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Germany: Federal Constitutional Court Declares Terrorism Legislation Partially Unconstitutional

(May 3, 2016) On April 20, 2016, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) ruled that the Act on the Federal Criminal Police Office was partially unconstitutional, because various provisions that deal with the investigative powers of the Federal Criminal Police Office for fighting international terrorism were not proportional. The Court criticized the legal requirements for carrying out covert surveillance measures as too broad and unspecific and held that the norms allowing the transfer of data to third-party authorities and to authorities in third countries lacked sufficient legal restrictions.  Two of the eight Justices filed dissenting opinions.  (BVerfG, 1 BvR 966/09, Apr. 20, 2015, BVerfG website (in German); Press Release, No. 19/2016, BVerfG, Constitutional Complaints Against the Investigative Powers of the Federal Criminal Police Office for Fighting International Terrorism Partially Successful (Apr. 20, 2016).)

Background

The constitutional complaint challenged provisions of the Federal Criminal Police Office Act that were inserted into the law in 2009. (Gesetz über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen Angelegenheiten (Artikel 1 des Gesetzes über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen Angelegenheiten (Bundeskriminalamtgesetz – BKAG), July 7, 1997, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1650, as amended, GERMAN LAWS ONLINE; 1 BvR 966/09, at 1.) The amendments transferred the competency to fight international terrorism from the individual law enforcement authorities of the German states to the Federal Criminal Police, in order to minimize risks that result from the fragmentation of competencies in cases that require immediate action; they also expanded certain police powers.  (Entwurf eines Gesetzes zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt [Draft Act to Address Threats Resulting from International Terrorism for the Federal Criminal Police Office], Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 16/9588 at 14.)

Decision

The Court held that, in general, delegating powers to the Federal Criminal Police Office in order to protect the nation and its population against threats stemming from international terrorism is not objectionable. However, the powers have to be balanced against the fundamental right of the individual to privacy.  (1 BvR 966/09, at 99 & 100.) Rights threatened by the expanded investigative powers of the Federal Criminal Police Office were the basic right to informational self-determination (the right of the individual to determine the disclosure and use of his/her personal data), the confidentiality and integrity of information technology systems, and the guarantees contained in article 13 (inviolability of the home) and article 10 (secrecy of telecommunications) of the German Basic Law, the country’s Constitution.  (Basic Law for the Federal Republic of Germany (Basic Law) (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).)

Investigative Powers of the Federal Criminal Police Office

With regard to the individual provisions of the Federal Criminal Police Office Act, the Court ruled that the provisions that allow the Federal Criminal Police Office to employ special means of surveillance outside of homes, such as observation, audio and visual recording, tracking devices, or the use of police informants, were not sufficiently limited. (BKAG, § 20g, ¶¶ 1-3; 1 BvR 966/09, at 177.) According to the Court, even though it is generally permissible to allow surveillance for the purpose of prevention of crimes, section 20g of the BKAG does not require that the commission of the crime be foreseeable and specific or that there be a reasonable probability that the person under surveillance will commit terrorist offenses in the near future.  The Court criticized the section of the law as disproportionately broad, permitting the monitoring of confidential situations and not requiring a judicial decision at all or only after one month.  (1 BvR 966/09, at 164 – 177.)

The Court further held that section 20h of the Federal Criminal Police Office Act, which deals with video and acoustic surveillance of private homes, was partially unconstitutional. The Court stated that the surveillance was only appropriate if it focused exclusively on the target person and not, at least not directly, on third parties.  Moreover, the Court held, any collected data must first be examined by an independent body before it can be used by the Federal Criminal Police Office in order to ensure that it does not contain highly sensitive private data.  (Id. at 200.)

In addition, the Court declared that the provisions that allow access to computers, mobile phones, and other information technology systems (BKAG, § 20k) did not provide sufficient protection for the “core area” (i.e., most inviolable, innermost sphere) of private life. As with the provision allowing the surveillance of private homes, an independent body is needed to evaluate the compiled data.  (BVerfG, at 223-225.)

The Court further held that the norms providing for surveillance of ongoing telecommunications (BKAG, § 20l) and the collection of telecommunications traffic data (BKAG, § 20m) were too broad and lacked specificity (1 BvR 966/09, at 228, 232, & 247); that there was no adequate protection for persons subject to professional confidentiality; and that there were no specifications for regular mandatory reviews, comprehensive documentation requirements, or reporting duties vis-à-vis the Parliament and the public.  (1 BvR 966/09, at 131-144.)

Lastly, the Court criticized the norm that allowed an exception from the obligation to delete collected data if the data is needed for law enforcement, for the prevention of crimes, or as a precaution for the future prosecution of a criminal offense of considerable significance. (BKAG, § 20v; 1 BvR 966/09, at 274.)

Transfer of Data to Third-Party Authorities and to Authorities in Third Countries

The Court further developed its jurisprudence with regard to the use of data beyond the original investigative purpose, a use it declared to be generally permissible. However, it stated that an exception must be made for the use of data emanating from the surveillance of private homes or from information technology systems, because this data could concern the core area of private life.  Such data may only be used, the Court ruled, if the new purpose also fulfills the strict requirements for a hypothetical original data collection. (1 BvR 966/09, at 276-292.)

The Court held that the provisions permitting the use and transfer of data to other domestic authorities only partially satisfy these requirements, because they allow a transfer for the general prevention of terrorist offenses and are not limited to serious criminal offenses. The provisions do not make exceptions for data stemming from the surveillance of private homes or from information technology systems.  (Id. at 294.)  The same requirements must be observed when data is transferred to authorities in third countries.  Furthermore, the Court stated, the transferring German authority is required to ascertain if the receiving third country offers an appropriate substantive level of data protection; data must not be transferred if there is a possibility that fundamental principles of the rule of law will be violated.  (Id. at 325-329.)

Dissenting Opinions

The two dissenting judges mainly criticized the majority opinion for setting up overly detailed requirements and thereby taking on the role of the legislature. (Id. dissenting opinion Eichberger, at 5; dissenting opinion Schluckebier, at 2.) They stated that the provisions that were found unconstitutional could instead have been interpreted as being in conformity with the German Basic Law.  Furthermore, Justice Schluckebier pointed out in his dissenting opinion that the establishment of an independent body to review collected data before transferring it to the Federal Criminal Police Office affects the effectiveness of the surveillance, because the protection against terrorist threats often requires immediate action.  (Id. dissenting opinion Schluckebier, at 14-16.)