Drucks 16(4)131 D, p. 10; A-Drucks 16(4)131 J, p. 10). Even a particular counterproposal submitted to restrict it, under which, on the basis of § 129a sec. 2 StGB, unlawful violence was to serve as a connecting factor for data storage only “if [unlawful
violence] is intended to intimidate the population in a significant manner, to unlawfully
coerce an authority or international organisation, or to eliminate or significantly impair
the fundamental political, constitutional, economic or social structures of a state or
international organisation, and the person’s actions threaten to significantly damage
a state or an international organisation” (cf. BTDrucks 16/3642, pp. 14 and 15). An
attempt was thereby made to narrow the concept of violence similarly to what is also being striven for in international and European provisions for combating terrorism
(cf. Council Framework Decision of 13 June 2002 on combating terrorism, OJ L 164/
3 of 22 June 2002, Art. 1; Draft of a General Convention on International Terrorism,
in: Measures to eliminate international terrorism, Report of the Working Group of 3
November 2010, UN Doc. A/C.6/65/L.10.). The legislature, however, made a deliberate decision to ignore this proposal – obviously in order to give broader latitude to
the security agencies. Such a decision cannot be cured by way of an interpretation in
conformity with the Constitution.
(b) However, an interpretation in conformity with the Constitution is also not possible
because of considerations of principle. If the statutory basis for interference is worded
openly in the aforementioned manner, and – as is not far-fetched – if it also supports
such an overreaching interpretation when recognised definitions are used, it does not
comply with the principle of unambiguity of legal provisions and is disproportionate as
a foundation for data processing such as is under discussion here. The principle of
unambiguity of legal provisions specifically aims to demand from the legislature itself
sufficiently clear decisions regarding the requirements for interferences with fundamental rights, so as to uphold the prohibition of disproportionate measures with sufficient reliability. If the legislature fails to meet these requirements, the Federal Constitutional Court cannot cure the deficiency with an interpretation in conformity with the
Constitution. […]
157
The requirements for specificity and for a sufficiently clear limitation of the legal
foundations differ depending on the subject matter and the regulatory context. According to the established case-law of the Federal Constitutional Court, the requirements for specificity and unambiguity of legal provisions are especially rigorous in data privacy law (cf. BVerfGE 65, 1 <46>; 118, 168 <187>; 120, 378 <408>) – and this
must especially apply to the counter-terrorism database, which governs the exchange
of data among security agencies even in advance of investigations. Unlike in the enforcement of laws (for example through an executive action) where official measures
are directed against an individual, are provided with reasons, and can be reviewed by
a court in the individual case, data processing under the Counter-Terrorism Database
Act takes place out of reach of any direct view. It remains informal, the person concerned is given no reasons, and it generally can also not be reviewed by a court. […]
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