Bavaria’s constitution protection law is partly unconstitutional and has to be restricted in numerous points. The Federal Constitutional Court announced this judgment on Tuesday in Karlsruhe. (AZ: 1 BvR 1619/17)
State Interior Minister Joachim Herrmann (CSU) had the constitutional protection law of the Free State revised in 2016. The Society for Freedom Rights (GFF), which has now coordinated the lawsuit before the Supreme Court, saw a number of fundamental rights violated. The constitutional complaint referred to several regulations, including online searches, the use of so-called informants, the surveillance of apartments and longer observations.
Judge Gabriele Britz, who is responsible for the proceedings as rapporteur in the First Senate, said at the hearing in December that intelligence powers had never been attacked on such a broad scale. In detail, it is usually not a question of whether the instrument may 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 first? Is there an independent control? And what happens to the data? During the hearing, the judges questioned many points very critically.
Minister Herrmann defended the reform that the state parliament had passed with only CSU votes at the time: Bavaria had also reacted to several judgments from Karlsruhe. After the series of murders by the “National Socialist Underground” (NSU), there was also agreement that the exchange between the Office for the Protection of the Constitution and the police had to be improved.
The GFF, on the other hand, sees a fundamental problem in the fact that the boundaries are becoming increasingly blurred. Its chairman Ulf Buermeyer criticized that the hurdles for the exchange of information had been continuously lowered. The so-called separation principle actually applies here: the secret services know a lot, but are not allowed to intervene – the police are responsible for that, and they don’t know everything.
The GFF had hoped for a fundamental judgment that would affect the constitutional protection powers as a whole. In other state laws and in the federal government, the requirements for the use of undercover investigators or so-called informants and for longer observations are comparably low, according to the GFF. The regulations for data transmission are similarly broad in many countries as in Bavaria.
Only those whose own rights are affected “themselves, presently and directly” can lodge a constitutional complaint. The GFF has therefore won over three members of the Association of People Persecuted by the Nazi Regime – Bund der Antifascisten (VVN-BdA) – which was mentioned in the Bavarian intelligence report as a “left-wing extremist-influenced organization” as plaintiffs.
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 decision is still pending. There have been some changes to the law since 2016.