Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
When assessing the appropriateness of the provision under constitutional law, one has to consider, as a 318
starting point, that the fundamental rights are not confined to warding off state encroachment. Due to their
objective-law dimension, the duty of the state to protect the citizens from their rights being infringed results
from them. This duty to protect includes the duty to take suitable measures in order to prevent injury to
legal interests or to investigate such injury if necessary, to attribute responsibility for injuries to legal
interests and to restore legal peace (see Jutta Limbach, Anwaltsblatt – AnwBl 2002, p. 454). In this sense,
guaranteeing the protection of citizens and of their fundamental rights and the foundations of the
community, and the prevention and investigation of serious criminal offences, are all among the
requirements for peaceful coexistence and the citizens’ untroubled enjoyment of their fundamental rights.
The effective investigation of crimes and effective warding off of danger are therefore not in themselves a
threat to the freedom of citizens; they are however, impermissible without any restraints and limits. They
are indicated within the bounds of what is appropriate and reasonable in order to secure that inter alia the
fundamental rights are made use of and in order to protect the individual’s legal interests. In the state
under the rule of law, the citizen must be able to rely on effective protection by the state just as much as
on protection against the state (see Di Fabio, Neue Juristische Wochenschrift 2008, p. 421 (422)).
Accordingly, the Federal Constitutional Court has described that state as power guaranteeing peace and
stability under the constitution (verfasste Friedens- und Ordnungsmacht ) and has recognised the security
of its citizens, which it must guarantee, as a constitutional value that is of equal rank with other such
values and is indispensable because the state as an institution derives its justification inter alia from it (see
BVerfGE 49, 24 (56-57); 115, 320 (346)).
As regards the balancing of the conflicting interests by the legislature, which must create the legal 319
foundations for the investigation of criminal offences and for warding off danger, it must furthermore be
taken into account that it is reasonable to expect the individuals, as regards their relation and their
commitment to the community, to tolerate certain impairments which serve the protection of other citizens’
legal interests and fundamental rights, but also the individuals’ own protection (see BVerfGE 4, 7 (15); 33,
303 (334); 50, 166 (175)). Also with a view to this, the legislature must be granted discretion for the
balancing which is its duty, so that it can protect, on the one hand, the liberty rights of the subjects of
fundamental rights, while creating, on the other hand, the legal framework conditions which make it
possible to ensure an effective legal protection of the citizen’s legal interests and fundamental rights
against injury, and to investigate criminal offences, with appropriate and reasonable means.
2. In establishing the duty to store telecommunications traffic data for a period of six months, a provision 320
as to the purpose of use and a criminal-procedure provision for collection of data, the legislature has
remained within the legislative limits accorded to it under the constitution. With a view to the fundamental
rights and legal interests to be protected, the impairment of the telecommunication participants affected by
the storage of traffic data is not inappropriate and unreasonable; on the other side of the balance which
must be found are the legislative weighting of the protection of the legal interests of individuals and of the
general public which are injured by criminal offences and the warding off of dangers in this respect in an
age of a very far-reaching expansion of the possibilities of electronic communication, which often leaves
little or no trace. This view is basically held by the majority of the Senate as well; however, it only takes
this aspect into account when evaluating the question of the suitability and necessity of the provisions
without explicitly integrating it into a review of appropriateness which really sees the interests affected “in
relation to each other”.
a) The latitude for drafting which the legislature primarily has when establishing a balance, in an abstract 321
manner, between the legal and other interests in the conflicting relationship of “freedom and security” (see
BVerfGE 109, 279 (350); 115, 320 (346)) is also influenced by the special character of the subject-matters
which are to be regulated, and by the reality to which the provision must do justice. Therefore, the purpose
and the effectiveness of the provisions must also be taken into account when assessing appropriateness
and reasonableness.
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