What is allowed in the fight against terrorism? Constitutional Court examines

Justice - What is allowed in the fight against terrorism? Constitutional Court examines

The Federal Constitutional Court has taken a closer look at the powers of the security authorities in the fight against terror and organized crime. In the view of some, these violate the fundamental rights of those affected. Court President Stephan Harbarth said it was a question of the tension between the state's security mandate and the protection of individual civil liberties.

The focus is on the possibilities that the legislator grants the Federal Criminal Police Office (BKA) in particular - for example, to collect data and exchange it with police authorities in the federal states and to secretly monitor contact persons of suspects. The Gesellschaft für Freiheitsrechte (GFF) has lodged a constitutional complaint against the BKA Act, which was amended in 2017. A ruling by Germany's highest court is not expected for several months.

Plaintiff: No conviction, but serious consequences

On behalf of the GFF, lawyer Bijan Moini pointed out the possible consequences of an entry in the police databases in Karlsruhe: Those affected would sometimes be publicly stigmatized, missed appointments, police measures would become harsher, consequences for the job were conceivable. People are often not even convicted of crimes. People who are checked more frequently also end up in databases more often, said Moini, referring to people with a foreign appearance.

The GFF, a non-profit association, believes that the rules on the retention and use of data are too vague and far-reaching. It is a structural problem, said Moini, and not a "legislative mishap". The plaintiffs are demanding specific constitutional standards for the collection and storage of data. In this respect, the constitutional complaint breaks new ground.

Faeser: Data exchange serves the security of the population

Federal Minister of the Interior Nancy Faeser, on the other hand, defended the law as constitutional. The police authorities had to keep pace with developments in order to be able to investigate effectively. "They have to be up to date." The SPD politician said that it must be possible to link data as part of police work. "That is the hallmark of good police work." The BKA Act also provides for numerous review mechanisms in connection with the Federal Data Protection Act to ensure that data is not stored without cause, she said. "The law is robust against misuse."

Senior Criminal Director Julia Pohlmeier explained that only very few reports result in a so-called security procedure at the BKA. This is "the absolute exception". She spoke of 28 cases. The authority's primary aim is to initiate criminal proceedings.

If a process for averting danger is completed, those affected are informed of the measures taken and the data is deleted immediately - unless this is not possible. This applies to cases in which criminal proceedings are ultimately initiated and a court may review the data. Sometimes those affected cannot be informed about the measures because confidential contacts are involved. The BKA's action guide for deletion concepts alone is eleven pages long.

The Federal Data Protection Commissioner Ulrich Kelber, whose office advises and also reviews the BKA, attested that the Federal Criminal Police Office has a "positive understanding of data protection". Nevertheless, there are problems of interpretation and legal uncertainty. He made it clear that the issue involved millions of pieces of data. And the trend is rising.

According to him, there is no maximum storage period. Depending on the offense, data would actually be stored for between six weeks and twelve months. However, if there are so-called cross hits, for example if a telephone number appears in two data records, this can be extended, Kelber explained. This is often the case.

Lessons learned from the NSU murders

According to Minister Faeser, the exchange of data between police authorities is in particular a lesson learned from the case surrounding the right-wing terrorist group "National Socialist Underground" (NSU). "This serves to protect the security of the population," she said. The authorities needed the opportunity to exchange data so that terrorists could not commit crimes undetected for years, as was the case back then.

Before the hearing, Faeser told journalists about the current global situation, the danger of Islamist terrorist attacks in Germany and the war in Europe. Germany often relies on foreign services, she said. Therefore, the necessary measures are needed in Germany "so that we can improve there". It is about prevention in the fight against terrorists and organized crime. "This does not stop at borders."

Senate has already objected to parts of the law once before

This is not the first time that Germany's highest court has dealt with the issue. In 2016, it imposed new limits on the security authorities in the fight against terrorism and declared some of the BKA's extensive powers to combat terrorism to be unconstitutional. The First Senate found "disproportionate interference in a number of individual provisions".

In order to prevent terrorist attacks, the BKA has been allowed to bug homes and spy on them with cameras since 2009. The state is also allowed to use Trojans, i.e. specially developed software that skims data from a suspect's computer hard drive.

According to the ruling at the time, all of this is compatible with fundamental rights in principle. It recognizes the importance of the fight against terrorism for democracy and fundamental rights. However, the court judged the specific design of the powers to be insufficient in various respects. In particular, the core area of private life was not sufficiently protected in some cases.

The BKA Act therefore had to be amended. The new version has been in force since May 2018. The GFF is now concerned with a "gap in constitutional law that has not yet been clarified", as it explained when presenting the constitutional complaint.