These qualified requirements for specificity in constitutional data privacy are also
not founded on an exaggerated mistrust of the security agencies. Rather, such requirements shall in themselves ensure unambiguous conditions that provide the authorities with the clearest possible guidance in performing their demanding tasks, and
also relieve them in case of doubt, especially when performing the security agencies’
tasks which are not yet or only loosely formalised and where data processing often
plays a special role.
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(c) Nor is an interpretation in conformity with the Constitution required out of respect
for the legislature. It is true, that with the Counter-Terrorism Database Act, the legislature created an ambitious and nuanced regulatory concept which in many regards is
characterised by moderation under the rule of law and by a serious effort to guarantee appropriate data privacy. However, a constitutional assessment of the actual provisions that implement this concept cannot be guided by an overall assessment of the
legislature’s political efforts. Rather, it is the court’s task to apply the constitutional
standards independently from such considerations, and in detail, and thereby to ensure that the rule of law that forms a basis for the overall design does not slip away
through loopholes in individual provisions. […]
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cc) The criterion of “advocacy of violence” has an especially broad reach. Here the
legislature only refers to an internal attitude that need not have resulted in any activity
that encourages violence. The use of this criterion is incompatible with the Constitution, and the provision is unconstitutional to that extent. The generally overly wide
reach of this criterion can also not be remedied through an interpretation in conformity
with the Constitution. […] Linking to such a criterion, which focuses directly on the forum internum and therefore interferes with an individual’s inaccessible inner sphere,
is particularly capable to also have an intimidating effect on the exercise of legal freedoms, particularly the freedom of religion and the freedom of expression. In this case,
the law uses subjective convictions per se as its yardstick and thus lays out criteria
that an individual can only control to a limited degree and that cannot be influenced by
law-abiding conduct. Including persons in the counter-terrorism database on the basis of such a criterion is incompatible with the prohibition of disproportionate measures. § 2 sentence 1 no. 2 ATDG is unconstitutional to that extent.
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d) § 2 sentence 1 no. 3 ATDG is also unconstitutional. The inclusion of contact persons it provides for is incompatible with both the principle of specificity and the prohibition of disproportionate measures.
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§ 2 sentence 1 no. 3 ATDG provides that even mere contact persons of the persons
covered by the preceding clauses must be included in the counter-terrorism database. The law treats these as a separate group, whose data are made accessible to
the participating authorities in the same way as those of the other persons included in
the database. Also to be included in the database are those contact persons who
know nothing about the principal’s connection with terrorism – although in this case
only their simple basic data are to be included (§ 3 sec. 1 no. 1a ATDG). If these are
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