R e a s o n s:

A.

1

The judicial review proceedings concern the constitutionality of § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the North Rhine-Westphalia Police Act (Polizeigesetz des Landes Nordrhein-Westfalen – PolG NRW; hereinafter: the Act), which authorise police authorities to conduct long-term observations combined with the covert use of technical means to take and record images.

2

The provisions referred by the Federal Administrative Court (Bundesverwaltungsgericht) are in the version published on 25 July 2003 (Law and Ordinance Gazette of North Rhine-Westphalia, Gesetz- und Verordnungsblatt für das Land Nordrhein-Westfalen – GV NRW p. 132). § 16a of the Act was last amended by the Act Amending the North Rhine-Westphalia Police Act of 9 February 2010 (GV NRW p. 132), and § 17 of the Act was last amended by the Act Amending the North Rhine Westphalia Police Act and the Police Organisation Act of 21 June 2013 (GV NRW p. 375). Since § 16a(1) and § 17(1) of the Act continue to apply unchanged, the provisions are, insofar as the version cited is not relevant, only cited in their current version (published on 25 July 2003 <GV NRW p. 441>, last amended by Art. 1 of the Seventh Act Amending the North Rhine-Westphalia Police Act of 19 December 2023 <GV NRW p. 1394>) and without the designation ‘old version’. Insofar as the version cited is relevant, it will be indicated.

I.

3

1. a) § 16a(1) first sentence of the Act authorises police authorities to collect personal data through scheduled surveillance that is either planned for or actually carried out continuously for more than 24 hours or on more than two days (long-term observations). This requires that the measure is necessary to avert a present danger to life, limb or liberty of a person (cf. § 16a(1) first sentence no. 1 of the Act) or that facts give rise to the assumption that persons want to commit considerable criminal offences; in the latter case, data on contact persons or associates may also be collected, insofar as this is necessary for the prevention of these criminal offences (cf. § 16a(1) first sentence no. 2 of the Act). Insofar as § 16a(1) first sentence no. 2 of the Act ties the measures at issue to considerable criminal offences, these are defined in § 8(3) of the Act. § 16a(1) second sentence of the Act also permits the collection of personal data on other persons (third parties), insofar as this is necessary for data collection in accordance with the first sentence of that provision.

4

Observations within the meaning of § 16a of the Act refer to scheduled surveillance of persons that allows the police to collect personal data. This only concerns direct visual surveillance by police officers. The use of technical means for data collection is not covered by the authorisation to carry out observations ([…]), and requires an express authorisation.

5

b) § 17(1) first sentence of the Act authorises police authorities to collect personal data through the covert use of technical means to take (first alternative) and record (second alternative) images, and to intercept (third alternative) and record (fourth alternative) spoken communication. It does not restrict the use of technical means to observation purposes. The prerequisites set out in § 17(1) first sentence of the Act for ordering the covert use of technical means are the same as the prerequisites for long-term observations.

6-8

2. […]

9

3. While § 16a(1) and § 17(1) of the Act continue to apply unchanged, the respective section (2) of each of these provisions was amended by the Act Introducing an Assembly Act for North Rhine-Westphalia and Amending Other Provisions of 17 December 2021 (GV NRW 2022 p. 2) with effect from 7 January 2022. In particular, the amendment introduced a requirement of prior judicial authorisation and a time limit for long-term observations under § 16a(2) of the Act. At the same time, the requirement of prior judicial authorisation for the use of technical means to intercept and record spoken communication pursuant to § 17(1) first sentence, third and fourth alternative of the Act (old version), which was previously set out in § 17(2) third sentence of the Act (old version), was replaced with a reference to § 16a(2) of the Act.

II.

10

1. In the initial proceedings underlying the referral for judicial review, the plaintiff, as an affected third party, challenges a data collection that was carried out during long-term observations initiated on 10 July 2015 in relation to B., the target person, and involved the taking and recording of images.

11

a) Target person B. had been registered by police as a person posing a threat of committing extreme right-wing politically motivated crimes. He had joined the so-called skinhead scene when he was a teenager and had been given a juvenile sentence of eight years for, among other things, murder (Totschlag), dangerous bodily harm and failure to render assistance in an emergency. After serving this sentence, he was sentenced to a further six years and two months of imprisonment for committing dangerous bodily harm. In preparation for his release from detention after serving the latter prison sentence, the head of the police authority ordered on 10 July 2015 that his new place of residence be investigated for the duration of one month through long-term observations and the covert use of technical means to take and record images to prevent him from going underground and to prevent future serious acts of politically motivated violent crime. The head of the police authority stated that this order was necessary to prevent acts of dangerous bodily harm under § 224 of the Criminal Code (Strafgesetzbuch – StGB).

12

b) During the course of the measure initiated against B. on 14 July 2015, the plaintiff’s data was also collected; she was observed and photographed several times. After the conclusion of the measure, the police informed her of this fact.

13

2. The plaintiff applied to the Administrative Court (Verwaltungsgericht) for a declaration that the data collection in the period between 10 July and 9 August 2015 concerning her was unlawful. The Administrative Court rejected the action by judgment of 11 July 2016. It held that the prerequisites for collecting data concerning the plaintiff had been met. Since she had temporarily sheltered the target person, she had become, at a minimum, his associate within the meaning of § 16a(1) fourth sentence of the Act.

