Headnotes

to the Judgment of the First Senate of 3 March 2004

1BvR 2378/98, 1 BvR 1084/99

1. Article 13(3) of the Basic Law in the version of the Act Amending the Basic Law (Article 13) of 26 March 1998 (BGBl I, p. 610) is compatible with Article 79(3) of the Basic Law.

2. With the guarantee of inviolable human dignity, Article 1(1) of the Basic Law recognises a core of private life, which enjoys absolute protection. Acoustic surveillance of private homes carried out for law enforcement purposes (Article 13(3) of the Basic Law) must not interfere with this core. This protection is not subject to a balancing of the right to the inviolability of the home (Article 13(1) in conjunction with Article 1(1) of the Basic Law) against law enforcement interests based on the principle of proportionality.

3. Not every instance of acoustic surveillance of private homes violates the human dignity dimension of Article 13(1) of the Basic Law.

4. Statutory authorisations to carry out surveillance of private homes must include safeguards to protect the inviolability of human dignity and must satisfy the prerequisites of Article 13(3) of the Basic Law as well as other constitutional requirements.

5. Where acoustic surveillance of private homes based on such a statutory authorisation nevertheless results in the collection of information that relates to the absolutely protected core of private life, it must be discontinued and any records must be deleted; any use of such information is impermissible.

6. The provisions of the Code of Criminal Procedure governing measures of acoustic surveillance of private homes for law enforcement purposes do not fully satisfy the constitutional requirements relating to the protection of human dignity (Article 1(1) of the Basic Law), the principle of proportionality following from the principle of the rule of law, effective legal protection (Article 19(4) of the Basic Law) and the right to be heard (Article 103(1) of the Basic Law).

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 2378/98 -

- 1 BvR 1084/99 -

IN THE NAME OF THE PEOPLE

In the proceedings

on the constitutional complaints of

- 1 BvR 2378/98 -,

- 1 BvR 1084/99 -

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Papier,

Jaeger,

Haas,

Hömig,

Steiner,

Hohmann-Dennhardt,

Hoffmann-Riem,

Bryde

held on the basis of the oral hearing of 1 July 2003:

JUDGMENT

1. The constitutional complaint of complainant no. 1a is rendered moot by his death.

2. The following provisions of the Code of Criminal Procedure in the version of the Fight Against Organised Crime Act of 4 May 1998 (BGBl I, p. 845), and in the version of later amending acts, are incompatible [with the following provisions of the Basic Law] as set out in the reasons attached to this judgment:

1. - § 100c(1) no. 3, § 100d(3), § 100d(5) second sentence and § 100f(1) of the Code of Criminal Procedure are incompatible with Article 13(1), Article 2(1) and Article 1(1) of the Basic Law,

2. - § 101(1) first and second sentence of the Code of Criminal Procedure is incompatible with Article 19(4) of the Basic Law,

3. - § 101(1) third sentence of the Code of Criminal Procedure is incompatible with Article 103(1) of the Basic Law, and

4. - § 100d(4) third sentence in conjunction with § 100b(6) of the Code of Criminal Procedure is incompatible with Article 19(4) of the Basic Law.

3. For the rest, the constitutional complaints of complainants nos. 1b and 2 are rejected.

4. […]

REASONS:

A.

The constitutional complaints directly challenge Art. 13(3) to (6) of the Basic Law and provisions of the Code of Criminal Procedure that authorise acoustic surveillance of private homes for law enforcement purposes.

I.

1. The introduction of acoustic surveillance of private homes for law enforcement purposes was preceded by a longstanding controversy in the public; the measures were referred to as Großer Lauschangriff (“major eavesdropping”).

[…]

2. In October 1997, the Bundestag parliamentary groups CDU/CSU, SPD and FDP jointly introduced draft legislation that ultimately resulted in the amendment of the Basic Law and in the introduction of [acoustic surveillance] powers in the Code of Criminal Procedure. […] Sections (3) to (6) were inserted into Art. 13 of the Basic Law, while former section (3) became section (7).

a) Art. 13(3) of the Basic Law now allows for the acoustic surveillance of private homes for law enforcement purposes. Only a home in which the suspect is presumably present may be placed under surveillance. Furthermore, it is required that specific facts give rise to the suspicion of a particularly serious crime – that must be specifically defined by a law – and that alternative methods of investigating the matter would be disproportionately difficult or futile. The Constitution also sets out the requirement that the surveillance measures be limited to a specific time period. The surveillance measures require a warrant issued by a panel composed of three judges. The warrant may only be issued by an individual judge in cases of danger requiring immediate action (Gefahr im Verzug ).

[…]

b) On the basis of the amended Art. 13(3) of the Basic Law, the Fight Against Organised Crime Act of 4 May 1998 (BGBl I, p. 845) was enacted. § 100c(1) no. 3 of the Code of Criminal Procedure is the central statutory provision that was enacted by Art. 2 of that Act. According to § 100c(1) no. 3 of the Code of Criminal Procedure, non-public speech in private homes of a person suspected of a criminal offence may be intercepted and recorded by technical means if specific facts give rise to the suspicion that this person committed one of the criminal offences listed in the statutory catalogue. The catalogue includes in particular offences that are typically associated with organised crime. In addition, the catalogue comprises certain offences against the state. Surveillance measures for investigating the facts of a criminal case or for determining the whereabouts of an offender are only permissible if the investigation would be disproportionately difficult or futile otherwise. Pursuant to § 100c(2) first sentence of the Code of Criminal Procedure, the measures may only be directed against the suspects themselves. However, § 100c(2) fifth sentence of the Code of Criminal Procedure expressly states that homes of other persons may also be placed under surveillance if it can be presumed – with the same level of suspicion – that the suspect is present in those homes.

[…]

II.

[…]

III.

Statements on the constitutional complaints were submitted by the Federal Ministry of Justice on behalf of the Federal Government, the Government of the Free State of Bavaria, the Federal Data Protection Officer, the Data Protection Officers of the Länder Berlin, Brandenburg, Bremen, Hamburg, Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Schleswig-Holstein, Saxony-Anhalt, the Federal Bar Association (Bundesrechtsanwaltskammer ), the German Association of Judges (Deutscher Richterbund ) and the Federal Working Group for Justice of the United Services Union (Bundesfachgruppe Justiz der Vereinten Dienstleistungsgewerkschaft ).

[…]

IV.

[…]

B.

The constitutional complaints are for the most part admissible.

[…]

C.

To the extent that the constitutional complaints are admissible, they are in part well-founded. While the constitutional amendment in Art. 13(3) of the Basic Law satisfies the requirements of Art. 79 of the Basic Law, the challenged provisions of the Code of Criminal Procedure are not fully compatible with the Basic Law.

I.

Art. 13(3) of the Basic Law, which was inserted by way of constitutional amendment, is compatible with the Basic Law.

1. Art. 13(3) of the Basic Law allows restrictions of the fundamental right to the inviolability of the home under Art. 13(1) of the Basic Law. This fundamental right guarantees individuals an essential space of private life and affords them the right to be left alone there (cf. BVerfGE 32, 54 <75>; 42, 212 <219>; 51, 97 <110>). Art. 13(1) of the Basic Law protects the sphere of private space within one’s home, in particular as a defensive right against state interference (cf. BVerfGE 7, 230 <238>; 65, 1 <40>). The provision contains the general prohibition, directed at public authority, to enter and be present in a private home against the resident’s will (cf. BVerfGE 76, 83 <89 and 90>), but also to install or use listening devices in the home (cf. BVerfGE 65, 1 <40>).

