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Application for a temporary injunction against the reform of the law of procedural investigation measures in the Act on "data retention" unsuccessful
Press Release No. 93/2008 of 07 November 2008
Order of 15 October 2008
2 BvR 236/08
The Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC (Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG) introduced what is known as data retention and also amended individual provisions of the Code of Criminal Procedure (Strafprozessordnung - StPO). The applicants in the proceedings to be decided here challenge the new versions of § 100a.2 and § 100a.4 (surveillance of telecommunications) and § 100f StPO (wiretapping outside the home) introduced by Article 1 no. 7 and no. 11 of the Act for the Amendment of Telecommunications Surveillance and the provision of § 110.3 StPO (examination of electronic storage media) newly introduced by Article 1 no. 12 of this statute. The applicants in the proceedings 2 BvR 236/08 also challenge § 160a StPO (protection of persons with a duty of professional discretion and a right to refuse to give evidence), which was newly introduced by Article 1 no. 13a of the Act for the Amendment of Telecommunications Surveillance. In addition to the constitutional complaints they filed, they made an application for a temporary injunction; in this application, they seek a temporary suspension of the retention of telecommunications traffic data for purposes of public safety introduced by the Act for the Amendment of Telecommunications Surveillance in § 111, § 113a of the Telecommunications Act (Telekommunikationsgesetz) and of the amendments and new introduction of § 100a.2 and § 100a.4, § 100f, § 110.3 and § 160a StPO.
After a number of constitutional complaints had been received by the Federal Constitutional Court, the competent committee resolved the jurisdiction in these proceedings under § 14.5 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). In parallel proceedings, the First Senate of the Federal Constitutional Court has already issued a temporary injunction on the application for a temporary injunction for suspension of the provisions on the retention of telecommunications traffic data (press release no. 37/2008 of 19 March 2008).
In the present proceedings, the Second Senate of the Federal Constitutional Court dismissed the applications for a temporary injunction insofar as the applicants challenge the new provisions in § 100f and § 110.3 StPO, new version, because the constitutional complaints filed in the main proceedings are inadmissible from the outset as a result of the passage of time and lack of a cause of complaint.
Insofar as the applicants challenge the provisions of § 100a.2 and § 100a.4, § 160a StPO, new version, the applications for the issuing of a temporary injunction were rejected. The questions raised in these constitutional complaints must be comprehensively examined in the main proceedings and may therefore be regarded as open. As a result, the consequences that would occur if the temporary injunction were not issued but the constitutional complaints were later successful must be weighed against the disadvantages that would occur if the temporary injunction desired were issued but the constitutional complaints were unsuccessful. In this connection, the Senate was unable to establish, as is necessary, that the concerns in favour of the issuing of a temporary injunction for the area of procedural intervention measures clearly outweigh other concerns, even taking into account an impact on the communication behaviour of citizens, which cannot be ruled out.
In earlier decisions, the Federal Constitutional Court has already emphasised the irrefutable requirements of effective criminal prosecution, underlined the public interest in as complete as possible a determination of the truth in criminal proceedings and described the effective investigation in particular of serious offences as an essential duty of a constitutional polity. If the provisions of § 100a.2 and § 100a.4 StPO, new version, which relate to the list of criminal offences that occasion the data retention and the protection of the core area of private life in connection with surveillance of telecommunications, remained in force, and if the constitutional complaints were successful in the main proceedings, it is true that telecommunications operations of the applicants and of other subjects of fundamental rights would possibly be monitored and recorded which would not be included if the provisions were drafted more narrowly. However, it would then be impossible to conduct investigation measures that are necessary to successfully investigate criminal offences if the enforcement of the challenged provision of § 100a.2 StPO, new version, were temporarily suspended and the enforcement of § 100a.4 StPO, new version, were only permitted subject to the proviso that the measure may only be ordered where there is actual evidence to assume that the surveillance would not record any information whatsoever from the core area of private life. In these circumstances, the possibility of using particular data and information for the investigation of criminal offences would cease to be available. This would also affect offences that the legislature, by including them in the list in § 100a.2 StPO, has classified as so serious that in the assessment of the legislature they justify surveillance of telecommunications (see Order of the First Senate of the Federal Constitutional Court of 11 March 2008 - 1 BvR 256/08 -, Europäische Grundrechte-Zeitschrift -- EuGRZ 2008, p. 257 (263)).
The same applies to the provision on the protection of persons with a duty of professional discretion and a right to refuse to give evidence (§ 160a StPO). Here too, the weighing of interests that is necessary in proceedings for a temporary injunction shows that the public interest in effective criminal prosecution outweighs the interests of the individual. If this provision were to remain in force, and if the constitutional complaint were successful in the main proceedings, it is possible that investigation measures against persons with a right to refuse to give evidence under § 52.1 sentence 1 nos. 3 to 3b or no. 5 StPO would be ordered according to considerations of proportionality or information obtained from the investigation of another person with regard to which one of the persons named in § 160a.2 StPO, new version, was entitled to refuse to give evidence, would be used for the purpose of evidence following an examination of proportionality. In this way, the practical effects and thus also the function of the rights to refuse to give evidence contained in § 53.1 sentence 1 nos. 3 to 3b, no. 5 StPO would be restricted. Consequently, the weighing of interests would have to include the public interest in the duties performed by the persons with a duty of professional discretion and the individual interest in the confidentiality of facts confided in them. If, in contrast, by way of a temporary injunction the provision challenged were declared applicable only subject to the proviso that there was an absolute prohibition on taking and using evidence with regard to all the persons entitled to refuse to give evidence named in § 53 StPO, this might lead to a situation where a large number of investigation measures could not be taken. This might have the result that the successful investigation of important criminal offences was impossible because individual investigation measures could not be taken or information obtained could not be used from the outset.