The BKA law gives police authorities more powers to prosecute serious crimes. But the legislature has gone too far: two regulations violate the constitution.
Lawyers and football fans, among others, had sued. Among them is a woman who does fan work in Munich and has regular contact with violent fan groups. They criticize that the police authorities are allowed to store too much data from too many people under the Federal Criminal Police Office Act (BKA Act). And this too for too long.
The Federal Constitutional Court has now partially ruled in favor of the plaintiffs. Some of the regulations are unconstitutional, according to Court President Stephan Harbarth, Chairman of the First Senate. It was decided “that two of the challenged norms were partially incompatible with the fundamental right to informational self-determination”.
Two regulations unconstitutional
Specifically, it concerns two different provisions in the BKA law that violate the Basic Law. According to paragraph 45, the Federal Criminal Police Office may secretly monitor contacts of suspected terrorists. This could affect, for example, lawyers who have to deal with suspects and their circle of acquaintances for purely professional reasons.
The Federal Criminal Police Office’s surveillance powers went too far here, according to court president Harbarth. “If secret surveillance measures are only aimed at contacts in the environment of the responsible person, there must be a specific individual proximity of those affected to the danger to be investigated,” explained the lawyer. “Section 45 Paragraph 1 Sentence 1 No. 4 of the BKA Act does not meet these requirements with regard to the necessary proximity to danger of the responsible person referred to.”
Too many authorities have access to data
The second provision that the Constitutional Court objected to concerns data of accused persons, which are stored and further processed by the Federal Criminal Police Office in accordance with Section 18 of the BKA Act. The police authorities of the federal states also have access to this data. According to the judges, this regulation also goes too far.
Specifically, this involves data from suspects who are believed to be likely to commit crimes in the future. The Federal Constitutional Court criticizes the fact that the requirements for storing data are not strict enough. There is talk here of a “storage threshold” that needs to be set higher.
Or as Harbarth puts it: “When storing data for the prevention and prosecution of crimes recorded for the purpose of storage, the storage threshold must provide for a sufficient probability that those affected will have a criminally relevant connection to possible crimes and precisely the data stored for their prevention and persecution can make an appropriate contribution.”
Deletion specifications not regulated
The Constitutional Court also criticizes the fact that there is no regulation as to when the data must be deleted. According to court president Harbarth, there is a lack of a “sufficiently differentiated regulatory concept for the storage period”.
This means that the legislature should have set precise guidelines for how long the data can be stored. After the ruling, lawmakers have until the end of July next year to change the regulations.
File number: 1 BvR 1160/19