Headnote

to the Order of the Second Senate of 12 October 2011

2 BvR 236, 237, 422/08

1. On the constitutionality of provisions of the Telecommunications Surveillance Revision Act of 21 December 2007 (§ 100a(2) and (4), § 101(4) to (6) and § 160a of the Code of Criminal Procedure).

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 236, 237, 422/08 -

IN THE NAME OF THE PEOPLE

In the proceedings
on the constitutional complaints of

- 2 BvR 236/08 -,

- 2 BvR 237/08 -,

- 2 BvR 422/08 -

the Federal Constitutional Court – Second Senate –

with the participation of Justices

President Voßkuhle,

Di Fabio,

Mellinghoff,

Lübbe-Wolff,

Gerhardt,

Landau,

Huber,

Hermanns

held on 12 October 2011:

1. The constitutional complaints are rejected.

Reasons :

A.

The constitutional complaints, combined for joint decision, concern Arts. 1 and 2 of the Telecommunications Surveillance Revision Act, which amends selected provisions of the Code of Criminal Procedure.

I.

1. […]

2. […]

3. a) With the Telecommunications Surveillance Revision Act, […] the Federal Government intended to create a harmonised comprehensive framework on covert investigation measures in criminal proceedings and to implement several decisions of the Federal Constitutional Court. […]

[…]

b) […]

c) […]

II.

1. The complainants in proceedings 2 BvR 236/08 and 2 BvR 237/08 claim […] that their fundamental rights – like the fundamental rights of all citizens – are directly affected. They argue that – in both their professional and private lives – as lawyers, doctors, secondary school teachers […] or simply as private individuals […] they use landlines and have at least one mobile phone as well as Internet access; they trust that their communication via these channels is beyond the reach of the state.

[…]

2. The complainants in proceedings 2 BvR 422/08 – lawyers, members of Parliament, a student and a journalist – assert that their fundamental rights are immediately and directly affected by the challenged provisions because they have to use landlines, mobile phones, the Internet and email in their private lives, in their professional lives as freelancers, or in their political work. They argue that under the new legal framework, they have reason to fear that their data will be accessed by the state, and that even though the framework provides for the ex post notification of affected persons, they cannot trust that the authorities will actually observe this requirement in practice.

[…]

III.

Statements on the constitutional complaints were submitted by the Federal Government, the Federal Court of Justice, the Public Prosecutor General (Generalbundesanwalt ), the Federal Bar Association (Bundesrechtsanwaltskammer ), the Chamber of Patent Attorneys (Patentanwaltskammer ), the Federal Chamber of Tax Advisers (Bundessteuerberaterkammer ), the German Association of Tax Advisers (Deutscher Steuerberaterverband ), the Chamber of Public Accountants (Wirtschaftsprüferkammer ), the German Medical Association (Bundesärztekammer ), the German Lawyers Association (Deutscher Anwaltsverein ) and the German Federation of Journalists (Deutscher Journalistenverband ).

[…]

B.

[…]

C.

To the extent that the constitutional complaints are admissible, they are unfounded. The challenged provisions do not violate the complainants’ fundamental rights.

I.

The Telecommunications Surveillance Revision Act of 21 December 2007 (BGBl I, p. 3198) does not violate the requirement that the affected fundamental rights be expressly specified (Zitiergebot ) in accordance with Art. 19(1) second sentence of the Basic Law.

[…]

II.

To the extent that the complainants challenge the extension of the catalogue of criminal offences in § 100a(2) of the Code of Criminal Procedure and the lack of clarification of when a criminal offence is considered serious even in the individual case, their constitutional complaints are also unsuccessful. Their claim that the core of private life is not sufficiently protected by § 100a(4) first sentence of the Code of Criminal Procedure cannot be upheld.

1. § 100a of the Code of Criminal Procedure authorises the surveillance and recording of telecommunications, thus giving rise to a serious interference with the privacy of telecommunications, which is protected by Art. 10(1) of the Basic Law (cf. BVerfGE 113, 348 <382>).

The privacy of telecommunications under Art. 10(1) of the Basic Law covers not only the contents but also the specific circumstances of telecommunications. While telecommunications privacy primarily protects the contents of telecommunications, it also extends to the circumstances of communication. These include whether, when and how often telecommunications traffic occurred or was attempted between whom or between which devices (cf. BVerfGE 67, 157 <172>; 85, 386 <396>; 107, 299 <312 and 313>). The state is generally not entitled to obtain knowledge of these circumstances. The fundamental right is meant to preserve the conditions that are necessary to ensure free telecommunications. The confidential use of the communication medium must be ensured in all respects (cf. BVerfGE 100, 313 <358>). The inviolability of telecommunications privacy, as guaranteed by fundamental rights, seeks to prevent a situation where communication participants have to expect that state authorities will intercept their communications and obtain knowledge of the relevant communication relations and contents, as a result of which affected persons might cease to exchange opinions or information by means of telecommunications systems altogether, or change how and what they communicate (cf. BVerfGE 100, 313 <359>). In this respect, Art. 10(1) of the Basic Law covers any transmission of information by means of telecommunications technologies, irrespective of who operates the relevant transmission and relay networks (cf. BVerfGE 107, 299 <322>).

