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Amendment of legislation on undercover investigation in criminal proceedings held constitutional
Press Release No. 77/2011 of 07 December 2011
Order of 12 October 2011
2 BvR 236/08
In its order published today, the Federal Constitutional Court has ruled that the new provisions incorporated into the Code of Criminal Procedure (Strafprozessordnung - StPO) by Articles 1 and 2 of the Act for the Amendment of Telecommunications Surveillance (Gesetz zur Neuregelung der Telekommunikationsüberwachung) of 21 December 2007 and the amendment of individual provisions of the StPO effected by said Articles are in harmony with the Basic Law (Grundgesetz - GG).
The amendment of § 100a StPO systematically reorganised the list of offences, contained in its subsection 2, which are the prerequisites of a telecommunications surveillance measure; 19 elements of criminal offences were deleted and more than 30 elements of criminal offences were newly inserted. Apart from that, § 100a.4 StPO made provision to protect private life. If there is actual evidence to assume that telecommunications surveillance would only yield knowledge about the core area of private life, the measure is impermissible. Knowledge obtained from such a measure may not be used in any way.
In its subsections 4 to 6, § 101 StPO amends the provisions on the notification of the persons affected by undercover investigation measures. The provisions define several exceptions; if they exist, the notification of the persons affected may be disposed of or deferred. § 101.6 sentence 3 StPO provides that the court may approve the permanent dispensation with notification if there is a probability bordering on certainty that the requirements for notification will not be fulfilled even in the future.
The newly inserted § 160a StPO encompasses investigation measures which involve persons bound by professional secrecy as persons who are no suspects of a criminal offence, and it differentiates between certain professional groups. Subsection 1 guarantees comprehensive protection of the confidentiality of the profession-related and function-related communication with members of the clergy, defence counsels, members of Parliament and, since 1 February 2011, also with lawyers. An absolute ban on the taking and the use of evidence exists for all information with regard to which these persons bound by professional secrecy would, according to § 53 StPO, have the right to refuse to testify. However, with regard to all other persons bound by professional secrecy who have the right to refuse testimony, such as for instance doctors, tax consultants or representatives of the press, subsection 2 provides that the investigation authorities will have to examine in the individual case, applying the principles of proportionality, whether a ban on the taking and the use of evidence exists.
In essence, the complainants in the instant proceedings, which have been combined for a joint ruling, raise the following complaints: with a view to the restriction of the duty of notification according to § 101.6 sentence 3 StPO, the Act for the Amendment of Telecommunications Surveillance is unconstitutional already for formal reasons because it infringes the citation principle. The extension of the list of criminal offences under § 100a.2 StPO undermines the secrecy of telecommunications, which is protected as a fundamental right. Moreover, the provision in § 100a.4 StPO violates the fundamental right to informational self-determination because it protects the core area of private life only in case telecommunications surveillance exclusively yields knowledge from this area. Furthermore, the formulation of the duty of notification and of its exceptions in subsections 4 to 6 of § 101 StPO infringes the fundamental right to effective legal protection. Some of the complainants, who work as doctors or journalists respectively, regard the differentiation between the professional groups in subsections 1 and 2 of § 160a StPO as incompatible with the general principle of equality before the law. Apart from this, they regard their fundamental right to informational self-determination and their occupational freedom, which is protected under the constitution, as violated by their being excluded from the privileged group of persons bound by professional secrecy specified in subsection 1.
The Second Senate of the Federal Constitutional Court has rejected the constitutional complaints as unfounded. The Act for the Amendment of Telecommunications Surveillance neither infringes the constitutional citation principle, nor do the contested provisions of the law of criminal procedure violate the complainants' fundamental rights.
In essence, the decision is based on the following considerations:
1. The citation principle under Article 19.1 sentence 2 of the Basic Law demands that a law must specify the fundamental right that is restricted by or pursuant to this law, and must indicate the Article in which the fundamental right appears. The objective of the citation principle is to ensure that the legislature is aware of the necessity and the extent of the intended encroachment on a fundamental right. The citation principle not only applies when a fundamental right is restricted for the first time but attains importance with every substantial change of the requirements of the encroachment that results in new fundamental-rights restrictions.
