Bundesverfassungsgericht - Entscheidungen - Electronic Profile searc…ssible only in cases of specific danger to important legal interests
30.07.20, 15:56
sufficient for a court order of electronic profile searching. Instead, there must be specific facts that indicate that
terrorist attacks are being planned or carried out.
The challenged decisions do not satisfy the constitutional requirements. They are based on a broad interpretation
of § 31 of the Act that conflicts with these principles. The Regional Court even regards it as sufficient if “the
possibility of the occurrence of particularly serious harm is not excluded”, and the Higher Regional Court goes as
far as to regard it as sufficient if there is the “distant possibility of the occurrence of harm”. If – as the Higher
Regional Court states with regard to the situation at that time – “specific indications of terrorist attacks in
Germany [are] not known of”, but a mere “possibility of such attacks” based on surmise exists, then the electronic
profile searching carried out despite this is a measure taken before any danger needs to be averted, but not the
averting of a specific danger itself.
III.
One member of the Senate presented a dissenting opinion on the decision. The member sees no reason to
object to the Higher Regional Court's interpretation and application of § 31.1 of the Act on constitutional grounds.
According to this dissenting opinion, the Higher Regional Court correctly proceeded on the basis of a sufficient
factual foundation for a terrorist danger. In view of the situation of threat to a large number of innocent persons, in
this opinion, no objection can be made to attributing more weight to the interest of all citizens in the guarantee of
security and freedom than to the interference to be suffered by the complainant.
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