Matthias Monroy

The Federal Constitutional Court has ruled that the domestic secret service violates the principle of separation. The legislature should therefore amend the law

The German Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) is no longer allowed to pass on secretly collected data on individuals to police authorities as it pleases. This is stated in the written version of the judgement of 28 September, which was published today on the website of the Federal Constitutional Court (Ref. 1 BvR 2354/13).

According to the ruling, the practice violates the principle of separation between the secret services and the police, which is considered a German legal principle after the experiences with the Gestapo under National Socialism.

Specifically, the ruling concerns section 20 of the Federal Constitution Protection Act, which determines the transmission of information by the Federal Office to law enforcement and security authorities. The beneficiaries of this are, for example, public prosecutors’ offices, police forces or the Federal Foreign Secret Service. In this way, the domestic secret service can initiate or control investigations and prosecutions, although it is not authorised to do so because of the separation requirement. Therefore, according to the ruling, the constitutional protection authorities should “carefully sift through the information obtained before it is passed on” and “limit its disclosure to what is necessary”.

With his constitutional complaint, the plaintiff had alleged a violation of the fundamental right to informational self-determination. Although it is not explicitly stated in the Basic Law, it was recognised as a general right of personality by the Federal Constitutional Court in 1983 in the so-called census judgement. In the complaint, however, the “transmission facts” objected to only referred to data collected “secretly by intelligence service means”. This could be, for example, wiretapping or “grand eavesdropping” with bugs or cameras in a person’s own home or the motor vehicles used.

According to the reasons for the judgement, the complainant was a man who was sentenced to a youth sentence of three years for aiding and abetting nine counts of murder in the Munich trial of the so-called “National Socialist Underground” (NSU) in 2018. As he has allegedly credibly distanced himself from the right-wing extremist scene, he is currently in the witness protection programme of the Federal Criminal Police Office. The name of the plaintiff is not mentioned in the judgement, but the information fits the convicted Carsten S.

In its judgement, the Federal Constitutional Court did not declare the criticised § 20 of the Constitutional Protection Act to be fundamentally void. Otherwise, the secret service would have had to immediately stop any transfer of data to other security and law enforcement agencies. On the contrary, the judges even emphasised that an effective exchange of information is “of great importance” for the prevention and prosecution of state security offences. However, the paragraph was “not sufficiently clear”.

“The judgement is a win for all people who fall into the focus of the secret services,” comments lawyer Bijan Moni of the Society for Civil Liberties. “And it demonstrates once again that the federal and state legislators unfortunately do not take it too closely with fundamental rights in the secret service area.”

The Federal Protection of the Constitution Act will continue to apply temporarily, thus, but must be amended accordingly by the end of 31 December 2023. The court has provided the legislature with a number of key points. For example, the transmission of personal data by the secret service is to be limited to the protection of particularly important legal interests or the prosecution of particularly serious crimes. In addition, every transfer of data is to be documented so that it can be reviewed by supervisory bodies.

Image: Facility of the domestic secret service in Berlin, shared with the Federal Criminal Police (BfV).