Bavarian Secret Service Act
The Bavarian domestic secret service is allowed to encroach on fundamental rights of the population in many circumstances. That's why we filed a constitutional complaint - and won.
On April 26, 2022, the Federal Constitutional Court largely upheld a lawsuit filed by the GFF against the BayVSG and issued a landmark ruling. Among other things, the judges in Karlsruhe ruled that the power to request information about traffic data from data retention is null and void. In addition, the ruling strengthens the principle of separation between the Office for the Protection of the Constitution and the police by raising clear barriers to the exchange of information. The GFF's action in these proceedings was financially supported by the Stiftung Erneuerbare Freiheit (Renewable Freedom Foundation). The GFF coordinated the lawsuit over the last five years.
A detailed report of the hearing in Karlsruhe can be found here (in German). The opening statement made at the hearing by our GFF board member and former chairman of the association, Dr. Ulf Buermeyer, can be found here (in German).
The amendment to the BayVSG, which came into force on August 1, 2016, gave the Bavarian domestic secret service expanded surveillance powers, which, in the service of "internal security", encroach even more broadly and deeply on the basic rights of the population than is the case in the other constitutional protection laws of the states and the federal government.
WHO FILED THE CONSTITUTIONAL COMPLAINT?
The complainants were several individuals who, as officials or members of organizations mentioned in the Bavarian Office for the Protection of the Constitution report, were able to credibly demonstrate that they were the subject of secret service surveillance. These organizations include in particular the Bavarian regional association of the Association of Victims of the Nazi Regime - Association of Antifascists (VVN-BdA). In the meantime, monitoring of the organization has rightly been discontinued.
One of the complainants is Augsburg senior physician Dr. Harald Munding, state spokesman for the VVN-BdA. In an interview with the Süddeutsche Zeitung, he described his many years of observation by the Bavarian Office for the Protection of the Constitution as “stigmatization” and the mention of an organization in the Office for the Protection of the Constitution report as a “policy of intimidation that works”.
The constitutional complaint was written by Prof. Dr. Matthias Bäcker (Johannes Gutenberg University Mainz). The expert in information law and data protection law is already working with us as a legal representative in the "G 10" proceedings.
POINTS OF ARGUMENT IN THE CONSTITUTIONAL COMPLAINT
The powers in the BayVSG that the Federal Constitutional Court declared unconstitutional following our lawsuit in 2017 included:
- collection of telecommunications data (Art. 15 para. 3 BayVSG)
- large-scale wiretapping operation (Art. 9 BayVSG)
- online search (Art. 10 BayVSG)
- use of undercover employees and informants (Art. 18 and 19 BayVSG)
These and other measures inadmissibly interfered with several fundamental rights, in particular the right to informational self-determination, the fundamental right to guarantee the integrity and confidentiality of information technology systems (the so-called "computer fundamental right"), the secrecy of telecommunications, the inviolability of the home and the right to effective legal protection.
CONSEQUENCES OF THE CONSTITUTIONAL COMPLAINT
Our constitutional complaint regarding the BayVSG has a signal effect: It was not without good reason that the Bavarian Minister of the Interior, Joachim Herrmann, said after the ruling was announced (see Tagesspiegel, in German) that the federal government and all states would probably have to change their laws. This has already happened in part. For example, the law on the protection of the constitution in Hesse has been revised - but unfortunately not sufficiently, so that the GFF has also successfully filed a lawsuit against it.
Beyond the area of intelligence services, it is also important to the GFF to take action against constitutionally dubious encroachments on freedom not only at federal level, but also in the federal states.
