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Press release no. 84/2009 of 23 July 2009

Order of 17 June 2009 – 2 BvE 3/07
Limited grant of permission to testify and refusal to surrender documents to BND committee of inquiry partly contrary to constitutional law
Since 2004 and in 2005 especially there were growing numbers of reports in the media about activities by the US and German intelligence services in connection with the processing of CIA flights with suspected terrorists on board via German airports. There were also reports about the activities of German Federal Intelligence Service (Bundesnachrichtendienst – BND) staff in Bagdad during the Iraq war, about the kidnapping of German nationals or of persons living in Germany by US agencies and about the observation of journalists by the BND. Both the German Bundestag and the Parliamentary Control Committee addressed these issues in 2005. On 20 February 2006 the Federal Government presented its final report, which was analysed and published in parts by the Parliamentary Control Committee (Bundestag document (Bundestagsdrucksache – BTDrucks) 16/800). In order to clarify unresolved issues, evaluations to be made as well as the necessary consequences in connection with the report, the parliamentary groups of the FDP, The Left Party and Alliance 90/The Greens as well as a qualified minority consisting of 3 members of parliament (the Applicants) requested that a committee of inquiry be convened. On 7 April 2006 the plenum resolved to convene such a committee and essentially instructed it to clarify on the basis of specific occurrences and questions which political requirements were established for the activities of the BND, the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz – BfV), the Military Counterintelligence Service (Militärischer Abschirmdienst – MAD), the Federal Public Prosecutor General (Generalbundesanwalt – GBA) and the Federal Criminal Police Office (Bundeskriminalamt – BKA), and how the political management and supervision were structured and guaranteed. The Head of the Federal Chancellery pointed out to the chairman of the committee after work commenced that in view of the responsibility borne by the Federal Government for the domestic and foreign security of the Federal Republic of Germany, it would take care during the proceedings before the committee of inquiry that high-ranking state interests remained unharmed. At the same time the Federal Government was hoping for cooperation oriented towards the interests of the state. The committee of inquiry first devoted its attention to the kidnapping of E. and K., taking witness testimony from members and civil servants of the Federal Government (Respondent) and its subordinate authorities. With reference to the limited permission they had been granted to testify, witnesses repeatedly refused to continue to testify or to respond to questions posed by members of the committee of inquiry. Furthermore, the Federal Government refused on several occasions to submit files or parts of files to the committee of inquiry. The limitations placed on permission to testify, the refusal to surrender the documents and organisational charts requested as well as the relevant grounds stated, were objected to by the Applicants in their various specific motions in the Organstreit proceedings (proceedings on a dispute between supreme federal bodies) before the Federal Constitutional Court. The Second Senate of the Federal Constitutional Court held that the admissible motions were for the most part well-founded. By limiting the permission to testify granted to witnesses named, by interpreting such limitation and by refusing to produce requested files on the basis of the relevant insufficient grounds stated, the Federal Government (Respondent) breached the right of the German Bundestag to obtain information and investigate pursuant to Article 44 of the Basic Law (Grundgesetz – GG). The sweeping invocation of one of the grounds under constitutional law – e.g. the core area of executive responsibility and state interests –, which set the bounds of the parliamentary right to investigate, is on no account sufficient. The decision is essentially based on the following considerations: The motions are admissible. Recourse may be had to the Federal Constitutional Court regarding the disputed issues of taking of evidence by the 1st committee of inquiry of the 16th legislative period of the German Bundestag pursuant to Article 93.1 no. 1 GG, § 13 no. 5 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). In particular, according to the Committees of Inquiry Act (Untersuchungsausschussgesetz), the German Federal Court of Justice (Bundesgerichtshof – BGH) has no competence under constitutional law, but merely reviews procedural aspects of details of the work of the committee of inquiry. The motions are for the most part well-founded since the Federal Government unlawfully restricted the claim for information based on Article 44 GG. The restrictions contained in the permissions to testify relating to the core area of executive responsibility and state interests as well as the interpretation of such restrictions that became apparent when the witnesses testified, are in breach of the right of the Bundestag to take evidence. The interpretation of the permissions to testify, according to which matters deriving from the meetings of the State Secretaries of the Federal Ministries of the Interior and of Justice and of the Federal Foreign Office, the presidents of the three federal intelligence services and the BKA with the Head of the Federal Chancellery and the secret service coordinator (known as presidents’ meetings (Präsidentenrunde)) and from the intelligence-situation meetings (Nachrichtendienstliche Lage), in which, apart from the above, representatives of other ministries participate) are not covered by the permission to testify, unlawfully restricts the parliamentary right to investigate. The restriction on obtaining evidence is in breach of rights of the German Bundestag and not only of the committee of inquiry, the reason being that the committee of inquiry convened exercises its authority as an auxiliary organ of the Bundestag. Within the context of the investigation commissioned, the committee is entitled to obtain witness testimony from members of the government and from civil servants and employees within the Federal Government’s sphere of responsibility, and to take evidence as it deems necessary. The provisions of the Code of Criminal Procedure (Strafprozessordnung) apply mutatis mutandis to the taking of evidence. If the witnesses to be heard by the committee of inquiry belong to a group of persons who are subject to a particular confidentiality obligation, then such witnesses can only testify if they are in possession of corresponding permission, which may be restricted. Subject to limitations under constitutional law, the Federal Government has to grant witnesses such permission to testify. However, this obligation is limited by the investigation commissioned as determined in the convening resolution, which commission has to remain within the bounds of parliamentary competence to control and has to be sufficiently specific. In the present case the permissions to testify contained an excessive restriction in the sweeping exclusion of “in