Security and Public Order Act for Mecklenburg-Western Pomerania is unconstitutional in part

Security and Public Order Act for Mecklenburg-Western Pomerania is unconstitutional in part

Press Release No. 15/2023 of 01 February 2023

Order of 9 December 2022
1 BvR 1345/21

In an order published today, the First Senate of the Federal Constitutional Court held that several provisions of the Security and Public Order Act for the Land Mecklenburg-Western Pomerania (Sicherheits- und Ordnungsgesetz Mecklenburg-Vorpommern - SOG MV) are incompatible with the Basic Law (Grundgesetz - GG). The specific design of certain of the investigatory police powers set out in the Act violate the complainant's fundamental rights; in particular, the general right of personality following from Art. 2(1) in conjunction with Art. 1(1) GG in its manifestation as the right to informational self-determination and also, in part, in its manifestation as the right to the confidentiality and integrity of IT systems. Moreover, these powers violate the privacy of telecommunications (Art. 10(1) GG) and the inviolability of the home (Art. 13(1) GG).

The challenged provisions are unconstitutional in part because they do not fully satisfy the requirements of proportionality in the strict sense regarding covert surveillance measures carried out by the police that are set out in the established case-law of the Court. Furthermore, the provisions fail to meet constitutional standards with regard to the protection of the core of private life when it comes to the use of confidential informants and undercover investigators to avert dangers to public security, for which the Court in these proceedings provided additional specifications on the applicable requirements. The provisions also do not satisfy constitutional prerequisites for the covert entering of private homes by police officers in preparation for remote searches of IT systems or source telecommunications surveillance. Some of the unconstitutional provisions are merely declared incompatible with the Basic Law rather than void and will continue to apply temporarily. This is because the grounds for the unconstitutionality of these provisions do not go to the core of the powers granted therein; instead, they relate to individual aspects of the design of the provisions in light of the rule of law, which the legislator can remedy and thereby realise the core aims of the provisions in line with constitutional law.

1. § 33(2) SOG MV (special methods of data collection) is unconstitutional as regards the provision's first and third sentence, insofar as the latter makes reference to § 67c first half-sentence no. 1 SOG MV, because the prerequisites for interference set out therein are below the threshold of an identifiable danger (konkretisierte Gefahr) [which can exist even before the causal chain leading to the damage is foreseeable with sufficient probability, provided that there are already specific facts indicating an impending danger to an exceptionally significant legal interest in the individual case. But even then, it must at least be possible to determine, based on these facts, the type of incident that might occur, and that it will occur within a foreseeable timeframe. Furthermore, the facts must indicate the involvement of specific persons whose identity is known at least to such an extent that the surveillance measures can be targeted at them and for the most part limited to them]. The references contained in § 33(2) SOG MV, however, do not violate the requirement of legal clarity. The protection of the core of private life provided for in § 26a(3) first sentence, second half-sentence SOG MV, which allows for an exception during the use of confidential informants and undercover investigators under § 33(2) in conjunction with § 33(1) no. 3 and 4 SOG MV from the obligation to discontinue a measure when the core of private life is affected, does not satisfy the constitutional requirements.

2. § 33b(1) second sentence SOG MV (surveillance of private homes) is unconstitutional because the prerequisites for interference do not reach the threshold of an acute danger (dringende Gefahr) as required by Art. 13(4) GG.

3. § 33c(1) second sentence SOG MV (remote searches of IT systems) is unconstitutional insofar as an identifiable danger that a preparatory offence will be committed is sufficient pursuant to that provision, in conjunction with § 67a(1) and § 67c first half-sentence no. 1 SOG MV, to carry out remote searches of IT systems. The specific design of the authorisation in § 33c(5) second alternative SOG MV (covert entering and search of private homes) does not satisfy the constitutional requirements since the provision does not sufficiently specify that the measure in question must serve to avert an identifiable danger.

