Federal Constitutional Court
Powers of the Bavarian Office for the Protection of the Constitution objected
The Bavarian coat of arms hangs in front of the building of the Bavarian State Office for the Protection of the Constitution in Munich. Photo: Peter Kneffel/dpa
© dpa-infocom GmbH
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.
The far-reaching powers of the Bavarian Office for the Protection of the Constitution sometimes violate fundamental rights.
On Tuesday, 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.
The Basic Law leaves the legislature “substantial scope to take into account the security policy challenges in the area of constitutional protection,” said Court President Stephan Harbarth at the verdict. “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.
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?
SPD and FDP for rapid reform in Bavaria
After the judgment of the Federal Constitutional Court, the SPD and FDP called for rapid legal reform. “The Bavarian Constitutional Protection Act encroaches disproportionately deeply on the privacy of the citizens of the Free State. The state government must now present a constitutional law in a timely manner and thus bring freedom and security into balance, »said FDP parliamentary group leader Martin Hagen on Tuesday in Munich. The judges’ decision is an important signal for fundamental rights – and a lesson for the CSU.
SPD faction and state leader Florian von Brunn also called for quick consequences: “Plain text from Karlsruhe: The Bavarian #constitutional protection law violates the constitution that it is supposed to protect. The CSU is responsible for excessive & unconstitutional surveillance. That’s why she got a hearty smack. The law must be reformed quickly!” he wrote on the short message service Twitter.
After the decision of the Federal Constitutional Court, Federal Minister of Justice Marco Buschmann urged a speedy restriction of the powers of the federal security authorities. “The decision gives us a significant tailwind for the program of our coalition agreement to strengthen civil rights,” said the FDP politician on Tuesday.
Plaintiffs had hoped for a landmark ruling
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.
A constitutional complaint can only be lodged by those whose rights are affected “themselves, presently and directly”. The GFF had therefore won three members of the association of those persecuted by the Nazi regime – Bund der Antifascisten (VVN-BdA) – as plaintiffs, which was mentioned in the Bavarian intelligence report as a “left-wing extremist-influenced organization”.
Bavaria’s Interior Minister Joachim Herrmann (CSU) said in the state parliament in 2016 that the protection of the constitution had to 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.