Thu, Mar. 11, 2004

Wiretap in Germany

CS - Bonn   Major parts of the new wiretapping statute are unconstitutional. On March 3, the Constitutional Court (Bundesverfassungsgericht) in Karlsruhe declared most of the wiretapping rules adopted 1998 in a so-called Grosser Lauschangriff (literally: big eavesdropping attack) inconsistent with the guarantees of human dignity and the inviolability of the home under Art. 1 and 13 of the constitution. The court ruled that the inviolability of the home is tightly connected with the legal principle of respect for human dignity guaranteed by Art. 1 of the German constitution, known as the Basic Law. As a result, every citizen has, and is entitled to, a space of intimacy where he may conduct private communications without fear of state intrusion.

The specially protected area of intimacy covers conversations between the target and his closest family members or otherwise other closely connected persons of trust (i.e. priests, physicians or criminal defense attorneys). The right to privacy in this area is untouchable and, therefore, cannot be counterweighted by the interest of the state in prosecuting criminal offenses.

Not every audio surveillance, however, violates the principle of human dignity. Conversations about crimes already committed and those about to be committed or the planning of future crimes do not fall under this absolutely protected area of privacy. The Court argued that all statues authorizing the eavesdropping of communication in private homes must operate under strict scrutiny. Surveillance of these specially protected conversations between the suspect and his persons of trust is permissible only when there is strong reason to believe that the content of conversation does not fall in the area of intimacy as described above. Any eavesdropping activities must be terminated immediately once a specially protected intimate conversation begins. Records that are already produced of such conversations must be deleted promptly and none of information collected about such conversations may be used for prosecution.

All provisions of the "eavesdropping attack"-statute that fail to meet these requirements are unconstitutional. The Court gave the legislators until June 2005 to amend such provisions to comply with constitutional requirements.

This decision represents an important clarification of the right of privacy for private communications in Germany. The standards for eavesdropping within the sphere of one's intimate domain are now set so high that this type of surveillance has now become no more than a theoretical tool for prosecutors. Although the Grosser Lauschangriff-statute had become law before the 9/11 attacks on Washington and New York, the court´s decision will make it in the future politically more difficult to enact any laws restricting civil rights for the sake of preventing terrorism in Germany and, presumably, also in the member states of the European Union.

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