one hand and for the resolution and prosecution of criminal offences on the other
hand. These consequences spring from the fact that data transfer for the protection
of legal interests can show different degrees of urgency. Whereas the prevention of
criminal offences is part of the resistance to threats and is meant to protect the affected legal interest from threatening violation, i.e. is supposed to prevent success,
the prosecution of criminal offences is aimed at the state sanctioning the violation
of a legal interest that has already taken place and can no longer be prevented. If
a telecommunications contact that is screened by the Federal Intelligence Service
contains indications concerning the planning as well as the completion of criminal offences contained in the catalogue of § 3.3(1) of the G 10 Act, this can, consequently,
lead to a different legal assessment of a transfer carried out pursuant to § 3.5 of the
G 10 Act.
Because, in the case of the prosecution of a criminal offence, the violation of the legal interest has already taken place and the focus is now on sanctioning it, it is not
justified to lower the threshold for the transfer of personal data that was obtained by
means of encroachments upon telecommunications privacy pursuant to §§ 1 and 3 of
the G 10 Act below the threshold that otherwise applies to encroachments upon
telecommunications privacy pursuant to § 100a of the StPO in crime prosecution. In
the case of the transfer of the data collected by the Federal Intelligence Service, it appears necessary from the constitutional point of view, with regard to the fact that encroachment in this case is no less serious, to establish the requirement of a factual
basis for the suspicion that corresponds to the one prescribed by § 100a of the StPO.
Otherwise, the number of holders of fundamental rights affected could not be kept
within the bounds of what is reasonable. § 3.3(1) of the G 10 Act does not comply
with this requirement. It lowers the threshold for transfer below the bounds of what is
reasonable by establishing that factual grounds for the suspicion that criminal offences have been committed are a sufficient standard for the transfer of data, a standard, however, which is considerably lower than that established by § 100a of the
StPO.
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To the extent that the prevention of criminal offences is concerned, the regulation
does not comply with the interests that are protected by the Basic Law. All in all, the
following circumstances result in a marked imbalance to the detriment of the fundamental rights affected: (1) that factual grounds are sufficient for a suspicion; (2) that
the planning phase is included in the consideration; and (3) that less serious criminal
offences also justify the transfer of data. In particular, a result of the circumstance that
factual grounds are connected with the planning of criminal offences is that the power
to monitor sets in at very early, preliminary stages of the threatened violation of a legal interest, which results in lowering the degree of probability and the certainty of
predictions. Another consequence is that the power to monitor may be based on relatively low requirements as regards the factual basis.
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Therefore, the parliament cannot make statutory provision for the consideration of
all the competing elements of the regulation concerning the transfer of data for the
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