When the Basic Law was first adopted, the fundamental right enshrined in its Article 13(1) primarily served to protect individuals against state representatives being present in their home against their will. New possible risks to this fundamental right have emerged since. With new technology available, there are now other ways for the state to reach into that sphere of private space [without physically entering it]. The protection intended by Art. 13(1) of the Basic Law would be undermined if this fundamental right did not afford protection against surveillance of the home by technical means, even where they are used from outside the home. The newly inserted Art. 13(3) of the Basic lays down a constitutive limit to this fundamental right enshrined in Art. 13(1) of the Basic Law.

2. Art. 13(3) of the Basic Law was adopted in accordance with the formal requirements for constitutional amendments.

[…]

3. The Constitution-amending legislator also respected the substantive limits that the Basic Law imposes on constitutional amendments.

a) Art. 79(3) of the Basic Law prohibits constitutional amendments that affect the principles enshrined in Arts. 1 and 20 of the Basic Law. These include the requirement that human dignity be respected and protected (Art. 1(1) of the Basic Law), but also the commitment to inviolable and inalienable human rights as the basis of every community, of peace and justice (Art. 1(2) of the Basic Law). […]

[…]

b) Art. 13(3) of the Basic Law is compatible with the guarantee of human dignity enshrined in Art. 1(1) of the Basic Law.

The guarantee of human dignity, as the applicable constitutional standard, requires further elaboration with regard to the specific situations that may give rise to conflicts. Acoustic surveillance of private homes for law enforcement purposes does not generally violate the human dignity content of Art. 13(1) of the Basic Law and Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. However, depending on how surveillance of private homes is carried out, it may lead to a violation of human dignity in certain constellations. To prevent this, Art. 13(3) of the Basic Law contains explicit safeguards, which are complemented by further requirements following from constitutional interpretation. Therefore, the insertion of Art. 13(3) into the Basic Law, which now allows for the surveillance of private homes, does not violate Art. 79(3) of the Basic Law as it requires a further statutory basis granting surveillance powers, in which the legislator can, and must, ensure that human dignity is not violated by surveillance measures in the individual case. Art. 13(3) of the Basic Law only authorises the legislator to enact such statutory provisions that ensure respect for human dignity.

aa) Human dignity is the supreme constitutive principle and the highest constitutional value of the Basic Law (cf. BVerfGE 6, 32 <36>; 45, 187 <227>; 72, 105 <115>). […]

(1) The Federal Constitutional Court has repeatedly emphasised that it is incompatible with human dignity to treat persons as mere objects of state authority (cf. BVerfGE 30, 1 <25 and 26 and 39 et seq .>; 96, 375 <399>). Thus, violations of criminal offenders’ constitutionally protected right to be valued and respected as a person in society (sozialer Wert- und Achtungsanspruch ) are impermissible as this would turn them into mere objects in law enforcement and the fight against crime (cf. BVerfGE 45, 187 <228>; 72, 105 <116>).

[…] Human dignity is not violated merely because someone is targeted by law enforcement measures. However, it amounts to a violation of human dignity if the type of the measures taken generally calls into question their quality as a conscious subject. This is the case if public authorities fail to respect the value accorded to all human beings as such. Such measures are impermissible, even if they serve an effective criminal justice system and the establishment of the truth.

In this context, covert state action in itself does not result in a violation of the absolutely protected right to respect for one’s person. If someone is placed under surveillance, this does not necessarily imply disregard for their value as a person. However, there is an inviolable core of private life that must be upheld in the context of surveillance measures (on the protection of this core cf. BVerfGE 6, 32 <41>; 27, 1 <6>; 32, 373 <378 and 379>; 34, 238 <245>; 80, 367 <373>). If the state were to intrude upon this core, it would infringe the inviolable freedom, afforded every person, to develop freely in their highly personal domain. Even overriding public interests cannot justify an interference with this absolutely protected core of private life (cf. BVerfGE 34, 238 <245>).

(2) The fundamental right under Art. 13(1) of the Basic Law gives specific shape to the protection of human dignity. The inviolability of private homes is closely linked to human dignity. At the same time, it is closely related to the constitutional requirement of absolute respect for a person’s sphere of development that is strictly private – i.e. highly personal. Individuals must be guaranteed a right to be left alone, in particular in their private homes (cf. BVerfGE 75, 318 <328>; cf. also BVerfGE 51, 97 <110>).

The free development of one’s personality within the core of private life encompasses the possibility of expressing internal processes such as emotions and feelings, as well as reflections, views and experiences of a highly personal nature. These must be possible without fear of surveillance by state authorities. The expression of feelings, of subconscious sentiments and of one’s sexuality is protected as well. Free development in this sense is only possible if individuals have a space that allows them to express themselves in this manner. Confidential communication requires protected spaces, too, at least where the legal order affords special protection to the highly personal domain of private life and where citizens rely on this protection. Private homes, which can be closed to others, typically constitute protected spaces. Access to such a space allows individuals to just be themselves, in private, and to freely develop their personality in accordance with their own beliefs. Private homes as the last refuge are a means to safeguard human dignity. What follows from this is not necessarily absolute protection of the rooms within a private home as such, but absolute protection of conduct that takes place in these rooms to the extent that it constitutes personal development within the core of private life.

(3) This protection cannot be made conditional upon a balancing against law enforcement interests under the principle of proportionality (cf. BVerfGE 34, 238 <245>; cf. also BVerfGE 75, 369 <380>; 93, 266 <293>). There will always be forms of particularly serious crime, and suspicions thereof, which will make the public interest in an effective criminal justice system appear weightier to some than protecting the human dignity of a suspect. However, the state is barred by Art. 1(1) and Art. 79(3) of the Basic Law from making such an assessment.

bb) Where it fails to respect the core of private life, the acoustic surveillance of private homes for law enforcement purposes violates human dignity.

Qualifying a matter as falling within the core of private life furthermore depends on whether it is highly personal in terms of content, and on how and to what extent the matter affects the sphere of others or interests of the common good (cf. BVerfGE 80, 367 <374>). This assessment depends on the circumstances of the individual case (cf. BVerfGE 34, 238 <248>; 80, 367 <374>). It must be determined whether there are either specific indications that the inviolable core of private life is affected, or whether the matter in question is one that typically affects the core, without any factual counter indications in the individual case suggesting otherwise, for instance where state observation encounters expressions of one’s most intimate feelings or sexuality.

cc) The authorisation in Art. 13(3) of the Basic Law to enact legislation regarding acoustic surveillance of private homes does not violate Art. 79(3) in conjunction with Art. 1(1) of the Basic Law since it only allows for statutory provisions and, based thereon, surveillance measures that respect constitutional limits. Art. 13(3) of the Basic Law itself contains restrictions limiting the authorisation of surveillance under constitutional law; further restrictions follow from other constitutional guarantees that must be taken into account in the systematic interpretation of the Basic Law. While this may concern elements of the principle of proportionality, it does not call into question the absolute protection of human dignity. Rather, the principle of proportionality is only applicable, as a further restriction, in cases where surveillance measures do not violate human dignity [and are thus not per se impermissible]. This notwithstanding, the resulting limitation of the authorisation to carry out acoustic surveillance of private homes also serves to counter the risk of surveillance measures violating the human dignity dimension of Art. 13(3) of the Basic Law.