4. § 33d(1) first sentence no. 2 SOG MV in conjunction with § 67a(1) and § 67c first half-sentence no. 1 SOG MV (telecommunications surveillance) as well as § 33d(3) third sentence in conjunction with § 33c(5) second alternative SOG MV (covert entering and search of private homes) are unconstitutional for the same reasons as the provisions regarding remote searches of IT systems.

5. § 35(1) SOG MV (sharing of personal data for police observation) is formally unconstitutional on the grounds that the Land legislator lacks legislative competence insofar as § 35(1) first sentence second alternative in conjunction with § 7(1) no. 4 SOG MV extends to precautionary measures for the prosecution of future criminal offences. § 35(1) first sentence SOG MV is also unconstitutional in substantive terms, as the provision fails to set out the constitutionally required combination of a threshold for interference and the legal interest to be protected. The same applies to § 35(1) second sentence in conjunction with § 67a(1) SOG MV, insofar as § 67a(1) SOG MV makes reference to § 67c first half-sentence no. 1 SOG MV.

6. § 44(1) first sentence no. 1 SOG MV (electronic profiling) is unconstitutional because the provision does not set out the threshold of a specific danger (konkrete Gefahr) and fails to satisfy the requirements of legal clarity.

§ 33(2) third sentence, § 33c(1) second sentence, § 33d(1) first sentence no. 2 and § 35(1) second sentence SOG MV, each in conjunction with § 67a(1) SOG MV - insofar as reference is made therein to § 67c first half-sentence no. 1 SOG MV - as well as § 33b(1) second sentence and § 35(1) first sentence SOG MV - insofar as it concerns precautionary measures for the prosecution of future criminal offences - and § 44(1) first sentence no. 1 SOG MV are declared void. The rest of the provisions at issue are incompatible with the Basic Law, but will continue to apply temporarily - subject to restrictions to protect the fundamental rights concerned - until 31 December 2023.

Facts of the case:

On 5 June 2020, revisions to the Security and Public Order Act for the Land Mecklenburg-Western Pomerania establishing a new framework for various investigatory powers of the police authorities and the authorities responsible for maintaining public order for the Land entered into force. The complainants are a lawyer who represents persons that are considered by the authorities to be terrorists or extremists, a journalist covering political extremism and immigration, a climate and environmental activist, a social worker employed by a facility for asylum seekers with connections to the football fan scene and another person with connections to the football fan scene. The complainants challenge a number of the investigatory powers, but, for the most part, only object to certain elements of the provisions at issue.

Key considerations of the Senate:

The constitutional complaint is inadmissible in part. To the extent that the constitutional complaint is admissible, it is for the most part well-founded.

1. § 33(2) SOG MV (special methods of data collection)

a) § 33(2) first and third sentence SOG MV authorises police authorities to use special methods of data collection that are listed in the provision's section (1): long-term observation measures, covert use of technical means, confidential informants and undercover investigators. The interferences with the fundamental right to informational self-determination involved with such actions can be of considerable severity, but may, in principle, be justified under constitutional law when undertaken to avert sufficiently serious dangers. However, the thresholds for interference laid down in § 33(2) first and third sentence SOG MV ultimately do not satisfy the requirements of proportionality in the strict sense.

The first sentence of the provision requires that "facts give rise to the assumption" that certain criminal acts will be committed. This is below the threshold of an identifiable danger, which is - at a minimum - required here.

The threshold for the use of special methods of data collection for terrorism prevention purposes (§ 33(2) third sentence in conjunction with § 67a(1) and § 67c first half-sentence no. 1 SOG MV) also does not satisfy constitutional requirements. The decisive factor under this threshold is the prognosis of whether one of the criminal offences listed in § 67c first half-sentence no. 1 SOG MV will occur. This list includes preparatory offences which, when carried out, do not necessarily meet the minimum requirement of at least an identifiable danger to the legal interests protected by the provision.

