tion technology system takes place via information technology systems which are at
the disposal of others, the protection of the user also covers this.
2. The fundamental right to the guarantee of the confidentiality and integrity of information technology systems is not unrestricted. Encroachments may be justified both
for preventive purposes, and for criminal prosecution. The individual must only accept
such restrictions of his or her right which are based on a statutory foundation that is
constitutional. This is missing in the empowerment of the constitution protection authority to carry out preventive measures to be reviewed in the instant case.
207
a) The impugned provision does not meet the principle of the clarity of provisions
and determinedness of provisions.
208
aa) The principle of determinedness finds its basis in the principle of the rule of law
(Article 20 and Article 28.1 of the Basic Law) also with regard to the general right of
personality in its various manifestations (see BVerfGE 110, 33 (53, 57, 70); 112, 284
(301); 113, 348 (375); 115, 320 (365)). It is to ensure that the democratically legitimised parliamentary legislature itself takes the essential decisions on encroachments on fundamental rights and the extent of the encroachments, that the Government and the administration find steering and restricting action standards in the
statute, and that the courts can carry out judicial review. Furthermore, the clarity and
determinedness of the provision ensure that the person concerned can realise the legal situation and can adjust to possible burdensome measures (see BVerfGE 110, 33
(52 et seq.); 113, 348 (375 et seq.)). The parliamentary legislature must determine
the occasion, purpose and limits of the encroachment in a manner that is sufficiently
area-specific, precise and clear in terms of its wording (see BVerfGE 100, 313
(359-360, 372); 110, 33 (53); 113, 348 (375); Federal Constitutional Court, Order of
13 June 2007 – 1 BvR 1550/03 et al. –, Neue Juristische Wochenschrift 2007, p. 2464
(2466)).
209
Depending on the task to be accomplished, the legislature finds a variety of possibilities to provide the preconditions for the encroachment. The requirements of the principle of determinedness also depend on these regulatory possibilities (see BVerfGE
110, 33 (55-56); Federal Constitutional Court, Order of 13 June 2007 – 1 BvR 1550/
03 et al. –, Neue Juristische Wochenschrift 2007, p. 2464 (2467)). If the legislature
uses indefinite legal concepts, the remaining uncertainties may not go so far that the
predictability and justiciability of the action of the state agencies empowered by the
provisions are endangered (see BVerfGE 21, 73 (79-80); 31, 255 (264); 83, 130
(145); 102, 254 (337); 110, 33 (56-57); Federal Constitutional Court, Order of 13 June
2007 – 1 BvR 1550/03 et al. –, Neue Juristische Wochenschrift 2007, p. 2464 (2467)).
210
bb) According to these standards, § 5.2 no. 11 sentence 1 alternative 2 of the North
Rhine-Westphalia Constitution Protection Act does not satisfy the principle of the clarity of provisions and determinedness of provisions insofar as the factual preconditions
of the regulated measures cannot be sufficiently derived from the statute.
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