Status: 14.12.2021 4:25 a.m.
The Bavarian Constitutional Protection Act regulates who can be monitored when and how, and when the findings can be passed on to the police. Is that going too far? Karlsruhe now has to clarify that.
Access to stored data, cell phone tracking, living space surveillance and online searches – the Bavarian Office for the Protection of the Constitution has been allowed to do all of this and more since 2016. From the perspective of the Society for Freedom Rights (GFF), that’s way too much. It is an “unprecedented arsenal of surveillance powers”.
The civil rights organization therefore supports a constitutional complaint against the Bavarian Constitutional Protection Act, with which the powers of surveillance have been regulated. Negotiations are taking place in Karlsruhe today. A judgment will only be given in a few months.
Three men have sued. They belong to organizations that are mentioned in the Bavarian report on the protection of the constitution. They therefore assume that they could be affected by surveillance. The Office for the Protection of the Constitution, which is also known as the domestic secret service, collects information about anti-constitutional activities at home. The Federal Office for the Protection of the Constitution and the offices for the protection of the constitution of the federal states are responsible. The means by which they are allowed to carry out this task are regulated in the federal and state constitutional protection laws.
Separation of police and secret service
The plaintiffs criticize the Bavarian law for the fact that the exchange of data between the Office for the Protection of the Constitution and the police goes too far. Basically: The task of the police is to prevent and prosecute criminal offenses and to ward off dangers to public safety and order. To do this, it is allowed to take a number of measures – also against individual persons and, if in doubt, compulsorily.
The task of the protection of the constitution, on the other hand, is basically the “political preliminary investigation”. So it’s about collecting information and giving it to politicians so that they can make decisions on this basis. Because of these different tasks and powers, the Office for the Protection of the Constitution is not allowed to pass on its findings to the police without further ado. There is an “informational separation principle”. Otherwise the police could get information that they are not allowed to collect for constitutional reasons.
From the perspective of the Society for Freedom Rights, the Bavarian Constitutional Protection Act softens this principle of separation between the police and secret services, which is intended to prevent abuse of power. She advocates that intelligence services should not pass on their data to the police, but rather the whole case. “The intelligence services have been researching cases for too long, although the police authorities have long been responsible,” says GFF chairman Ulf Buermeyer. Secret services should only act as a “political early warning system”. That would lead to less competition between the authorities and thus to more effective security.
Bavaria refers to the threat situation
In Bavaria, when the law was passed, reference was made to the terrorist attacks in Paris in 2015. In view of the high level of threat and danger posed by Islamist terrorism, close and effective cooperation between the intelligence services and the police is of vital importance. Cooperation must be improved.
From the point of view of the Bavarian Ministry of the Interior, the passing on of information to the police is very well permitted – and always when there is an “outstanding public interest”. This is the case when legal interests such as life, limb, freedom of the person, the free and democratic basic order or the existence of the federal government or a state are affected. Since the protection of these legal interests is the task of the protection of the constitution, basically all information collected should be passed on. The only exception: during surveillance, a shoplifting is observed on the side – such information should then not be passed on.
Too little judicial control?
The plaintiffs also complain that the Office for the Protection of the Constitution is allowed to access stored data – and that without a court order. The Bavarian Ministry of the Interior counters that there is instead a parliamentary control by the G10 commission of the state parliament – and in practice this is often stricter than a judge. The G10 commission consists of three members of the state parliament. Your deliberations are secret.
However, data retention has been suspended in Germany since 2017 due to legal disputes. Internet providers had sued against the new regulation. The proceedings are currently at the European Court of Justice. A judgment should be given in a few months. It may well be that the ECJ considers the German regulation on data retention to be too extensive and will overturn it.
“Nationwide negative trend”?
With the constitutional complaint, the Society for Freedom Rights is also pursuing a legal policy issue: the aim is to prevent other federal states from orienting themselves towards Bavarian law and leading to a “nationwide negative trend”. The procedure should also give the Federal Constitutional Court the opportunity to balance the relationship between the secret services and the other security authorities.
The judges used the oral hearing, which has become rare since the beginning of the pandemic, for another opportunity: the invention of a new corona access restriction. Anyone who wants to get in, whether as a journalist or complainant, needs 2G evidence and a negative PCR test. This also applies to those who are boosted. It should be the currently strictest door in the republic.