regulations may lodge a constitutional complaint against the law that establishes
those regulations (cf. BVerfGE 90, p. 128 [at p. 135]; established case-law). If a complainant is affected in his or her fundamental rights only by the application of the challenged law, constitutional complaints may not be lodged against the law itself, but
must be lodged against the act of enforcing the law. There is, however, no possibility
of challenging the enforcement of a law if the person affected cannot obtain knowledge of such enforcement. In these cases, the person must be entitled to directly
lodge a constitutional complaint against the law just as he or she would be entitled
to do in those cases in which fundamental rights are affected by the law itself, i.e.
without any act of enforcement (cf. BVerfGE 30, p. 1 [at pp. 16-17]). Under these circumstances, the requirements placed on the justification of the constitutional complaint pursuant to Article 23.1(2) and Article 92 of the Bundesverfassungsgerichtsgesetz (BVerfGG, Federal Constitutional Court Act) are fulfilled if the complainant
demonstrates that there is some probability that his or her fundamental rights are being affected by measures taken pursuant to the challenged statutes (cf. BVerfGE 67,
p. 157 [at p. 170]).
II.
The majority of the constitutional complaints in the present proceedings comply with
these prerequisites.
145
1. Normally, the complainants cannot obtain knowledge of possible measures taken
pursuant to § 1.1 and § 3 of the G 10 Act, which would affect them.
146
Certainly, the regulations at issue in this case do not independently impose themselves on the complainants. Rather, ministerial provisions and orders, including monitoring, recording, evaluation and transfer by the Federal Intelligence Service (and, if
necessary, measures of reception, examination and use by the agencies to whom the
Federal Intelligence Service must supply data) must occur in order for the legal regulations to become effective. Only these measures constitute a specific impairment of
the respective holders of fundamental rights.
147
These steps of implementation, however, take place unnoticed by the persons affected and are imperceptible for them. In the interest of promoting their very objective,
the implementation of the Act and its regulations is largely kept secret. The law only
provides that the person who has been subject to monitoring activities be informed after the fact and in compliance with the terms and limitations set forth in § 3.8 of the
G 10 Act. Due to the restrictions set forth therein, the subjects of monitoring rarely
learn that they have been monitored and whether personal data obtained from the
monitoring was evaluated, transferred and submitted for further use.
148
2. The complainant bringing the first constitutional complaint, the first of the two
complainants bringing the second constitutional complaint, and both complainants
bringing the third constitutional complaint have sufficiently established that it is possible that their fundamental rights are being violated.
149
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