§ 101.6 sentence 3 StPO, which has been inserted by the Act for the Amendment of Telecommunications Surveillance, and according to which the court may approve the permanent dispensation with the notification of the person affected by the investigation measure, does not infringe the citation principle. It is true that the Act only names the secrecy of correspondence, posts and telecommunications (Article 10 GG) as being restricted, whereas the restriction of the duty of notification in the context of the acoustic surveillance of living quarters can constitute an encroachment on the fundamental right to the inviolability of the home (Article 13.1 GG) as well. However, in comparison to the previous provision, the new provision in § 101.6 sentence 3 StPO only constitutes an unsubstantial amendment of the law.
2. There are no objections under constitutional law against the extension of the list of criminal offences in § 100a.2 StPO.
With a view to the serious encroachment that telecommunications surveillance constitutes on the secrecy of telecommunications, which is protected as a fundamental right, the extended list of criminal offences complies with the principle of proportionality. The legislature did not extend the list of offences that can give rise to telecommunications surveillance into the areas of less serious and medium-severity crime in an unconstitutional manner. It newly inserted only offences into the list under § 100a.2 StPO which are punishable with a maximum sentence of not less than five years' imprisonment. Admittedly, this alone does not classify the offences as serious crimes; only with regard to serious crimes, an encroachment on Article 10.1 GG is proportionate. Nevertheless, the legislative classification of the newly inserted criminal offences as "serious" is tenable in an overall view that has particular regard of the respective legal interests which are protected. For the offences in question either considerably interfere with the state's or its institutions' ability to function - as is the case for instance with bribery of members of Parliament - or drastically impair private individuals' legal interests, as is the case for example with the distribution, acquisition and possession of child pornography.
3. The provision made under § 100a.4 StPO to protect the core area of private life during telecommunications surveillance satisfies the constitutional requirements at the data collection level as well as in the evaluation phase. With the amendment, the legislature has developed a two-stage concept of protection to keep the persons affected from encroachments on their absolutely protected core area of private life.
§ 100a.4 sentence 1 StPO orders that a targeted collection of data which relate to the core area of private life may not take place. If the core area of private life is nevertheless affected even though this was not to be expected in advance of the measure, § 100a.4 sentences 2 to 4 of § 100a.4 StPO provide for a duty of documentation and of deletion as well as an absolute ban on the use of the data obtained. If it can be ascertained in advance of a measure that the measure will exclusively affect the core area of private life - as in the case of the communication with persons to whom a particular relation of trust exists, such as for instance closest family members, members of the clergy or defence counsels - measures of telecommunications surveillance may not be carried out. On the other hand, contrary to the complainants' view, measures of telecommunications surveillance need not from the outset be refrained from merely because the data which are collected include facts that affect the core area of the personality right as well. Such a comprehensive ban on data collection would restrict telecommunications surveillance to such an extent that effective prosecution especially in the area of serious and most serious crime would no longer be guaranteed. In these cases, the protection of the core area of private life must be ensured by sufficient fundamental-rights protection in the evaluation phase. In the event that during a surveillance measure data are collected which affect the core area of private life, the absolute ban on the use of these data set out in § 100a.4 sentence 2 StPO provides sufficient protection in the evaluation phase.
4. The formulation of the duties of notification in subsections 4 to 6 of § 101 StPO also stands up to review under constitutional law. The right to be notified of undercover investigation measures is one of the essential preconditions of effective fundamental-rights protection. Without being informed at least retrospectively, the persons affected can neither assert the unlawfulness of the investigation measure nor possible rights to deletion, correction or legal redress.
In a weighing with third parties' legal interests that are constitutionally protected, the legislature can provide exceptions from the duty of notification. However, such exceptions must be restricted to what is absolutely necessary. Exceptions from the duty of notification are conceivable in prosecution if for instance knowledge of the encroachment on the secrecy of telecommunications would result in the measure failing to achieve its purpose, if notification cannot take place without endangering life and limb of a person or if overriding interests of a person affected are contrary to notification, for example because the notification of a measure which has not had any further consequences would make the encroachment on a fundamental right even more serious. Furthermore, it is not constitutionally required to establish comparably strict duties of notification with regard to persons who are only coincidentally affected by an investigation measure directed against a person charged with an offence, and who are hence not the target of government action. In individual cases, notification of such persons can often make the encroachment on their rights even more serious.
