Summary:

I.

The applicant is a member of the German Bundestag and belongs to the parliamentary group Die Linke. On Saturday, 29 September 2018, the Turkish President visited Berlin. On the occasion of this state visit, roads were closed off in the government district. The applicant’s offices were in a building located within the secured area. In the range of the offices’ windows, which face the closed-off street area, there were posters of signs of the Kurdish People’s Defence Units YPG in Syria, each in A4 format. Officers of the Police Office at the German Bundestag noticed these posters during a patrol when the roadblocks in the area surrounding the building had already been lifted. The applicant was not present in his office at that time and the police did not attempt to contact him by telephone or other means. The officers entered the applicant’s office and removed the posters. The applicant now seeks a declaration that entering and searching his offices violated his constitutional rights as a member of the Bundestag.

II.

Based on the considerations below, the Federal Constitutional Court decided that the applicant’s rights as a member of the Bundestag laid down in the second sentence of Article 38.1 of the Basic Law were violated.

In substantive terms, the effective exercise of their mandate requires members of the Bundestag to be able to rely on a certain infrastructure without having to fear that others will gain knowledge of their work without their authorisation. Otherwise, there would be a latent danger from the outset that others might become aware of drafts or communication materials and that information gained therefrom might be leaked. However, the freedom of members of the Bundestag related to holding a seat in parliament requires that they can decide on the manner, timing and scope of the publication of their work. An interference with the status of a member of the Bundestag protected by the second sentence of Article 38.1 of the Basic Law may be permissible if and to the extent that other interests of constitutional status justify it. Both the representational and the functional capacity of parliament is recognised as such legal interests.

The measure in dispute amounts to an interference with the applicant’s rights under the second sentence of Article 38.1 of the Basic Law. No decision has to be made as to whether the first sentence of Article 40.2 of the Basic Law itself constitutes a suitable basis for an authorisation of police action by the President of the Bundestag or whether a formal statutory law would have been required to do so. In any case, the measure in dispute does not satisfy the requirements of the first sentence of Article 40.2 of the Basic Law.

Even if it were considered to be a suitable basis for such an authorisation, police action would have to meet the requirements set out in the internal rules of the Bundestag’s police force. Members of the Bundestag are formally equal. This principle, which is derived from the second sentence of Article 38.1 of the Basic Law, is compromised where the President of the Bundestag interferes with rights of members of the Bundestag and does not adhere to the general rules the President established. The internal rules of the Bundestag’s police are such general rules. According to these, police working at the Bundestag are allowed to enter the rooms of members of the Bundestag to avert a danger. This requirement has been met in this case. However, the measure is not proportionate. The interference is of significant weight. On the part of the applicant the rights deriving from his status as set out in the second sentence of Article 38.1 of the Basic Law are concerned, which represent a high-ranking legal interest. Pursuant to the second sentence of Article 38.1 of the Basic Law, the free mandate ensures the free formation of the will of the member of the Bundestag and their voters, including a communication relationship that is not subject to any state influence. It also serves to ensure the overall functionality of the Bundestag. The aim of ensuring the functionality of the Bundestag by averting external dangers does not outweigh the aim of ensuring the functionality by guaranteeing the integrity of the offices of the members of the Bundestag in general.

In this case, the evidence indicating a dangerous situation was only weak. At the time the measure was taken, it was not apparent that passers-by had already noticed the posters. The police had no apparent reason to believe that anyone was already taking action to the detriment of the Bundestag building or its staff. Irrespective of this, the potential for provocation was low given that the posters were barely visible given their extremely small size compared to the outer facade of an office complex and given the distance between potential passers-by and the posters.