The Federal Constitutional Court protects citizens from excessively generous investigative powers of the police. The judges declared a number of provisions in Mecklenburg-Western Pomerania’s Security and Order Act (SOG), which was reformed in 2020, to be unconstitutional, as they announced.
The Society for Freedom Rights (GFF), which helped initiate the proceedings in Karlsruhe, spoke of a fundamental decision that also sets constitutional limits to the tightening of police laws in other federal states.
The law must be revised by the end of the year. Some of the regulations were declared void outright. Other regulations remain in force with restrictions. Here it is not the powers themselves that are unconstitutional, but only the way they are structured.
A central point in the almost 100-page decision is the protection of the so-called core area of private life when informants and undercover investigators are used. Accordingly, "the state-induced entering into an intimate relationship for the purpose of obtaining information" is excluded. Also, no one may be recruited as an informant to spy on their own spouse.
More privacy protection
If private information is discussed during the operation, the undercover investigator or informant must back down, according to the court, as long as he or she does not put himself or herself in serious danger - i.e. "for life or limb". If sensitive information is obtained, it must not be passed on. In Mecklenburg-Western Pomerania, these points are not guaranteed.
Other complaints relate to longer-term observations, spying on and listening to homes, online searches and the monitoring of telecommunications, for example via mobile phones. The point here is that the measure is allowed at a too early stage. According to the Karlsruhe decision, a specific or even urgent danger is usually required.
"Surveillance far in advance of a danger" difficult
GFF procedure coordinator David Werdermann announced that the police must also respect fundamental rights when it comes to defending against serious crimes. "The tightening of police law in various federal states, which allows surveillance well in advance of a danger, violates the Basic Law."
In Karlsruhe, the GFF sued against police laws in various countries. According to them, there are regulations in Bavaria and Saxony in particular that, like in Mecklenburg-Western Pomerania, allow surveillance well in advance of a specific danger.
For the constitutional complaint about Mecklenburg-Western Pomerania, the GFF had joined forces with the alliance "SONamenste Sicherheit". Among the complainants were a climate activist, a criminal defense lawyer, a journalist specializing in extremism and migration and two people with contacts in the football fan scene. (Az. 1 BvR 1345/21)