Judgment of the Federal Constitutional Court
Damper from Karlsruhe: Bavarian law for the protection of the constitution is illegal in parts
The Federal Constitutional Court in Karlsruhe
© Udo Herrmann/ / Picture Alliance
Undercover investigators, spying on apartments, online searches – since 2016, Bavaria’s Office for the Protection of the Constitution has had very far-reaching powers. Too far-reaching, says the Federal Constitutional Court in Karlsruhe. The verdict is problematic for the security authorities.
The far-reaching powers of the Bavarian Office for the Protection of the Constitution sometimes violate fundamental rights. The Federal Constitutional Court in Karlsruhe objected to a whole series of provisions in the Free State’s Constitutional Protection Act, which had been fundamentally revised in 2016 at the request of the CSU. Among other things, the regulations on spying on and wiretapping of apartments, on online searches and on cell phone location are affected. They may remain in force in a limited form until the end of July 2023 at the latest. (Az. 1 BvR 1619/17)
The Basic Law leaves the legislature “substantial scope to take account of security policy challenges, including in the area of constitutional protection,” said Court President Stephan Harbarth when the verdict was announced. “At the same time, the constitution sets substantial fundamental rights barriers.”
The procedure was initiated by the Society for Freedom Rights (GFF) – to prevent Bavaria’s example from catching on nationwide. The lawsuit was directed, among other things, against the regulations on the use of undercover investigators and so-called informants, on longer observations and on the transmission of data to other authorities. Here, too, there were objections in the more than 150-page judgment of the constitutional judges.
How big does a threat have to be?
Judge Gabriele Britz, who was responsible for the proceedings as rapporteur in the First Senate, said at the hearing in mid-December that intelligence powers had never been attacked on such a broad scale. In each case, the issue was not whether the instrument could be used at all, but rather the question of the conditions under which this use is justified. How big does a threat have to be? Does a judge have to give his approval? Does it need independent control?
The GFF had hoped for a fundamental judgment that goes well beyond Bavaria. According to their assessment, the requirements for the use of undercover investigators or so-called informants and for longer observations in other state laws and in the federal government are comparably low. The regulations for data transmission are similarly broad in many countries as in Bavaria.
Only those whose own rights are affected “themselves, presently and directly” can lodge a constitutional complaint. The GFF had therefore won over three members of the association of those persecuted by the Nazi regime – Bund der Antifascisten (VVN-BdA) – which was mentioned in the Bavarian intelligence report as a “left-wing extremist-influenced organization” as plaintiffs.
Bavaria’s Interior Minister Joachim Herrmann (CSU) said in the state parliament in 2016 that the protection of the constitution “must be made fit for future challenges”: “In view of stormy times, characterized by the threat of terrorism and increasing right-wing extremism, the protection of the constitution should be further strengthened and not dismantled.”
In 2017, the Greens in the state parliament also filed a lawsuit against the controversial changes in the law with the Bavarian Constitutional Court. The procedure is still pending.