Westphalia Constitution Protection Act, persons may also be monitored who have not
given rise to the occasion for the encroachment.
Such a grievous encroachment on fundamental rights, even if the weight of the
goals of protection of the constitution is taken into account, is in principle at least, also
conditional on the provision of a qualified substantive encroachment threshold (see re
criminal law investigations BVerfGE 107, 299 (321)). This is not the case here.
Rather, § 7.1 no. 1 in conjunction with § 3.1 of the North Rhine-Westphalia Constitution Protection Act permits intelligence service measures to a considerable degree in
the run-up to concrete endangerment without regard to the grievousness of the potential violation of legal interests, and also towards third parties. Such a broad empowerment to effect an encroachment is not compatible with the principle of proportionality.
298
cc) The Constitution Protection Act does not contain any precautions to protect the
core area of private life in connection with encroachments according to § 5.2 no. 11
sentence 1 alternative 1 of the North Rhine-Westphalia Constitution Protection Act.
Such provisions are however required insofar as a state agency is empowered to collect the contents of telecommunication by encroaching on Article 10.1 of the Basic
Law (see BVerfGE 113, 348 (390 et seq.)).
299
2. Finally, § 5.2 no. 11 sentence 1 alternative 1 of the North Rhine-Westphalia Constitution Protection Act, insofar as the provision grants powers to effect encroachments on Article 10.1 of the Basic Law, does not comply with the principle of specifying the fundamental right restricted contained in Article 19.1 sentence 2 of the Basic
Law.
300
According to Article 19.1 sentence 2 of the Basic Law, a statute must specify the
fundamental right which is restricted by this statute or this Act, stating the relevant Article. The function of the principle of specifying the fundamental right restricted is to
provide a warning and an occasion for reflection (see BVerfGE 64, 72 (79-80)). Specifying the encroachment contained in the wording of the Act is intended to ensure that
the legislature only provides for encroachments of which it is aware as such, and with
regard to which it accounts to itself as to their impact on the fundamental rights concerned (see BVerfGE 5, 13 (16); 85, 386 (404)). The fact of explicit specifying also
makes it easier to clarify the necessity and the extent of the intended encroachment
on fundamental rights in the public debate. By contrast, it is not sufficient for the legislature to have been aware of the encroachment on fundamental rights if this has not
been reflected in the text of the Act (see BVerfGE 113, 348 (366-367)).
301
The impugned provision does not comply with the principle of specifying the fundamental right restricted with regard to Article 10.1 of the Basic Law. In contradistinction
to the view taken by the Government of the Land North Rhine-Westphalia, the impugned provision does not meet the requirements simply because § 5.2 no. 11 sentence 2 of the North Rhine-Westphalia Constitution Protection Act may indicate by referring to the Act re Article 10 of the Basic Law that the legislature has considered an
302
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