Interferences with the privacy of telecommunications arise where state authorities obtain knowledge of the content or the circumstances of communication transmitted by telecommunications technology without the consent of the communicating parties (cf. BVerfGE 100, 313 <366>; 107, 299 <313>).

2. When the catalogue of criminal offences in § 100a(2) of the Code of Criminal Procedure was amended by the Telecommunications Surveillance Revision Act, 19 offences were removed and more than 30 new offences were added. With respect to Art. 10 of the Basic Law, there are ultimately no constitutional objections against the legislator categorising the offences added to the statutory catalogue as grounds justifying measures of telecommunications surveillance. According to the legislator, these measures serve the legitimate purpose of providing law enforcement authorities with the necessary means to prosecute serious crimes and crimes that are difficult to investigate (BTDrucks 16/5846, p. 40). In particular, this does not violate the requirement of specificity and the principle of proportionality.

a) It was the legislator’s intent that the law extend to all newly added criminal offences, all of which concern serious crimes and crimes that are difficult to investigate. […]

b) The legislator satisfied the requirement of specificity by strictly limiting the use of telecommunications surveillance to the purpose of the investigation – in particular investigating the criminal conduct in question and determining the whereabouts of the suspect. In addition, the criminal offences that may prompt investigation measures using telecommunications surveillance are not merely defined by abstract criteria, but are individually specified in the catalogue. Furthermore, both establishing a suspicion of criminal conduct and extending the surveillance measure to third parties acting as intermediaries in the transmission require a reliable factual basis (“specific facts”) (cf. BVerfGE 107, 299 <321 et seq. >; 109, 279 <350 and 351>; 113, 348 <373, 385 and 386> regarding § 100c(1) no. 3 of the Code of Criminal Procedure). The legislator thus defined the statutory requirements for surveillance measures in a way that is generally comprehensible (cf. BVerfGE 110, 33 <54>).

c) In addition, the extended catalogue of criminal offences set out in § 100a(2) of the Code of Criminal Procedure observes the principle of proportionality. The legislator has a margin of appreciation when assessing the level of wrongdoing reflected in a criminal offence and deciding which crimes should lead to certain criminal investigation measures (cf. BVerfGE 109, 279 <347>). Yet interferences with the privacy of telecommunications are only permissible if the relevant offence is categorised as serious; this must be objectively reflected in the definition of the crime set out in the underlying provision of criminal law, in particular by the specified range of punishment (cf. BVerfGE 125, 260 <329>). The protected legal interest and its importance for a society based on law may also be significant for this categorisation.

All new offences added to the catalogue of § 100a(2) of the Code of Criminal Procedure by the legislator carry a maximum term of imprisonment of at least five years. However, this alone is not sufficient for categorising the offences as serious, which in turn is necessary for ensuring that the resulting interference with Art. 10(1) of the Basic Law is proportionate (cf. BVerfGE 124, 43 <63>; 125, 260 <328>). A maximum term of imprisonment of five years is the general standard in the Criminal Code. This maximum term also applies to offences that constitute medium-level crime at best in light of the protected legal interest and given that they are, in part, not subject to increased minimum terms of imprisonment (cf. BVerfGE 109, 279 <348>).

Nonetheless, the decision by the legislator, which categorises the criminal offences added to § 100a(2) of the Code of Criminal Procedure as “serious”, is tenable based on an overall assessment that gives particular consideration to the respective protected legal interests.

The criminal offences added to the catalogue in § 100a(2) of the Code of Criminal Procedure that carry a maximum term of imprisonment of only five years either considerably interfere with the functioning of the state or its authorities – such as the offences of bribing members of Parliament (§ 108e of the Criminal Code), restricting competition through agreements in the context of public bids (§ 298 of the Criminal Code), preparatory acts to tampering with official identity documents on a commercial basis or as a member of a gang (§ 275(2) of the Criminal Code) and acquisition of false official identity documents on a commercial basis or as a member of a gang (§ 276(2) of the Criminal Code) – or they significantly interfere with the protected legal interests of individuals – such as the offences of distribution, acquisition and possession of child pornography (§ 184b(1) of the Criminal Code) and assisting in human trafficking (§ 233a(1) of the Criminal Code). Therefore, categorising these criminal offences as serious in qualitative terms is within the legislator’s leeway to design.

