cial protection of individuals, and supervisory control (BVerfGE 133, 277 <365 para.
204>; see also BVerfGE 65, 1 <44 et seq.>; 100, 313 <361, 364>; 109, 279 <363 and
364>; 125, 260 <334 et seq.>; established case-law; cf. similarly the Proposal for a
Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the
purposes of prevention, investigation, detection or prosecution of criminal offences or
the execution of criminal penalties, and the free movement of such data of 25 January 2012, COM/2012/010 final – as of the conclusion of the trilogue, 16 December
2015: 15174/15; as of 28 January 2016: 5463/16, annex). The requirements applicable in this respect are derived from the fundamental right in question in conjunction
with Art. 19 sec. 4 GG (cf. BVerfGE 125, 260 <335>; 133, 277 <366 para. 206>).
The transparency of data collection and processing should contribute to the emergence of trust and legal certainty as well as to the on-going addressing of the topic of
data handling within a democratic discourse (BVerfGE 133, 277 <366 para. 206>). Its
aim is to provide, as far as possible, subjective legal protection to affected parties,
while at the same time counteracting the diffuse sense of threat emerging from covert
state surveillance (cf. BVerfGE 125, 260 <335>; similarly Court of Justice of the European Union – ECJ, Digital Rights Ireland Decision, C-293/12, EU:C:2014:238, para.
37). The less it is possible to ensure subjective legal protection, the greater the significance of effective supervisory control and of transparency in the actions of the authorities vis-à-vis the public (cf. BVerfGE 133, 277 <366 and 367 para. 207>).
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a) Another requirement for the proportionate design of the surveillance measures in
question is a legislative provision ordering an obligation to notify. Given that such
measures must be carried out covertly in order to achieve their aim, the legislature, in
order to ensure subjective legal protection within the meaning of Art. 19 sec. 4 GG,
must ensure that the affected persons are generally notified, at least subsequently, of
the surveillance measures. The legislature may provide for exceptions by weighing
the notification against the constitutionally protected legal interests of third parties.
These must, however, be restricted to what is absolutely necessary (BVerfGE 125,
260 <336>). […] If there are compelling reasons for ruling out a subsequent notification, this must be confirmed by a judge and reviewed at regular intervals (BVerfGE
125, 260 <336 and 337>).
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b) As a supplement to information-related interferences the carrying out or scope of
which the affected persons cannot assess with certainty, the legislature must provide
information rights. Restrictions are only permissible if they serve opposing interests of
even greater weight. Legislative exclusionary criteria must ensure that the affected interests are comprehensively weighed against one another, taking into account the individual case in question (BVerfGE 120, 351 <365>). Should the practical effectiveness of such rights to information nevertheless remain limited, given the type of tasks
being performed – as for example in the case of covert data processing for the protection against threats from international terrorism –, this is constitutionally acceptable
(cf. BVerfGE 133, 277 <367 and 368 paras. 209 et seq.>).
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