Germany: The Electronic Eavesdropping Case

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1 680 DEVELOPMENTS Germany: The Electronic Eavesdropping Case Nicolas Nohlen* Human dignity inviolability of the home Constitutional amendments and the Eternity Clause Interpretation of constitutional amendments German Constitutional Court rules on the implementation of electronic eavesdropping measures decision of March 3, 2004 Permitting the police and other public authorities to conduct electronic eavesdropping and wiretapping operations in people s homes for the purpose of effective criminal prosecution is always a highly controversial issue within liberal democracies that respect the rule of law and individual privacy. This is particularly true for Germany because of its history, in light of both the police state of the Nazi era and, in the communist German Democratic Republic, the decades of surveillance by the Stasi, 1 as the secret police were known. Consequently, the implementation of electronic eavesdropping measures by the amendment of article 13 of the German Constitution 2 in 1998 and the ensuing modification of the Strafprozessordnung, or German Code of Criminal Procedure (StPO), 3 caused scores of political and legal debates. 4 doi: /icon/moi046 * Law student, Heidelberg University; founder and editor-in-chief of the Heidelberg Student Law Review (STUDZR), the first student-run law journal in Germany ( Nicos.nohlen@studzr.de 1 The Ministerium für Staatssicherheit (Ministry for State Security, commonly elided as Stasi) was the main security and intelligence organization of the German Democratic Republic. 2 GRUNDGESETZ [hereinafter the Basic Law], as amended by Gesetz zur Änderung des Grundgesetzes, BGBl I, 610 (Mar. 26, 1998). Article 13(1) of the Basic Law guarantees the inviolability of the home. The new article 13(3) restricted this basic right in particular. It reads as follows: If particular facts justify the suspicion that any person has committed an especially serious crime specifically defined by law, technical means of acoustical surveillance of any home in which the suspect is supposedly staying may be employed pursuant to judicial order for the purpose of prosecuting the offense, provided that alternative methods of investigating the matter would be disproportionately difficult or unproductive. The authorization shall be for a limited time. The order shall be issued by a panel composed of three judges. When time is of the essence, it may also be issued by a single judge. 3 Strafprozessordnung (criminal procedure statute) [hereinafter StPO], as modified by Gesetz zur Verbesserung der Bekämpfung der Organisierten Kriminalität, BGBl I, 845 (May 4, 1998); see especially x 100c (1) No. 3 StPO and its following regulations. 4 As part of the debate about the so-called Großer Lauschangriff (literally, the big eavesdropping attack), the then justice minister Sabine Leutheusser-Schnarrenberger resigned because of the support for the eavesdropping plans from within her party, the Free Democrats. See Sabine Leutheusser-Schnarrenberger, Der große Lauschangriff Sicherheit statt Freiheit [Large Sale Wiretapping Security Ahead of Freedom], 31 ZEITSCHRIFT FÜR RECHTSPOLITIK 87 (1998); Otto Schily, Nachbesserungsbedarf bei der Wohnraumüberwachung? [Need for better home surveillance?], 32ZEITS- CHRIFT FÜR RECHTSPOLITIK 129 (1999).

