threat (cf. BVerfGE 109, 279 <355>). Directly extending these measures to third parties is disproportionate and is to be ruled out with regard to such a serious interference (see above C IV 1 c).
This does not affect the fact that it is permissible for the surveillance of the private
home of the target person to also include non-involved third parties so long as this is
inevitable (cf. § 20h sec. 2 sentence 3 BKAG). It is even permissible, as explained, to
carry out surveillance of the private homes of third parties in order to carry out surveillance of the target person.
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d) There is no constitutional objection to be raised with regard to the surveillance of
private homes in terms of its procedural design. In particular, it is to be ordered by a
judge. The fact that the Act thereby requires an indication of the “material grounds”
(§ 20h sec. 4 no. 4 BKAG) – as required in the other corresponding provisions of the
Act, too (cf. § 20k sec. 6 no. 4 BKAG) – does not constitute a revocation of the constitutional duty to review and the duty to justify (cf. BVerfGE 109, 279 <359 and 360>),
but rather emphasises that all legally relevant aspects must be substantiated in a
sound manner.
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It is also constitutionally unobjectionable that there is no maximum limit for the number of times the order for the surveillance of private homes can be extended, since a
temporal limit can, if needed in an individual case, arise on the basis of proportionality
considerations (cf. BVerfGE 109, 279 <362>).
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e) The provisions on the protection of the core area of private life in § 20h sec. 5 BKAG are not constitutionally sufficient. They do not satisfy the requirements of Art. 13
sec. 1 in conjunction with Art. 1 sec. 1 GG.
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aa) Since the surveillance of private homes is a particularly serious interference with
privacy and an intrusion into individuals’ personal refuges which are particularly important for safeguarding human dignity, the related requirements for the protection of
the core area are particularly strict (BVerfGE 109, 279 <313 et seq., 318 et seq., 328
et seq.>).
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(1) Firstly, particular requirements apply at the level of the collection of data. When
weighing whether there is a probability that highly private situations will be recorded,
presumptions shall apply in the interest of an effective protection of the core area (cf.
BVerfGE 109, 279 <320>). Accordingly, conversations taking place in private spaces
with persons enjoying the highest level of personal trust (see above, C IV 3 a) are presumed to fall within the core area of private life and cannot be subject to surveillance
(cf. BVerfGE 109, 279 <321 ff.>). An automatic on-going surveillance of spaces in
which such conversations are to be expected must thus be ruled out (cf. BVerfGE
109, 279 <324>). This presumption can be refuted when specific indications suggest
that certain conversations are, within the meaning of the standards set out above, directly related to a criminal offence – a relation that exists even when the conversations are mixed with highly personal content, or if their overall character will not be
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