Status: 03.11.2022 1:47 p.m
The Office for the Protection of the Constitution is allowed to collect much more personal data than the police. The constitutional judges have therefore established strict rules for the exchange of information. Now they see another reason to intervene.
What information can the German secret services pass on to the police? This question comes up again and again when it comes to combating terrorism, extremism and serious crime. One rule of law principle is important here: the separation of police and intelligence services in Germany.
After the Second World War, it was clear to the Allied victors that the young Federal Republic would have secret services again. After the experience of the Nazi dictatorship, however, the following should apply: German secret services should not be secret police, i.e. should not be given “police powers”.
This is how the so-called principle of separation developed: on the one hand, the intelligence services such as the Office for the Protection of the Constitution, which have many powers when it comes to secretly gathering information, but are limited to investigating dangers; on the other hand, the police, who may arrest or search suspects in their daily averting of danger, but must adhere to strict rules.
In principle, the principle of separation applies
In 2013, the Federal Constitutional Court ruled that the separation principle also applies to the exchange of information. At the time, the judges made it clear: there is a so-called “informational separation principle” between the intelligence services and the police. Data exchange is only permitted if there is an “outstanding public interest”.
Karlsruhe confirmed this principle today and upheld a constitutional complaint. A man who had been legally convicted in the Munich NSU trial had complained. With his constitutional complaint he had attacked the powers of the German domestic secret service for data transmission. These are powers of the Office for the Protection of the Constitution, which are also important for the joint right-wing extremism file of the police and secret services.
New rules needed by the end of 2023
The judges in Karlsruhe now say: Yes, it is possible to pass on information from the Office for the Protection of the Constitution to the police. But there are high hurdles. The basic right to informational self-determination must always be observed. The police should not be given a lot of personal data that they are not allowed to collect themselves. There is a so-called “transmission threshold” for data transfer.
Only when it comes to preventing or investigating particularly serious crimes may the separation principle be broken and secret service data passed on to the police. And only if there is a concrete risk in each individual case that such crimes will be committed against particularly important legal interests. The old regulation of Section 20 (1) of the Federal Constitutional Protection Act (BVerfSchG) refers too generally to penal provisions. So far, it has also been possible to transmit criminal offenses that do not qualify as particularly serious criminal offences.
The legislature must take these points of criticism into account and revise the challenged provisions. He now has until the end of 2023 to do so. Until then, the old rules remain in effect. However, the current decision of the Constitutional Court must be taken into account in the interpretation.
Az. 1 BvR 2354/13