14

3. By judgment of 16 December 2019, the Higher Administrative Court (Oberverwaltungsgericht) revised the judgment of the court of first instance in part and declared that the observation of the plaintiff on 16 July 2015 and the photographs taken of her on 15, 17 and 23 July 2015 had been unlawful. It rejected the remainder of the appeal.

15-16

[…]

17

4. By order of 31 May 2022, the Federal Administrative Court suspended the appeal on points of law and, pursuant to Art. 100(1) of the Basic Law (Grundgesetz – GG), § 13 no. 11 and § 80(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), referred to the Federal Constitutional Court the question whether § 16a(1) first sentence no. 2 in conjunction with § 16a(1) second sentence and § 17(1) first sentence, first alternative no. 2 in conjunction with § 17(1) second sentence of the Act are compatible with the fundamental right to informational self-determination following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

18-31

[…]

III.

32

Statements on the constitutional complaint were submitted by the Land Government of North Rhine-Westphalia, the Land Officer for Data Protection and Freedom of Information for North Rhine-Westphalia and the Federal Officer for Data Protection and Freedom of Information.

33-36

[…]

B.

37

The referral must be interpreted narrowly (see I. below). So limited, the referral is admissible (see II. below); the Federal Constitutional Court has jurisdiction to review the compatibility of the provisions referred for review with the fundamental rights of the Basic Law (see III. below).

I.

38

The referral must be interpreted narrowly. The referring court determines the subject matter of the referral, i.e. the provision that is to be reviewed. It also determines which aspect or part of the referred provision is to be reviewed (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 106, 275 <296>). The Federal Constitutional Court can adopt a restrictive interpretation of the question of referral in consideration of the reasons set forth in the orders of referral (cf. in this regard BVerfGE 88, 145 <158 f.>; 110, 412 <430 f.>; Federal Constitutional Court, Order of the Third Chamber of the First Senate of 29 April 2022 - 1 BvL 2/17 inter alia -, para. 13).

39

1. Based on these standards, the review must be limited to § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first alternative no. 2 of the Act only, and thus to the combined application of the two provisions. The subject of the initial proceedings is a combined order for surveillance and it was only in this regard that the referring court found that the measure resulted in interference of increased severity, and it only set forth the proportionality requirements in this context.

40

2. Moreover, based on a reasonable interpretation, the referral must be limited by the fact that it does not concern a targeted order against contact persons and associates, permitted by § 16a(1) first sentence no. 2 and § 17(1) first sentence no. 2 of the Act, nor does it implicate the provisions’ respective section (1) second sentence, which governs the collection of data concerning third parties. Although both elements of the provisions are included in the referral, it cannot be ascertained from the reasons given for the referral that the referring court also seeks constitutional review of orders against contact persons and associates and of the respective second sentences of § 16a(1) and § 17(1) of the Act. The only provision relevant for the referring court is the one directed against the responsible person, the potential unconstitutionality of which also relates to the measure taken in relation to the plaintiff as a third party. What is more, orders directed against contact persons and associates are not relevant to the decision of the referring court, as they do not affect the plaintiff as such.

II.

41

The referral is admissible.

42-56

[…]

III.

57

The Federal Constitutional Court has jurisdiction to review the compatibility of the challenged provisions with the fundamental rights of the Basic Law, even though the challenged provisions also involve data protection provisions in legal acts of the European Union. The powers granted under § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence no. 2 of the Act do not implement binding EU law. EU legislation does not contain any provisions that require the challenged powers, let alone provide an exhaustive legal framework; the challenged powers are not fully determined by EU law (cf. in this regard BVerfGE 152, 152 <168 f. paras. 39, 42> – Right to be forgotten I; 154, 152 <214 f. para. 84> – Federal Intelligence Service – Surveillance of foreign telecommunications; 155, 119 <162 ff. para. 83 ff.> with further references – Subscriber data II; 158, 1 <27 para. 45> – Ecotoxicity data; 158, 170 <183 para. 23> with further references – IT security vulnerabilities).

58

Directive 2016/680/EU and the General Data Protection Regulation (GDPR, Regulation <EU> 2016/679), which were both enacted in 2016, were not yet in effect at the time the combined measures were ordered on 10 July 2015, and therefore did not apply to the legislator’s actions when enacting the provisions referred for review in these proceedings. Nor did the previously applicable legislation that Directive 2016/680/EU or the GDPR replaced (such as Data Protection Directive 95/46/EC) contain any requirements regarding the specific design of data collection powers. Regardless of these considerations, Directive 2016/680/EU does not contain any binding standards as to what surveillance powers may be conferred on a national authority under what specific conditions. The directive does not require the Member States to enact the challenged provisions in precisely this form, nor does it reach a level of detail that would result in the provisions being fully determined by EU law.

C.

I.