2 DEVELOPMENTS 681 In its decision of March 3, 2004, 5 the First Senate of the German Constitutional Court ruled on the constitutionality of both the amendment of article 13 of the Basic Law and the modification of the rules within the StPO. Though the Court held that major parts of the implemented rules within the StPO were inconsistent with the guarantees of human dignity and the inviolability of the home under articles 1 and 13 of the Basic Law, the Court did not prohibit electronic eavesdropping measures as such. By a six-to-two vote the First Senate decided that the challenged provision, article 13(3) of the Basic Law, which had been the constitutional basis for the eavesdropping laws, was in accordance with the Constitution. The Court told the German government that it had until June 30, 2005, to rewrite the rules within the StPO that have been found unconstitutional. In short, the eavesdropping provisions within the StPO as modified in 1998 did indeed infringe on the inviolability of the home with regard to the principle of human dignity. 6 The reasoning of the First Senate in this regard is convincing and was not opposed in the separate opinion. But the Court s ruling on the constitutionality of the amendment of article 13 of the Basic Law warrants closer scrutiny. The Court had to assess whether the new article 13(3) of the Basic Law met the standards of article 79(3) of the Basic Law, the so-called Eternity Clause. This clause prohibits any amendment to the Basic Law that would affect the federal character of the political system or impinge on the principles laid down in articles 1 and 20 of the Basic Law. The concept of an eternal guarantee clause is not unfamiliar to constitutions worldwide, although the provisions within those constitutions may differ as to which guarantees are eternally protected. 7 Under article 79(3) of the Basic Law, even constitutional law can be unconstitutional, insofar as such unconstitutionality results from a constitutional amendment (the so-called unconstitutional constitutional amendment). 8 At first sight, this might seem a terminological contradiction. 5 Großer Lauschangriff, 109 BVerfGE 279 (2004); reprinted in 57 NEUE JURISTISCHE WOCHENZEITSCHRIFT 999 (2004). 6 See Carsten Momsen, Der große Lauschangriff, [Large-scale wiretapping] 31 ZEITSCHRIFT FÜR RECHTSPOLITIK 459, (1998). 7 See Juliane Kokott, in CONSTITUTIONALISM, UNIVERSALISM AND DEMOCRACY A COMPARATIVE ANALYSIS 109 (Christian Starck ed., Nomos 1999). 8 Beyond that, the doctrine of unconstitutional constitutional law (verfassungswidriges Verfassungsrecht) holds that even an existing constitutional provision, i.e., one not resulting from a constitutional amendment, can be unconstitutional if it conflicts with the highest core values of the Basic Law as a whole. See Friedrich Giese, Zur Klagbarkeit der Versorgungsansprüche der Flüchtlingsbeamten und ehemaligen Berufssoldaten [On the actionability of pension claims by refugees and former professional soldiers], 65 DEUTSCHES VERWALTUNGSBLATT 458 (1950); Herbert Krüger, Zur Auslegung des Artikels 131 des Bonner Grundgesetzes [On the Interpretation of Article 131 Bonn Basic Law], 3 NEUE JURISTISCHE WOCHENZEITSCHRIFT 161, 163 (1950). Contra OTTO BACHOF, WEGE ZUM RECHTSSTAAT [MEANS TO A CONSTITUTIONAL STATE] 1 48 (C. F. Müller 1979).

3 682 DEVELOPMENTS However, the doctrine of the unconstitutional constitutional amendment can be deduced from the general structure of the Basic Law, the primary purpose of which is to protect the highest principles and values of the Constitution as a whole. 9 As one of the eternally protected principles, article 1(1) of the Basic Law proclaims that human dignity is inviolable. The principle of human dignity is the very foundation of the Basic Law; it is that on which the entire constitutional order and all guaranteed fundamental rights are based. 10 The German Constitution frames the definition of human dignity, which is after all an abstract normative concept, in an intentionally open way, so that its concrete meaning could evolve on a case-by-case basis. 11 Thus, in the case before the Court, the crucial question was whether the restriction of the inviolability of the home by the amendment of article 13 was in line with the principle of human dignity enshrined in article 1(1) of the Basic Law. In its reasoning, the First Senate left no doubt that the inviolability of the home is closely connected with the principle of human dignity. As a result, every citizen is entitled to a sphere of intimacy where he or she may conduct private communications without fear of state interference. This specially protected area of intimacy covers conversations of highly personal nature between any citizen, even a person detained on suspicion of a crime, and his or her closest family members or other persons of trust, for example, attorneys, priests, or physicians. The Court stressed that in this core intimate area, the right of privacy is untouchable and may not be weighed against the interests of the state in effective criminal prosecution. Given this emphasis on human dignity, and its concrete meaning with respect to the inviolability of the home, one might expect that the First Senate would have seen a conflict between the new article 13(3) of the Basic Law and the principle of human dignity. Far from it; rather, the Court interpreted the new article 13(3) of the Basic Law as authorizing the legislator only to enact such laws that would be in line with the principle of human dignity. It held that not every electronic eavesdropping operation within people s homes is necessarily an interference with the core intimate area of privacy. Conversations about crimes already committed and those about to be committed or the planning of future crimes, for instance, do not fall within this absolutely 9 Cf. DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 48 (Duke Univ. Press 2d ed. 1997). 10 See Elfes, 6 BVerfGE 32, 36 (1957); Lebenslange Freiheitsstrafe, 45 BVerfGE 187, 227 (1977); Lebenslange Freiheitsstrafe, 72 BVerfGE 105, 115 (1986). On the concept of human dignity, see also KOMMERS, supra note 9, at 30; Edward J. Eberle, Human Dignity, Privacy and Personality in German and American Constitutional Law, 1997 UTAH L. REV. 963, 971; Christian Starck, Menschenwürde als Verfassungsgarantie im modernen Staat [Constitutional Guarantees in the Modern State], 36 JURISTENZEITUNG (1981). 11 See Eberle supra note 10, at

