(1) The preconditions for measures according to § 5.2 no. 11 sentence 1 alternative
2 of the North Rhine-Westphalia Constitution Protection Act can be determined via
two legislative referrals. Firstly, § 5.2 of the North Rhine-Westphalia Constitution Protection Act refers in general terms to § 7.1 of the North Rhine-Westphalia Constitution
Protection Act, which in turn refers to § 3.1 of the North Rhine-Westphalia Constitution Protection Act. Accordingly, the deployment of intelligence service means is permissible if information relevant to the protection of the constitution can be obtained by
these means. Secondly, § 5.2 no. 11 sentence 2 of the North Rhine-Westphalia Constitution Protection Act refers to the more stringent preconditions of the Act re Article
10 of the Basic Law for a case in which a measure according to § 5.2 no. 11 of the
North Rhine-Westphalia Constitution Protection Act encroaches on the secrecy of
correspondence, post and telecommunication or is equivalent to such encroachment
in terms of its nature and grievousness.
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(2) It is not compatible with the principle of the clarity of provisions and determinedness of provisions that § 5.2 no. 11 sentence 2 of the North Rhine-Westphalia Constitution Protection Act makes the reference to the Act re Article 10 of the Basic Law
contingent on whether a measure encroaches on Article 10 of the Basic Law. The answer to the question of which fundamental rights are encroached on by investigation
measures taken by the constitution protection authority can require complex assessments and evaluations. They are first and foremost incumbent on the legislature. It
cannot avoid its task of giving concrete form to the relevant fundamental rights by
means of corresponding statutory precautions by passing on the decision on how this
fundamental right is to be concretised and implemented to a statute-executing administration through a mere factual reference to a possibly relevant fundamental right.
Such “escape clause” legislative technique does not comply with the principle of determinedness in a provision such as § 5.2 no. 11 sentence 1 alternative 2 of the North
Rhine-Westphalia Constitution Protection Act, which provides for new types of investigation measures which are intended to react to recent technological developments.
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The breach of the principle of the clarity of provisions is made even more profound
by the addition contained in § 5.2 no. 11 sentence 2 of the North Rhine-Westphalia
Constitution Protection Act that the reference to the Act re Article 10 of the Basic Law
also applies if an investigation measure is equivalent by its “nature and grievousness”
to an encroachment on Article 10 of the Basic Law. Hence, the factual preconditions
of regulated access are made contingent upon an evaluating comparison being carried out between this access and a measure which would have to be regarded as an
encroachment on a specific fundamental right. § 5.2 no. 11 sentence 2 of the North
Rhine-Westphalia Constitution Protection Act does not contain any standards for this
comparison. If the factual preconditions cannot be adequately specified by merely referring to a specific fundamental right, this certainly applies to a provision which provides for such a comparison of the regulated measure on which there is no further
statutory instruction with an encroachment on a specific fundamental right.
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