Federal Constitutional Court - Press office -

Press release no. 77/2011 of 7 December 2011

Order of 12 October 2011 
– 2 BvR 236/08, 2 BvR 237/08, 2 BvR 422/08 –

Amendment of legislation on undercover investigation in criminal
proceedings held constitutional


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. 


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