59

The Federal Constitutional Court does not review the referred provisions in their entirety, but only in the context of the relevant point of law that is admissibly raised for the present proceedings (§ 81 Federal Constitutional Court Act); when necessary, the Court is entitled to expand this point of law. Unlike the subject matter of review, the scope of review is not limited. The Federal Constitutional Court reviews the provisions that were admissibly referred for review in light of all relevant constitutional aspects, regardless of whether they were raised in the order of referral. The Court is not bound by the order of referral with regard to the standard of review (cf. BVerfGE 126, 77 <98> with further references; 126, 369 <388> with further references; 133, 1 <12 para. 41> with further references; 141, 1 <14 f. para. 31> with further references; established case-law). The Court interprets the challenged provisions on its own authority, without being bound by the legal view of the referring court or of other courts; it determines the contents and meaning of the law under review itself (cf. BVerfGE 98, 145 <154> with further references; 110, 412 <438>; 167, 163 <192 para. 66>; established case-law).

II.

60

Based on these standards, the referral of § 17(1) first sentence of the Act, which is limited to the use of technical means to take images (first alternative), must be extended to the use of technical means to record images (second alternative).

61

1. In light of the conciliatory function of judicial review proceedings, which to a certain extent provides a function of objective review to specific judicial review proceedings (cf. BVerfGE 121, 241 <253> with further references; 145, 1 <7 para. 15>; 149, 382 <390 para. 13>), the Federal Constitutional Court can extend the question of referral to provisions or parts thereof that are closely linked to the provisions considered objectionable by the referring court (cf. BVerfGE 139, 285 <297 para. 38> with further references; 149, 1 <14 para. 30> with further references). Such an extension can be considered, for example, if it can be derived from the overall context of the order of referral that the referring court considered other questions in addition to the questions explicitly raised and found them to be relevant – particularly if the question could otherwise not be plausibly reviewed – or if there is a close connection between the issues relevant for decision and another question, which might make it necessary for the latter to also be considered as referred for review (cf. in this regard BVerfGE 69, 272 <295>; 72, 200 <239 f.>; 78, 232 <242 f.>; […]).

62

2. Consequently, the question of referral must be extended to the recording of images pursuant to § 17(1) first sentence, second alternative no. 2 of the Act.

63

Beyond the fact that, in practice, the use of technical means to take and record images will typically be ordered in combination, as was the case in the initial proceedings, an extension of the question of referral is supported by the consideration that the images at issue in the present case – contrary to the interpretation of the Higher Administrative Court, which was binding on the referring court – are not temporary, but rather ‘image recordings’ within the meaning of § 17(1) first sentence, second alternative of the Act. The term ‘taking of images’ [in § 17(1) first sentence, first alternative of the Act] merely refers to the use of an optical device based on the camera-monitor principle; an ephemeral transmission in real time from the recording device to a display device takes place in the sense of ‘live images’. This means that these images are not stored, and thus not retained on a data storage device ([…]). By contrast, when it comes to ‘image recordings’, the optical device – typically a camera – stores images on a data storage device, e.g. via photography or video technology, and the data obtained thereby can be viewed as often as desired ([…]). […]

64

In light of this, it does make sense to extend the question of referral here, given that a decision limited to the first alternative would – based on the aforementioned interpretation of the term ‘taking of images’ adopted by the Federal Constitutional Court – not even cover the case in the initial proceedings, in which the images were stored. As this interpretation provides that it is only ‘image recordings’ that are stored, and these image recordings thus amount to more intrusive measures, a constitutional assessment limited to the taking of images would not take into account the severity of interference in the case in the initial proceedings. Ultimately, both the Higher Administrative Court and the referring court also reviewed the alternative of image recordings, given that both courts based their review on the taking of images that were recorded and stored.

D.

65

§ 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act is unconstitutional insofar as the authorisation of orders against the person responsible is concerned.

66

The provisions under review are formally constitutional (see I. below). However, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act do not satisfy the constitutional justification requirements. In combined application, the provisions give rise to fundamental rights interferences of great severity. The provisions do not satisfy the more stringent requirements resulting from interferences of great severity regarding the necessary threshold for interference and the requirement of specificity (see II. below).

I.

67

§ 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act is formally constitutional. The Land North Rhine-Westphalia has the necessary legislative powers.

68

1. The Federation does not have legislative powers in this regard. […]

69

2. […]

II.

70

However, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternatives no. 2 of the Act is substantively unconstitutional. When applied in combination – which is the application under review here – the challenged provisions interfere with the fundamental right to informational self-determination following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (see 1. below). Measured against the severity of this interference, the combined application of both provisions does not meet the constitutional requirements for justification (see 2. below).

71

1. Long-term observations using technical means to take and record images authorised by § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act interfere with the general right of personality of those affected (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law) in its manifestation as the right to informational self-determination (cf. also BVerfGE 162, 1 <160 para. 357> – Bavarian Protection of the Constitution Act; 165, 1 <48 para. 87 f.>). Insofar as the taking and recording of images authorised by § 17(1) first sentence, first and second alternative of the Act could amount to a separate interference with the right to one’s own image as another manifestation of the general right of personality, the proportionality requirements are the same ([…]). The order of such measures itself is sufficient to give rise to an interference with fundamental rights of the persons affected and to jeopardise their informational self-determination (cf. also BVerfGE 124, 43 <58> with further references).

72

2. § 16a(1) first sentence no. 2 and § 17(1) first sentence, first and second alternative no. 2 of the Act in their combined application do not satisfy the constitutional justification requirements.

73

a) In order to be justified, interferences with fundamental rights must be based on a statutory authorisation that pursues a legitimate purpose and also satisfies the principle of proportionality in all other respects (see aa) below). The referred provisions must also be measured against the principle of specificity and legal clarity, which serves to effectively limit public authorities’ powers, to enable effective judicial review and to make interferences foreseeable for citizens (see bb) below).

