cause of their personal and factual independence, and because they are exclusively
bound by the law, judges can best and most safely defend the rights of the person
concerned in an individual case (see BVerfGE 103, 142 (151); 107, 299 (325)). This
is however conditional on their carrying out a detailed examination of the lawfulness
of the envisioned measure and on their recording the reasoning in writing (re the requirements as to ordering acoustic monitoring of dwellings see BVerfGE 109, 279
(358 et seq.); for criticism of the practice of the implementation of the requirement
of a judicial order in house searches see BVerfGE 103, 142 (152), with further references).
The legislature may only entrust another body with control if this offers the same
guarantee of its independence and neutrality as a judge. Such body must also submit
reasoning as to lawfulness.
260
An exception may be provided from the requirement of previous control of the measure by a neutral body suited thereto in urgent cases, for instance in case of imminent
danger, if it is ensured that a subsequent review will be carried out by the neutral
body. There are in turn constitutional requirements for the factual and legal preconditions of the assumption of an urgent case (see BVerfGE 103, 142 (153 et seq.) re Article 13.2 of the Basic Law).
261
(3) According to these standards, the impugned provision does not meet the constitutional requirements.
262
(a) According to § 5.2 in conjunction with § 7.1 no. 1 and § 3.1 of the North RhineWestphalia Constitution Protection Act, preconditions for the deployment of intelligence service means by the constitution protection authority are only factual indications of the presumption that information on anti-constitutional activities can be
obtained by these means. This is not a sufficient substantive encroachment threshold, either as to the factual preconditions for the encroachment, or to the weight of legal interests to be protected. Also, there is no provision for a prior examination by an
independent body, so that the constitutionally required procedural security is lacking.
263
(b) These shortcomings do not cease to apply if the reference contained in § 5.2 no.
11 sentence 2 of the North Rhine-Westphalia Constitution Protection Act to the detailed preconditions according to the Act re Article 10 of the Basic Law, is included in
the examination despite its undeterminedness, and, in the broad interpretation of the
Government of the Land North Rhine-Westphalia, is understood to refer to all formal
and substantive precautions of this Act. § 5.2 no. 11 sentence 1 alternative 2 of the
North Rhine-Westphalia Constitution Protection Act does not restrict secret access to
an information technology system to telecommunication surveillance, the preconditions for which are regulated by § 3.1 of the Act re Article 10 of the Basic Law, but facilitates such access in principle to obtain all available data.
264
Neither the regulation of the encroachment threshold, nor the procedural requirements of the encroachment elements provided for in § 3.1 of the Act re Article 10 of
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