CONSTITUTIONAL COURT PARTLY INVALIDATES ANTI-CRIME LAW
The German Constitutional Court (Bundesverfassungsgericht) has partly invalidated a controversial law on the "fight against crime" in force since last October (see FECL No.28: "New law on 'fight against against crime': intelligence service to cooperate with police"). By interlocutory decree, the Court bans the German Foreign Intelligence Service, BND, from evaluating and transmitting data on non-suspects gathered by interception of international telecommunication.
The Law on the Fight against Crime (Verbrechensbekämpfungsgesetz) significantly extends the powers of the BND to monitor and record international telecommunications and to transmit resulting evaluations to the prosecuting authorities. The BND is equipped with sophisticated computerised equipment allowing the mass interception of telecommunications without any need for prior suspicion. According to German data protection commissioners, since the introduction of the new law, the number of fax and phone communications (including mobile phones) intercepted daily is "in six digits", of which an estimate 4,000 per day are registered. To evaluate this mass of data the BND makes use of computerised "filters" that sift all conversations for "search terms" such as "drugs", "weapons", "money", or "D-Mark". Under the law, the BND may process and transmit data collected in the above way to the prosecuting authorities if there are mere clues indicating that a crime is being planned or committed.
By contrast, the Constitutional Court now demands the presence of "sufficient suspicion" of a concrete criminal offense. The judges found that the Law on the Fight against Crime in its present version allowed "the communication of a considerable number of recordings" involving non-suspect persons. Such extensive interception would undoubtedly lead to "communicational disturbances and behaviourial adaption" among citizens. This would in its turn not only infringe upon individuals' right to personal development, but also upon the public good, the Court stated.
The interlocutory decree is the first, provisional, response of the judiciary to a constitutional appeal against the powers of the BND under the Law on the Fight against crime. The appeal was filed by Michael Köhler, a professor of criminal law in Hamburg. He argued that due to his professional activity as an expert on narcotics law with numerous foreign contacts he was very likely to become a target of the BND's "search by screening of non-suspects", but that he would never learn anything about this, since the law prevented him from being informed. Consequently, he demanded a total ban on all interception activities of the BND under the Law on the Fight against Crime.
The Federal Interior Minister, Manfred Kanther countered that Professor Köhler's telephone communications could easily be identified as "correspondence among scientists" and that eventual recordings would thus be immediately destroyed. He further emphasised "serious prejudice" to the security interests, the foreign policy goals and the reputation of the Federal Republic and to the safety of the citizens", in the event of a interlocutory decree banning the BND's interception activities.
The Federal Court took into account the ministerial warning, by prohibiting only the evaluation and use of the controversial data, as well as their transmission to other authorities, while allowing the interception of telecommunications by the BND to continue pending a final decision on Mr. Köhler's appeal.
Source: Interlocutory decree of the Federal Constitutional Court (Bundesverfassungsgericht, 1 BvR 2226/94, 5.7.95); Süddeutsche Zeitung, 14.7.95.Comment
In the Munich daily, Süddeutsche Zeitung (14.7.95), Heribert Prantl writes:
"The ruling [of the Federal Constitutional Court] restrains a legislator from arguing that the end always justifies the means...
[With the entry into force of the Law on the Fight against crime] the door between the secret service and the police was opened. The secret service became a supplier of the police. Now, the judges have slammed this door again - and this with a big bang. This should also rouse the Social Democrat Party, which, insensitive to constitutional rights, had at one time supported this law.
[The Constitutional Court] has issued an interlocutory decree. One is anxious to know the final ruling, since fundamental statements on the current policy of a "strong state" can be expected. This policy is based on the assumption that everybody is a potential criminal and that the state therefore does not need concrete suspicion as a pre-requisite for treating all of us as suspects. It is time for a trenchant correction."