Law enforcement with Corona data
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Brandenburg violates the Infection Protection Act
Corona data has been used in the prosecution of “serious crimes” in Brandenburg since 2020. It is not entirely clear what falls under this. And it’s against federal law. By Gabi Probst
At the meeting of the Brandenburg state parliament’s legal committee, Justice Minister Susanne Hoffmann (CDU) announced that she wanted to use the data from the Luca and Corona apps as well as the guest lists from restaurants to prosecute “serious crimes”. But according to information from rbb24 research, this is not a plan for the future, but has been a reality since 2020.
According to information from the Potsdam Police Headquarters, the regulation on the use of contact details, i.e. the guest lists, has been in place since September 1, 2020. This has been agreed with the Attorney General’s Office. Literally it says in the answer to the rbb: “The previous one with the GStA [Generalstaatsanwaltschaft, Anm.d.R.] The coordinated regulation of the police headquarters means that in such a case the prosecutor responsible for the specific criminal proceedings has the right to make a decision.” In concrete terms, this means that the police may collect the data, but requires the consent of the responsible public prosecutor.
It is unclear which “serious crimes” are meant
Péter Vida, chairman of the BVB/free voters parliamentary group in the state parliament, is outraged. Neither the legal nor the interior committee were informed. “In a situation in which we demanded a lot from the citizens, including a lot of restrictions on fundamental rights, and have repeatedly emphasized in all political discussions that this data is only collected for the purpose of tracking the chain of infection, we are now being told that we in Brandenburg believe that different.” Vida also wonders what the minister understands by “serious crimes”. Hoffmann himself cited a “rape in a restaurant” as an example. But the Penal Code does not use the term “serious crime”.
Hoffmann, on the other hand, spoke of an “uncertain legal situation” in the legal committee. The federal law only speaks of the “exclusion of further use by those responsible and competent authorities”. But “it does not address the issue of law enforcement access.” It is not yet known whether the law enforcement authorities have requested corona data since 2020. The spokesman for the Potsdam Police Headquarters merely stated that he was not “personally” aware of any case. The Minister of the Interior also explained this to the state parliament.
Federal Ministry disagrees
At the request of rbb, the Federal Ministry of Justice briefly and succinctly explained the Brandenburg regulation: “Access to data from the Luca app for the purposes of criminal prosecution violates express provisions of federal law (here: Section 28a paragraph 4 sentence 3, 6 of the Infection Protection Act) and possibly of state law.”
The head of the law faculty at Humboldt University Berlin, Professor Martin Heger, adds that the law could of course have named every authority that was not allowed to use the data from the Luca or Corona app. In this case, however, the legislature expressly stipulated “who may use the data for which purposes. And there are neither the police and the public prosecutor’s office as authorities nor the purpose of criminal prosecution. That’s why I see it as a clear misuse of data.”
Data protection officer considers the legal situation to be clear
The state data protection officer, Dagmar Hartge, also refers to the legal text. Paragraph 28 paragraph 4 of the Infection Protection Act is clear. The contact data should only be collected and processed “to the extent that this is absolutely necessary to trace contact persons. Those responsible must ensure that unauthorized persons cannot gain knowledge of the data collected.”
She can understand the interest of the law enforcement authorities, especially when it comes to solving serious crimes. But: “If the rule of law in certain areas clearly says that we don’t want data to be used for other purposes, then it has to be like that. That may not be easy to bear in individual cases, but we have to endure it in the rule of law.”
Poll: Majority of countries against
A survey by rbb24-Research of the judicial authorities in all federal states showed that only Bremen and Rhineland-Palatinate share Brandenburg’s legal opinion. However, Rhineland-Palatinate insists on a judicial decision before the data can be used after a case became known in January that caused a nationwide sensation. In order to clarify a physical injury in a restaurant, the public prosecutor’s office in Mainz asked the responsible health authority for corona data. A lawyer complained. The prosecutor had to apologize.
The Berlin Senate Department for Justice informed the rbb that such cases had not previously occurred and therefore the topic was not relevant. In Mecklenburg-Western Pomerania, the public prosecutor’s office made it clear as early as autumn 2020 that “recourse to this data in the context of the investigation and criminal proceedings” was “inadmissible”.
In the Union-led ministries of justice in Saxony-Anhalt, Schleswig-Holstein, Lower Saxony, Baden-Württemberg, Hesse and Bavaria, the assessment is identical: no corona data use for criminal prosecution. The North Rhine-Westphalian Minister of Justice, Peter Briesebach, added that a different interpretation of the Infection Act, even in the case of “serious crimes”, was “personally out of the question” for him. “Only if this trust rests on a secure basis and is not shaken will the population continue to be willing to make their digital contribution to combating the pandemic.” The law also leaves no room for interpretation for the Thuringian Minister of Justice, Dirk Adams (Greens): “The Infection Protection Act specifies very clearly how personal data collected in the context of contact tracing may be used.” Hamburg and Saxony, where the justice departments are also green, share this view.
A question of the credibility of the state
Péter Vida now wants legal certainty in Brandenburg. That is why he has requested that the state parliament should adopt a Federal Council initiative on Thursday. An amended federal law aims to include verbatim what law enforcement agencies are not allowed to do. And even if all contact details from the health authorities and restaurants should actually be deleted in two weeks, they would continue to be collected in hospitals and care facilities. And finally, a new corona wave in autumn cannot be ruled out.
There is also a need for action for criminal lawyer Professor Martin Heger – especially in Brandenburg: “For the state, this is a question of its credibility.”
The Minister of Justice declared on Wednesday afternoon in the state parliament that she would like to let the courts decide. She also emphasized that there had not been any cases before the prosecutor’s office.
Broadcast: Brandenburg Aktuell, February 23, 2022, 7:30 p.m