term has a very broad meaning in other parts of the legal system, which would not
be significant enough to serve as an indication that the persons concerned have an
affinity with terrorism. It could not narrow down the group of persons concerned in a
manner that suffices for the principle of proportionality, and that could establish constitutional support for storing their data. […] In accordance with the objective of the
counter-terrorism database, which is directed against terrorist criminal acts, this term
must instead be understood as covering only violence directed immediately against
life and limb, or characterised by the use of means that pose a danger to the public.
Under this interpretation, there are no constitutional objections to the proportionality
of the group of persons covered by using the term “violence” in § 2 sentence 1 no. 2
ATDG.
(2) Furthermore, § 2 sentence 1 no. 2 ATDG includes both persons who use, support and prepare violence, and those who merely advocate it or who intentionally incite it. This would open up disproportionately broad possibilities for interference if
even conditional intent (Eventualvorsatz), as used in the terminology of criminal law,
were viewed as sufficient for the intentional incitement of violence. However, if, in this
context, the criterion of intentional incitement of violence is attributed a meaning
whereby only the deliberate incitement of violence is covered, this complies with the
principle of proportionality.
152
bb) In the opinion of the other four members of the Senate, which ultimately does
not prevail for the decision (§ 15 sec. 4 sentence 3 BVerfGG), § 2 sentence 1 no. 2
ATDG must be declared entirely unconstitutional because of lack of specificity and its
overly broad reach. This cannot be cured by assuming a narrower interpretation of
the terms “unlawful use of violence” and “intentional incitement” that diverges from
the notions generally used in criminal law. Such a recourse to an interpretation in conformity with the Constitution is inconsistent, and relaxes the requirements for specificity under data privacy law.
153
(1) As also the members of the Court whose position prevails see, significant criteria
of this provision are ambiguous, and are elsewhere in the legal system – specifically,
in an area of criminal law that is fundamental to everyday legal concepts – interpreted
broadly and in a manner that is, in the context of the counter-terrorism database, incompatible with the requirements of proportionality and the prohibition of disproportionate measures. […]
154
(2) There is no possibility of a narrower interpretation in conformity with the Constitution.
155
(a) Such an interpretation is not possible for § 2 sentence 1 no. 2 ATDG, if only because the term “unlawful violence” that is central to the provision was intentionally
chosen by the legislature to be broad and open. The vagueness and overly wide
reach of the concept of violence were explicitly criticised in the legislative process
(Plenary Minutes of the Bundestag – BTPlenarprotokoll 16/71, p. 7100; Bundestag
Committee on Internal Affairs, Minutes no. 16/24, p. 55; Committee Document – A-
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