b) § 26a(3) first sentence, second half-sentence SOG MV, which relates to the protection of the core of private life with regard to the use of undercover investigators and confidential informants, is unconstitutional. This provision sets out an obligation to discontinue a measure when, in the course of the collection of information, facts indicate that information relating to the core of private life is collected. The sole part of the provision at issue here is an exception from this obligation; the specific design of this exception does not satisfy constitutional requirements.

aa) The use of confidential informants and undercover investigators can affect the core of private life to the extent that persons who are the targets of investigation might reveal information relating to the core. Moreover, under certain circumstances, interactions between an undercover investigator or a confidential informant and a target person can in and of themselves affect the core of private life regardless of what information was obtained through the measure. Whenever the necessary relationship of trust with the target person is built or maintained through intimate relationships or comparable close personal ties, which otherwise only exist between family members, partners or very close friends, this would generally be sufficient on its own to find an interference with the core of private life of the target person.

bb) The protection of the core of private life must be taken into account at two different stages when carrying out surveillance measures. Firstly, at the data collection stage, safeguards must be put in place to prevent the unintended collection of information relating to the core wherever possible. Secondly, at the stage of subsequent data analysis and use, the consequences of an intrusion upon the core of private life that nevertheless occurs must be strictly minimised.

At the data collection stage, it is absolutely impermissible for confidential informants and undercover investigators to target information from the core of private life. Therefore, it is also impermissible to build a relationship to the target person that relates to that person's core of private life. This means that, for example, starting an intimate relationship for the purpose of obtaining information on behalf of the state or using someone as a confidential informant vis-à-vis their own spouse is prohibited. But even beyond these scenarios, any intrusion upon the core of private life must be avoided whenever this can be reasonably done. If a measure affects the core of private life nonetheless, the communication or interaction affecting the core must, in principle, be discontinued. There may be constellations, however, where the use of confidential informants or undercover investigators cannot be discontinued immediately without a considerable detriment. Given the type of investigations in which they are involved, undercover investigators or confidential informants can become so close to the target person that discontinuing the measure could pose a danger to the undercover investigators or confidential informants themselves, or to their continued deployment or future use. An exception from the obligation to discontinue the measure may therefore be justified under constitutional law. This applies whenever it can be proven that the life and limb of the confidential informant or undercover investigator would otherwise be jeopardised. Further, it must also be recognised under constitutional law that there is a need from an investigational perspective to ensure the continued deployment of confidential informants and undercover investigators.

Additional safeguards must be put in place when analysing and using the information obtained, in order to remove information relating to the core of private life before the data is used by the police. A confidential informant must first examine, before sharing information with their handler, whether the information to be shared or the way it was obtained affects the core of private life of the person under surveillance. In addition, the informant's handler must examine whether the information relates to the core of private life before passing it on for further use. An undercover investigator must likewise examine whether the information obtained relates to the core of private life before passing it on to the police for further use. Given these possibilities of examining the information obtained, a screening by an independent body is not required in this case. That said, it must be ensured that at a minimum, when doubts arise, an examination of whether the information obtained relates to the core of private life is conducted by the data protection officers of the authorities in question. Intrusions upon the core of private life must always be documented.

cc) § 26a(3) first sentence, second half-sentence SOG MV does not satisfy these requirements. Insofar as the provision contains an exception from the obligation to discontinue the use of investigators and confidential informants in order to protect them when they are at risk, it remains unclear which risks to which legal interests can trigger the exception. Continuing a measure that affects the core of private life, which is protected by fundamental rights, to protect investigators and confidential informants can only be justified if there is a risk to their life and limb. Moreover, the provision lacks the constitutionally required safeguards at the stage of data analysis and use. It does not require undercover investigators and confidential informants or their handlers to examine the information in question as to its relevance to the core of private life before passing it on for further use in cases where a measure was not discontinued. In addition, the necessary deletion and documentation requirements, in particular, those relating to a surveillance measure that is continued even though it affects the core of private life, are not set out in a sufficiently specific and clear manner.

