reality amounts to, a Federal secret police agency that acts on the domestic level.
The Federal Intelligence Service is not mentioned in the Basic Law’s provisions establishing various Federal legislative competencies. The competence to establish the
Federal Intelligence Service is normally attributed to the Federal parliament on the
basis of Article 73 no.1 of the Basic Law [Subjects of exclusive legislative power].
However, if this article is applied, the complainant urges that the limitation that it contains must be respected as well. Due to this limitation, the Federal competence does
not extend to the attribution of powers of encroachment, on the domestic level, that
are factually incumbent on the police or that are incumbent on the criminal police.
According to the complainant such attribution violates the constitutional obligation to
separate police service and secret service, to the extent that this obligation has found
expression in the constitutional competence provisions referring to the Federal Intelligence Service.
2. The complainants bringing the second constitutional complaint (1 BvR 2420/95),
2a and 2b respectively, additionally challenge: first, measures of strategic surveillance pursuant to §§ 1.1, 3.1.(1), § 3.1 sent. 2 no. 1 and § 3.1(3) of the G 10 Act; second, the destruction of collected data without the consent of those being monitored
pursuant to §§ 3.6, 3.7(2), 3.7(3) and 7.4 of the G 10 Act; and third, the preclusion of
the recourse to a court set forth in § 9.6 of the G 10 Act. The complainants also regard their rights under Article 10, Article 2.1 in conjunction with Article 1.1 and Article
19.4 of the Basic Law as being violated by the challenged provisions. The first of the
two complainants bringing the second constitutional complaint also claims that her
fundamental right to freedom of the press under Article 5.1(2) of the Basic Law is violated.
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The first of the two complainants bringing the second constitutional complaint (2a)
asserts that she is a free-lance journalist working for many German and foreign newspapers, radio and television stations. She investigates especially in the areas with
which the monitoring activities of the Federal Intelligence Service are concerned.
There is, therefore, a high degree of probability that words occur in her telephone and
fax traffic that are used as search concepts and that result in the recording of her
telecommunications traffic. The second of the two complainants bringing the second
constitutional complaint (2b) is an Uruguayan citizen. He claims that he takes care of
the telecommunications traffic of the first complainant (2a) when she is absent for
professional reasons, and that he uses her subscriber lines as well as his own subscriber line for this objective. Article 10 of the Basic Law can also be invoked by foreigners as regards measures taken by the German public authority outside of Germany.
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The constitutional complaint is, according to the complainants, admissible and wellfounded also with respect to the claim that §§ 1.1, 3.1(1) and § 3.1 sent. 2 no. 1 of the
G 10 Act are unconstitutional. The conditions under which the Federal Constitutional
Court, in its decision of 20 June 1984 (BVerfGE 67, p. 157), declared such monitoring
measures constitutional, no longer exist. Primarily, the complainants argue, the War-
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17/77