4 DEVELOPMENTS 683 protected area of intimacy. Laws permitting recordings of such conversations, therefore, could not be seen as violations of human dignity. But what was it that led the Court to interpret the new article 13(3) of the Basic Law to authorize the legislator only to enact laws consistent with the principle of human dignity? A textual analysis does not seem to provide for such an interpretation. 12 The provision does not name any constraints that could guarantee the protection of the inviolable core area of privacy. 13 The First Senate, therefore, employed a further interpretive instrument. It interpreted the new provision in a manner consistent with the Basic Law s fundamental principles and its systems of values (verfassungskonforme Auslegung). This principle of interpretation is one of the Court s more felicitous achievements and is quite in keeping with the general interest in maintaining the law (favor legis). 14 This principle says that if a provision, after employment of the classical methods of analysis, 15 seems to be open to two or more interpretations, and one of these would render the provision unconstitutional, the one in line with the fundamental principles and values of the Constitution has to be applied. 16 But is this principle of interpretation also applicable to constitutional amendments? Notwithstanding the fact that the Court had already assumed as much in its Klass case, 17 the application in the present case remains at least questionable. To understand the problem, a closer examination of article 79(3) of the Basic Law is necessary. This provision performs an essential function within the German constitutional system. After the negative experiences of the Weimar Republic the German constitution was changed substantially eight times by constitutional amendments between 1920 and 1932 the framers 12 Cf. Erhard Denninger, Der große Lauschangriff auf dem Prüfstand der Verfassung [The big eavesdropping attack under constitutional review], in LAUSCHEN IM RECHTSSTAAT [PRIVACY IN THE CONSTITUTIONAL STATE] 13, 16 (Fredrik Roggan ed., Berliner Wissenschafts 2004). 13 See supra note 2 for the wording of article 13(3) of the Basic Law. 14 The Court has applied this technique several times. See, e.g., Notaufnahme, 2 BVerfGE 266, 282 (1953); Strafaussetzung bei lebenslanger Freiheitsstrafe, 86 BVerfGE 288 (1992); 88 BVerfGE 145 (1993). 15 Basically interpreters of German law employ (1) textual analysis; (2) systematic analysis; (3) historical analysis; and (4) teleological analysis. See Winfried Brugger, Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some remarks from a German Point of View, 42AM. J.COMP. L. 395, (1994). 16 See KARL LARENZ & CLAUS-WILHELM CANARIS, METHODENLEHRE DER RECHTSWISSENSCHAFT [JURISPRUDENCE TEACHING METHODS] 160 (Springer 3rd ed. 1995); REINHOLD ZIPPELIUS, JURISTISCHE METHODENLEHRE [LEGAL TEACHING METHODS] 54 (Beck 8th ed. 2003); Jörn Lüdemann, Die verfassungskonforme Auslegung von Gesetzen [Constitution-conforming Interpretation of Laws], 44 JURISTISCHE SCHULUNG 27 (2004). 17 See the Klass case (Abhörentscheidung), 30 BVerfGE 1, (1970), translated in part in KOMMERS, supra note 9, at