(1) Art. 13(3) of the Basic Law sets out substantive and formal requirements for lawful interferences.

Under Art. 13(3) first sentence of the Basic Law, acoustic surveillance is only permissible to prosecute particularly serious crime; relevant offences must specifically be listed in the law, and surveillance measures may only be carried out if there is a suspicion of relevant criminal conduct based on specific facts. […]

In addition, Art. 13(3) of the Basic Law requires that an investigation of the matter by other methods would be disproportionately difficult or futile. Thus, the constitutional text itself states that the surveillance measures in question, which constitute particularly serious interferences with the fundamental right to the protection of the home, are only to be used as a last resort by law enforcement. Moreover, surveillance of a private home is from the outset only permissible when, and as long as, the suspect is presumably present in that home.

With the obligation to obtain a judicial warrant, the Constitution-amending legislator provided for a procedural safeguard to ensure that the surveillance measure satisfies constitutional requirements. In particular, the legislator provided that the warrant must generally be issued by a panel composed of three judges and that it must be limited in time.

(2) Not all limitations to acoustic surveillance of private homes for law enforcement purposes merited by the absolute protection of the inviolable core of private life are expressly laid down in Art. 13(3) of the Basic Law. As with other fundamental rights, further limits arise from other constitutional guarantees. Even when modifying fundamental rights provisions, the Constitution-amending legislator is not required to set out anew all rules of constitutional law that will in any case remain applicable. Thus, when reviewing whether Art. 13(3) of the Basic Law is compatible with Art. 79(3) of the Basic Law, Art. 13(3) of the Basic Law must be read together with other rules of constitutional law that are applicable as well.

(a) […]

(b) […]

[…]

(c) Art. 13(3) of the Basic Law must be understood in the sense that it requires implementing legislation to rule out the obtaining of information by way of acoustic surveillance of private homes in cases where the investigation measures would reach into the inviolable part of private life protected by Art. 13(1) in conjunction with Art. 1(1) and Art. 2(1) of the Basic Law.

dd) Surveillance powers require a statutory basis that ensures, in accordance with the principle of legal clarity, that the manner in which acoustic surveillance of private homes is carried out does not result in a violation of human dignity. Surveillance measures must be prohibited from the outset if there are indications that the measures will violate human dignity. Moreover, if the acoustic surveillance of private homes unexpectedly results in the collection of information that is afforded absolute protection, the measures must be discontinued and the recordings must be deleted; any use of such absolutely protected data obtained in the context of law enforcement is impermissible.

(1) Safeguards to protect human dignity are not just required with regard to situations in which individuals are alone, but also when they communicate with others (cf. BVerfGE 6, 389 <433>; 35, 202 <220>). Human beings necessarily seek fulfilment in social contexts, including within the core of their personality (cf. BVerfGE 80, 367 <374>). Thus, for determining whether a matter falls within the part of private life that is inviolable or – if this is not the case – within the social domain, where state interference may be permissible under certain circumstances, it is not sufficient to simply assess whether the matter has any kind of social significance or bears on social relationships at all; rather, the nature and intensity of this connection in the specific case are decisive (cf. BVerfGE 80, 367 <374>).

(2) In terms of their content, conversations that contain information on crimes that have been committed do not fall within the inviolable core of private life (cf. BVerfGE 80, 367 <375>). However, this does not mean that any link between the suspicion of criminal conduct and the [personal] utterances or expressions made by suspects is sufficient for attributing matters to the social domain. Notes or statements made in the course of a conversation that only reveal, for instance, inner impressions and feelings and do not contain any indications pointing to specific criminal acts do not simply become relevant to the public because they might reveal the reasons or motives for criminal conduct. However, a sufficient link to the social domain does exist where [personal] statements directly refer to specific criminal acts.

(3) In order to prevent interferences with the core of private life, the interception of non-public speech in private homes must be discontinued if the person [under surveillance] is by themselves or only in the company of persons to whom they have a special relationship of trust relating to the core of private life – for instance family members or other particularly close confidants – and if there are no specific indications that the content of the anticipated conversations is directly linked to criminal conduct. While not all conversations individuals have with their close confidants are part of the core of private life, a presumption applies to that effect in order to ensure effective protection of human dignity. Surveillance measures are impermissible if it is likely that conversations enjoying absolute protection would be intercepted.

(4) The content of a conversation is decisive for attributing the matter [to the different domains]. A final determination of whether information must be attributed to the highly personal domain or to the social domain can often only be made once the information has been collected. Yet the protection of the core of private life requires that, prior to carrying out measures of acoustic surveillance of private homes, there are factual indications suggesting, at least in a typifying assessment, that the conversation [to be intercepted] does not relate to the highly personal domain. Investigation measures may not be carried out in cases where intercepting non-public speech in private homes will likely lead to a violation of the core of private life.

Thus, prior to a surveillance measure, the law enforcement authorities have to make a prognosis regarding possible indications that the conduct within the home targeted by surveillance might relate to the core of private life. It is feasible [for law enforcement authorities] to make such a prognosis in practice.

(a) In this regard, the type of premises to be targeted by surveillance may provide preliminary indications for assessing the situation.

(03b1) For instance, conversations taking place on commercial and business premises are generally related to business and thus typically fall within the social domain (cf. BVerfGE 34, 238 <248>). While conversations on premises used exclusively for commercial or business purposes partake in the protection under Art. 13(1) of the Basic Law, they generally do not affect the human dignity dimension of this fundamental right, unless the specific conversation in the individual case actually relates to the core of personality. It is the nature of business premises that they are characterised by greater openness to the outside world (cf. BVerfGE 32, 54 <75>). They generally lack the intimacy and safety of private homes. Therefore, it is justified to categorise them as being typically less protected than private premises. Where highly personal conversations do occur on business premises, however, they are afforded absolute protection once their highly personal nature becomes ascertainable in the specific case.

A different standard must be applied to premises used for both business and residential purposes. The presumption that conversations on business premises are generally of a business-related nature is not applicable in this case. The same holds true where premises are used for professional activities that require a special relationship of trust which falls within the highly personal domain.

(03b2) It must be presumed that conversations relate to the inviolable core if they occur on premises that typically serve as refuges of private life or that are used for that purpose in the individual case. Yet within private homes, it is generally not feasible to differentiate further between individual rooms. Even highly personal acts and conversations need not be limited to certain rooms within one’s private home. In general, individuals consider each room in their private homes as equally safe and feel equally unobserved in each room. Categorising actions [as typically belonging to different domains] depending on which room they occur in runs counter to the diverse individual uses of private homes. It is therefore impossible to limit the core of private space within one’s home to certain parts of the home.

(b) It must also be taken into account that the likelihood of surveillance measures interfering with the core of personality depends on the persons who are present in the home under surveillance.

The presence of persons enjoying the highest level of personal trust is an important indication that conversations may relate to human dignity. Individuals primarily develop their personality in interaction with others, i.e. by communicating with them. In this respect, marriage and the family take on particular importance when it comes to communication regarding highly personal matters, in particular intimate matters. The intimacy of marriage allows for communication between spouses that may extend to virtually all subject matters, with no topics being off limits, based on the expectation that outsiders will not obtain knowledge of such conversations. The same holds true for conversations with other close family members, such as siblings or direct relatives, especially if they live in the same household. Art. 6(1) and (2) of the Basic Law is applicable in addition to Art. 13(1) of the Basic Law in such cases.

