In April, the Federal Constitutional Court upheld a constitutional complaint against the particularly far-reaching Bavarian law for the protection of the constitution. A new report by the scientific services of the Bundestag confirms that the recommendations – such as an end to online searches – should be transferred to the federal government.
On April 26, the Federal Constitutional Court in Karlsruhe put a first legal stop to the applicable Bavarian constitutional protection regulations with a groundbreaking judgment. Among other things, the requirements for spying on and tapping apartments, online searches and cell phone location, the use of so-called informants and longer observations were affected. The judgment from Karlsruhe has far-reaching consequences: In a report by the scientific services of the Bundestag, it is stated that this can also be applied to the federal government, i.e. other constitutional offices. The report is titled:
“Effects of the judgment of the Federal Constitutional Court of April 26, 2022 on the Bavarian Constitutional Protection Act.”
Regarding the verdict of April 26, it says:
“In this respect, the Federal Constitutional Court considered the encroachment requirements that the law provides for the measures to be insufficient with regard to the legal interest to be protected, the encroachment threshold and the purpose of the encroachment and specified the corresponding constitutional requirements.”
The elaboration of the scientific services therefore summarizes “the argumentation of the Federal Constitutional Court” that the federal secret services belong more in the focus of the control that “individual provisions in other laws, namely the Federal Constitutional Protection Act (BVerfSchG)4, the Federal Intelligence Service Act (BNDG)5 and the Military Shielding Service Act (MADG)6”, “could very well be transferrable”. In summary, the same clearly defined constitutional standards should apply to the Federal Office for the Protection of the Constitution (BfV) in the future as to the police, and the authorities mentioned should be monitored more closely overall.
The FDP faction deputy Stephan Thomae, who commissioned the report, commented on the current status quo Süddeutsche Zeitung (SZ) with the words:
“As a result, even harmless citizens can easily get caught in the crosshairs of the covert and secret intelligence services.”
The scientific services name the necessity of future “prior checks” formulated in the Karlsruhe judgment:
“Because of the intensity that the measures may encroach on fundamental rights, it often calls for an independent prior check.”
the Southgerman newspaper summarizes the emerging corrections with the statement: “More independent controls, no online searches: The German domestic secret service is facing the biggest changes in its history.” Since January 1st, a superior “Independent Control Council”, UKR for short, has been responsible for the BND foreign secret service as well as for the BfV as the upstream authority. This consists “of six very highly qualified, independent lawyers. Most of them were previously at the Federal Court of Justice,” says the SZ. According to information from the daily News to be presented “soon”.
According to the SZ the government is even considering whether the UKR should approve the “approval of telecommunications surveillance measures by the Office for the Protection of the Constitution” in advance. Furthermore, the “hardly controlled recruitment” of people “from an extremist scene” should be able to be better assessed. According to the opinion of the scientific services of the Bundestag, the previous regulation is not sufficient. This is what the assessment says:
“(…) do not provide for an increased intervention threshold for particularly intensive interventions, nor for an independent prior check. According to Section 9 (3) No. 2 BVerfSchG, the parliamentary control committee is informed in certain cases. However, this information does not have to be expressly given in advance of a Measures are taken and no control powers are provided for by the Parliamentary Control Committee.”
The interior ministries of the federal and state governments show themselves to the SZ said not very enthusiastic about the upcoming restructuring plans. This is what the article says:
“If the names of the informants were reported to the lawyers at the Independent Control Council in advance, this information could possibly leak out. Then nobody would want to become an informant anymore. ‘The instrument must remain effective,’ says ein Senior officials.”
According to the assessment of SZ the implementation of the recommendations of the report by the scientific services would also mean that a long-awaited power of the BfV to carry out clandestine online searches would finally be put a stop to. As early as 2016, the Federal Constitutional Court made it clear in a judgment on the BKA law: “The state may only investigate hard drives in the event of ‘urgent danger'”, whereby the area of responsibility applies purely to the police, not to the BfV. This was reaffirmed by the Karlsruhe court on April 26 on behalf of the Bavarian regulation. The Office for the Protection of the Constitution should therefore “concentrate on its own tasks” in the future.
According to the judgement, the Bavarian law must be amended by the end of July 2023 at the latest. It is not yet known how the recommended regulations will affect other federal states.
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