Mecklenburg-Western Pomerania: What is unconstitutional about the police law

According to the Federal Constitutional Court, the police law in Mecklenburg-Western Pomerania is partly unconstitutional. The judges found that a number of measures were inadmissible. The decision has nationwide significance.

In 2020, the police in Mecklenburg-Western Pomerania received numerous new powers to prevent criminal offenses in advance. For example, the use of undercover investigators and informants, who are used to siphon off information from suspicious persons, has been made easier. Investigators should also be able to secretly enter suspects’ homes in order to be able to install spyware on computers or smartphones. In addition, it has made it easier to secretly tap into cell phone calls or siphon off text messages.

Several constitutional complaints were lodged in Karlsruhe against these regulations, including by a lawyer and a journalist. They were supported by the Society for Freedom Rights eV (GFF). Her criticism: the new regulations would encroach too much on the fundamental rights of citizens, especially their privacy, without there having to be a concrete danger.

A number of measures are unconstitutional

In its decision, the Federal Constitutional Court followed many points of criticism and declared a number of the new measures to be unconstitutional. For example, when undercover investigators and informants were used, insufficient precautions were taken to protect the privacy and intimate sphere of suspects.

The state legislature has failed to prohibit undercover agents and informants from having an intimate relationship with a suspect. It must also be ruled out that highly private details are skimmed off, which are part of the core area of ​​private life. If the police evaluate information that has been siphoned off, it must be ensured that highly private details are also left out. In case of doubt, an independent data protection officer must be consulted.

Online search only in exceptional cases

The constitutional judges also went too far when investigators were authorized to secretly enter apartments in order to install spyware on computers or smartphones for a subsequent online search. This is only permitted in absolutely exceptional cases, namely when there is a concrete risk that the most serious criminal offenses will be committed and the measure is ordered by a judge.

The Federal Constitutional Court also overturned legal regulations on dragnet searches. The same applies to the authorization of the police to put certain suspects under surveillance. The state lacks the legislative competence for this, in other words: Mecklenburg-Western Pomerania should not have issued such a regulation for formal reasons. Karlsruhe gave the state legislature until the end of this year to improve the police law.

The decision has national significance

David Werdermann, lawyer and procedural coordinator of the Society for Freedom Rights eV, emphasized in a statement the far-reaching importance of the decision from Karlsruhe: “The verdict is a success for freedom rights and will have an impact beyond Mecklenburg-Western Pomerania.”

In fact, the decision is significant nationwide. Because the restrictions on police investigative measures formulated in the decision of the second senate of the Federal Constitutional Court must be observed by all federal states.

File number: 1 BvR 1345/21