74

aa) Surveillance powers must have a legitimate aim, and must be suitable, necessary and proportionate in the strict sense for achieving that aim (cf. BVerfGE 141, 220 <265 para. 93> with further references). The requirements of proportionality in the strict sense in particular give rise to decisive limitations. How stringent these requirements are in each case depends on the severity of interference and the weight of the public interest (cf. BVerfGE 141, 220 <269 para. 105>). Both the so-called threshold for interference, i.e. the grounds for the surveillance, and the legal interest to be protected by the data collection are subject to constitutional requirements (cf. in this regard BVerfGE 141, 220 <269 ff. para. 104 ff.>).

75

(1) Data collection by means of covert surveillance measures requires specific thresholds for interference limiting such data collection, including in cases where the measures only result in interference of moderate severity and are significant for the performance of state tasks in the area of public security. Even when the informative value and possibilities of using the data are very limited, such data must not be collected on a purely speculative basis (cf. BVerfGE 130, 151 <205> – Subscriber data I). Such thresholds that limit the use of these powers must ensure that data can only be obtained if factual indications provide specific grounds for the use of these powers (cf. BVerfGE 155, 119 <186 para. 145> with further references).

76

In relation to public security, it is therefore in principle required that a specific danger (konkrete Gefahr) exists in the individual case within the meaning of the general clauses in police law (cf. BVerfGE 155, 119 <186 f. para. 146>), or that at least a sufficiently identifiable danger (konkretisierte Gefahr) exists (cf. in this regard BVerfGE 141, 220 <271 ff. para. 111 ff.>; 155, 119 <187 ff. para. 147 ff.>) In order for a sufficiently identifiable danger to be present, there must be at least factual indications that a specific danger to protected legal interests might arise. Assumptions based on general experience alone are not sufficient to justify data collection measures. Rather, specific facts must be established that, in the individual case, support the prognosis that a chain of events leading to a violation of one of the protected legal interests will occur and that the violation can be attributed to the person responsible. A sufficiently identifiable danger in this sense may already exist even where the causal chain leading to the damage is not yet foreseeable with sufficient probability, provided that there are specific facts indicating an impending danger to an exceptionally significant legal interest in the individual case (BVerfGE 165, 1 <49 f. para. 90>; cf. already BVerfGE 141, 220 <272 f. para. 112>).

77

Two conditions must generally be met in this regard: firstly, it must at least be possible to determine, based on the facts, the type of incident that might occur, and that it will occur within a foreseeable timeframe; secondly, the facts must indicate the involvement of specific persons whose identity is known at least to such an extent that the surveillance measure can be targeted at and, for the most part, limited to such persons (BVerfGE 141, 220 <272 f. para. 112> with further references).

78

(2) In light of the principle of proportionality, a lower threshold for interference down to the level of an identifiable danger will generally result in stricter requirements with regard to the specific legal interests to be protected (cf. BVerfGE 141, 220 <272 para. 112>; 155, 119 <187 f. para. 148>). The greater the weight of the legal interest under threat and the more far-reaching the impairments to this interest that could result from the actions at issue, the lower the degree of probability needed to establish a risk of a violation of the respective legal interest, and the lower the degree of certainty of the facts required for the assumption that the legal interest is under threat (cf. BVerfGE 100, 313 <392>; 113, 348 <386>). By contrast, the lower the weight of the legal interest under threat, the stricter the requirements for the degree of certainty, both with regard to the threat level and its intensity (BVerfGE 155, 119 <187 para. 147> with further references; cf. already BVerfGE 113, 348 <386>). For this reason, the requirements regarding the foreseeability of an incident in the context of preventing terrorist acts may be even lower (in detail BVerfGE 141, 220 <272 f. para. 112, 291 para. 164> with further references; 165, 1 <50 f. para. 91>).

79

(3) Nevertheless, the severity of interference resulting from the specific measure at issue must always be taken into consideration. The deeper surveillance measures reach into one’s private life and the more they frustrate legitimate expectations of confidentiality, the stricter the requirements that the measures must satisfy. When it comes to public security measures, the collection of data by means of covert surveillance using particularly intrusive means is generally only proportionate if there is a sufficiently specific and foreseeable threat to sufficiently weighty legal interests in the individual case and if the person targeted by these measures appears, from the perspective of a reasonable observer examining the objective circumstances, to be involved (cf. BVerfGE 141, 220 <271 para. 109> with further references; 165, 1 <49 para. 90>).

80

(a) While the Constitution sets clear limits to the lowering of statutory thresholds in the case of measures that result in particularly intrusive interferences with the private sphere and such lower thresholds, in light of the principle of proportionality, entail stricter requirements regarding the specific legal interests to be protected, the Constitution affords broader leeway in the case of less serious interferences (cf. BVerfGE 141, 220 <269 para. 104>; 155, 119 <188 para. 149>; 165, 1 <90 para. 173>).

