The Federal Minister of the Interior also asserted that the deletion periods provided
by the Act take into account, on the one hand, the monitored person's interest in the
shortest possible period during which his or her personal data is stored; and on the
other hand, the need of combating the serious threats in question by comprehensively ascertaining the facts. The Federal Minister of the Interior noted that, due to the
considerable volume of telecommunications traffic monitored every day and the need
for a careful selection, it was necessary to concede the Federal Intelligence Service a
period of at least three months to ascertain the relevance of the data. This applies, in
a similar way, to the agencies that are provided with intelligence and facts from
telecommunications monitoring for further processing. Also, these agencies must
check the relevance of the data and, for doing so, they must pursue the investigations
that are necessary for ascertaining the facts. This is not possible in a period of time
shorter than the one set forth in the Act.
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The Federal Minister of the Interior argued that in the cases in which no information
pursuant to § 3.8(2) of the G 10 Act is provided, neither the principle of the rule of law
nor the principle of the separation of powers established in Article 20.2 of the Basic
Law are violated. The principle of the separation of powers permits in exceptional
cases that legal protection from measures taken by the executive power is not provided by courts of law but by independent institutions appointed or established by Parliament within the functional sphere of the executive power.
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2. The government of the Free State of Bavaria (a state of the Federal Republic of
Germany) regarded the constitutional complaints as unfounded. It was of the opinion
that the amendment was urgently required for reasons of credibility in foreign policy
as well as for reasons of internal security. The Bavarian government took the position
that, raising the thresholds for transfer and use of intelligence so that they are consistent with the concept of hinreichender Tatverdacht (reasonable grounds for suspecting a criminal offence), which originates from criminal procedure, is out of the question. According to the government of Bavaria, all laws dealing with the intelligence
services part from the assumption that a transfer of information to another security
agency or to a prosecuting agency is permissible if there are "tatsächliche Anhaltspunkte für den Verdacht" (factual grounds for suspecting) that someone plans, is
committing or has committed a specified criminal offence. In many cases, not even
this is made a prerequisite for the transfer of information. The regulations about transfer are based on the idea that it is exactly the task of the intelligence services to collect information in the lead-up to a criminal offence to transfer the information to the
executive agencies so that they can resist the threat or initiate criminal prosecution. If
transfer is also made contingent upon the existence of the same prerequisites that
must be fulfilled for investigative activities in the context of the prosecution of criminal
offences, this will make the intelligence service a subsidiary organ of the public prosecutor's office, which will in the end, result in the intelligence service becoming a prosecuting agency. The legal hurdle for data transfer must be lower than the interference
threshold of the prosecuting agencies.
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