Moreover, the legislator did not simply recognise the suspicion that someone committed or aided or abetted one of the offences listed in § 100a(2) of the Code of Criminal Procedure as generally sufficient grounds for telecommunications surveillance. Rather, § 100a(1) no. 2 of the Code of Criminal Procedure further requires that the criminal act prompting the surveillance measures also be serious in the individual case. Additionally, it is required that without telecommunications surveillance, investigating the facts of the case or determining the whereabouts of the suspect would be significantly more difficult, or even futile (§ 100a(1) no. 3 of the Code of Criminal Procedure). The legislator thus established a protection scheme that satisfies the principle of proportionality.

d) Lastly, contrary to the argument put forward by the complainants, the constituent element set out in § 100a(1) no. 2 of the Code of Criminal Procedure that “the offence is particularly serious in the individual case as well” satisfies the requirement of specificity. In its case-law, the Federal Constitutional Court has frequently addressed criteria that may indicate the seriousness of a crime; these include the need for protection of the violated legal interests (cf. BVerfGE 109, 279 <346>), the level of the threat posed to the general public (cf. BVerfGE 107, 299 <322>; 113, 348 <388>), the way the offence was committed (cf. BVerfGE 107, 299 <324>; 109, 279 <346>), the number of victims (cf. BVerfGE 107, 299 <324>) and/or the extent of damage (cf. BVerfGE 107, 299 <324>). Constitutional law does not require that further details be specified since the determination whether a criminal act fits this constituent element is contingent upon an assessment of the circumstances of the individual case (on the significance of this case-by-case assessment, which adds an additional layer to the protection of freedom beyond the abstract determination of a catalogue listing relevant criminal offences, cf. BVerfGE 125, 260 <329>; with further references).

3. The safeguards protecting the core of private life in the context of telecommunications surveillance set out in § 100a(4) of the Code of Criminal Procedure satisfy the constitutional requirements both at the stage of data collection and at the stage of data analysis.

a) The constitutional requirements regarding the specific design of the framework ensuring protection of the core may differ depending on the method of data collection and the nature of the information obtained by it (cf. BVerfGE 120, 274 <337>). A statutory provision authorising surveillance measures that might affect the core of private life must ensure, to the greatest extent possible, that no data relating to the core of private life is collected (cf. BVerfGE 120, 274 <337>) […].

However, in many cases it is virtually unavoidable that investigating authorities obtain knowledge of the relevant material before realising that it relates to the core of private life. If there is a risk that the data collection might violate the core of private life, this does not mean that constitutional law precludes the accessing of such information from the outset in these cases (cf. BVerfGE 80, 367 <375, 381>; 120, 274 <338>). The relevant investigation measures may be carried out where specific facts give rise to the suspicion that a criminal offence has been committed, or aided or abetted, or has been attempted […] or has been prepared by means of another crime (cf. BVerfGE 120, 274 <337 and 338>), if the offence is particularly serious, including in the individual case, and the investigations were otherwise considerably more difficult or futile.

In such cases, it is necessary to ensure sufficient protection at the stage of data analysis (cf. BVerfGE 120, 274 <337 and 338> […]). The legislator must provide for suitable procedural safeguards to ensure that, where data relating to the core of private life has been collected, the severity of the violation of the core and its impact on the personality and development of the person concerned be kept to a minimum (cf. BVerfGE 120, 274 <338> […]). In this respect, it is crucial that the collected data be examined as to whether it contains information relating to the core of of private life. If the examination reveals that data relating to the core was collected, it must be deleted without undue delay; any sharing or use of this data must be ruled out (cf. BVerfGE 109, 279 <324, 331 et seq. >; 113, 348 <392>; 120, 274 <339> […]).

b) § 100a(4) first sentence of the Code of Criminal Procedure provides that the surveillance and recording of telecommunications are impermissible if there are facts indicating that the measures will only yield information relating to the core of private life; this satisfies the constitutional requirements regarding the protection of the core at the stage of data collection.

aa) With the revision of § 100a(4) of the Code of Criminal Procedure, the legislator developed a two-tier concept of protection in order to shield the persons concerned from interferences with the core of private life, which enjoys absolute protection. § 100a(4) first sentence of the Code of Criminal Procedure provides that data relating to the core must not be collected in a targeted manner. If the core is nevertheless affected – in cases where this effect was not foreseeable – § 100a(4) second to fourth sentence of the Code of Criminal Procedure provides for documentation and deletion requirements and a prohibition to use the obtained data.

bb) There are cases where it can be presumed that the data in question unequivocally relates to the core of private life; this primarily concerns cases where the person under surveillance and their communication partners share a special relationship of trust pertaining to the core of private life – as is the case when communicating with close family members, clerics, phone counsellors, defence lawyers or, in certain cases, doctors as well (cf. BVerfGE 109, 279 <321 et seq .>). To the extent that such a relationship of trust is ascertainable for investigating authorities, telecommunications surveillance measures must not be carried out.

cc) Contrary to the complainants’ view, however, the surveillance of telecommunications must not be excluded from the outset merely because the recorded data may also contain information pertaining to the core of one’s personality right. Such an absolute prohibition to collect data would restrict telecommunications surveillance to such a degree that effective law enforcement could no longer be ensured, especially regarding serious and most severe crime. Instead, the protection of the core of private life must be ensured by way of sufficient fundamental rights protection at the stage of data analysis.

