BVerfG, 1 BvR 518/02, 2006
- 2006
- Germany
Topics
Public securityLegal bases
Germany: Constitution of 1949, Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland (GG))Courts
Federal Constitutional Court, GermanyLaws
Right to respect for private and family lifeFacts
In response to the constitutional complaint, the Constitutional Court held that the orders challenged violate the complainant's fundamental right to informational self-determination. The challenged decisions do not satisfy the constitutional requirements. They are based on a broad interpretation of § 31 of the Act that conflicts with the principles of proportionality. The Regional Court regarded it as sufficient if “the possibility of the occurrence of particularly serious harm is not excluded”, and the Higher Regional Court considered it sufficient if there is the “distant possibility of the occurrence of harm”. If – as the Higher Regional Court states with regard to the situation at that time – “specific indications of terrorist attacks in Germany [are] not known of”, but a mere “possibility of such attacks” based on surmise exists, then the electronic profile searching carried out despite this is a measure taken before any danger needs to be averted, but not the averting of a specific danger itself. Finally, it is significant that § 31.1 of the Act provides for interferences with fundamental rights without any suspicion. All persons who satisfy the selection criteria may be included, and there are no requirements as to the proximity of these persons to danger or to suspicious persons. The extent to which the measure is applied without the existence of suspicion is increased even more if – as in the case of terrorist “sleepers” – it is precisely the unobtrusiveness and conformism of behaviour that is chosen as a decisive search criterion.
Legal grounds
Article 2.1 in conjunction with Article 1.1 of the GG
Findings
In response to the constitutional complaint, the Constitutional Court held that the orders challenged violate the complainant's fundamental right to informational self-determination. The challenged decisions do not satisfy the constitutional requirements. They are based on a broad interpretation of § 31 of the Act that conflicts with the principles of proportionality. The Regional Court regarded it as sufficient if “the possibility of the occurrence of particularly serious harm is not excluded”, and the Higher Regional Court considered it sufficient if there is the “distant possibility of the occurrence of harm”. If – as the Higher Regional Court states with regard to the situation at that time – “specific indications of terrorist attacks in Germany [are] not known of”, but a mere “possibility of such attacks” based on surmise exists, then the electronic profile searching carried out despite this is a measure taken before any danger needs to be averted, but not the averting of a specific danger itself. Finally, it is significant that § 31.1 of the Act provides for interferences with fundamental rights without any suspicion. All persons who satisfy the selection criteria may be included, and there are no requirements as to the proximity of these persons to danger or to suspicious persons. The extent to which the measure is applied without the existence of suspicion is increased even more if – as in the case of terrorist “sleepers” – it is precisely the unobtrusiveness and conformism of behaviour that is chosen as a decisive search criterion.