Federal Constitutional Court: Bavaria’s protection of the constitution is allowed too much

In the view of the Federal Constitutional Court, the far-reaching powers of the Bavarian Office for the Protection of the Constitution partially violate basic rights. The regulations were expanded in 2016 at the request of the CSU.

The Bavarian Constitutional Protection Act is partially illegal. This has been decided by the Federal Constitutional Court. The judges believe that some of the regulations revised by the CSU in 2016 violate fundamental rights.

With the amended law, the secret service in Bavaria received significantly expanded powers. For example, he was allowed to call up stored data, locate mobile phones and observe people over the long term.

The procedure was initiated by the “Society for Freedom Rights”. However, since only people who could be affected “themselves, currently and directly” by the regulations in their own rights can file a constitutional complaint, the organization gained three members of the “Association of People Persecuted by the Nazi Regime – Association of Anti-Fascists” (VVN-BdA) as plaintiff. The VVN-BdA is classified in the Bavarian Office for the Protection of the Constitution as a “left-wing extremist-influenced organization”. The plaintiffs therefore expressed concern that they themselves would be monitored.

Guidelines for regulations too vague

In its 150-page judgment, the constitutional court criticizes essential passages of the Bavarian law. The primary question here was not whether a means may be used, but under what conditions: how great a threat does it have to be in order to justify the powers? And does an independent judge have to approve the actions of the secret service?

Many of the measures taken by the secret service agents are described too vaguely, for example in the case of home surveillance. The private sphere is not adequately protected there. Movement profiles when locating cell phones also represent a serious encroachment on fundamental rights.

The Basic Law leaves the legislature “substantial scope to take account of the security policy challenges in the area of ​​protection of the constitution,” said the President of the Federal Constitutional Court, Stephan Harbarth, when the verdict was announced. “At the same time, the constitution sets substantial fundamental rights barriers,” he emphasized.

Herrmann cites the threat of terrorism

The law was already controversial when it was introduced and was passed in the Munich state parliament with only the votes of the CSU. As early as 2017, the parliamentary group of the Greens filed a complaint with the Bavarian Constitutional Court. The procedure is still pending.

Bavaria’s Interior Minister Joachim Herrmann defended it at the negotiations in Karlsruhe in December, citing, among other things, the need for better data exchange between the security authorities, which should prevent attacks like the one at the Christmas market on Berlin’s Breitscheidplatz in 2016. The task of the Office for the Protection of the Constitution is to monitor extremists and spies in Germany.

The CSU politician had already cited the fight against terrorism as an argument in 2016. The protection of the constitution must be made fit for future challenges, Hermann emphasized at the time: “In view of turbulent times marked by the threat of terrorism and increasing right-wing extremism, the protection of the constitution should be further strengthened and not dismantled.”

Bavaria must revise the law by the end of July 2023

As a result of the verdict, the Bavarian Office for the Protection of the Constitution will have to explain in more detail why and how they do something. In addition, their actions are checked by an independent body.

The regulations for the protection of the constitution criticized by Karlsruhe may now remain in force in a limited form until the end of July 2023 at the latest. The “Society for Freedom Rights” had hoped for a fundamental judgment that goes well beyond Bavaria. Because from their point of view, the legal requirements for the use of undercover investigators or so-called informants and for longer observations are comparably low in other federal states and at the federal level.

Az. 1 BvR 1619/17