With respect to surveillance of telecommunications, a comprehensive protection of the core of private life at the stage of data collection pursuant to § 100a of the Code of Criminal Procedure would, for various reasons, present considerable practical difficulties, just like in the context of covert access to information technology systems (cf. BVerfGE 120, 274 <337>). […]

Difficulties to ensure comprehensive protection of the core of private life at the stage of data collection in particular result from the fact that telecommunications surveillance is carried out by way of automated recordings of communication contents […] whereas it is only sporadically possible to (concurrently) have surveillance personnel listen in on the communication in real time.

In addition, even if surveillance personnel do screen the telecommunications in real time […], it is in many cases not possible to eliminate the difficulties regarding an effective protection of the core at the stage of data collection. For instance, the bulk of intercepted telecommunications is conducted in foreign languages […]. Moreover, there are various other factors that can make it hard to understand the conversations immediately and without prior technical processing […], for example background noise or bad reception […].

dd) In the event that a surveillance measure does lead to the recording of data pertaining to the core of private life, the prohibition to use the data pursuant to § 100a(4) second sentence of the Code of Criminal Procedure provides sufficient protection at the stage of data analysis […]. The statutory framework satisfies the requirements for an effective protection of the core of private life, given that it provides for an absolute prohibition to use the data, requires that the data be deleted without undue delay and sets out corresponding documentation requirements.

c) Contrary to the complainants’ view, it is not constitutionally required to establish an independent body that, in addition to the investigating state authorities, reviews whether it is permissible to use the information obtained in the further course of the investigation proceedings.

According to established case-law of the Federal Constitutional Court, it is necessary that procedural safeguards be put in place for ensuring that, where data relating to the core of private life is obtained, such data is not stored, used or shared, but deleted without undue delay (cf. BVerfGE 109, 279 <333>; 113, 348 <390 and 391>; 120, 274 <338 and 339>; 124, 43 <70>). In its order regarding the acoustic surveillance of private homes, the Court stated that an independent body must review whether the information obtained may be used in the principal proceedings or as a basis for further investigations in other proceedings (cf. BVerfGE 109, 279 <333 and 334>). However, the procedural safeguards necessary under constitutional law do not require, in every type of case, that further independent bodies outside the investigating state authorities be established in order to ensure compliance with the underlying statutory provisions.

In this respect, it must in particular be taken into account that measures pursuant to § 100a of the Code of Criminal Procedure require a judicial warrant, unless there is danger requiring immediate action (Gefahr im Verzug ) ; in that case, the measure in question must generally be confirmed by a court afterwards (§ 100b(1) of the Code of Criminal Procedure). The prior involvement of a judge in overseeing surveillance of telecommunications thus ensures that before the measure is executed, the protection of the core of private life is assessed and considered by an independent authority. Moreover, the court authorising the order must be notified of the results after the measure has ended (§ 100b(4) second sentence of the Code of Criminal Procedure). […]

[…]

III.

The constitutional complaints are also unfounded to the extent that they challenge the design of the notification requirement in § 101(4) to (6) of the Code of Criminal Procedure.

1. In its Data Retention judgment, the Federal Constitutional Court stated that the legislator must adhere to transparency requirements in the context of authorising the covert collection of citizens’ data. The Court held that the legislator must enact provisions requiring that affected persons be informed about the collection and use of their data, given that such provisions are generally among the key instruments of data protection under fundamental rights. (cf. BVerfGE 125, 260 <335>; with reference to BVerfGE 100, 313 <361>; 109, 279 <363 and 364>; 118, 168 <207 and 208>; 120, 351 <361 and 362>). Effective legal protection can only be guaranteed if the affected persons are notified. […]

The legislator may provide for exemptions from the requirement to notify affected persons, balancing it against the constitutionally protected legal interests of third parties. These exemptions must, however, be limited to what is absolutely necessary (cf. BVerfGE 109, 279 <364>; 125, 260 <336>). In the context of law enforcement, exemptions from the notification requirement are conceivable, for example, if knowledge of the interference with the privacy of telecommunications would jeopardise the purpose pursued, if the affected person could not be notified without endangering another person’s life and limb, or if the notification conflicted with overriding interests of the affected person; this is the case, for instance, where the measure did not have any further consequences and notification of the affected person would only intensify the interference with fundamental rights (cf. BVerfGE 100, 313 <361>; 109, 279 <364 et seq. >; 125, 260 <336>). In addition, it is not constitutionally required to establish similarly strict notification requirements vis-à-vis persons who are only incidentally affected by an investigation measure that is directed against a suspect, and who are thus not themselves the target of state action. If they were subsequently notified, this would frequently even intensify the interference in the individual case (cf. BVerfGE 109, 279 <365>; 125, 260 <337> ; […]). In such cases, the affected persons need not be notified if they were only negligibly affected by the measure and if it can be presumed that they have no interest in being notified (cf. BVerfGE 125, 260 <337>).

