Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
Pursuant to § 101.4 sentence 1 StPO, the person affected by measures according to § 100g.1
sentence 1 StPO shall be notified of them. The person affected may apply for the judicial review of such
measures within two weeks following their notification (§ 101.7 sentence 2 StPO). In certain cases,
notification may be dispensed with (§ 101.4 StPO), in other cases it may be deferred (§ 101.5 StPO).
Unlike the dispensation of notification pursuant to § 101.4 StPO, a long-term deferral according to § 101.5
StPO requires the approval of the court.
§ 100g StPO reads as follows:
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§ 100g
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(1) If specific facts create the suspicion that a person, as perpetrator or accessory,
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1. has committed a criminal offence that even in an individual case is of substantial
importance, in particular a criminal offence listed in § 100a.2 above, or, in cases in
which attempt constitutes an offence, has attempted to commit such an offence, or
has committed a criminal offence preparatory thereto or
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2. has committed an offence by means of telecommunications,
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then, even without the knowledge of the person concerned, traffic data (§ 96.1 and
§ 113a of the Telecommunications Act) may be collected to the extent that this is
necessary for the investigation of the facts or the establishment of the whereabouts
of the suspect. In the case of sentence 1 no. 2, the measure is permissible only if the
investigation of the facts or the establishment of the whereabouts of the suspect
would be impossible in another way and the collection of the data is in a reasonable
proportion to the importance of the matter. The collection of location data in real time
is permissible only in the case of sentence 1 no. 1.
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(2) § 100a.3 and § 100b.1 to § 100b.4 sentence 1 apply with the necessary
modifications. Notwithstanding § 100b.2 sentence 2 no. 2, in the case of a criminal
offence of substantial importance it is sufficient to adequately determine the place
and time of the telecommunications if the investigation of the facts or the
establishment of the whereabouts of the suspect in another way would be impossible
or considerably more difficult.
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(3) If the collection of traffic data is not made on the responsibility of the
telecommunications service provider, then after the end of the communications
process it is governed by the general provisions.
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(4) In accordance with § 100b.5, a summary of measures under subsection 1 shall
be prepared annually; this shall state:
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1. the number of proceedings in which measures under subsection 1 have been
taken;
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2. the number of orders for measures under subsection 1, classified according to
original orders and renewal orders;
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3. the criminal offence that occasioned the order in each case, classified according
to subsection 1 sentence 1 nos. 1 and 2;
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4. the number of past months for which the traffic data under subsection 1 was
requested, starting at the time when the order was made;
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5. the number of measures that have produced no results because the data
retrieved were in whole or in part not available.
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