2. § 33b(1) second sentence SOG MV (surveillance of private homes)

§ 33b(1) second sentence SOG MV authorises the police to carry out acoustic and optical surveillance of private homes. The power to carry out such measures for preventive purposes set out in § 33b SOG MV must be measured against the requirements arising from Art. 13(4) GG. Art. 13(4) GG only permits acoustic and optical surveillance of private homes to avert acute dangers to public security. § 33b(1) second sentence SOG MV does not satisfy these requirements. The provision authorises surveillance of private homes subject to the conditions set out in § 67a(1) SOG MV. The thresholds for interference provided for therein are based on the threshold of an identifiable danger. However, the threshold of an acute danger, as is required for the surveillance of private homes under Art. 13(4) GG, is stricter than that of an identifiable danger. Moreover, given the provision's reference to § 67a(1) in conjunction with § 67c first half-sentence no. 1 SOG MV, an identifiable danger that a preparatory offence will be committed is sufficient; this further lowers the threshold in an unconstitutional manner.

3. § 33c(1) second sentence and (5) second alternative SOG MV (remote searches of IT systems)

§ 33c SOG MV authorises the police to interfere with IT systems and collect data from them through the covert use of technical means (remote searches).

a) Interfering with IT systems for the purpose of collecting data can only be justified under constitutional law if there is an identifiable danger of a violation of a legal interest. Insofar as an identifiable danger that a preparatory offence will be committed is deemed sufficient under § 33c(1) second sentence SOG MV in conjunction with § 67a(1) and § 67c first half-sentence no. 1 SOG MV to carry out remote searches, this does not constitute an adequate threshold under constitutional law (see above).

b) § 33c(5) second alternative SOG MV authorises public security authorities to covertly enter and search private homes in order to carry out remote searches of IT systems. The interference with Art. 13(1) GG resulting from such covert preparatory measures in private homes cannot be based on Art. 13(2) GG, as that provision only permits overt searches. This follows both from the legislative history of this fundamental right and from its regime of protection and limitations. In systematic terms, the measures at issue cannot be based on Art. 13(2) GG, given that this provision does not set out substantive prerequisites for interference that would reflect the special nature and severity of interference resulting from the measures. Nor can an authorisation to covertly enter and search private homes in preparation for remote searches be based on Art. 13(3) GG (acoustic surveillance of private homes) or Art. 13(4) GG (use of technical means for surveillance of private homes), given that these provisions only apply to other types of measures. By contrast, Art. 13(7) GG - the limitation clause for interferences and restrictions of the fundamental right to the inviolability of the home not covered by Art. 13(3) to (5) GG - can be considered as a constitutional law basis for the covert entering of private homes in preparation for remote searches as permitted by § 33c(5) second alternative SOG MV. The systematic link between section (7) and the other limitation clauses of Art. 13 GG supports the application of this provision; the standard for justifying the power to enter private homes under section (7) is further determined in light of its systematic position in the regime of protection and limitations of Art. 13 GG. Ultimately, an interference with Art. 13(1) GG can only be justified on this basis if there is at least an identifiable danger to a legal interest of very significant weight and if a judicial warrant has been obtained.

The specific design of the authorisation in § 33c(5) second alternative SOG MV does not satisfy these requirements. While § 33c(6) SOG MV provides for a requirement of prior judicial authorisation, § 33c(5) second alternative SOG MV fails to set out in a sufficiently specific manner the substantive prerequisites for interference, which is required under constitutional law.

4. § 33d(1) first sentence no. 2, (3) third sentence SOG MV (telecommunications surveillance)

a) The authorisation to conduct telecommunications surveillance and source telecommunications surveillance in § 33d(1) and (3) SOG MV provides a basis for interferences with the privacy of telecommunications. Insofar that an identifiable danger that a preparatory offence will be committed is sufficient for carrying out the measures pursuant to § 33d(1) first sentence no. 2 SOG MV in conjunction with § 67a(1) and § 67c first half-sentence no. 1 SOG MV, this does not constitute an adequate threshold under constitutional law (see above).

b) The interference with Art. 13(1) GG resulting from the authorisation to covertly enter and search private homes in preparation for source telecommunications surveillance (§ 33d(3) third sentence in conjunction with § 33c(5) second alternative SOG MV) cannot be fully justified under constitutional law, as the prerequisites for interference are inadequate (see above).

