BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht
30.07.20, 16:19
in the special provision of section 6 (1) second sentence G 10 - that
data deriving from encroachments on telecommunications privacy are
deleted immediately as soon as they are no longer required for the purpose justifying the encroachment (BVerfG, judgment of 14 July 1999 –
1 BvR 2226/94 et al.– BVerfGE 100, 313 <400>; also in relation to article 13 (1) GG: BVerfG, judgment of 3 March 2004 – 1 BvR 2378/98 et
al. - BVerfGE 109, 279 <380>; on article 8 of the European Convention on Human Rights (ECHR) cf.: European Court of Human Rights
(ECtHR), decision of 29 June 2006 - no. 54934/00, Weber and Saravia v. Germany – para. 132; ECtHR <GC>, judgment of 4 December
2015 - no. 47143/06, Zakharov v. Russia – para. 255).
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Because the Federal Intelligence Service fulfilled its obligation to delete e-mail traffic collected in the context of the strategic surveillance
of communications but not required for the fulfilment of its tasks, it
would have also removed any encroachment upon the claimant’s basic
right deriving from article 10 GG immediately and without consequence. Such an encroachment, insofar as it occurred, is no longer establishable. Thus, a legal relationship that can be established within
the meaning of section 43 (1) of the VwGO does not exist.
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4. The guarantee of effective legal protection enshrined in arti-cle 19
(4) first sentence GG requires no other assessment. In principle, this
re-quires the possibility of a court review of encroachments on basic
rights. How-ever, the constitutional guarantee of legal protection is
subject to a constitution-ally unobjectionable restriction by the obligation of the Federal Intelligence Service described above to delete data
in its interplay, provided for in sec-tion 6 (1) sixth sentence G 10, with
the obligation for authorities to notify per-sons affected by restriction
measures under section 5 G 10 laid down in sec-tion 12 (2) in conjunction with section 12 (1) G 10. The result of this statutory provision is to
prevent a perpetuation of encroachments on basic rights.
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The order to delete data that are not (or are no longer) required for
the official fulfilment of tasks – which is also enshrined in constitutional law – must be aligned with the guarantee of legal protection of article 19 (4) first sen-tence GG with regard to the possible judicial control
of state information and data processing measures in such a way that
legal protection is not undermined or thwarted (BVerfG, judgments of
14 July 1999 1 BvR 2226/94 et al. – BVerfGE 100, 313 <364 et seq.,
400> and of 3 March 2004 – 1 BvR 2378/98 et al. – BVerfGE 109, 279
<380>). The above-mentioned provisions of the G 10 Act ensure that
this alignment in the area of the strategic surveillance of telecommunications takes place in an unobjectionable way.
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In principle, restriction measures under section 5 G 10 are to be communicated to the persons affected after they have ceased pursuant to
sec-tion 12 (2) in conjunction with subsection 1 G 10. Under section 12
(2) first sen-tence G 10, this does not apply when the personal data
were deleted immedi-ately, however. This provision rules out a notification obligation for all those encroachments on telecommunications
privacy that take place from the collection of the raw data flow from
https://www.bverwg.de/en/141216U6A9.14.0
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