with the prohibition of disproportionate measures (§ 5 sec. 1 sentence 2 no. 1a ATDG). The additional complete and unrestricted incorporation, which is provided by the law, of all data collected through infringements of Art. 10 sec. 1 (secrecy of telecommunications) and of Art. 13 sec. 1 GG (inviolability of the home) into the counter-terrorism database is incompatible with the Constitution.