The provisions of subsections 4 to 6 of § 101 StPO on the restriction of the duties of notification amended by the Act for the Amendment of Telecommunications Surveillance comply with these constitutional standards.
5. Furthermore, the provision in subsections 1 and 2 of § 160a StPO on the protection of persons who have the right to refuse to testify does not violate the complainant's fundamental rights. The legislature was not obliged to extend the area of application of the absolute ban on the taking and the use of evidence provided in § 160a.1 StPO for members of the clergy, defence counsels, members of Parliament and, since 1 February 2011, for lawyers, also to the groups of persons mentioned in subsection 2 of the provision.
By analogy with the rights to refuse testimony of persons bound by professional secrecy provided in § 53.1 StPO, the objective of subsections 1 and 2 of § 160a StPO is to protect the relation of confidence existing towards such persons. By differentiating between specific groups of persons bound by professional secrecy, the legislature takes account of the fact that the Basic Law grants the individual citizen an inviolable area of private life which is from the outset removed from the influence of public authority, and hence also from investigations in criminal proceedings. To the extent that the legislature assumes that the contact between a citizen and a person bound by professional secrecy typically affects the inviolable area of private life, it grants absolute protection from the collection, and all kinds of use, of information (§ 160a.1 StPO). In all other cases in which a special relation of confidence exists between the citizen and the person bound by professional secrecy and in which the core area of private life can be affected, but in the legislature's view is not necessarily affected if a generalising perspective is taken, only relative protection is provided (§ 160a.2 StPO). Insofar as in individual cases, the inviolable core area of private life is affected with regard to this group of persons, the inadmissibility of the investigation measure must be presumed also in the area of § 160a.2 StPO.
By restricting the absolute ban on the taking and the use of evidence under § 160a.1 StPO to a few exceptional cases, the legislature takes account of the high importance of the prosecution of criminal offences. The state under the rule of law can only be realised if sufficient measures are taken for offenders to be prosecuted and sentenced and for just punishment being imposed on them.
For each of the professional groups specified under § 160a.1 StPO, particular reasons justify their privileged status in the shape of an absolute ban on the taking and the use of evidence: for members of the clergy in their function as providers of spiritual care as well as for defence counsels, the justification of absolute protection results from the fact that their communication with the person charged with an offence in criminal proceedings typically has a connection to Article 1.1 GG. The inclusion of members of Parliament in § 160a.1 StPO, however, can rely on an express justification under constitutional law. It is granted for the sake of the institution of Parliament and of its ability to function. The Basic Law therefore grants Members of the Bundestag the right to refuse to testify and provides that seizing documents from them is impermissible (Article 47 GG).
The legislative decision to extend the absolute protection of § 160a.1 StPO to lawyers, to persons who have been admitted to a Bar Association pursuant to § 206 of the Federal Regulations for Practising Lawyers (Bundesrechtsanwaltsordnung - BRAO) and to non-attorney providers of legal services who have been admitted to a Bar Association is justifiable against the standard of Article 3.1 GG. Taken by itself, the lawyers' position as independent organs of the administration of justice and their participation in the realisation of the rule of law is not enough to distinguish them from the group of persons bound by professional secrecy who are merely encompassed by the relative protection provided under § 160a.2 StPO. A sufficient justification can, however, be seen in the circumstance that factually, a differentiation between lawyers and defence counsels is virtually impossible due to the closeness of their fields of activity. From a generalising perspective, criminal defence is an option inherent to a consultancy relationship with a lawyer; this is different for instance with tax consultants. With a view to the relationship of criminal defence to human dignity, it is justifiable to let the professional group of lawyers now newly encompassed by § 160a Abs. 1 StPO participate in the absolute protection provided therein.
The other persons bound by professional secrecy encompassed by § 160a.2 StPO differ from these privileged professional groups in a way which justifies a protection from investigation measures that is amenable to weighing.