Separate Opinion of Justice Eichberger:
I cannot subscribe to the decision, in several respects concerning the conclusions
drawn with regard to the challenged norms, and in parts of the reasoning.
The decision indeed moves within the framework of the case-law developed by the
Court particularly over the past twelve years on the permissibility of interferences with
fundamental freedoms for reasons of security, which is to be guaranteed by the state.
However, the principles set out by the Senate today, as in the past, almost exclusively
derive from the considerations carried out in the context of the proportionality test with
a view to balancing the burdens imposed by serious measures upon the fundamental
rights of the parties affected, on the one hand, and the state’s duties of protection with
regard to terrorist threats, on the other. Yet here, too, the prerogative of appraisal with
regard to the actual assessment of the risk situation and the prognosis of its development belongs to the legislature. In light of this, the Senate should not have set up
such detailed requirements. In weighing the latent threat posed by covert surveillance
and investigative measures, it must be kept in mind that most of the challenged
norms do not authorise a general collection of data affecting a wide range of persons.
Should, in a specific case of the carrying out of investigative measures, persons be
affected to whom one can attribute little or no responsibility for the grounds of the investigation, a particular sacrifice is exacted of them as a citizen’s duty for the public
guarantee of security.
Not all of the procedural, transparency and oversight requirements prescribed to the
legislature – even if many of them make sense and may be right – are actually required exactly so by the Constitution. The judgment, despite its welcome steps toward consolidation, nevertheless leads to a problematic entrenchment of the excessive constitutional requirements in this field.
I consider it to be too far-reaching to derive from the principle of proportionality the
requirements that persons affected by serious surveillance measures must be given
effective sanctioning mechanisms; that the oversight of data collection and use must
be carried out in regular intervals no longer than two years; and that reporting duties
vis-à-vis Parliament and the public to ensure transparency and oversight must be
provided. It would have been sufficient to merely prescribe the level of protection to
be ensured by the legislature.
Insofar as the Senate considers the authorisation to carry out certain investigative
and data collection measures for the purposes of the prevention of crime to be too unspecific and disproportionate, it needlessly fails to choose the possible option of an
interpretation in conformity with the Constitution. Unlike the Senate, I consider the
concept chosen by the legislature, to only require a judicial decision for an extension
of the majority of the surveillance measures in § 20g sec. 2 BKAG, to be constitutionally tenable. Furthermore, I cannot share the Senate’s view that § 20g BKAG is also
unconstitutional for not containing any provision for the protection of the core area of
private life.
66/71