81

Covert measures that do not reach as deep into the private sphere, but are still of considerable weight, may be justified solely on the existence of an identifiable danger, provided that the measures serve to protect legal interests of at least considerable weight (cf. BVerfGE 150, 244 <284 para. 99>; 150, 309 <336 para. 73>), such as the prevention of criminal acts that are at least considerable (cf. BVerfGE 141, 220 <270 para. 107> with further references; 165, 1 <90 para. 173>). In principle, when the severity of interference is moderate and the thresholds for interference are circumscribed in this manner, the legal interests to be protected do not have to be of greater weight in order to satisfy proportionality requirements (cf. BVerfGE 155, 119 <186 f. para. 146>).

82

High-ranking, exceptionally significant or particularly weighty legal interests (cf. in this regard BVerfGE 115, 320 <346 f.>; 120, 274 <328>; 141, 220 <270 f. para. 108>) are only necessary if the threshold (for less serious interferences) falls far short of an identifiable danger or the powers in question reach deep into the private sphere (and thus result in particularly intrusive interference) (cf. BVerfGE 155, 119 <188 f. para. 149 f.> with further references; 165, 1 <90 f. para. 173>).

83

(b) By contrast, the particularly intrusive interference resulting from covert police surveillance is not sufficiently taken into account where statutory provisions authorise the measure on grounds so precautionary in nature that not even the basic contours of a specific danger to the protected legal interests are foreseeable. With regard to such interference, shifting the statutory threshold for interference to a purely precautionary stage is incompatible with the Constitution, if it means that such measures could be carried out merely on vague indications of possible dangers (cf. BVerfGE 141, 220 <273 para. 113> with further references). Therefore, it is not necessarily in line with constitutional requirements to link the powers to collect personal data for public security purposes to the threshold of a danger of such criminal offences being committed if, due to the incorporation of preparatory acts, the criminal offences in question are already punishable before any dangers to a relevant legal interest have arisen (in detail BVerfGE 165, 1 <51 f. para. 92>).

84

(c) Thus, while intrusive measures require the existence of an identifiable danger in combination with the purpose of protecting particularly weighty legal interests (cf. BVerfGE 141, 220 <270 f. para. 108, 272 f. para. 112>), for less intrusive measures it is sufficient that either an identifiable danger is required or the purpose is to protect particularly weighty legal interests (cf. BVerfGE 165, 1 <91 para. 173> with further references). If the existence of at least an identifiable danger is required, it is sufficient that legal interests of considerable weight are protected (cf. BVerfGE 155, 119 <188 f. para. 150>; 165, 1 <90 para. 173>).

85

bb) Moreover, the statutory authorisation of covert surveillance measures must be sufficiently specific and clear. The requirement of specificity mainly serves to ensure that the law subjects the government and administration to standards that direct and limit their actions, and that the lawfulness of those actions can be effectively reviewed by the courts. The legislator must draft laws as specifically as possible, taking account of the particular nature of the underlying subject matter and the purposes pursued. The requirement of specificity is satisfied if problems of interpretation can be overcome by applying established legal methodology. The primary focus of legal clarity is on the substantive comprehensibility of legislation, in particular so as to allow citizens to adapt to the possibility of onerous measures being taken against them (cf., for a comprehensive overview, BVerfGE 156, 11 <45 f. para. 86 f.> with further references – Counter-Terrorism Database Act II; Federal Constitutional Court, Order of the First Senate of 17 July 2024 - 1 BvR 2133/22 -, para. 115 – Hessian Protection of the Constitution Act).

86

In general, statutory provisions authorising the covert collection and processing of data are subject to particularly stringent requirements in terms of their specificity and clarity (cf. BVerfGE 162, 1 <95 f. para. 200> with further references). This reflects the fact that protection can only be effectively guaranteed against data collection and processing activities by the state if the underlying legislative framework is sufficiently specific. The persons affected are typically unaware that they are being targeted by covert surveillance measures and are thus seldom able to defend themselves against such measures. As a result, the contents of the relevant legislation can only be specified to a limited degree through the interplay of practical application and judicial review, and the legislator must compensate for this by ensuring that the provisions in question are sufficiently specific. While the requirements vary depending on the severity of interference in each case and are closely linked to the respective substantive requirements of proportionality (cf. BVerfGE 141, 220 <265 para. 94>), the specificity requirements for covert measures capable of reaching deep into the private sphere are strict (cf., for a comprehensive overview, BVerfGE 162, 1 <95 f. para. 199 ff., 125 f. para. 272 ff.>; Federal Constitutional Court, Order of the First Senate of 17 July 2024 - 1 BvR 2133/22 -, para. 116). Against this background, it raises concerns from the standpoint of the rule of law to essentially trust that an unspecific authorisation will be appropriately restricted by interpretation of the very authority whose actions are to be restricted (cf. BVerfGE 113, 348 <381>).

87

b) Based on the foregoing, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act does not satisfy the constitutional justification requirements. The prerequisites of interference for the combined powers do not satisfy proportionality requirements, nor do they satisfy the requirements arising from the principle of specificity.

88

The combined powers serve a legitimate aim (see aa) below) and are suitable and necessary for achieving this aim (see bb) below). However, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act is incompatible with the particular requirements for the threshold for interference arising from proportionality in the strict sense (see cc) below); moreover, the threshold for interference is not sufficiently specific (see dd) below). This cannot be remedied through an interpretation in conformity with the Constitution (see ee) below). Given the shortcomings of the threshold for interference, other aspects raised by the referring court are not relevant (see ff) below).