The protection of the core of private life also encompasses communication with other persons enjoying special trust (cf. BVerfGE 90, 255 <260>). This group only partially overlaps with persons entitled to refuse to give evidence under §§ 52 and 53 of the Code of Criminal Procedure. The scope of the prohibitions of acoustic surveillance following from [the constitutionally required protection of] the core of private life is not identical to the scope of the rights to refuse to give evidence under criminal procedural law. Accordingly, § 52 of the Code of Criminal Procedure does not serve to protect the relationship of trust between the family members mentioned therein and the suspect. Rather, the provision gives consideration to the predicament of witnesses, who have a duty to tell the truth but also have reason to fear that in complying with this duty they will compromise a family member. Moreover, the right to refuse to give evidence is linked to the formal criterion of a family relationship rather than a special relationship of trust, which may also exist between very close friends.

As for § 53 of the Code of Criminal Procedure, it is true that this provision aims to protect the [professional] relationship of trust between witness and suspect. However, not in all cases in which § 53 of the Code of Criminal Procedure applies is this protection afforded for the sake of safeguarding the suspect’s human dignity or the dignity of their conversation partner. The assumption that communications merit absolute protection does apply to conversations with clerics in their capacity as faith-based counsellors. The protection of confession, or conversations of a confessional nature, is part of the human dignity dimension of the freedom to practice one’s religion under Art. 4(1) and (2) of the Basic Law. Conversations between a suspect and their defence lawyer also play an important role in protecting human dignity by ensuring that the suspect is not treated as a mere object in criminal proceedings. In the individual case, doctor-patient consultations, too, may relate to the core of private life (cf. BVerfGE 32, 373 <379>). By contrast, the rights to refuse to give evidence afforded members of the press and members of Parliament are not directly related to the core of private life. These rights are granted for the sake of safeguarding the proper functioning of Parliament and the media rather than for protecting the suspect’s right of personality.

(5) Even where acoustic surveillance is not per se ruled out, the interception of conversations in private homes must nevertheless be limited to situations in which it is likely that contents of the conversation will be relevant to criminal proceedings. Where needed, suitable preliminary investigations through measures that do not affect the core of private life must be carried out to ensure that acoustic surveillance of private homes is limited to situations in homes that are relevant to the proceedings in question. It is impermissible to interfere with the absolutely protected core of private life for the purposes of determining whether the envisaged collection of information would affect this core.

Sweeping surveillance, in terms of both time and location, will generally be impermissible as this would almost invariably lead to the interception of highly personal conversations. Similarly, surveillance taking place over an extended period of time and covering almost every movement and expression of [private] life of the person under surveillance, which could be used as the basis for creating a personality profile, is incompatible with human dignity (cf. BVerfGE 65, 1 <42 and 43).

(6) To the extent that acoustic surveillance of private homes is not prohibited from the outset, because there are no sufficient external indications that absolutely protected conversations are likely to be recorded, conversations of the suspect may be intercepted for the purposes of determining whether they contain information that may be used in criminal proceedings. Under these circumstances, a preliminary screening to assess the contents of conversations, required by the protection of human dignity, is not objectionable under constitutional law. At the same time, suitable measures must be taken to ensure utmost restraint when carrying out such a preliminary screening (cf. BVerfGE 80, 367 <375, 381). For instance, the protection of human dignity under Art. 1(1) of the Basic Law may require that conversations in private homes not be intercepted by means of automatic recordings only, so as to ensure that the investigation measure can be discontinued at any time.

Where, in the context of surveillance of private homes, a situation unfolds that relates to the inviolable core of private life, surveillance must be discontinued. Where recordings were obtained despite intrusion into the core, they must be destroyed. Any sharing or use of the information thus obtained is prohibited. Art. 13(3) of the Basic Law must be interpreted to the effect that such recordings are subject to prohibitions to use data thus obtained as evidence (regarding the constitutional basis of such requirements cf. BVerfGE 44, 353 <383 and 384>; cf. also BVerfGE 34, 238 <245 et seq .>).

c) […]

II.

The statutory authorisation to carry out acoustic surveillance of private homes under § 100c(1) no. 3, § 100c(2) and (3) of the Code of Criminal Procedure and the framework regarding the prohibitions to collect and use the data as evidence under § 100d(3) of the Code of Criminal Procedure do not sufficiently give effect to the requirements arising from Art. 13(1) and (3) of the Basic Law and Art. 2(1) in conjunction with Art. 1(1) of the Basic Law with regard to the inviolable part of private life, with regard to the specific design of the catalogue of relevant criminal offences, and with regard to the principle of proportionality. They are only in part compatible with the Basic Law.

1. The standards for reviewing the constitutionality of the statutory provisions authorising acoustic surveillance of private homes in the Code of Criminal Procedure are, primarily, Art. 13(1) and (3) of the Basic Law and, additionally, Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. Other fundamental rights, in particular Art. 4(1) and (2) and Art. 6(1) and (2) of the Basic Law, may also be affected by the surveillance measures authorised by the provisions.

a) However, the general right of personality following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law is not applicable in addition to Art. 13(1) of the Basic Law to the extent that interferences with the sphere of private space of residents are at issue.

Art. 13(1) of the Basic Law contains a more specific guarantee protecting the sphere of private space within one’s home against acoustic surveillance by the state, which supersedes the general guarantee [of Art. 2(1) in conjunction with Art. 1(1) of the Basic Law] (cf. BVerfGE 100, 313 <358> regarding Art. 10 of the Basic Law). Given its broad scope of protection, Art. 13 of the Basic Law applies as the more specific guarantee not only with regard to the actual surveillance measures carried out by the state, but also with regard to any necessary preparatory measures, to information and data processing measures that follow data collection, and to the use of the information thus obtained (cf. BVerfGE 100, 313 <359>).

Art. 13(1) of the Basic Law protects the right to be left alone and the right to private speech within one’s home, which is precisely the part of the private sphere that would otherwise come under the protection afforded by the general right of personality. As a non-listed freedom, the general right of personality supplements the specific freedoms, which also protect fundamental aspects of one’s personality (cf. BVerfGE 54, 148 <153 and 154>); as such, the general right of personality is only applicable in cases that fall outside the specific freedoms’ scope of protection.

b) Where persons affected by surveillance of a home cannot invoke Art. 13(1) of the Basic Law, they are protected by the general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. Fundamental rights holders who can invoke Art. 13(1) of the Basic Law include all owners or residents of a home, irrespective of the legal relationships governing use of the home. Where several residents share a home, each resident can invoke this fundamental right, where a family shares a home, each family member can invoke this right. Yet surveillance of private homes may not only affect residents, but also persons who happen to be present in a home under surveillance. While those persons cannot invoke Art. 13(1) of the Basic Law, they are afforded protection under the general right of personality. However, the protection afforded by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law cannot be more extensive than the protection afforded by Art. 13(1) and (3) of the Basic Law.

c) As the case may be, the protection afforded the sphere of private space within one’s home and the general right of personality can also be supplemented by further fundamental rights guarantees. […]

2. The challenged statutory provisions, which authorise the interception and recording of conversations in private homes, provide a basis for interferences with the fundamental rights under Art. 13(1) and Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

a) The physical intrusion into homes, the installation of technical devices on the protected premises and the acoustic surveillance of events unfolding in private homes by technical means all amount to interferences with the fundamental right to the inviolability of the home (see C I 1 above). These interferences are perpetuated when the information obtained is stored, used and shared with other bodies.

