Separate Opinion of Justice Schluckebier:
Insofar as the decision objects to the challenged provisions for constitutional reasons, I cannot agree to large parts of the decision and the accompanying reasoning.
In my opinion, the proportionality test applied in the decision is constitutionally misguided in several respects. Furthermore, the requirements established for the specificity of individual provisions are excessive. Ultimately, by means of numerous detailed requirements of a technical legislative nature the Senate puts its own notion of
regulatory framework before those of the democratically legitimised legislature; however, as far as I am concerned, the Senate goes too far in doing so. Contrary to what
the Senate assumed, some of the challenged provisions could in fact have been interpreted in conformity with the Constitution.
Generally it should be borne in mind that the legislature’s regulatory approach has
essentially found an appropriate and tenable balance in the complex tension between
the fundamental rights of persons affected by the police measures on the one hand,
and the legislature’s obligation to protect the fundamental rights of individuals and the
constitutionally protected legal interests of the general public on the other hand. The
legislature thus takes into account that, in a state governed by the rule of law, individuals must be able to rely on receiving effective protection by the state and on the protection of guaranteed fundamental freedoms against the state.
The Senate objects to the lack of an explicit statutory provision protecting the core
area of private life particularly with regard to special methods for the collection of data
outside of private homes (§ 20g Abs. 2 BKAG); in my opinion, such an express provision is not necessary. Indeed, the affected persons are “in public” when they are not
inside private homes. However, in those cases, they are not situated in specially protected private areas. The protection of the core area can be ensured at the level of the
actual application of the law.
Furthermore, I do not share the reasoning with regard to the requested establishment of an “independent body” that is essentially staffed with external persons who
are not entrusted with security functions and is, in respect of collection and evaluation, responsible for actually carrying out and adopting decisions on measures for the
surveillance of private homes and remote searches. Given its complicated nature, the
Senate’s suggested solution affects the effectiveness of the measures since the evaluation of findings is often very urgent and needed as quickly as possible in the context of the prevention of criminal offences and the protection against threats. For that
reason, it does not sufficiently satisfy the requirements of appropriateness with regard
to the effective prevention of terrorist crimes. The possibility offered to the legislature,
to grant the Federal Criminal Police Office “certain short-term initial possibilities of
taking action” in exceptional cases where danger will occur unless action is taken,– a
case which, in practice, will occur rather often –, clearly contrasts the judgments’ assumption according to which the data’s special need for protection requires, as a rule,
the almost complete exclusion of the Federal Criminal Police Office from the respon-
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