and since rights to obtain information have only a limited counteracting effect and the
courts have no adequate possibility for effective supervision, regular reports by the
Federal Criminal Police Office to Parliament and the public on the contents and use
of the counter-terrorism database must be ensured by law. […]
6. There are no constitutional objections to the provisions for deletion under § 11
sec. 2 and 4 ATDG. […]
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V.
To the extent that the challenged provisions provide that data to be included in the
counter-terrorism database may include data that are obtained by interferences with
the secrecy of telecommunications or with the fundamental right to inviolability of the
home, they violate Art. 10 sec. 1 and Art. 13 sec. 1 GG.
224
1. For the collection of data via interferences with the fundamental rights under Art.
10 sec. 1 and Art. 13 sec. 1 GG, especially strict requirements apply in view of the
special protective content of those rights. According to the case-law of the Federal
Constitutional Court, these stricter requirements also continue to apply in the requirements for the transfer and the alteration of the purpose of the data thus obtained. […]
It is in accordance with this requirement that data that derive from serious interferences with Art. 10 sec. 1 or Art. 13 sec. 1 GG must be labelled. The recognisability of
such data is intended to ensure that the specific limits on data use are obeyed even
after the data may have been forwarded to other agencies.
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2. A full, unrestricted inclusion in the counter-terrorism database of all data gathered
by interferences with Art. 10 sec. 1 and Art. 13 sec. 1 GG is not compatible with these
requirements; nor can anything else apply to data that are obtained by interfering with
the fundamental right to a guarantee of confidentiality and integrity of information
technology systems – of which the complainant does not complain – under Art. 2 sec.
1 in conjunction with Art. 1 sec. 1 GG (cf. BVerfGE 120, 274 <302 and 303>). Such
data may generally be gathered only subject to strict standards, and require, for example, elevated thresholds for interference, such as an especially dangerous situation or a specific suspicion of an offence, a threat to especially significant legally protected interests, or the prosecution of especially serious criminal offences. […]
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3. This is not altered by the Federal Government’s statement at the oral hearing that
in the future, in accordance with § 4 ATDG, such data will only be indirectly accessible in case of a match. No such restriction proceeds from the Counter-Terrorism
Database Act. […]
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However, a provision that always provides for covert storage of such data under § 4
ATDG would under proportionality aspects be compatible with the Constitution. Such
a provision would make the corresponding information available only under the data
transfer regulations in the laws governing the agency concerned. Those laws, in turn,
could ensure specific thresholds for interference, which are required by constitutional
law, and a sufficiently effective protection of legal interests. […]
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