Any form of acoustic or visual surveillance of private homes constitutes an interference, regardless of whether the technical means used for surveillance are installed on protected premises or used from outside the homes, such as directional microphones […]. However, this only applies to the extent that surveillance from outside the homes records events inside the homes that cannot be naturally perceived from outside the protected area. […]

b) Moreover, acoustic surveillance of private homes interferes with the general right of personality to the extent that persons are affected who happen to be present in a home under surveillance and who cannot invoke the more specific fundamental right under Art. 13(1) of the Basic Law (see C II 1 b above).

3. The statutory authorisation to carry out acoustic surveillance of private homes for law enforcement purposes is only in part constitutional.

a) Statutory provisions of this kind must include sufficient safeguards to prevent interferences with the absolutely protected core of private life, thus protecting human dignity. If this prohibition is violated or if a measure unexpectedly interferes with the absolutely protected core of private life, it must be discontinued. Deletion requirements and prohibitions to use the data must be put in place to ensure that the measure has no consequences for affected persons. § 100d(3) of the Code of Criminal Procedure does not sufficiently meet these requirements.

aa) The legislator failed to sufficiently specify the prohibitions to carry out surveillance measures and to collect data that are required under constitutional law in cases where the core of private life is affected.

(1) Art. 13(3) of the Basic Law only allows for statutory provisions authorising acoustic surveillance of private homes if the legislation in question ensures that the core of private life is not affected (see C I 3 b cc above). Therefore, these statutory provisions must prohibit any interception and recording of non-public speech in private homes if there are indications that absolutely protected conversations could be recorded.

[…]

(2) Based on these considerations, constitutional law requires that legislation authorising acoustic surveillance contain statutory restrictions, yet § 100d(3) of the Code of Criminal Procedure does not fully satisfy this requirement. While the provision reflects the general assumption that acoustic surveillance of private homes is not permissible if a matter relates to the inviolable part of private life, § 100d(3) of the Code of Criminal Procedure does not give sufficient effect to these constitutional limits.

(a) To the extent that surveillance of conversations between suspects and persons bound by professional confidentiality under § 53 of the Code of Criminal Procedure is prohibited under constitutional law, this is reflected in § 100d(3) first sentence of the Code of Criminal Procedure through a comprehensive prohibition to collect data. […]

(b) However, § 100d(3) of the Code of Criminal Procedure does not ensure that surveillance remains impermissible in cases where suspects are in their home with only immediate family or other particularly close confidants present and there are no indications to suggest that those persons themselves committed or were complicit in a criminal act.

In this regard, the provision does not contain a general prohibition of surveillance measures affecting persons entitled to refuse to give evidence pursuant to § 52 of the Code of Criminal Procedure, which in particular includes immediate family; the provision only contains a prohibition to use data as evidence that is subject to the principle of proportionality. Regarding the surveillance of conversations with particularly close confidants who are not part of the group of persons entitled to refuse to give evidence, § 100d(3) of the Code of Criminal Procedure does not provide for any restrictions at all.

§ 100d(3) second sentence of the Code of Criminal Procedure does not contain a sufficient prohibition to intercept conversations with particularly close confidants either. […]

[…] Given that the legislator only prohibits acoustic surveillance of private homes in cases where all information obtained would be subject to a prohibition to use it as evidence, this provision does not satisfy the constitutional requirements. A restrictive interpretation that would bring the provision in line with constitutional law is precluded by the clear wording (“all information”).

bb) The legislator also failed to include sufficient safeguards in § 100d(3) of the Code of Criminal Procedure to ensure that surveillance measures are discontinued if a situation unexpectedly arises which relates to the inviolable core of private life, even though continuing surveillance measures would be unlawful in such cases.

cc) There are also no sufficient provisions prohibiting the use of information obtained in violation of the core of private life and requiring that any collected data be deleted if such violations have occurred.

(1) In both respects, the Basic Law sets constitutional requirements for the legislator.

(a) Constitutional law requires that the legislator impose a prohibition to use data relating to the core of private life.

The risk of interfering with the core of private life that is associated with acoustic surveillance of private homes can only be tolerated under constitutional law if safeguards exist to ensure that violations that have occurred by exception do not have further consequences. It must be ensured that information obtained through such interferences not be used in any way, neither in the course of the criminal investigation nor in other contexts.

[…]

(b) To the extent that information relating to the core of private life has already been collected, it must be deleted without undue delay. […]

[…]

(2) The current statutory provisions do not fully satisfy these constitutional requirements.

(a) It is true that § 100d(3) first sentence of the Code of Criminal Procedure could be interpreted to the effect that the use of data is prohibited if conversations with persons bound by professional confidentiality pursuant to § 53 of the Code of Criminal Procedure were intercepted and recorded in breach of the statutory prohibition [to carry out surveillance measures in such constellations] […]; yet for other cases, absolute statutory prohibitions to use data are lacking. In this regard, the legislator did not provide for any restrictions other than emphasising the significance of the principle of proportionality when deciding on the use of information relating to conversations with persons bound by professional confidentiality pursuant to §§ 52 and 53a of the Code of Criminal Procedure.

(b) In addition, constitutionally mandated prohibitions to use data as evidence require supplementary procedural safeguards ensuring the enforcement of such prohibitions. Such safeguards are also lacking.

Given that legal recourse is typically not available to the affected persons, protection of the core of private life is only sufficiently guaranteed – unless data is deleted immediately – if it is not solely for the law enforcement authorities to assess whether the information obtained by them can be used [as evidence] in the criminal proceedings under way or even just as a basis for further investigations in other proceedings. Rather, this determination must be made by an independent body, taking into account the interests of affected persons.

§ 100d(3) fifth sentence of the Code of Criminal Procedure does not sufficiently provide for such procedural safeguards. […]

[…]

(c) § 100d(1) second sentence in conjunction with § 100b(6) of the Code of Criminal Procedure does not provide for a requirement that collected data relating to the core of private life be deleted. These provisions only concern the deletion of lawfully obtained data when it is no longer needed for law enforcement (see C VIII below). As demonstrated in the oral hearing, the lack of a statutory requirement that data relating to the core be deleted immediately results in considerable uncertainties regarding data handling. As a consequence, the original recordings are often retained for long periods of time. These gaps in the statutory framework jeopardise fundamental rights protection.

(d) In this regard, it is necessary to enact statutory provisions [filling these gaps]. The legislator cannot forgo such provisions merely because the prohibition to use the data and the requirement that data be deleted derive from the Constitution. […]

b) Where acoustic surveillance of private homes does not affect the absolutely protected core of private life, it is only constitutional if the principle of proportionality – a general principle that is specified in Art. 13(3) of the Basic Law – is observed. The challenged provisions do not fully satisfy the proportionality requirements. It is true that they pursue a legitimate purpose (see aa below) and are suitable (see bb below) and necessary (see cc below) for achieving this purpose. Yet when enacting § 100c(1) no. 3 of the Code of Criminal Procedure, the legislator did not fully take into account that Art. 13(3) of the Basic Law restricts the grounds for the use of acoustic surveillance of private homes to particularly serious criminal acts (see dd below). For the rest, the statutory provisions authorising surveillance do not raise constitutional concerns if interpreted restrictively (see ee below).

aa) The purpose pursued by the challenged provisions authorising acoustic surveillance of private homes is legitimate under constitutional law.

