The constitutional complaint dates back to 2013 – and has now finally been decided: According to the Federal Constitutional Court, the Office for the Protection of the Constitution may no longer pass on personal data in its current form in the future. Specifically, the lawsuit concerned the storage of right-wing extremism data.
The transfer of personal data collected by the Office for the Protection of the Constitution to the police and the public prosecutor’s office must be newly regulated. The current regulation is not compatible with the Basic Law, the Federal Constitutional Court in Karlsruhe declared in a decision published on Thursday. The constitutional complaint filed in 2013 by Carsten S., who was later convicted as an NSU helper, was successful.
He opposed the domestic secret service passing on personal data to the police and the public prosecutor’s office to prevent or prosecute state security offences. These are acts that are directed against the rule of law or national security, for example. Specifically, S. was concerned with the right-wing extremism file law, which provides for the storage of certain data to combat right-wing extremism and refers to the Federal Constitutional Protection Act.
The court has now declared that the current regulation violates the fundamental right to informational self-determination. They serve the legitimate purpose of protecting the security of the state and the population. But it is not clear enough and also not proportionate. The law at issue does not specifically list the offenses to which it is supposed to apply. Instead, it refers to another law that lists various offenses.
However, not all of these could be considered “particularly serious crimes”, the Federal Constitutional Court explained – and the Office for the Protection of the Constitution may only pass on data to the police or public prosecutor’s office for the purpose of prosecuting them. Secret services and criminal prosecution authorities are separate: the Office for the Protection of the Constitution may collect more data, but they cannot take action against perpetrators or suspects in the event of a crime.
The court also complained that the disclosure of the data was not linked to a concrete risk situation or the substantiated suspicion of such crimes. However, it decided that the regulation can remain in place until the end of 2023 with restrictions.
It is not unconstitutional in its core, but only in individual aspects. “An effective exchange of information, which serves to prevent and prosecute state security crimes, is of great importance,” the court said. However, even now data should only be passed on in the case of particularly serious crimes. When the “transmission threshold” is exceeded also depends on which authority the data goes to.
The Federal Constitutional Court did not publish the name of the complainant, but announced that he had been sentenced to youth imprisonment in 2018 in the trial of the right-wing extremist cell National Socialist Underground (NSU) for aiding and abetting nine murders and was currently in the witness protection program of the Federal Criminal Police Office.
The NSU, consisting of Beate Zschäpe, Uwe Böhnhardt and Uwe Mundlos, murdered ten people between 2000 and 2007. Its existence became known only in 2011. Böhnhardt and Mundlos committed suicide. Zschäpe and four helpers of the terrorist cell have now been convicted. S. was sentenced to three years in juvenile detention. The Federal Prosecutor’s Office was only able to largely determine the course of events at the time through his comprehensive statement. He was also the only defendant to show remorse.
