use would lead to violations of fundamental principles of the rule of law. Under no
circumstances may the state be complicit in violations of human dignity (cf. BVerfGE
140, 317 <347 para. 62>; 141, 220 <342 para. 328>). In particular, it must appear
certain that the information will be used neither for political persecution nor for inhuman and degrading punishment or treatment in the receiving state (cf. Art. 16a(3)
GG). The legislator must ensure that the sharing of data collected by German authorities with other countries or international organisations does not erode the protections
of the European Convention on Human Rights and other international human rights
conventions (cf. Art. 1(2) GG); (cf. BVerfGE 141, 220 <345 para. 336>). Given the
exceptional nature of surveillance and data sharing measures carried out by intelligence services, which may involve contacts with states not firmly committed to the
rule of law, it must be ensured that the information provided is not used to persecute
certain ethnic groups, stifle opposition or detain people without due process, kill or
torture them in violation of human rights or international humanitarian law. The Federal Intelligence Service itself is responsible for examining and determining which rules
of international law have to be observed in this respect. In principle, receiving states
must agree to rights to information so that adherence to international human rights
standards can be monitored.
cc) To uphold this standard of protection, clear statutory provisions are required that
impose an obligation on the Federal Intelligence Service to ascertain the necessary
level of protection abroad. Before sharing data, the Federal Intelligence Service must
ascertain that the receiving state adheres to requirements arising from data protection law and from human rights.
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(1) This ascertainment does not require a comprehensive assessment in the individual case or binding individual assurances in every respect, but can be based on a
generalised assessment of the factual and legal situation in the receiving states. Yet
the assessment must be designed in such a way that adverse facts are taken into
account and it must be refutable (cf. BVerfGE 140, 317 <349 para. 69>). Where such
generalised assessments are not tenable, a fact-based assessment in the individual
case is necessary; such an assessment must conclude that adherence to at least essential requirements for the handling of data is sufficiently guaranteed. Where necessary, binding individual guarantees can and must be provided. In principle, binding
assurances are a suitable means for overcoming concerns regarding the permissibility of data sharing, as long as it is not to be expected that the assurances will not be
adhered to in the individual case (cf. BVerfGE 63, 215 <224>; 109, 38 <62>; 140,
317 <350 para. 70>). The legislator may also choose to determine which requirements apply in a specific constellation on the basis of a balancing of interests in the
individual case (BVerfGE 141, 220 <345 and 346 paras. 337 and 338>).
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The Federal Intelligence Service must be particularly prudent given that in the context of strategic surveillance, data is largely collected irrespective of whether affected
persons are, from an objective perspective, involved in a situation of danger and given that some of the data relates to circumstances in states not firmly committed to
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