2. Measured against these standards, § 101(4) to (6) of the Code of Criminal Procedure stands up to constitutional review.

[…] The common feature of the investigation measures listed in § 101(4) first sentence nos. 1 to 12 of the Code of Criminal Procedure is that they require that a criminal act was committed and that there are specific leads regarding the identity of the perpetrator or accessories to the crime. Thus, […] the investigation measures do not amount to a gathering of information without specific grounds or without a basis of suspicion, nor do they have an indiscriminate effect (regarding the significance of these criteria for the severity of interferences with fundamental rights cf. BVerfGE 115, 320 <354>). In addition, all measures require judicial authorisation (Richtervorbehalt ) – except for § 100h of the Code of Criminal Procedure, which governs the taking of pictures of suspects outside of private homes and the visual surveillance of persons with the aid of technical devices […]

a) Pursuant to § 101(4) third sentence of the Code of Criminal Procedure, a person affected by a covert criminal investigation measure need not be notified if protected interests of another person also affected by the measure outweigh the interest in being notified. […]

By enacting § 101(4) third sentence of the Code of Criminal Procedure, the legislator followed the consideration of the Federal Constitutional Court according to which it is not constitutionally required to provide for similarly strict notification requirements vis-à-vis persons whose data was only incidentally obtained (cf. BVerfGE 125, 260 <337>). With respect to this group of persons, it is not required to obtain judicial confirmation of the authorities’ decision, based on a balancing of interests, to refrain from notification pursuant to § 101(4) third sentence of the Code of Criminal Procedure (cf. BVerfGE 125, 260 <337>). In the context of this decision, it is permissible under constitutional law to leave the balancing of the suspect’s interests against the interests of third parties to the public prosecution office, given that the severity of the interference in relation to non-suspects is relatively low.

b) § 101(4) fourth sentence of the Code of Criminal Procedure provides that notification may be refrained from in certain cases regarding the seizure of postal items, telecommunications surveillance and the collection of telecommunications traffic data; in these cases, persons need not be notified if the measures were not directed against them, if they were only negligibly affected and if it can be presumed that they have no interest in being notified. This is not objectionable under constitutional law. […]

c) § 101(4) fifth sentence of the Code of Criminal Procedure concerns cases where the identity of persons affected by a covert investigation measure is not known. In this case, the persons could only be notified if further investigations determining their identity were carried out. […] With respect to this group of persons, such investigations could intensify the interference with fundamental rights, both for the target person and other affected persons (cf. BVerfGE 109, 279 <365>; 125, 260 <337>; cf. also BTDrucks 16/5846, p. 60). Therefore, it was permissible for the legislator to leave the decision on notification pursuant to § 101(4) fifth sentence of the Code of Criminal Procedure to the investigating authorities, especially because determining the identity of the persons concerned will often require considerable effort (cf. BVerfGE 125, 260 <337>).

d) § 101(5) first sentence of the Code of Criminal Procedure is also compatible with the Basic Law. It provides that persons affected by the investigation measure should be notified as soon as this is possible without jeopardising the purpose of the investigation, life, limb and liberty of the person, or significant assets; for measures pursuant to § 110a, the foregoing provision also refers to the possibility that notification could jeopardise the continued use of an undercover police investigator.

The provision sets out a differentiated statutory regime, striking a balance between the requirement that the affected person be, in principle, notified ex post and overriding interests that may, in individual and exceptional cases, conflict with this requirement; this balancing satisfies constitutional law (cf. BVerfGE 125, 260 <353>).

aa) […]

bb) Where an undercover police investigator is used in the context of surveillance, § 101(5) first sentence of the Code of Criminal Procedure provides that, based on a balancing of interests, notification may be deferred so as to keep open the possibility of using that investigator again; this balancing requirement satisfies the principle of proportionality in its strict sense. The grounds for deferring notification are sufficiently weighty and thus justify statutory limitations of the notification requirement.