5 684 DEVELOPMENTS of the Basic Law wanted to create a constitutional system with fundamental principles and values beyond the influence of the constitutional legislator. 18 It is, therefore, unconvincing to interpret the Eternity Clause as merely prohibiting a principle abandonment (prinzipielle Preisgabe), that is, an abandonment of the core principles and values of the German Constitution. 19 Rather, the Eternity Clause prohibits the constitutional legislator from even affecting 20 the principles laid down in articles 1 and 20 of the Basic Law. 21 Because of the forceful and extensive sense given to the Eternity Clause, it is argued that it is not acceptable simply to interpret constitutional amendments in the light of the Basic Law s core principles and values. 22 Rather, all constitutional amendments should first be interpreted on their own merits before examining whether they conform to the standards of article 79(3) of the Basic Law. As already noted, the Court advanced a different opinion in its Klass case as well as in this recent decision of March Thus, it based its reasoning on the concept of the German Constitution as a structural unity wherein every clause has a definite relationship with all other clauses and that together they form an entity. 23 The Court had already stated in its first major decision, the Southwest State case, that no constitutional provision may be taken out of its context and interpreted by itself. 24 Every 18 It is true that the Basic Law itself has been amended more than fifty times since However, the constitutional problem of the Weimar Republic was not the number of constitutional amendments, but the intensity. The practice of the constitutional legislator within this time came to be known as breaking through the constitution (Verfassungsdurchbrechung). 19 This is, however, the interpretation of the Court. See Abhörurteil, 30 BVerfGE 1, 24 (1970); Bodenreform I, 84 BVerfGE 90, 120 (1991); Sichere Drittstaaten, 94 BVerfGE 49, 102 (1996), in which the Court interpreted article 79(3) of the Basic Law restrictively. The Eternity Clause would not prevent the legislator from modifying even fundamental principles of the Basic Law for proper reasons. 20 Article 79(3) of the Basic Law uses the term berührt, which literally means touches. 21 See Jörg Lücke, in GRUNDGESETZ KOMMENTAR, ON ARTICLE 79 (3) MN 24 (Michael Sachs ed., Beck 3d ed. 2003); KLAUS STERN, DAS STAATSRECHT DER BUNDESREPUBLIK DEUTSCHLAND [THE PUBLIC LAW OF THE FEDERAL REPUBLIC OF GERMANY] Vol. III/2, 1106 (Beck 2d ed. 1994); THEODOR MAUNZ & REINHOLD ZIPPELIUS, DEUTSCHES STAATSRECHT [GERMAN PUBLIC LAW] 41 (Beck 30th ed. 1998). 22 See Peter Häberle, Die Abhörentscheidung des Bundesverfassungsgerichts vom [Decision of the Federal Constitutional Court of December 15, 1970], 26 JURISTENZEITUNG 145, 148 (1971); GÜNTER DÜRIG & HANS-ULRICH EVERS, ZUR VERFASSUNGSÄNDERNDEN BESCHRÄNKUNG DES POST-, TELEFON- UND FERNMELDEGEHEIMNISSES [On the Amendmeut of the Constitution to Place a Limitation on Privacy of Mail and Telecommunications] 9 (1969). Already in the Klass case in 1970, supra note 17, Judges Geller, Dr. von Schlabrendorff, and Dr. Rupp argued in their minority vote that a constitutional amendment must be interpreted in isolation and not in the light of the Basic Law s fundamental principles; 30 BVerfGE 1, 34 (1970). 23 On this concept of the German Constitution, see KOMMERS, supra note 9, 45, referring to JUSTICE GERHARD LEIBHOLZ, POLITICS AND LAW 289 (AW Sythoff 1965). 24 Southwest State, 1 BVerfGE 14, 32 (1951).

6 DEVELOPMENTS 685 constitutional provision must be interpreted so as to render it compatible with the fundamental principles of the Constitution. However, arguing that a provision should be interpreted in its constitutional context does not lead to the result that this argument would also be true for constitutional amendments. On the contrary, a constitutional amendment unlike a constitutional provision not resulting from a constitutional amendment has to meet the standards of the principles referred to in article 79(3) of the Basic Law. Interpreting such an amendment in a manner consistent with these principles, merely for the sake of rendering the amendment constitutional, would improperly restrict the application of the Eternity Clause. 25 Human dignity, as one of the eternally protected principles within the German Constitution, would then not constitute a threshold for constitutional amendments but merely serve as an interpretive instrument. This does not satisfy the function of article 79(3) of the Basic Law within the Constitution as a whole. Had the Court interpreted the new article 13(3) of the Basic Law in isolation, it might have come to the conclusion that the constitutional amendment was not in line with the principles protected by article 79(3) of the Basic Law and was, therefore, unconstitutional. 26 In any event, the majority of the First Senate decided differently. Eavesdropping operations in private homes will still serve as investigative instruments to fight organized crime and terrorism. The Court laid down, however, specific conditions for a framework of eavesdropping rules. If a suspect, for instance, is alone at home with his or her closest family members or other persons of trust, and there is no evidence to suggest their involvement in a crime, surveillance must be absolutely barred. Furthermore, any eavesdropping operation must be terminated immediately once a specially protected intimate conversation begins. Recordings already taken of such intimate conversations must be deleted promptly. Finally, surveillance may be conducted only with regard to crimes for which a person could be sentenced to at least five years in prison. According to the Court, any new laws under these conditions would be consistent with the principle of human dignity. 27 But how would eavesdropping measures under such conditions look in practice? Even the term intimate conversation seems unworkable. One can imagine two low-level police officers arguing while conducting surveillance of a suspect whether a specific conversation was of absolute intimacy or not. The situation is even more challenging when the persons targeted speak in 25 See the separate opinion of Judges Renate Jaeger and Christine Hohmann-Dennhardt, Großer Lauschangriff, supra note 5 at 382 et seq. 26 Id. In their separate opinion, Judges Jaeger and Hohmann-Dennhardt declare article 13(3) of the Basic Law unconstitutional and void on the basis of an isolated interpretation of the provision. 27 Actually, the First Senate specified what is permitted by article 13(3) by outlining what the legislator should take into account when making these new electronic eavesdropping rules.