With this statutory authorisation, the legislator in particular aims to strengthen the legal instruments available to fight organised crime, in addition to pursuing the general purpose of investigating serious crime. […]

[…]

bb) Acoustic surveillance of private homes on the basis of § 100c(1) no. 3 of the Code of Criminal Procedure is, in principle, suitable for prosecuting the crimes listed in that provision.

[…]

(1) There are ultimately no doubts under constitutional law that acoustic surveillance of private homes is, in principle, a suitable means for law enforcement.

[…]

(2) Yet with the statutory authorisation to carry out [surveillance] measures constituting interferences, the legislator also pursues the particular purpose of penetrating the inner sphere of organised crime. […]

(a) Given the difficulties in capturing the phenomenon of organised crime, it is at present not possible to present reliable findings regarding the extent to which this particular aim pursued by the legislator can be achieved.

[…]

(b) Currently, it cannot be definitively determined whether the structures of organised crime are indeed of such nature that acoustic surveillance of private homes, as an instrument of law enforcement, could make a specific contribution to penetrating these structures. […]

It is not objectionable under constitutional law that the legislator proceeded on the assumption [that this is the case]. The remaining uncertainties require that the legislator further monitor developments in this area and continually reassess whether that investigation instrument is really suitable for achieving its specific aim to a sufficient degree (regarding the monitoring of legal provisions cf. BVerfGE 33, 171 <189 and 190>; 37, 104 <118>; 88, 203 <310>).

The legislator did provide for mechanisms in this regard. A continual assessment is in particular guaranteed by the reporting obligations under Art. 13(6) of the Basic Law in conjunction with § 100e of the Code of Criminal Procedure. […]

cc) The challenged law is necessary for achieving the purpose pursued. No other means are available that would be equally effective but less intrusive for fundamental rights holders (see 1 below). Moreover, the legislator linked the grounds for carrying out the measures constituting interferences to statutory prerequisites that sufficiently ensure that acoustic surveillance of private homes is only carried out if it is necessary [for achieving the law enforcement purpose pursued] (see 2 below).

(1) It is not ascertainable that other investigation measures would be generally less intrusive yet equally suitable for achieving the same investigation purpose.

When assessing the necessity of the means chosen to achieve the aims pursued, the legislator has a margin of appreciation, in respect of which the Federal Constitutional Court’s powers of review are limited (cf. BVerfGE 90, 145 <173>). According to the legislator’s assessment in the present case, there are no alternatives to acoustic surveillance of private homes that would be less intrusive for fundamental rights holders. In respect of organised gangs that almost completely isolate themselves from outsiders, the legislator believes that conventional investigation methods, including the surveillance of telecommunications, are usually not sufficient to allow investigations to reach into the core of organised crime. […] This assessment is not objectionable under constitutional law, at least according to the current state of knowledge regarding existing forms of organised crime.

[…]

(2) Moreover, the legislator included statutory safeguards to ensure that acoustic surveillance of private homes is only used as a last resort.

Art. 13(3) of the Basic Law provides that acoustic surveillance of private homes may only be used if investigating the matter in question by other methods would be disproportionately difficult or futile. A corresponding subsidiarity requirement was inserted into § 100c(1) no. 3 of the Code of Criminal Procedure. Acoustic surveillance of private homes may thus only be used as a last resort by law enforcement.

[…]

dd) Insofar as acoustic surveillance of private homes does not affect the absolutely protected core of private life, the Constitution-amending legislator set out particular requirements governing the lawfulness [of such surveillance measures] in Art. 13(3) of the Basic Law, further specifying the principle of proportionality. The catalogue of criminal offences set out in § 100c(1) no. 3 of the Code of Criminal Procedure does not satisfy these constitutional requirements in that it is not limited to particularly serious crime within the meaning of Art. 13(3) of the Basic Law.

[…]

ee) For the rest, the statutory provisions authorising surveillance give sufficient effect to the requirements set out in Art. 13(3) of the Basic Law and the principle of proportionality in the strict sense, at least if interpreted restrictively.

(1) With regard to the tension between the state’s duty to guarantee an effective criminal justice system under the rule of law and the interest of suspects and third parties that their constitutionally guaranteed rights be respected, it is primarily incumbent on the legislator to achieve an abstract balance between the conflicting interests. Moreover, in interpreting and applying provisions that restrict fundamental rights, the courts have to ensure that their decisions are appropriate [in terms of proportionality]. The same applies to the authorities carrying out surveillance measures. In this regard, the principle of proportionality must be applied not least because Art. 13(3) of the Basic Law does not spell out explicit requirements for the design in the Code of Criminal Procedure of the statutory powers at issue here, nor does it provide for such requirements regarding their application in the individual case.

(2) Based on these standards, § 100c(1) no. 3 of the Code of Criminal Procedure is not objectionable under constitutional law if interpreted restrictively – except for the overly broad catalogue of criminal offences [which is unconstitutional].

[…]

(3) § 100c(1) no. 3 of the Code of Criminal Procedure also satisfies the requirements of proportionality to the extent that, in addition to the investigation of the facts of the case, it also permits surveillance measures to determine the whereabouts of the “offender”.

[…]

(4) By interpreting § 100c(1) no. 3, § 100c(2) fourth and fifth sentence and § 100c(3) of the Code of Criminal Procedure restrictively, it can be ensured that third parties who are not themselves suspects are only affected by acoustic surveillance of private homes to an extent that is appropriate to the public interest in effective law enforcement, as the purpose pursued by the investigation measure. However, surveillance of third parties is – as always – impermissible from the outset with regard to communication relating to the core of private life. This is not the case if the suspect is in a private home rented by a third party for the purpose of conspiring [to commit a crime]. By contrast, the core of private life is more likely to be affected if the suspect enters the home of a third party, for example a friend or a family member, only temporarily and as a visitor.

(a) The severity of interference is a decisive factor for determining whether a measure that restricts fundamental rights is appropriate. In this regard, it is significant how many persons are affected by impairments, how severe the impairments are and whether the affected persons have prompted them (cf. BVerfGE 100, 313 <376>). The severity of the impairment depends on whether affected persons remain anonymous, what communication circumstances and contents can be intercepted, and what disadvantages the holders of fundamental rights might face or have reason to fear on account of the surveillance measures (cf. BVerfGE 100, 313 <376>; 107, 299 <320>). It is also significant whether the investigation measures take place in a private home or on commercial and business premises and whether, and how many, non-suspects are affected.

(03b1) Acoustic surveillance of private homes is a particularly serious interference with fundamental rights. It can affect a considerable number of persons who have no connection to the criminal charges and who did not prompt the interference, but merely have some form of connection to the offender or happen to be in the same home.

