The protection Article 10 of the Basic Law provides is not limited to acts of the Federal
Intelligence Service as the body that collects the data but also extends to acts of the
Federal government as the body that receives the data. The holders of fundamental
rights have an even greater need for protection vis-à-vis the Federal government than
vis-à-vis the Federal Intelligence Service. Whereas the mission of the Federal Intelligence Service is limited to observing and evaluating events without having executive
powers, the Federal government, as a political body and as the executive head of the
state on the national level, has means to make use of its knowledge through measures that can considerably impair persons who are affected by telecommunications
monitoring.
The Federal government, which is to be informed by the data obtained through monitoring, may therefore not use the data at its discretion. It is only permissible for the
Federal government to take note of the content or the circumstances of telecommunications contacts in order to be in a position to timely recognise the threats specified in
§ 3.1 sent. 2 nos. 1-6 of the G 10 Act and to take measures to counteract them. The
Federal government is therefore not allowed to store or use the data for other objectives.
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As the challenged provision, considered on its own, does not contradict the constitution but only requires amendment, its deficiencies also do not result in the provision
being void but only results in its inconsistency with the Basic Law. The parliament is
obliged to create consistency with the Basic Law. The Basic Law leaves the decision
about the precise place in which this duty is fulfilled to the legislative discretion of the
Federal government.
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VI.
The provision of § 3.5(1), in conjunction with § 3.3(1) of the G 10 Act, that obliges
the Federal Intelligence Service to transfer data obtained by telecommunications
monitoring to other authorities for the execution of their duties is not entirely consistent with the provisions of Article 10 of the Basic Law and the complementary provisions of Article 5.1(2) of the Basic Law.
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1. The objective of the regulation, however, is not objectionable from the constitutional point of view. The data and information that the Federal Intelligence Service
has obtained from telecommunications traffic when fulfilling its mission, are supposed
to be utilised for the prevention, resolution or prosecution of criminal offences to the
extent that they indicate offences committed by specified individuals. The Basic Law
confers great importance to the prevention and resolution of criminal offences. The
Federal Constitutional Court has therefore repeatedly emphasised the irrefutable requirement that criminal offences be effectively prosecuted and of an effective fight
against crime. The Federal Constitutional Court has also repeatedly stressed the
public interest in the truth being ascertained as completely as possible in criminal proceedings, for the conviction of offenders as well as for the exoneration of the innocent, and has described the effective resolution especially of serious criminal of-
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64/77