7 686 DEVELOPMENTS a foreign language. 28 It remains to be seen how the legislature will develop new electronic eavesdropping rules that meet the standards of the Court s conditions. To find the right balance between individual freedom and national security especially in the context of the fight against terrorism is one of the great challenges for liberal democracies. 29 The Court s ruling might be taken as an attempt to find a middle course by emphasizing human dignity and fundamental privacy rights while not completely prohibiting electronic eavesdropping measures for the purpose of criminal prosecution. 30 But the Court s decision does not clarify what the Basic Law means when it says the home is inviolable. To declare the amendment to article 13 of the Basic Law unconstitutional might have been more consistent with the close connection between the inviolability of the home and the principle of human dignity. However, the Court seemed to lack the heart shown by Judges Renate Jaeger and Christine Hohmann-Dennhardt, who convincingly stated that, although people have lately become accustomed to the intrusions of technology, in the name of security, into the most personal spheres of their existence, the abolition of constitutionally enshrined basic rights must nonetheless be vigilantly fought to prevent a terrible outcome Konrad Freiberg, president of the police union in Germany, stressed that it is not possible in practice to implement laws under the conditions set by the Court, suggesting that, if the police were bugging a Lebanese gang, for example, it would be impossible to exempt intimate conversations from surveillance. SÜDDEUTSCHE ZEITUNG (SZ), Mar. 4, In fact, security is, to a certain extent, a prerequisite for liberty. See Winfried Brugger, Freiheit und Sicherheit. Von der Anthropologie zum Recht [Liberty and Security: From anthropology to right], 1 STUDENTISCHE ZEITSCHRIFT FÜR RECHTSWISSENSCHAFT HEIDELBERG 1, 12 (2004). See also CHRISTIAN WALTER, TERRORISM AS A CHALLENGE FOR NATIONAL AND INTERNATIONAL LAW: SECURITY VERSUS LIBERTY? (Springer 2004). 30 The Court s decision has been publicly interpreted in many different ways: for example, Volker Beck, a politician from the Green Party, has stated that the Großer Lauschangriff has been smashed by the Court s decision, see DER SPIEGEL, Mar. 8, 2004, at 48; Heribert Prantl, a journalist of the SÜDDEUTSCHE ZEITUNG (SZ), spoke of a stop sign for the policy, see SZ, Mar. 4, 2004; Reinhard Müller, journalist from the FRANKFURTER ALLGEMEINE ZEITUNG (FAZ), stuck to the facts and tried to minimize the decision s political significance, see FAZ, Mar. 4, 2004, at See supra note 25, at 391. Editor s note: This is ICON s translation. The original German expression, dem bitteren Ende Zu wehren may be literally translated as averting a bitter end.

The Decision of the Bundesverfassungsgericht of March 3, 2004 Concerning Acoustic Surveillance of Housing Space

PUBLIC LAW The Decision of the Bundesverfassungsgericht of March 3, 2004 Concerning Acoustic Surveillance of Housing Space By Jutta Stender-Vorwachs A. On March 3, 2004, 1 the Bundesverfassungsgericht