On the one hand, the state does interfere with the fundamental right to informational self-determination (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law) if officers assume a cover identity to build up communication relationships with fundamental rights holders and to exploit the legitimate expectations of the affected person in order to obtain information about that person’s criminal conduct, which they would not otherwise receive (cf. BVerfGE 120, 274 <345>). On the other hand, the interests in ensuring a properly functioning criminal justice system may, and must, be taken into account under the principle of the rule of law, too (cf. BVerfGE 122, 248 <272>); allowing an undercover investigator to maintain their cover for possible future operations furthers this purpose. The Basic Law accords great importance to the prevention, prosecution and investigation of criminal acts (cf. BVerfGE 100, 313 <388>; 113, 29 <54>; 115, 166 <192>; 122, 248 <270, 272>). Law enforcement authorities are reliant on the use of undercover police investigators; without this option, it would be considerably more difficult or even impossible for them to carry out their tasks, especially with respect to particularly dangerous crime (cf. BVerfGE 57, 250 <284>). […] With § 101(5) of the Code of Criminal Procedure, the legislator achieved an appropriate balance between the interest of affected persons in being notified about covert investigation measures and the law enforcement interests of the state.

[…]

e) § 101(6) third sentence of the Code of Criminal Procedure also stands up to constitutional review. According to this provision, the court may authorise the authorities to refrain from notification indefinitely if the conditions for notifying the affected person will, in all probability, also not be fulfilled in the future. […]

It was permissible for the legislator to refrain from imposing an obligation on law enforcement authorities and courts to re-examine, on a recurring basis, the grounds for repeated deferrals of notification if the factual situation precluding notification will in all likelihood not change in the long term. With the constituent element ‘in all probability’, the provision sets sufficiently strict requirements for the prognosis that the situation will not change in the long term, which effectively bars authorities from jumping to premature conclusions.

IV.

§ 160a(1) and (2) of the Code of Criminal Procedure, which governs the protection of persons entitled to refuse to give evidence, does not violate the complainants’ fundamental rights. […]

1. a) § 160a of the Code of Criminal Procedure contains a multi-tier system of prohibitions to collect and use evidence in relation to persons bound by professional confidentiality that applies to both […] overt and covert investigative measures […].

§ 160a(1) first sentence of the Code of Criminal Procedure imposes an absolute prohibition to collect and use evidence with regard to clerics in their capacity as faith-based counsellors (§ 53(1) first sentence no. 1 of the Code of Criminal Procedure), defence lawyers (§ 53(1) first sentence no. 2 of the Code of Criminal Procedure) and members of Parliament (§ 53(1) first sentence no. 4 of the Code of Criminal Procedure); the legislator extended this prohibition to lawyers in general […].

By contrast, § 160a(2) of the Code of Criminal Procedure provides for a relative prohibition to collect and use evidence in relation to the other groups of persons bound by professional confidentiality listed in § 53(1) first sentence of the Code of Criminal Procedure; this prohibition is contingent on a proportionality assessment in the individual case

Based on the right to refuse to give evidence afforded persons that are bound by professional confidentiality, the purpose of § 160a(1) and (2) of the Code of Criminal Procedure is to protect the relationship of trust that these persons are part of. By differentiating between the respective groups of persons bound by professional confidentiality, the legislator takes into account that the Basic Law grants individuals an inviolable part of private life, which is beyond the reach of public authority, and thus also beyond the reach of criminal investigations. Insofar as the legislator determines that an interaction between individuals and persons bound by professional confidentiality typically falls within the inviolable part of private life, it grants absolute protection against the state collecting, using or analysing information in this respect (§ 160a(1) of the Code of Criminal Procedure). In all other cases, it grants only relative protection of the special relationship of trust that exists between individuals and persons bound by professional confidentiality (§ 160a(2) of the Code of Criminal Procedure); this concerns cases where, in the legislator’s view, it cannot be ruled out, but it can also not be necessarily presumed, that the information typically relates to the core of private life. To the extent that, in the individual case, the inviolable core of private life is affected with regard to the group of persons § 160a(2) of the Code of Criminal Procedure refers to, the relevant investigation measure must be regarded as impermissible, too [despite the lack of an absolute prohibition] (cf. BTDrucks 16/5846, pp. 36 and 37).

b) By limiting the absolute prohibition to collect and use evidence under § 160a(1) of the Code of Criminal Procedure to a few exceptional cases, the legislator takes into account that law enforcement is of great importance (cf. BVerfGE 107, 299 <332>) […].

The Federal Constitutional Court has repeatedly emphasised the constitutional requirement of effective law enforcement, it has also repeatedly stressed the interest in establishing the truth in criminal proceedings to the greatest extent possible, and has recognised the effective investigation of serious crimes as a fundamental responsibility of society under the rule of law (cf. BVerfGE 29, 183 <194>; 77, 65 <76>; 80, 367 <375>; 100, 313 <388 and 389>; 107, 299 <316>; 122, 248 <272, 273>). The purpose of law enforcement measures is to investigate crimes and thereby contribute to the enforcement of criminal law; this could be substantially affected by the right to refuse to give evidence or similar restrictions of law enforcement measures deriving from procedural law (cf. BVerfGE 77, 65 <76>; 107, 299 <332>). Such impairments require a legitimate basis in constitutional law – also in light of the right of the accused to a fair criminal trial under the rule of law (cf. BVerfGE 77, 65 <76>). In the individual case, such legitimation may derive from fundamental rights protection, given that criminal investigation measures regularly interfere with fundamental rights. Therefore, they require justification and must be weighed, in a balancing of interests, against public law enforcement interests.