particular, information about the formation of intent within the Federal Government or the cabinet or about agreement processes spanning or within departments, for the preparation of cabinet or department decisions.” When interpreting the investigation commissioned, the committee of inquiry and the Federal Government have no discretionary scope and no prerogative of assessment. However, grounds on which information may be withheld from a committee of inquiry can arise under the principle of the separation of powers. Although the parliamentary competence to control extends in principle to completed matters alone, the principle of the separation of powers requires that such parliamentary control be effective. It would not be effective if the requisite information deriving from the preparation of government decisions were to remain unavailable to the parliament also after completion of the relevant matters. Information from the sphere of the formation of intent within the government can therefore be accessed by the parliament in principle. A sweeping reference made to a committee of inquiry with regard to completed matters that the sphere of the formation of intent within the government is affected does not justify the withholding of information. The fact that the core area of executive responsibility is affected can only be raised as an objection to the parliamentary right of investigation with regard to completed matters within a case-specific weighing of the parliamentary interest in obtaining information on the one hand, against the risk that the ability to function and the responsibility will be impaired by the restrictive advance effects of access to the information, on the other hand. The necessity of weighing the conflicting interests corresponds to the dual function of the principle of the separation of powers as both a foundation for and a limitation on the rights of parliamentary control. It has to be taken into account in this respect that the deeper a parliamentary request for information penetrates the core of the government’s formation of intent, the more important has to be the parliamentary request for information in order to prevail against the interest in confidentiality invoked by the government. In contrast, the preceding advisory and decision-making processes are removed from parliamentary control to a lesser degree. The parliamentary interest in information carries particular weight where the discovery of potential violations of the law and similar grievances within the government are concerned. In order to permit verification of the weighing of interests and the interests concerned, the refusal has to be accompanied by substantiated reasoning if information is to be withheld from a committee. The interests of the Federation or interests of an individual federal state (Land) which could be jeopardised by the disclosure of classified information can also restrict the right of a parliamentary committee of inquiry to obtain evidence. The interests of the state are not entrusted to the Federal Government alone, but likewise to the Bundestag, so that the handling of information within an committee of inquiry is subject to separate provisions on secrecy, and restrictions on access to information by a committee of inquiry where state interests are invoked therefore come into question only in very particular circumstances. Communications concerning contacts with foreign intelligence services cannot be automatically withheld from a committee of inquiry on grounds of jeopardising the interests of the state. It is not obvious, but, rather, would have required reasoning, that the disclosure of estimations by US intelligence services concerning the dangerousness of one of the kidnapped persons affected the secrecy interests of such services and could therefore burden necessary future cooperation. It was held that the mere fact that disclosure of such information could lead to problems for the Federal Government with regard to its own handling of the relevant knowledge did not jeopardise the interests of the state, but, rather, constituted an acceptable and constitutionally intended consequence of the exercise of the parliamentary right of investigation. A sweeping claim that the interests of the state are in jeopardy does not substantiate why the specifically required documents are relevant to security. Insofar as a risk of disclosure of classified information has to be feared, the submission of documents cannot be refused for that reason without taking into account enhanced organisational precautions within the committee in the interim or without stating reasons which indicate why the relevant information is so important that a minimal risk of disclosure cannot possibly be accepted. Insofar as the preparation for meetings of parliamentary bodies in the individual departments belongs to the core sphere of executive responsibility and is hence exempt from parliamentary access to information during the preparatory phase, this does not apply automatically after completion of the relevant matter. Rather, considerations are required which take into adequate account the parliamentary interest in obtaining information. The interest of the Federal Government in the confidentiality of information merits all the more protection the deeper a request for information penetrates the innermost sphere of the formation of intent by the government. Here again, the matter has to be considered on a case-specific basis, also taking into account the importance of the specific parliamentary interest in obtaining information. If documents are to be withheld from a committee of inquiry on the basis of Article 44.2 sentence 2 GG, the requisite grounds not only have to specify the extent to which the information is based on an encroachment on Article 10 GG, but also have to substantiate why the information obtained is subject to a ban on utilisation by the committee. Finally, Article 44 GG is breached also insofar as the Respondent failed to comply wholly or partly with orders to take evidence, invoking a lack of relevance to the matter under investigation. Here again, the required reasons were not stated; furthermore, the Respondent claims a right to make a narrow interpretation of the investigation commissioned and a restrictive estimation of the relevance to the commission, a right which it does not have. Insofar as the other personal documents mentioned were requested in addition to the documents relating to organisational matters, the refusal to produce the documents is not in breach of the parliamentary rights of information and control accorded to the German Bundestag under Article 44 GG. The same applies to the Respondent’s refusal to submit the documents “that were passed to US services within the context of the planning, establishment and work of the ‘Special Task Force USA’” of the BKA, revealing their specific contents insofar as there is personal relevance to one or more persons or facts of the matters … under investigation. The Applicants did not argue nor is it apparent that the review was determined by an understanding by the Federal Government of the investigation commissioned that is not consistent with that of the Applicants. This press release is also available in the original german version.
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