Federal Constitutional Court - Press office -

Press release no. 93/2008 of 7 November 2008

Order of 15 October 2008 – 2 BvR 236/08, 2 BvR 237/08 –

Application for a temporary injunction against the reform of the law of
procedural investigation measures in the Act on "data retention" unsuccessful


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. 


This press release is also available in the original german version.