Federal Constitutional Court - Press office -

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.