BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht
30.07.20, 16:19
allowed to withhold notification enabling persons affected to claim redress, is also not obliged to preserve evidence for possible court
proceedings.
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It further arises from the described connection between the obligation to notify restriction measures after the event and refraining from
deleting data that the provisions in section 5 (2) sixth sentence and
section 6 (1) fifth sentence G 10 on the deletion of protocol data at the
end of the calendar year following the collection of such data – in this
case 2013 – are also compatible with the guarantee of legal protection
of article 19 (4) first sentence GG. Insofar as the Federal Constitutional
Court has raised objections to comparable provisions on deletion on
account of the brevity of the protocol retention period, this was only in
connection with constellations where – unlike in this case - there was
an unrestricted notification obligation (BVerfG, judgment of 20 April
2016 –1 BvR 966/09 et al.– Neue Juristische Wochenschrift (NJW)
2016, 1781 para. 205, 246, 269 in conjunction with paras. 138 and
272).
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5. The impediment to the protection of individual rights deriving
from the described provisions of the G 10 Act, which is not subject to
any concerns, if only on account of the constitutionality of these provisions, is also compensated for by the protection of basic rights arising
from the G10 Commission’s supervisory activity.
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The G10 Commission decides ex officio or on the basis of complaints
on the admissibility and necessity of restriction measures pursuant to
sec-tion 15 (5) G 10 in conjunction with section 1 (2) G 10. Its supervisory powers cover the entire collection, processing and utilisation of
the personal data ob-tained by Federal intelligence services under the
G 10 Act including the deci-sion to notify persons affected.
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In its judgment of 1999, the Federal Constitutional Court underlined
that control by independent state agencies and auxiliary bodies not
bound by any instructions was a constitutional requirement on account of the impediment to legal protection - also outside the area excluded from the possibility of taking legal action under article 10 (2)
second sentence GG and section 13 G 10 - resulting from the imperceptibility of encroachments on telecommunications privacy, the
opaqueness of the subsequent data processing and the possibility of
restricting notification (BVerfG, judgment of 14 July 1999 – 1 BvR
2226/94 et al.– BVerfGE 100, 313 <361>; on the requirement for procedural compensation for restrictions of individual legal protection in
comparable cases: BVerfG, judgments of 24 April 2013 – 1 BvR
1215/07 – BVerfGE 133, 277 para. 213 et seqq. and of 20 April 2016 – 1
BvR 966/09 et al.– NJW 2016, 1781 para. 135, 140 et seq.; in the context of article 8 of the ECHR: ECtHR, decision of 29 June 2006 - no.
54934/00, Weber and Saravia v. Germany – para. 115 et seqq.;
judgment of 12 January 2016 - no. 37138/14 - Szabó and Vissy v. Hungary – para. 75 et seqq.). In a new decision, the Federal Constitutional
Court stated that as a neutral entity, the G10 Commission served on
the one hand to involve the executive branch and on the other to repre-
https://www.bverwg.de/en/141216U6A9.14.0
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