You are here:
Response to “minor interpellations” by the Federal Government not constitutional
Press Release No. 87/2009 of 30 July 2009
Judgment of 1 July 2009
2 BvE 5/06
The decision of the European Court of Human Rights of 6 June 2006, which among other things addressed a complaint filed by members of the Swedish parliament who had been spied on by Swedish intelligence services, was the specific reason for a request for information filed by four members of the German Bundestag and the parliamentary group Alliance 90/The Greens. On 13 June 2006 and on 1 August 2006, the five Applicants submitted so-called "minor interpellations" to the Federal Government in order to learn whether and, if so, what information was collected by the German Federal Intelligence Service (Bundesnachrichtendienst - BND) and the intelligence services of the Länder ( individual federal states) about members of the Bundestag. The Federal Government refused to respond, partly on the grounds that as a matter of principle it only issues statements on the manner of working, on the strategy and the current knowledge of the federal intelligence services, constituting classified information, within the relevant committees of the Bundestag. The Federal Government also pointed out that it had reported on the matter to the Parliamentary Control Committee on 5 April 2006, that it had issued statements to the Council of Elders of the Bundestag regarding the legal requirements of and limitations on the observation of members of parliament by the intelligence services, and that it would only comment on such matters in the relevant specific committees of the Bundestag. The Federal Government refused to provide information in response to individual questions on the grounds that the work of the intelligence services would be jeopardised. As regards the questions concerning matters preceding the 9th electoral term of the Bundestag, the Federal Government referred to the statutory deletion obligations, as a result of which the corresponding data was not longer available. Any existing information on past files relating to the periods in question could not be obtained on the basis of a "minor interpellation" within the time frame available under § 104 of the Rules of Procedure of the Bundestag.
In Organstreit proceedings (proceedings on a dispute between supreme federal bodies), the four members of the Bundestag and the parliamentary group Alliance 90/The Greens as Applicants requested a finding that in its responses to the "minor interpellations," the Federal Government had violated their rights and those of the Bundestag. They also requested an obligation to be imposed on the Federal Government to provide the information requested, or alternatively to provide the information to the extent and in a form consistent with the objective secrecy interests of the Federal Republic of Germany.
The Second Senate of the Federal Constitutional Court held in its decision of 1 July 2009 that the Federal Government had refused to provide the information requested by the Applicants in the "minor interpellations" of 13 June 2006 and 1 August 2006 on grounds that do not stand up to scrutiny under constitutional law, thus violating the Applicants' rights under Article 38.1 sentence 2 of the Basic Law (Grundgesetz - GG), and those of the Bundestag under Article 20.2 sentence 2 GG. In particular, it was held that reference to reporting made to other parliamentary control bodies did not release the Federal Government from its obligation to report to the Bundestag. In addition, the sweeping refusal to provide information on grounds of its classified nature was not consistent with the requirements of constitutional law. The applications are in part inadmissible since their grounds do not address the responses to the questions mentioned and insofar as they concern an obligation of the Federal Government to provide information.
The decision is essentially based on the following considerations:
It is clear from the case-law of the Federal Constitutional Court and undisputed by the parties that a right to submit questions and to obtain information accrues to the Bundestag against the Federal Government pursuant to Article 38.1sentence 2 and Article 20.2 sentence 2 GG. The individual members of parliament and the parliamentary groups as associations of members of parliament may avail themselves of the right in accordance with the rules of procedure of the Bundestag, and in principle the Federal Government is under an obligation to respond. Nor is there any doubt that the obligation of the Federal Government to respond is subject to limitations. However, such limitations require evaluation in each individual case. In particular, insofar as questions concern matters that are classified in the interest of the Federal Republic or one of the Länder (state interests), the question arises whether and how this interest can be aligned with the relevant parliamentary claim for information.
The question whether the legislature is entitled to regulate the parliamentary claims for information by reason of constitutional law such that the Federal Government would only have to provide information about the work of the federal intelligence services that it considered to be classified information to a certain committee of the Bundestag, can remain unanswered. The reason is that there is no such provision: the Parliamentary Control Committee is an additional instrument of parliamentary control of the government, which does not supersede the parliamentary claims for information (see also Bundestag document (Bundestagsdrucksache - BTDrucks) 8/1599 p. 6). Otherwise, by establishing the Parliamentary Control Committee, the Bundestag would have deprived itself of essential possibilities to obtain information, and the control of the Federal Government would have deteriorated rather than improved as regards the work of the federal intelligence services.
The above considerations apply insofar as the view taken by the Respondent relates to other committees of the Bundestag. In particular, the parliamentary right to raise questions is not superseded by the institution of a committee of inquiry or by the fact that the Council of Elders addresses such questions (§ 6 of the Rules of Procedure of the Bundestag (Geschäftsordnung des Deutschen Bundestages - GO-BT)).
The refusal to provide information based solely on its classified nature ultimately constitutes a violation as well. The Federal Government has to place the Bundestag in a position to perform its duty of parliamentary control of the acts of government effectively, also in view of the requirement of mutual consideration in relations between constitutional bodies. Apart from cases in which secrecy is evidently necessary, it is only on the basis of detailed grounds appropriate to the relevant situation that the Bundestag is able to judge and decide whether it accepts a refusal to respond, or what further steps it will take in order to enforce its request for information in whole or at least in part.
Nor is it apparent that the information requested by the Applicants is classified insofar as the questions concern information about the collection, storage and disclosure of data on members of the Bundestag by the federal intelligence services. It is not evident that the response to these questions entails the disclosure of details on the manner of work, strategies, methods and the current knowledge of the intelligence services as argued by the Respondent, which would jeopardise their ability to operate and perform their duties (Bundestag document 16/2098 on question 5). The sweeping argument that a response to the questions would permit conclusions about the work of the intelligence services which would jeopardise their ability to operate and perform their duties, does not contain any specific indication whatsoever which renders the refusal to provide information plausible. The observation of members of parliament by the intelligence services involves considerable risks with regard to their independence (Article 38.1sentence 2 GG) and with regard to the participation of the relevant political parties in the formation of the political will of the people (Article 21 GG), and hence for the entire process of the formation of a democratic will. The corresponding need of the Bundestag to obtain information is of substantial significance. If the protection of classified information is to prevail over that need as a conflicting interest, specific grounds have to be stated.
The Respondent also violated the Applicants' constitutional rights by responding to the question whether it was aware of cases in which information about members of parliament had been collected, stored or disclosed by other services, especially in Länder, to the effect that it would not comment on matters falling within the competence of the Länder. The Federal Government was under an obligation to provide not merely a sweeping response, but, rather, detailed grounds based on the questions, which evidently related also to the sphere of responsibility of the Federal Government. The questions concerned the work of the authorities directly subordinate to the Respondent as well as the latter's current knowledge about the activities of other intelligence services.
The reference made to the statutory deletion obligations does not suffice as grounds for the refusal to provide information either. Since the parliamentary claim for information also extends to matters lying in the past with regard to their potential political significance, matters which concern the sphere of responsibility of previous Federal Governments, the present Federal Government could be under an obligation of reconstruction insofar as is reasonable. The mere reference to statutory deletion obligations meant the Respondent failed to state adequately that it was unable to procure the information requested. Nor did the Respondent state that the information could only be obtained with unreasonable effort.
The reference to the impossibility of providing a response within the period set out in the Rules of Procedure of the Bundestag failed to take into account the fact that the 14-day period laid down in § 104.2 half-sentence 1 of such Rules of Procedure, can be extended in consultation with the party raising the question (§ 104.2 half-sentence 2 of the Rules of Procedure of the Bundestag).