5. § 35(1) SOG MV (sharing of personal data for police observation)

§ 35(1) SOG MV authorises the police to share personal data of specific persons for police observation; the provision thus interferes with the fundamental right to informational self-determination.

a) This interference is not justified under constitutional law. The Land legislator does not have legislative competence for § 35(1) first sentence, second alternative SOG MV ("prevention of criminal acts") to the extent that the provision in conjunction with § 7(1) no. 4 SOG MV also concerns precautionary measures for the prosecution of future criminal offences. Such measures fall within the concurrent legislative powers for court procedure under Art. 74(1) no. 1 GG. In this respect, the federal legislator has exercised its concurrent legislative powers in a preclusive manner by enacting § 163e of the Code of Criminal Procedure (Strafprozessordnung - StPO), which provides for orders for observation during police checks. § 163e StPO precludes Land legislation in this area, as the provision is exhaustive for the domain of law enforcement and includes precautionary law enforcement measures.

b) Moreover, the prerequisites for interference set out in § 35(1) first and second sentence SOG MV do not satisfy the requirements of proportionality in the strict sense. The threshold for sharing personal data for police observation (facts giving rise to the assumption that a criminal act will be committed) is less strict than the threshold of an identifiable danger. Given that the severity of interference is somewhat lower in this case, this threshold might still be acceptable under constitutional law if the measures served to protect an especially weighty legal interest. However, § 35(1) first sentence SOG MV merely makes reference to considerable criminal offences as defined in § 49 SOG MV; thus, it is not limited to the protection of especially weighty legal interests. The threshold of § 35(1) second sentence in conjunction with § 67a SOG MV also fails to meet constitutional requirements insofar as § 67a SOG MV makes reference to § 67c first half-sentence no. 1 SOG MV. The criminal offences listed therein are not sufficient because the provision at issue authorises purely precautionary measures, which can be taken before an identifiable danger arises (see above).

6. § 44(1) first sentence no. 1 in conjunction with § 67a(1) SOG MV (electronic profiling)

§ 44 SOG MV authorises the police to order the sharing of personal data of certain groups of persons from databases to cross-check them against other data records (electronic profiling), thus allowing for interferences with the right to informational self-determination.

§ 44(1) first sentence no. 1 in conjunction with § 67a(1) SOG MV does not set out a threshold that is adequate under constitutional law. Unlike most other covert and intrusive surveillance measures that only require an identifiable danger, electronic profiling can only be justified when used to avert a specific danger. This is because when it comes to electronic profiling, there is no previously known connection between the affected persons and the threat to be averted, given that electronic profiling serves to create such a connection in the first place. Electronic profiling thus does not require specific grounds. As the measure cannot be limited to specific persons, this must be offset by more stringent requirements regarding the foreseeability of adverse events.

In making reference to § 67a(1) SOG MV, which only requires an identifiable danger, § 44(1) first sentence no. 1 SOG MV does not satisfy the constitutional requirements, as the requirements regarding the degree of specific foreseeability of the events that might lead to an impairment of legal interests are less stringent. Moreover, as § 67a(1) SOG MV makes reference, in turn, to § 67c first half-sentence no. 1 SOG MV, it in fact does not even require an identifiable danger, since § 67c first half-sentence no. 1 SOG MV provides that a danger that preparatory offences will be committed is sufficient (see above).

§ 44(1) first sentence no. 1 SOG MV also violates the requirement of legal clarity. The provision authorises electronic profiling subject to the conditions set out in § 67a(1) SOG MV. However, the wording of § 67a(1) SOG MV does not reflect the special nature of electronic profiling, since the prerequisites set out therein are linked to specific persons and potential dangers emanating from such specific persons. Yet it is inherent in electronic profiling that it does not target specific persons.

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