89

aa) § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence no. 2 of the Act serves the legitimate aim of increasing the effectiveness of crime prevention. Particularly in combined application, the provisions provide police authorities with the investigative means to increase the effectiveness of precautionary measures to prevent serious criminal offences within the meaning of § 8(3) of the Act, because they enable police authorities to more purposefully implement preventative follow-up measures for public security purposes. Both the security of the state, as a constituted power of peace and order, and the security of the population it is bound to protect (while respecting the dignity and the intrinsic value of the individual) are constitutional values that rank equally with other constitutional interests that are accorded high standing. The state is therefore required to protect the life, physical integrity and liberty of the individual. Above all, this means that individuals must be protected from unlawful intrusions by others (cf. BVerfGE 141, 220 <267 f. para. 100> with further references). Providing effective surveillance measures for averting such intrusions is of great significance for the free democratic order, and is therefore a legitimate aim (cf. BVerfGE 133, 277 <333 f. para. 133>; Federal Constitutional Court, Judgment of the First Senate of 1 October 2024, - 1 BvR 1160/19 -, para. 101 – Federal Criminal Police Office Act II).

90

bb) The provisions are also suitable and necessary under constitutional law for achieving this aim. They provide police authorities with investigative means that can help address, in a timely manner, dangers to legal interests protected by the police. It is not ascertainable that there are less restrictive means that could allow for equally far-reaching investigations. At the same time, it must be ensured, in each individual case, that these powers only be exercised in accordance with the principle of suitability and necessity (cf. BVerfGE 141, 220 <266 f. para. 97>).

91

cc) However, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act is incompatible with the particular requirements arising from proportionality in the strict sense for the justification of covert surveillance measures by the police. Measured against the severity of interference resulting from a combined application of the powers (see (1) below), the threshold for interference does not satisfy constitutional requirements (see (2) below).

92

(1) In their combined application, § 16a(1) first sentence no. 2 and § 17(1) first sentence, first and second alternative no. 2 of the Act give rise to interferences of at least great severity.

93

(a) The severity of interference resulting from data collection powers primarily depends on the type, scope and possible uses of the data as well as on risks of abuse (cf. BVerfGE 65, 1 <45 f.> with further references). Relevant criteria include, in particular, the number of persons affected and the severity of the impairments (cf. BVerfGE 100, 313 <376>), which primarily depend on the informative value and the possibilities of using the data. The covert nature of state measures also increases the severity of interference (BVerfGE 155, 119 <178 f. para. 129> with further references). The severity of interference is also affected by the duration of a surveillance measure, because the longer it goes on, the more serious the interference with the general right of personality becomes (cf. BVerfGE 141, 220 <293 para. 171>; 162, 1 <92 para. 191>). Moreover, the severity of interference resulting from a measure depends on the extent of possible insights into one’s personality, on whether particularly private information can be obtained, and on whether legitimate expectations of confidentiality are breached (cf. BVerfGE 141, 220 <269 para. 105>; 155, 119 <229 para. 253>; 162, 1 <91 f. para. 191>; cf. Federal Constitutional Court, Order of the First Senate of 17 July 2024 - 1 BvR 2133/22 -, para. 96).

94

(b) The severity of interference resulting from measures permitted under §§ 16a and 17 of the Act can vary greatly, ranging from interferences of low to medium severity, such as the taking of isolated photographs or simple observation for a limited period, to serious interferences, such as long-term monitoring by means of covert audio and image recordings of a person. Particularly when these measures are combined with the aim of capturing and audio-visually recording as many of the target person’s statements and movements as possible with the help of modern technology, they can reach deep into the private sphere and thus constitute interferences of particular severity (cf. BVerfGE 141, 220 <287 para. 151>; 162, 1 <160 f. para. 357>; 165, 1 <48 para. 88>; cf. also Constitutional Court of the Free State of Saxony, Judgment of 25 January 2024 - Vf. 91-II-19 -, p. 56).

95

Within this spectrum, long-term observations combined with the use of technical means to take and record images amount to an interference that is at least serious. The low to medium severity of interference resulting from mere observations in public spaces increases if such observations are combined with an order to record images, as the movements and habits of the person under surveillance are documented visually, allowing more extensive information to be obtained. This notwithstanding, even the combination of long-term observations and the recording of images is not designed to capture and audio-visually record as many statements and movements as possible. This is due to the fact that observations only take place in public or publicly accessible spaces (cf. § 41(4) of the Act), while surveillance in places such as private homes does not fall under § 16a of the Act. In addition, without the accompanying use of technical recording equipment, the possibility of intercepting statements made by those affected is limited from the outset, and these statements cannot be recorded under any circumstances. There is therefore ultimately not a particularly high risk of collecting data relating to the core of private life. It is still possible that highly confidential situations – such as persons sitting away from the crowds in a restaurant or on a secluded stroll – will be captured (cf. also BVerfGE 141, 220 <295 para. 176>). Nevertheless, the intrusion into the private sphere is at least not typical of surveillance in public spaces ([…]). It mitigates the severity of interference that the combined measure can only be ordered on a temporary basis for up to a month (cf. § 17(2) second sentence of the Act). This was already the case in 2015, which is the time relevant here. While such an order can be renewed an unlimited number of times, renewal is only possible for the same maximum period [of one month] and requires a separate order (cf. § 17(2) second sentence, second half-sentence of the Act), meaning that the possibility of renewal does not diminish the mitigating effect of the time limit on the severity of interference (cf. also BVerfGE 165, 1 <49 para. 88>).

