the Basic Law, meet the constitutional requirements.
(aa) According to § 3.1 sentence 1 of the Act re Article 10 of the Basic Law, a surveillance measure is permissible if factual indications exist of the suspicion that
someone is planning, is committing or has committed a criminal offence from a list
that is regulated in the provision. The list of criminal offences, firstly, does not permit a
concept to be recognised according to which it could be justified to take all the criminal offences listed there as an occasion for measures according to § 5.2 no. 11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution Protection Act.
Hence, it is not ensured with all the provisions referred to that access in the concrete
case serves to protect one of the predominantly important legal interests listed above
(C I 2 b, dd (2) (c) (aa)). Secondly, the reference to § 3.1 sentence 1 of the Act re Article 10 of the Basic Law does not ensure in each case that secret access to an information technology system takes place only if such legal interests are endangered in
an individual case with sufficient probability (C I 2 b, dd (2) (c) (bb)) in the near future.
266
According to § 3.1 sentence 2 of the Act re Article 10 of the Basic Law, a surveillance measure may also be ordered if factual indications exist of the suspicion that
someone is a member of an association the purposes or activities of which are intended to commit criminal offences which are against the interests protected by the
constitution. The criminal offences are however only described in general terms, so
that the risk of an expanding interpretation exists which would also make possible an
encroachment to protect legal interests which are not predominantly important. What
is more, according to this provision, sufficient factual indications would not have to exist in each case in which the encroachment element of § 3.1 sentence 2 of the Act re
Article 10 of the Basic Law is complied with, for a danger posed to a predominantly
important legal interest by this person or association in the individual case.
267
(bb) § 5.2 no. 11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution Protection Act does not meet the constitutional requirements for preventive control of secret access to an information technology system, even if the reference to the
Act re Article 10 of the Basic Law is included.
268
§ 10 of the Act re Article 10 of the Basic Law provides for prior ordering of the surveillance measure which is granted by the competent supreme Land authority in response to a request by the constitution protection authority. This procedure is not sufficient to ensure the preventive control required by Article 2.1 in conjunction with
Article 1.1 of the Basic Law. The statute regulates neither the requirement of a judicial
order, nor – since the provision of preventive control by the G 10 Commission contained in § 3.6 of the Act on the Implementation of the Act re Article 10 of the Basic
Law is not included in the reference – an equivalent control mechanism. Unlike a
court, the competent supreme Land authority may because of its departmental structure have its own interest in the execution of intelligence service measures of constitution protection. It does not offer the same guarantee of the independence and neutrality of control as a court.
269
47/60