the success that is to be prevented, it must set a high threshold for transfer.
bb) The parliament has not, in all respects, achieved this state of balance with regard to the elements of a criminal offence that justify the transfer of data. Certainly
§ 3.5 in conjunction with § 3.3 of the G 10 Act is not objectionable to the extent that it
permits data transfer regarding persons against whom restrictions of telecommunications privacy pursuant to § 2 of the G 10 Act have been ordered. To the contrary, the
scope of the elements of a criminal offence is not sufficiently delimited with respect to
suspicion-related restrictions. This results from the interplay between the catalogues
of relevant criminal offences, the factual basis for the suspicion of criminal offences
and the duration of the threat to the legal interest.
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The catalogue of criminal offences for the prevention, resolution or prosecution of
which the Federal Intelligence Service may transfer to other agencies personal data
obtained from telecommunications monitoring is extraordinarily heterogeneous. It is
not limited to major criminal offences but also includes minor criminal offences. On
the one hand, it contains criminal offences that damage the highest-ranking public interests or even threaten the ability of the state to protect legal interests as a whole. In
part, they correspond in their importance to the criminal offences that, pursuant to § 2
of the G 10 Act, justify the ordering of measures of telecommunications monitoring
against specified persons or even exceed these criminal offences in importance. Included among such criminal offences are, for example, causing an explosion by nuclear energy (§ 310b of the StGB [Strafgesetzbuch, German Criminal Code]), to
which reference is made in § 138 of the StGB. Other criminal offences, however, involve a less serious level of criminality, e.g. minor cases of counterfeiting eurocheque
forms (§ 152a.2 of the StGB), to which reference is also made in § 138 of the StGB,
or fraud regarding eligibility for a subsidy (§ 264 of the StGB), which is mentioned in
§ 3.3(1) of the G 10 Act.
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Moreover, the factual basis that must exist in order to justify the suspicion of criminal
activity and thereby permitting the transfer of data pursuant to the G 10 Act, is relatively low in comparison with the factual basis justifying the suspicion of criminal activity and thereby telecommunications monitoring pursuant to § 100a StPO (Strafprozessordnung [Code of Criminal Procedure]). § 100a of the StPO requires
"bestimmte Tatsachen " (specific facts) to justify the suspicion that someone has
committed or is committing criminal offences or, if the attempt is punishable, has attempted to commit or is attempting to commit such criminal offences or has prepared
to commit such criminal offences by means of another criminal offence. Tatsächliche
Anhaltspunkte (factual grounds), however, are sufficient to justify the transfer of data
pursuant to § 3.5 in conjunction with § 3.3 of the G 10 Act. Finally, the inclusion of the
planning phase that precedes the punishable attempt pursuant to § 100a of the StPO
extends the possibility of data transfer to the lead-up of criminal offences, which involves a nearly unlimited range of activity.
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This results in different consequences for the prevention of criminal offences on the
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