96

(2) The combined application of § 16a(1) first sentence no. 2 and § 17(1) first sentence, first and second alternative no. 2 of the Act does not satisfy the requirements arising from the principle of proportionality in the strict sense for covert surveillance measures, because neither provision sets out a threshold for interference that is sufficiently high for the combination of both provisions.

97

(a) The requirements arising from the principle of proportionality in the strict sense, which correspond to the severity of interference, concern both the legal interest to be protected and the threshold for interference, that is, the grounds for carrying out the surveillance measure (cf. para. 74). Whether the provisions under review serve the protection of especially weighty legal interests in all cases need not be examined here, because it is not relevant to the decision in the case at hand ([…]). The proportionality assessment is therefore limited to the threshold for interference.

98

The constitutional justification of data collection by means of covert surveillance using particularly intrusive means in the area of public security requires either a specific danger or at least an identifiable danger as a threshold for interference (cf. in this regard BVerfGE 141, 220 <271 ff. para. 111 ff.>; cf. para. 76). It must be guaranteed that a specific danger to the legal interests protected by the provision is sufficiently ascertainable in the individual case and that the person targeted by these measures appears, from the perspective of a reasonable observer examining the objective circumstances, to be involved (cf. para. 79).

99

There is no basis here for lowering the threshold for interference below the threshold of at least a sufficiently identifiable danger (cf. para. 80 ff.). Firstly, this is not an interference of low severity. Secondly, the measures in question are not restricted to the protection of particularly weighty legal interests. § 16a(1) first sentence no. 2 and § 17(1) first sentence, first and second alternative no. 2 of the Act only require that the measures serve to prevent ‘considerable’ criminal offences, even in their combined application. While the legislator is free to use statutory catalogues of criminal offences in the area of public security, the requirement of a particularly weighty legal interest must be matched by a limitation to particularly serious criminal offences (cf. BVerfGE 165, 1 <93 para. 179> with further references; established case-law).

100

(b) In light of the foregoing, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act does not satisfy the requirements of the principle of proportionality in the strict sense with regard to the required threshold for interference.

101

Even when measures under both provisions are used in combination, the provisions merely require that facts give rise to the assumption that persons ‘want to commit’ particular criminal offences. This does not meet the requirements of an identifiable danger, much less those of a specific danger (cf. BVerfGE 113, 348 <378 ff.> regarding § 33a(1) no. 2 Public Security and Order Act for Lower Saxony; 141, 220 <290 f. para. 162 ff.> regarding § 20g(1) first sentence no. 2 Federal Criminal Police Office Act, old version; 165, 1 <52 para. 93 ff.> regarding § 33(2) first sentence Public Security and Order Act for Mecklenburg-Western Pomerania, old version; Federal Constitutional Court, Judgment of the First Senate of 1 October 2024 - 1 BvR 1160/19 -, para. 111 f. regarding § 45(1) first sentence no. 4 in conjunction with § 39(2) nos. 1 and 2 Federal Criminal Police Office Act). The provisions do not preclude a prognosis based solely on general experience. They do not include the requirement that it must at least be possible to determine, based on facts, the type of incident that might occur, and that it will occur within a foreseeable timeframe. Nor do they require that there must be facts that indicate the involvement of specific persons whose identity is known at least to such an extent that the surveillance measures can be targeted at and primarily limited to them. Thus, these provisions do not set sufficiently specific criteria on which the authorities and the courts can base their assessment and could give rise to disproportionately broad measures (cf. also BVerfGE 141, 220 <291 para. 165>; 165, 1 <52 para. 94>).

102

Nor does the criterion that the data collection must be ‘necessary’ to prevent criminal offences (§ 16a(1) first sentence no. 2 and § 17(1) first sentence no. 2 of the Act) ensure the required threshold for interference. In principle, the fact that a data collection must be necessary in the individual case can have a limiting effect. Based on a reasonable interpretation, it can be derived from such a necessity requirement in relation to public security measures that a ‘specific danger’ in the sense of the general police law clauses is a prerequisite for such data collection (cf. in this regard BVerfGE 130, 151 <205>; 155, 119 <191 f. para. 157>). However, beyond the fact that the necessary case-by-case assessment is lacking here, this assumption does not apply in cases of interferences of great severity due to the specificity required in these cases (cf. also BVerfGE 162, 1 <149 para. 331>; Federal Constitutional Court, Order of the First Senate of 17 July 2024 - 1 BvR 2133/22 -, paras. 143, 152).

103

dd) § 16a(1) first sentence no. 2 and § 17(1) first sentence, first and second alternative no. 2 of the Act in their combined application are also not specific enough with regard to the required threshold for interference, given that they do not set sufficiently specific criteria on which the authorities and the courts can base their assessment and could therefore give rise to disproportionately broad measures (cf. also BVerfGE 141, 220 <291 para. 165>; 165, 1 <52 para. 94>).