Affected third parties in this sense are persons who are not themselves the target of the investigation measures. These include conversation partners of the suspect, other persons who are temporarily or permanently staying in the suspect’s home, but also other persons affected by surveillance measures in offices and on business premises. Furthermore, apart from the suspect, persons are affected [as third parties] if their homes become the object of surveillance because the suspect is presumed to be present there. These persons, too, must be considered affected parties if they are in a home under surveillance at any time during the measure. Where communication of non-suspects is recorded, acoustic surveillance of private homes exposes them to the risk that they themselves may become the target of state investigations. This specific risk then aggravates the general risk of being falsely suspected of wrongdoing (cf. BVerfGE 107, 299 <321>).

[…]

The particular severity of the interference follows from the contents and the scale of communications intercepted in the context of acoustic surveillance of private homes, in addition to the large number of non-suspects affected by the measures. All aspects of everyday communication taking place during the surveillance period in the targeted home could be intercepted. Therefore, the share of conversations without any relevance whatsoever to law enforcement is likely to be high.

(03b2) Covert surveillance of non-public speech in private homes affects not only individuals but communication in society as a whole. The possibility that acoustic surveillance of private homes is carried out may have chilling effects, in particular on non-suspects, because the measures authorised by the statutory provisions could affect them at any time and without their knowledge. Simply the fear of being under surveillance may lead to communication no longer being free from fear or worry. Art. 13 of the Basic Law protects individuals against the state interfering with the sphere of private space within their home and thus guarantees, as an objective value, the confidentiality of communication, which is also significant for society as a whole. The constitutional and statutory safeguards put in place to protect individual holders of fundamental rights also foster the general public’s trust in a surveillance practice that respects fundamental rights (cf. BVerfGE 107, 299 <328>).

(03b3) Art. 13(3) of the Basic Law only sets out the requirement that the suspect must be presumed to be present in the home to be monitored: this constitutes a minimum requirement regarding the likelihood that the suspect is in the home. In light of the severity of the interference, acoustic surveillance of private homes is only appropriate if the surveillance measure from the outset exclusively targets conversations of the suspect, because only then can it be assumed that the intercepted conversations have a sufficient connection to the crime under investigation. Yet this means that acoustic surveillance of private homes is only permissible if the suspect is actually or, as the case may be, at least presumably present in the home under surveillance at the time in question. This requirement also serves to protect non-suspects.

(b) The statutory provisions satisfy these constitutional requirements as they sufficiently restrict interferences affecting non-suspects.

[…]

III.

The statutory design of the requirement of prior judicial authorisation (Richtervorbehalt ) in § 100d(2) and (4) first and second sentence of the Code of Criminal Procedure does not violate the fundamental rights invoked by the complainants.

1. Art. 13(3) third and fourth sentence of the Basic Law subjects acoustic surveillance of private homes to a qualified requirement of prior judicial authorisation. The requirement of judicial authorisation aims to ensure prior review by an independent and neutral authority. The Basic Law rests on the presumption that judges can best and most reliably ensure that the rights of the affected person are respected in the individual case due to their personal and professional independence and the fact that they are bound only by the law (Art. 97 of the Basic Law) (cf. BVerfGE 77, 1 <51>; 103, 142 <151>; 107, 299 <325>). […]

[…]

2. The statutory provisions governing judicial warrants for the acoustic surveillance of private homes satisfy these requirements.

[…]

3. In § 100d(4) first sentence of the Code of Criminal Procedure, the legislator provided, in accordance with Art. 13(3) second sentence of the Basic Law, that a judicial warrant may be valid for a maximum of four weeks, which is not objectionable under constitutional law. This guarantees a regular judicial review of the surveillance measures that is appropriate to the severity of the interference.

[…]

4. […]

IV.

§ 101 of the Code of Criminal Procedure, which governs the requirement to notify persons affected by acoustic surveillance of private homes, is only in part compatible with Art. 19(4) and Art. 103(1) of the Basic Law.

1. § 101(1) first sentence of the Code of Criminal Procedure is incompatible with Art. 13(1), Art. 19(4) and Art. 2(1) in conjunction with Art. 1(1) of the Basic Law to the extent that the notification of persons affected by acoustic surveillance of private homes is subject to the condition that notifying them does not pose a threat to public security or to the continued use of an undercover police investigator. In addition, the fact that a judicial decision is only required once to defer notification for six months after the measure has ended pursuant to § 101(1) second sentence of the Code of Criminal Procedure does not sufficiently guarantee adherence to the procedural notification requirement under constitutional law.

[…]

2. […]

V.

Taking into account the above-mentioned requirements regarding notification, ex post legal protection of affected persons against acoustic surveillance of private homes is sufficiently ensured.

[…]

VI.

The challenges brought by complainants no. 2 regarding the legislative design of the Federal Government’s reporting obligations are unsuccessful.

[…]

VII.

Regarding the use of personal data in other proceedings, § 100d(5) second sentence and § 100f(1) of the Code of Criminal Procedure are not compatible with Art. 13(1), Art. 2(1) and Art. 1(1) of the Basic Law to the extent that they lack an obligation to label the data to be shared as information [obtained through surveillance].

[…]

VIII.

Just like the provisions governing data sharing, the provisions on the destruction of data in § 100d(4) third sentence, § 100b(6) of the Code of Criminal Procedure must be viewed together with the provisions on data collection for the purposes of a constitutional assessment. In light of that, the provisions on the destruction of data violate Art. 19(4) of the Basic Law. […]

The protection of Art. 13(1) of the Basic Law, which is also applicable in subsequent stages of data processing, requires that the lawfully obtained data be in principle destroyed as soon as it is no longer needed for the defined purposes (regarding Article 10 of the Basic Law, cf. BVerfGE 100, 313 <362>). Yet at the same time, the provisions on data destruction must satisfy the requirement of effective legal protection. In this respect, specific conflicts may arise: On the one hand, deleting data that is no longer needed gives effect to data protection; on the other hand, deletion makes effective legal protection more difficult or even obstructs it altogether because judicial review of a surveillance measure is only possible to a limited extent once the records have been destroyed […]. In light of the foregoing, in cases in which affected persons seek judicial review of information and data processing measures by the state, the obligation to destroy data must be balanced against the guarantee of legal protection so as to ensure that legal protection is not undermined or obstructed (cf. BVerfGE 100, 313 <364, 400>).

[…]

§ 100d(4) third sentence and § 100b(6) of the Code of Criminal Procedure do not provide for [the required] safeguards. […]

IX.

To the extent that the challenged provisions of the Code of Criminal Procedure are incompatible with the Basic Law, it is incumbent upon the legislator to bring the law in conformity with the Constitution by 30 June 2005 at the latest.

Until then, the challenged provisions may continue to be applied on condition that the protection of human dignity and the principle of proportionality are sufficiently observed. During this transitional period, the application of § 100d(3) fifth sentence of the Code of Criminal Procedure is subject to the condition that the court designated in § 100d(2) first sentence of the Code of Criminal Procedure ex officio decides whether information obtained by surveillance measures may be further used in criminal investigations. The court designated in § 100d(2) first sentence of the Code of Criminal Procedure remains competent to decide [on deferring notification] pursuant to § 100d(4) first sentence and § 101(1) second sentence of the Code of Criminal Procedure, including after the suspect has been formally indicted.

D.

[…]

Dissenting Opinion of Justices Jaeger and Hohmann-Dennhardt

We do not agree with the parts of the judgment set out under C I. In our view, the amended Art. 13(3) of the Basic Law as such is already incompatible with Art. 79(3) of the Basic Law and thus void. However, we concur with the parts of the decision set out under C II to IX to the extent that the statutory provisions governing acoustic surveillance of private homes by technical means for law enforcement purposes are declared unconstitutional.

