ascertained with sufficient probability that the danger will arise in the near future.
What is more, the statute granting powers to perform such an encroachment must ensure the protection of the fundamental rights of the person concerned also by means
of suitable procedural precautions.
(a) In the tension between the obligation incumbent on the state to protect legal interests and the interest of the individual in respect for his or her rights as guaranteed
by the constitution, the task of the legislature includes in an abstract form achieving
compensation between the conflicting interests (see BVerfGE 109, 279 (350)). This
may lead to a situation in which certain intensive encroachments on fundamental
rights may be provided only to protect certain legal interests, and only from certain
suspicion or danger levels onwards. The obligations incumbent on the state to protect
other legal interests also come up against their limits in the prohibition of inappropriate encroachments on fundamental rights (see BVerfGE 115, 320 (358)). Corresponding encroachment thresholds are to be guaranteed by a statutory provision
(see BVerfGE 100, 313 (383-384); 109, 279 (350 et seq.); 115, 320 (346)).
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(b) A highly intensive encroachment on fundamental rights can already be disproportionate as such if the statutorily regulated occasion for the encroachment does not
show sufficient gravity. Insofar as the relevant statute serves to avert certain dangers,
as is the case for the Constitution Protection Act under § 1 of the North RhineWestphalia Constitution Protection Act, it is the rank and the nature of the endangerment of protected interests referred to in the respective provision which is relevant to
the gravity of the occasion for encroachment (see BVerfGE 115, 320 (360-361)).
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If the protected interests as such standing behind an empowerment to encroach are
sufficiently prevalent to justify encroachments on fundamental rights of the regulated
type, the principle of proportionality gives rise to constitutional requirements being
placed on the factual preconditions of the encroachment. In this respect, the legislature has to maintain a balance between the nature and intensity of the impairment of
fundamental rights on the one hand and the factual elements constituting an entitlement to encroachment on the other hand (see BVerfGE 100, 313 (392 et seq.)). The
requirements as to the degree of probability and the factual basis of the prognosis
must be proportionate to the nature and gravity of the impairment of fundamental
rights. Even with the greatest weight of the threatening legal interest in encroachment, it is not possible to forgo the requirement of sufficient probability of occurrence.
It must also be guaranteed as a precondition for a grave encroachment on fundamental rights that presumptions and conclusions have a starting point in fact which has a
concrete outline (see BVerfGE 113, 348 (386); 115, 320 (360-361)).
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(c) The principle of proportionality restricts a statutory provision granting powers to
effect secret access to information technology systems initially insofar as special requirements exist as to the occasion for the encroachment. The latter consists here of
risk aversion in the context of the tasks of the constitution protection authority according to § 1 of the North Rhine-Westphalia Constitution Protection Act.
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