meant to make it possible to reject or confirm uncertain assessments of suspicious
or threatening situations even before investigations have taken place. If properly interpreted, these constituent elements still provide an adequate assurance that data
may not be stored on the basis of mere speculation. […]
b) § 2 sentence 1 no. 1b ATDG, which expands the group of included persons from
the viewpoint of support for terrorist organisations, is in part not compatible with the
prohibition of disproportionate measures and is unconstitutional.
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aa) However, the provision is unobjectionable to the extent that it includes persons
who belong to a group that supports a terrorist organisation. […]
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bb) By contrast, that group is expanded further in that the provision also includes
persons who merely support a supporting organisation. No requirement for a subjective connection to terrorism can be found in the provision. According to its wording
and an object and purpose that is not unlikely, the provision thus also covers an extension of the data storage obligation to persons who, far prior to any terrorism, and
possibly without knowing of any connection with terrorism, support what they believe
to be an innocuous organisation, such as the kindergarten of a mosque association,
while the authorities suspect this association of supporting terrorist organisations.
Such a broadening of the law to include even the remotest connections with terrorist
organisations violates the principle of unambiguity of legal provisions, and is incompatible with the prohibition of disproportionate measures. Of course, the legislature is
free to view the mere support for supporting organisations as a reason for data to be
stored, if there are factual indications that this support is a deliberate encouragement
of those activities of such groups that support terrorism. However, in that event, the
legislature must express this in such a way in the law that the principle of unambiguity
of legal provisions is observed. […]
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c) § 2 sentence 1 no. 2 ATDG is not fully compatible with the Constitution. This provision, which is meant to cover individuals who might have an affinity to terrorism,
combines a number of ambiguous and potentially broad legal terms. Because of a tie
in the Senate’s votes, the terms “unlawful use of violence” (“rechtswidrige Gewalt”)
and “intentional incitement of such use of violence” (“vorsätzliches Hervorrufen solcher Gewalt”) cannot be declared unconstitutional. In the opinion of the four members of
the Senate who carry this part of the decision (§ 15 sec. 4 sentence 3 BVerfGG), the
use of these criteria is compatible with the Basic Law as long as they are not accorded an overly broad meaning (aa). In the opinion of the other four members of the Senate, which ultimately does not prevail for this decision (§ 15 sec. 4 sentence 3 BVerfGG), the provision would have to be declared unconstitutional in this regard (bb).
However, in the unanimous view of the Court, the mere “advocacy” (“Befürworten”) of
violence within the meaning of this provision is not sufficient for recording a person in
the counter-terrorism database. To that extent, the provision violates the prohibition
of disproportionate measures and is unconstitutional (cc).
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aa) (1) The provision focuses mainly on the notion of unlawful use of violence. This
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