I.

1. Art. 79(3) of the Basic Law bars constitutional amendments that affect the principles laid down in Arts. 1 and 20 of the Basic Law. These principles include the protection of private homes as domestic space for one’s highly personal life, which is indispensable for upholding a legal order that observes the requirement to respect and protect human dignity. In this regard, we agree with the Senate majority’s view that the right to the inviolability of the home under Art. 13(1) of the Basic Law also serves the protection of human dignity. The development of one’s personality requires private refuges in which individuals can express themselves and communicate with confidants about their personal views and feelings without fear of being under surveillance. In particular in a world in which it has become technically feasible to observe and record almost everything a person does and says, private homes more than ever serve as a last refuge for individuals, where they may express their free thoughts without being monitored. Thus, homes provide a space that serves as a means of protecting human dignity.

2. We also agree with the Senate majority’s assessment that the Constitution affords private homes absolute protection only to the extent that the behaviour occurring in them falls under the protection of human dignity; not every statement made in a private home is highly personal. Yet in order to safeguard human dignity, private homes enjoy absolute protection where they are used to express and exchange personal feelings and opinions.

However, it is precisely because private homes are closed to the outside world that it is not possible to determine in advance whether conversations taking place therein at a given moment are about highly personal matters or matters that affect the sphere of others or interests of the common good. As stated in the judgment, such a distinction can only be based on indications from which it can be inferred what presumably goes on within the home. For instance, it can be presumed that a situation relating to the highly personal domain is more likely to occur in private homes than on business premises, more likely to occur in conversations with close confidants than with business partners or acquaintances. Yet such presumptions can only be confirmed once the closed sphere of the home is intruded upon and information on what happens within it is obtained. At that point, the surveillance measure may already have interfered with intimate matters, which enjoy absolute protection especially within one’s own home. Thus, if the attribution of a situation behind closed doors to the absolutely protected core of private life were contingent upon a specific determination in the individual case, this would imply that an interference with this core would always have to be tolerated initially – which is exactly what Art. 79(3) of the Basic Law seeks to prevent. For the sake of protecting the possibility of free expression of one’s personality, in order to safeguard human dignity, it must thus be presumed that at least private homes in which the suspect is alone, with family members or with persons who are evidently close confidants, provide space and are used for highly personal communication. Therefore, they enjoy comprehensive protection under Art. 13(1) of the Basic Law.

II.

Art. 13(3) of the Basic Law, as amended, exceeds the substantive limits which Art. 79(3) of the Basic Law sets for interferences with the inviolability of the home protected by Art. 13(1) of the Basic Law. It authorises the creation of statutory powers for the acoustic surveillance of private homes by technical means for law enforcement purposes if a person suspected of a particularly serious crime is presumably present there. It thus also enables covert interception of highly personal conversations.

1. […] The wording of Art. 13(3) of the Basic Law does not contain restrictions ensuring that the core of private life is protected when the investigation instruments in question are used.

2. […]

It is true that in the later stages of the legislative process, a prohibition to collect evidence was ultimately introduced at the level of statutory law, in § 100d(3) of the Code of Criminal Procedure, regarding conversations with persons bound by professional confidentiality pursuant to § 53 of the Code of Criminal Procedure. Regarding conversations with family members, who are entitled to refuse to give evidence pursuant to § 52 of the Code of Criminal Procedure, however, only a prohibition to use data as evidence subject to a proportionality assessment was agreed upon in the end, while no further changes were made to Art. 13(3) of the Basic Law. Even if one presumes that the legislator based this modification at the level of statutory law on the assumption that an inherent limitation on acoustic surveillance measures targeting private homes was implied in Art. 13(3) of the Basic Law, the design of this constitutional provision by the Constitution-amending legislator in any case left highly personal conversations with family members and close confidants unprotected. It allows such conversations to be intercepted by technical means, as it only restricts the use of information thus obtained at the level of statutory law and on the basis of proportionality considerations.

As a consequence, family members’ right to refuse to give evidence is in part undermined given that the protection afforded by the prohibition to use data as evidence is inadequate. Once obtained, knowledge of conversation contents cannot be erased, and it can in fact influence the conduct of law enforcement authorities in the proceedings against the suspect or even against third parties. Moreover, persons talking to the suspect become objects of law enforcement measures by the state, even though they do not themselves qualify as suspects. This is especially true if it is their home rather than the home of the suspect that becomes the target of surveillance, with the authorities exploiting their close personal relationship with the person under observation and the atmosphere of trust within their home.

III.

We cannot agree with the Senate majority that the constitutional shortcomings of Art. 13(3) of the Basic Law, which was inserted by constitutional amendment, can be remedied through an interpretation in conformity with the Constitution or through a systematic interpretation of the Constitution.

1. It is true that constitutional provisions in particular are open to interpretation, cannot be considered in isolation and must be interpreted in line with the fundamental principles of the Basic Law and its system of values (cf. BVerfGE 19, 206 <220>). However, the question to what extent Art. 79(3) of the Basic Law limits constitutional amendments is not about achieving equilibrium between existing fundamental rights guarantees, but about determining whether the amendment affects the principles laid down in Art. 1 and Art. 20 of the Basic Law. Thus, the constitutional amendment must be measured against these principles as such, and not be interpreted in a manner that, by invoking these principles and contrary to its wording, seeks to rephrase the amendment to bring it in conformity with the Constitution.

a) […]

b) […]

c) Art. 79(3) of the Basic Law serves to ensure not only that certain standards are observed within the legal order, but first and foremost that the principles laid down therein are upheld in the Constitution itself. […]

[…]

2. The option, presumed to be feasible by the Senate majority, to render a Constitution-amending provision constitutional by interpreting it in conformity with the Constitution impermissibly limits the scope of application of Art. 79(3) of the Basic Law. […] Art. 79(3) of the Basic Law is designed to resist even the beginnings of any dismantling of such fundamental rights guarantees enshrined in the Constitution that are rooted in rule-of-law principles or serve to guarantee human dignity, rather than merely becoming applicable once the state under the rule of law has been completely abolished and human dignity has been stripped of any protection (cf. BVerfGE 30, 1; dissenting opinion, p. 33 <47>). Constitutional amendments must be taken literally and the underlying legislative decisions must be measured against the principles laid down in Art. 1 and Art. 20 of the Basic Law, otherwise Art. 79(3) of the Basic Law cannot fulfil its purpose of counteracting any gradual chipping away at the cornerstones of our Constitution. If these principles are affected, Art. 79(3) of the Basic Law does not leave room for an interpretation in conformity with the Constitution that could retroactively render the impermissible constitutional amendment permissible after all.

[…]

Today, people seem to have become used to the reality that once the technical means become available, their unrestricted use must apparently be tolerated. Yet if even the personal intimate sphere, as manifested within one’s own home, is no longer off-limits to satisfy security interests, we must ask ourselves, not least from a constitutional perspective, whether the conception of human nature reflected by such an approach is still in keeping with a free democracy under the rule of law. This is all the more reason to interpret Art. 79(3) of the Basic Law strictly and adamantly, not to resist the beginnings, but to resist a bitter ending.