The statutory framework gives effect to this balancing of interests required under constitutional law, given that for the majority of cases where persons bound by professional confidentiality are entitled to refuse to give evidence, investigation measures relating to these persons are subject to a proportionality assessment in the individual case. At the same time, the statutory framework contributes to the equal treatment of professional groups that are granted a right to refuse to give evidence under § 53(1) of the Code of Criminal Procedure and to which – save for a few exceptions – a prohibition to use evidence applies that is subject to a balancing under § 160a(2) of the Code of Criminal Procedure.

2. […]

3. The complainants assert that § 160a(1) of the Code of Criminal Procedure should be extended to cover their professional activity [as doctors], too. In this respect, they argue that the differentiation between professional groups under § 160a(1) and (2) of the Code of Criminal Procedure is incompatible with Art. 3(1) of the Basic Law.

The general guarantee of the right to equality of Art. 3(1) of the Basic Law requires the legislator to treat equally matters which are essentially alike and to treat unequally matters which are essentially different (cf. BVerfGE 112, 268 <279>; 116, 164 <180>; 122, 210 <230>; established case-law). The primary purpose of the right to equality is to avoid unjustified unequal treatment of persons; thus, the legislator is generally subject to strict limits where groups of persons are treated differently (cf. BVerfGE 55, 72 <88>; 88, 87 <96>; 89, 365 <375>; 95, 267 <316>). The limits to the legislator’s leeway to design are stricter the more the unequal treatment has possible adverse effects on the exercise of freedoms protected by fundamental rights (cf. BVerfGE 60, 123 <134>; 88, 87 <96>; 89, 15 <22 and 23>; 90, 46 <56>; 95, 267 <316 and 317>; 97, 271 <290 and 291>; 103, 172 <193>; 105, 73 <110 and 111>; 107, 27 <46>; 121, 317 <370>; established case-law). This applies in particular if it affects the scope of protection of the freedom to practice one’s occupation under Art. 12(1) of the Basic Law, as is the case here given that the applicability of the statutory provision is linked to membership of a certain professional group (cf. BVerfGE 121, 317 <370>). In such cases, the general right to equality is violated if a group of persons addressed or affected by the provision is treated differently from another group, even though there are no differences between the groups that are of such significance or weight that they may justify the different treatment (cf. BVerfGE 55, 72 <88>; 93, 386 <397>; 105, 73 <110>; 107, 27 <46>; 121, 317 <369>; established case-law).

With respect to provisions that treat groups of persons differently or adversely affect the exercise of fundamental rights, the Federal Constitutional Court undertakes a detailed review as to whether the differentiation is based on reasons of such significance or weight that they may justify unequal legal consequences (cf. BVerfGE 88, 87 <97>; 95, 267 <317>).

4. When measured against these standards, the differentiation between the professional groups in § 160a(1) and (2) of the Code of Criminal Procedure does not violate the general guarantee of the right to equality.

a) […]

aa) The absolute prohibition to collect and use evidence set out in § 160a(1) of the Code of Criminal Procedure considerably restricts law enforcement, because it prohibits, from the outset, investigation measures in relation to persons belonging to certain professional groups and it bars the use of any findings that were obtained nonetheless. Such absolute prohibitions are only permissible for narrowly defined exceptional cases; this concerns, in particular, cases where an investigation measure would result in an interference with human dignity given that the protection of human dignity is not subject to any balancing at all. […] Accordingly, the Federal Constitutional Court held, in the context of acoustic surveillance of private homes, that absolute protection merited by the human dignity dimension of the relationship between the communication partners is required only for conversations with clerics in their capacity as faith-based counsellors and for conversations with defence lawyers (BVerfGE 109, 279 <318 and 319, 322>).

bb) Regarding the professional groups listed in § 160a(1) of the Code of Criminal Procedure, particularly weighty reasons justify the absolute prohibition to collect and use evidence.

(1) The absolute protection afforded both clerics in their capacity as faith-based counsellors and defence lawyers is justified given that their conversations with a suspect are typically linked to Art. 1(1) of the Basic Law: The conversation with clerics in their capacity as faith-based counsellors is part of the human dignity dimension that constitutional law accords to the practice of one’s religion under Art. 4(1) and (2) of the Basic Law. Consultations with defence lawyers serve an important function in upholding human dignity, as this contributes to ensuring that the suspect is not treated as a mere object in criminal proceedings (BVerfGE 109, 279 <322>). […] [This] justifies the general exemption of these two groups from investigation measures.

