BVerfG, 1 BvR 966/09 & BVerfG, W. 1 BvR 1140/09, 2016
- 2016
- 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 an effective remedy Right to respect for private and family lifeFacts
The constitutional complaints are directed, first, against the granting of various investigative powers. The challenged powers include the authorisation to question persons, as well as the use of special means of data collection outside of private homes including, in particular, the covert monitoring and recording of non-public speech, image recording, the application of tracking devices, and the use of police informants and undercover investigators. The constitutional complaints also challenge the power to carry out visual and acoustic surveillance of private homes to conduct electronic profile searching, to access information technology systems, to monitor on-going telecommunications as well as to collect telecommunications traffic data. Second, the constitutional complaints are directed at provisions on the use of data. This affects, firstly, the provision on the use of data collected by the Federal Criminal Police Office itself. The power to transfer this data to other domestic public authorities is also challenged. Finally, the permission of transfer of data to authorities in third countries, is also challenged.
Legal grounds
Article 2 sec. 1 in conjunction with Article 1 sec. 1, Article 3 sec. 1, Article 5 sec. 1 sentence 2, Article 10, Article 12, Article 13, in part also in conjunction with Article 1 sec. 1, Article 19 sec. 4 and Article 20 sec. 3 of the GG.
Findings
The Court decided that the authorisation of the Federal Criminal Police Office (Bundeskriminalamt – BKA) to carry out covert surveillance measures in order to protect against threats from international terrorism is, in principle, compatible with fundamental rights under the German Basic Law. In some respects, however, the current design of the investigative powers does not satisfy the principle of proportionality. Consequently, the Federal Constitutional Court ruled various provisions within the overall legal structure unconstitutional. Consolidating long-established case-law, the decision addresses the legal requirements for carrying out covert surveillance measures, as well as the issue of the transfer of data for other purposes to third-party authorities, and finally, for the first time, the requirements for the transfer of data to authorities in third countries. With regard to the legal requirements for carrying out covert surveillance measures, the provisions introduced in 2009 are in part too unspecific and too broad. Some also lack supplementary rule-of-law safeguards, particularly safeguards protecting the core area of private life or guaranteeing transparency, individual legal protection and judicial review. Numerous parts of the provisions concerning the transfer of data lack – both with respect to authorities in Germany as well as in third countries – sufficient legal restrictions.