In contrast, § 20g secs. 1 to 3, §§ 20h, 20j, 20k, 20l, § 20m secs. 1 and 3 – in this respect also § 20v sec. 6 sentence 3 (second half) – and § 20u secs. 1 and 2 as well as
§ 20v sec. 4 sentence 2, sec. 5 sentences 1 to 4 (without sentence 3 no. 2), § 14 sec.
1 sentence 1 nos. 1 and 3, sentence 2 BKAG are merely declared to be incompatible
with the Constitution; the declaration that the provisions are incompatible with the
Constitution is combined with the order that they shall nonetheless stay in effect on
an interim basis until 30 June 2018 at the latest. The grounds for the unconstitutionality of the provisions do not affect the core of the powers granted through the provisions but merely touch upon individual aspects of their design in light of the rule of
law; the fact that the overall assessment resulted in the finding of unconstitutionality is
largely due to the fact that there is a lack of individual provisions capable of ensuring
proportionality in a comprehensive manner, such as provisions guaranteeing effective review. Under such circumstances, the legislature is given the opportunity to remedy the constitutional contestations and thereby achieve the core of the objectives
pursued by the provisions. In light of the great importance of an effective fight against
international terrorism for a free and democratic state based on the rule of law, the
provisions’ continued interim applicability is more tolerable than a declaration of their
voidness; a declaration to that effect would deprive the Federal Criminal Police Office
of pivotal investigative powers for fighting international terrorism until the adoption of
new legislation.
357
However, with regard to the fundamental rights at issue, the order that the provisions are subject to continued applicability, for an interim period, necessitates certain
restrictive requirements. A necessary order is, first of all, that measures adopted pursuant to § 20g sec. 2 nos. 1, 2 b, 4 and 5 BKAG may only by ordered by a court; in
case of immediate danger, § 20g sec. 3 sentences 2 to 4 BKAG applies accordingly.
Furthermore, measures set out in § 20g sec. 1 no. 2, § 20l sec. 1 no. 2 and § 20m
sec. 1 no. 2 BKAG may only be ordered if the conditions stipulated in § 20k sec. 1
sentence 2 BKAG are fulfilled in the sense of the interpretation in conformity with the
Constitution laid out in the grounds of this decision. Finally, the further use of data
pursuant to § 20v sec. 4 sentence 2 BKAG or the transfer of data pursuant to § 20v
sec. 5 and § 14 sec. 1 BKAG is, with regard to data stemming from the surveillance of
private homes (§ 20h BKAG), only permissible in cases of imminent danger and, with
regard to data stemming from remote searches (§ 20k BKAG), only permissible if
there is, a sufficiently specific impending danger to the relevant legal interests in that
particular case.
358
II.
In parts, the decision was not adopted unanimously. This is true in particular with regard to the finding that § 20g sec. 1 no. 2, § 20l sec. 1 no. 2 and § 20m sec. 1 no. 2
BKAG are unconstitutional (rather than ruling that they may be interpreted in conformity with the Constitution); the recognition that the investigative powers set out in §
20g BKAG typically affect the core area; the objections raised against insufficiently
designed supervisory powers, reporting and sanctioning duties; and, in parts, also
64/71
359