even when it also covers highly personal elements. The discussion and planning of
criminal offences is not content that belongs to the core area of private life, but rather
is of societal relevance (cf. BVerfGE 80, 367 <375>; 109, 279 <319 and 302, 328>;
113, 348 <391>). Of course this does not mean that the core area is subject to a
general balancing requirement with regard to public safety interests. A highly personal conversation does not fall outside the core area of private life simply because it
could provide helpful insights for the investigation of criminal offences or dangers.
Recordings or statements made in the course of a dialogue that only reveal, for instance, inner impressions and feelings and do not contain any indications with regard
to specific criminal offences, do not simply become relevant to society by the fact that
they might elucidate the reasons or motives for criminal behaviour (cf. BVerfGE 109,
279 <319>). Furthermore, despite having some link to criminal offences, situations in
which individuals are in fact encouraged to admit wrongdoing or to prepare for the
consequences thereof, such as confessions or confidential conversations with a psychotherapist or defence counsel, belong to the core area of private life, from which
the state is absolutely excluded (cf. BVerfGE 109, 279 <322>). There is sufficient societal relevance, however, when the subject of conversations – even with highly trusted persons – is directly focused on criminal offences (cf. BVerfGE 109, 279 <319>).
b) Any surveillance measure must take into consideration the core area of private
life. If it typically leads to the collection of data relevant to the core area, the legislature must provide provisions that guarantee effective protection in a legally clear
manner (cf. BVerfGE 109, 279 <318 and 319>; 113, 348 <390 and 391>; 120, 274
<335 et seq.>). Powers that do not tend to lead to interferences do not require such
provisions. Limits that in individual cases might arise here with regard to access to
highly personal information must be applied directly, on constitutional grounds.
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c) The protection of the core area of private life is strict and cannot be relativized
through a weighing with security interests in accordance with the principle of proportionality (cf. BVerfGE 109, 279 <314>; 120, 274 <339>; established case-law). This
does not mean that every instance in which highly personal information is indeed collected constitutes a violation of the Constitution or of human dignity. Given the uncertainty of action and prognosis under which security authorities carry out their duties,
an unintentional intrusion upon the core area of private life in the course of a surveillance measure cannot be excluded ahead of time in every case (cf. BVerfGE 120,
274 <337 and 338>). However, the Constitution does require that in the design of surveillance measures, the respect of the core area be drawn as a strict limit, insurmountable by considerations in individual cases.
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aa) Thus, firstly, it is absolutely impermissible to make the core area a target of state
investigations and use information from these in any way or to otherwise use it as a
basis for further investigations. Even if additional findings could result from it, a targeted interference with core privacy – not including the discussion of criminal offences
(see above, C IV 3 a) – is ruled out from the outset. The protection of the core area
cannot be subject to the proviso that interests must be balanced in individual cases.
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