nal offences, it fails to provide for a restricting specification of the transfer in line with
the particular grounds prompting the transfer; thus information can already be transferred as a mere evidentiary basis for further investigations even if it only has potential informative value – and even if it was obtained by means of intrusive measures.
In light of the standards developed above, this does not satisfy constitutional requirements (see above, D I 2 b bb). A transfer of data from intrusive surveillance measures
to other security authorities constitutes a change in purpose and is only permissible if
it involves at least a specific evidentiary basis for further investigations for the detection of equivalent criminal offences. The provision, however, fails to ensure that this
requirement is adhered to.
c) § 20v sec. 5 sentence 1 no. 3 BKAG, which governs the transfer of data for criminal prosecution purposes, is not compatible with the Constitution either.
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aa) The provision is disproportionate insofar as its first case group for a transfer of
data generally refers to the standards set out in the Code of Criminal Procedure regarding a request for information and thus also refers to data from surveillance measures that are not specifically mentioned in no. 3 sentence 2 but are, nonetheless, intrusive surveillance measures such as those taken pursuant to §§ 20g, 20j or 20m
BKAG. With its reference to the Code of Criminal Procedure, the provision refers to
§ 161 secs. 1 and 2 StPO in particular. This provision, however, does not ensure the
constitutionally required limitation of the transfer of data. In particular, it does not follow from the provision that data may only be used to prosecute those criminal offences regarding which it would have been permissible to collect the data with the appropriate means (see above, D I 2 b). In fact, § 161 sec. 1 StPO provides an
information obligation and thus an obligation to transfer data with respect to every
type of criminal act. The restrictions contained in § 161 sec. 2 StPO only refer to the
use of data in criminal proceedings for evidentiary purposes. Against that background, the stipulated restrictions do not rule out the possibility that the data be used
as a mere evidentiary basis for further investigations for the investigation of any criminal offence, including minor crimes […]. This, however, fails to ensure the constitutionally required restriction of a change in use of data to the protection of equally important legal interests. Moreover, the provision fails to guarantee that only data
actually indicating that there is a specific evidentiary basis for further investigations in
the crimes in question may be transferred.
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bb) The provision is also disproportionate insofar as its sentence 2 stipulates distinct
requirements for the use of data from measures taken pursuant to §§ 20h, 20k and
20l BKAG. The legislature allows their transfer for the purpose of enforcing crimes
that are subject to a maximum term of imprisonment of more than five years (§ 20v
sec. 5 sentence 1 no. 3, 2nd sentence thereof BKAG). Regarding data obtained
through measures carried out pursuant to §§ 20k and 20l BKAG, this constitutes a
limitation of the general reference to provisions of the Code of Criminal Procedure
and thus to § 161 sec. 1, sec. 2 sentence 1 StPO. In contrast, as far as data stemming from the surveillance of private homes is concerned, it constitutes an expan-
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