(2) The legislative decision to extend the absolute protection of § 160a(1) of the Code of Criminal Procedure to lawyers in general […] can still be justified with regard to Art. 3(1) of the Basic Law.

[…]

Sufficient justification follows from the fact that a different treatment of defence lawyers and other lawyers would in reality hardly be feasible due to the close proximity of the respective areas of practice. […] From a general point of view, criminal defence is typically an inherent possibility in lawyer-client relationships […]. Given the connection between criminal defence and the protection of human dignity, the decision to extend the absolute protection afforded under § 160a(1) of the Code of Criminal Procedure to the professional groups that were newly added to this provision is tenable.

(3) The inclusion of members of Parliament in § 160a(1) of the Code of Criminal Procedure is based on a justification that is expressly set out in the Constitution. It is true that the constitutional protection afforded members of the Bundestag does not serve to protect the personality right of suspects; rather it aims to protect Parliament as an institution and ensure its proper functioning (BVerfGE 109, 279 <323>). For these reasons, the Basic Law affords members of the Bundestag the right to refuse to give evidence and prohibits the seizure of documents belonging to them (Art. 47 of the Basic Law). These prohibitions, which are expressly laid down in the Constitution itself, apply even with regard to overt investigation measures, conferring a special status upon members of Parliament compared to other persons entitled to refuse to give evidence; this also justifies that [the challenged provisions] provide special, more extensive protection to this group. […]

cc) The other groups of persons bound by professional confidentiality listed in § 160a(2) of the Code of Criminal Procedure differ from the aforementioned privileged groups; to that extent, it is justified to make their protection from investigation measures subject to a balancing of interests.

(1) For the professional group of doctors, the Federal Constitutional Court already established that certain aspects, such as doctor-patient consultations, may relate to the core of private life in the individual case (cf. BVerfGE 32, 373 <379>; 109, 279 <323>). Where this is the case, access by the state to this information is prohibited, even within the scope of § 160a(2) of the Code Criminal Procedure; this is confirmed by the legislator’s intent […].

Yet while criminal defence, in light of its purpose, invariably relates to the core of private life, in medical settings the core is only affected under particular conditions and in the individual case. Medical records on the patient’s medical history, diagnosis or treatment are not necessarily part of the inviolable intimate sphere, but in principle belong only to the patient’s private sphere, which may be subject to interferences based on overriding interests of the common good (BVerfGE 32, 373 <379 and 380>). Thus, it does not raise concerns if accessing such information is permitted in cases where the law enforcement interests of the state outweigh other affected interests.

(2) The legislator was not required to include representatives of the press or the media in the absolute protection under § 160a(1) of the Code of Criminal Procedure.

[…] The legislator is neither required nor at complete liberty to accord absolute precedence to freedom of the press and broadcasting over other important legal interests, such as the requirement of establishing the truth in criminal proceedings at issue here (cf. BVerfGE 77, 65 <75 and 76>; 107, 299 <332 and 333>).

b) Nor does Art. 12(1) of the Basic Law give rise to an obligation on the part of the legislator to extend the applicability of § 160a(1) of the Code of Criminal Procedure to other groups of persons bound by professional confidentiality listed in § 53(1) first sentence nos. 3 to 3b and no. 5 of the Code of Criminal Procedure.

The protection afforded by Art. 12(1) of the Basic Law only applies to legal provisions or acts of public authority that either directly concern occupations or, where this is not the case, objectively have inherent regulatory effects on occupations (cf. BVerfGE 95, 267 <302>; 97, 228 <253 and 254>; 113, 29 <48>). This is not the case here, neither for the provisions authorising the investigation measures under the Code of Criminal Procedure, nor for the provisions limiting the general obligation of individuals to cooperate in criminal proceedings against another person (cf. BVerfGE 33, 367 <387>; 38, 312 <324>; 113, 29 <48>). Such provisions apply to anyone regardless of their occupation.

[…]

c) There are no constitutional concerns with respect to § 160a(4) of the Code of Criminal Procedure. According to this provision, the prohibitions to collect, use and analyse the data specified in § 160a(1) and (2) do not apply if specific facts give rise to the suspicion that the persons entitled to refuse to give evidence themselves participated in the criminal act under investigation, in assisting the perpetrator in securing the benefits of the crime, in the obstruction of justice, or in the handling of stolen goods. This provision takes into account that the protection afforded relationships of trust between persons bound by professional confidentiality and other persons seeking them out for advice and help does not serve to protect the former from law enforcement measures by the state if they themselves are suspected of having committed a criminal offence (cf. BTDrucks 16/5846, p. 37; […]).

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