portionality. The extension of the powers of monitoring so that they cover general
crime risks is justified by invoking the special situation of a threat emanating from
international organised crime. The parliament, however, has not substantiated the
assumed threat. The complainant alleges that no evidence even suggests that this
threat represents an equivalent to the danger posed by the threat of external, armed
aggression. Certainly the parliament has the prerogative of assessment. In this case,
however, the parliament has completely refrained from assessing the factual phenomena.
The complainant also alleges that it is doubtful whether the measures are suitable
for the indicated objective, i.e. investigation in the sphere of dangerous organised
crime. The success of the monitoring measures is jeopardised by the use of encryption systems. Necessity is also not sufficiently substantiated. Due to the especially
high rank of Article 10 of the Basic Law as concerns the general right to personality,
the standards for justifying the necessity of an encroachment upon that right must also be especially high (Unerlässlichkeit, imperativeness). According to the complainant, the Act does not take this into consideration. Under the law, not even the serious suspicion of a criminal offence or of a threat is required. The law does not
contain any consideration for weighing the necessity of expanding the secret police
powers of the Federal Intelligence Service to include such an encroachment upon
fundamental rights against alternative possibilities of regulation which are consistent
with the rule of law.
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The complainant raises other concerns about the principle of proportionality, which
requires, in the narrow sense, principles of encroachment on individual freedoms that
are consistent with the rule of law. Examples of such principles of encroachment on
individual freedoms, which have been found to be consistent with the rule of law, include: (1) the rule under police law that an investigation may be justified if someone is
found to be a “peace breaker” or an “apparent peace breaker” (Störer- oder Anscheinsstörerverantwortung); (2) the rule under the law of criminal procedure that an
investigation may be justified if a person is suspected of a criminal offence (strafprozessrechtliche Tatverdachtsverantwortung); and (3) the rule permitting an investigation pursuant to compulsory joint liability (Aufopferungspflicht) of non-peace breakers and non-suspects. The encroachment on fundamental rights that compulsory joint
liability permits is restricted to what is necessary and its intensity is relatively insignificant. The constitutional limitations on the power of encroachment under classical police law and under the law of criminal procedure, in connection with the pursuit of the
suspicion of a criminal offence or of a threat, can be categorised according to the
above-mentioned principles. The complainant asserts that the prerequisites of a
threat or of suspicion of a criminal offence are essential for encroachments of fundamental rights and constitute the fundamental distinction between a state governed by
the rule of law and a totalitarian state that investigates at its discretion to the detriment
of unsuspected citizens.
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