§ 20b sec. 2 no. 2 BKAG and is to be understood, when construed appropriately, as
an umbrella term solely for the groups of persons designated in it.
With this proviso, § 20g sec. 1 no. 3 BKAG is constitutionally sound. The legislature
does not indiscriminately open up the possibility of carrying out surveillance of all persons in the target person’s sphere, in order to – based merely on the fact that there
has been contact with that person – then find out whether this will uncover evidentiary
bases for further investigations. Rather, for the ordering of measures targeting third
parties, the provision requires that they have a particular proximity to the offence defined in greater detail in § 20b sec. 2 no. 2 BKAG. […]
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There are also no objections to be raised with regard to the individual criteria set out
in § 20b sec. 2 no. 2 a to c BKAG. Certainly, for constitutional reasons, the criteria
cannot be understood as being limitlessly broad so as to include persons who had
economic relations with the target person long before any criminal offence. Rather,
§ 20b sec. 2 no. 2 b BKAG limits the obtained benefits to the exploitation of the offence and thus to the fruit that stems from its unjust nature, while § 20b sec. 2 no. 2 c
BKAG also requires that the instrumentalisation of the person concerned must be
closely connected to the offence itself. If these conditions are fulfilled, the relevant orders are constitutionally justified. This is not altered by the fact that these measures
can thus also target third parties acting in good faith who are not responsible for any
threat. While this does constitute a particularly serious interference, it is a constitutionally justified means in the context of exceptionally significant public interests, similar to obligations of witnesses or duties in a state of necessity.
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f) As far as the principle of proportionality is concerned, the procedural requirements
of § 20g sec. 3 BKAG are not sound in all respects.
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aa) It is not objectionable that the surveillance measures under this provision, each
of which may be ordered for a reasonably limited period of time only, can be extended
without this being subject to any maximum limit. The legislature could assume that a
specific risk situation, as is required for the ordering or extension of the measures,
generally does not last over a long period of time, so that there is, generally, no risk
that this will lead to disproportionate on-going surveillance. Furthermore, a limit can
be imposed, based on the principle of proportionality in individual cases even if no
maximum limit is expressly set down, since the longer the surveillance measures, the
more intensive the interference with the general right of personality, which may render a further renewal constitutionally unjustifiable (cf. BVerfGE 109, 279 <362>).
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bb) With regard to proportionality aspects, however, the rule on the requirement of a
judicial order in § 20g sec. 3 BKAG is insufficient.
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§ 20g sec. 3 BKAG requires a direct judicial order for the initial ordering of a measure only if undercover investigators are to be employed (cf. § 20g sec. 3 sentence 1
BKAG). In other cases, it permits an initial order directly from the Federal Criminal Police Office itself and requires a judicial decision only for a potential extension (§ 20g
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