104

The mere unspecified possibility of someone wanting to commit a considerable criminal offence at some point in the future, even if based on facts, does not satisfy the requirement of specificity (cf. BVerfGE 113, 348 <378 ff.>; 141, 220 <290 f. para. 162 ff.>). Having a constituent element of wanting to commit future offences gives rise to a variety of conceivable scenarios in which there may be a hypothetical causal chain that culminates in the commission of a criminal offence by a potential perpetrator (cf. BVerfGE 113, 348 <378 f.>). The provisions do not provide any limitations regarding possible indicators or the degree of likelihood of such a course of events, or any limitations in terms of time. The difficulty of distinguishing harmless conduct from conduct that will culminate in the commission of a criminal offence that exists in the precautionary stage prior to the commission of future offences is not addressed by limiting elements in the provisions. Instead, the determination of the preconditions and limitations of the interference is left to the police. The police decide on the limitations placed on the freedom of citizens without detailed statutory guidelines and must create their own standards in this regard. To a certain extent, the police may even add to the statutory elements of the provisions. It is, however, the responsibility of the legislator to create standards to limit interference with citizens’ freedoms (BVerfGE 113, 348 <379>; cf. also BVerfGE 141, 220 <291 para. 165>).

105

The lack of specificity and the resulting risk of incorrect prognoses are also not mitigated by the element of ‘considerable criminal offences’. This element provides no indication of the point at which conduct suggests that criminal offences will be committed in the future. At a stage where the future course of events is still unknown, the statutory offences referred to in the law are in any case hardly suitable to limit the relevant facts in such a way as to provide indications that criminal offences will be committed in the future (BVerfGE 113, 348 <379>).

106

ee) § 16a(1) first sentence no. 2 and § 17(1) first sentence no. 2 of the Act in their combined application cannot be interpretated in conformity with the Constitution with regard to the threshold for interference. This is ruled out by the specificity requirement. Contrary to the Higher Administrative Court’s assumption, interferences with the right to informational self-determination resulting from long-term observations combined with the taking of images are not merely of low to medium severity (see para. 95). Therefore, strict requirements apply with regard to the specificity of the combined provisions under review (cf. para. 86; cf. also Federal Constitutional Court, Order of the First Senate of 17 July 2024 - 1 BvR 2133/22 -, paras. 143, 152, 156). The term ‘facts’ in § 16a(1) first sentence and § 17(1) first sentence of the Act therefore cannot be interpreted, as the Higher Administrative Court did, as excluding suspected scenarios from the scope of application of the provisions; likewise, a requirement that the possibility that an offence will be committed be foreseeable at the time an order is issued cannot be inferred from the element of necessity.

107

ff) The combination of the powers under § 16a(1) first sentence no. 2 and § 17(1) first sentence, first and second alternative no. 2 of the Act is unconstitutional as a sufficiently high and specific threshold for interference is lacking. There is therefore no need to consider other aspects found objectionable by the referring court, such as the lack of independent prior review at the relevant time.

E.

108

§ 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act is incompatible with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, because long-term observations combined with the taking and recording of images are not subject to a sufficiently high and specific threshold for interference.

I.

109

The finding that a statutory provision is unconstitutional generally results in that provision being declared void. However, the Federal Constitutional Court may limit its decision to declaring that an unconstitutional provision is merely incompatible with the Constitution (cf. BVerfGE 161, 163 <297 para. 369>; 166, 1 <88 f. para. 187>). The Court may combine the declaration of incompatibility with an order to temporarily continue to apply the unconstitutional provisions. This may be considered in cases where the immediate invalidity of the objectionable provision would eliminate the statutory basis for protecting exceptionally significant interests of the common good, and if a balancing of these interests against the affected fundamental rights requires that the interference be tolerated for a transitional period. During the transitional period, the Federal Constitutional Court may issue interim orders to limit the powers of the authorities in line with what appears necessary in light of its balancing, until a situation of constitutional conformity has been established (for a comprehensive overview BVerfGE 141, 220 <351 para. 355> with further references; established case-law).

II.

110

1. Based thereon, § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act in the version published on 25 July 2003, last amended by Art. 1 of the Seventh Act Amending the North Rhine-Westphalia Police Act of 19 December 2023 (GV NRW p. 1394) – which remains unchanged since 2015 – is merely declared incompatible with the Constitution. The grounds for the unconstitutionality of the combined provisions do not affect the core of the powers granted by them, but rather specific aspects of their legislative design in light of the rule of law. Under such circumstances, the legislator is given the opportunity to remedy the constitutional concerns and thereby realise the core of the objectives pursued by the provisions.

111

2. The declaration that the provisions are incompatible with the Constitution is combined with the order that they are nonetheless to stay in effect on an interim basis until 31 December 2025 at the latest. In light of the great significance of an effective fight against crime, the powers to carry out long-term observations, in combination with the covert use of technical means to take and record images, are permitted to stay in effect on an interim basis (cf. also BVerfGE 165, 1 <100 f. para. 202>).

112

3. However, in ordering the continued applicability of the provisions, it is necessary to impose a restriction to protect the affected fundamental right. It is ordered that measures taken pursuant to § 16a(1) first sentence no. 2 in conjunction with § 17(1) first sentence, first and second alternative no. 2 of the Act (long-term observations combined with the use of technical means to take and record images) may only be taken if there is at least an identifiable danger – regardless of other prerequisites of interference.