Cablegate: German High Court Restricts Police Surveillance

This record is a partial extract of the original cable. The full text of the original cable is not available.





E.O. 12958: N/A
SUBJECT: German High Court Restricts Police Surveillance

1. SUMMARY: On March 3, the First Senate of the Federal
Constitutional Court in Karlsruhe sharply restricted
application of a 1998 law authorizing the electronic
surveillance of private homes for law enforcement purposes.
The Court ruled that police eavesdropping in private
residences is a violation of the German Constitution's
guarantee of human dignity and limited the practice to cases
where serious crimes are concerned (involving a possible
sentence of over five years) are concerned. Law enforcement
officials expressed concern that the precedent will restrict
Germany's ability to monitor suspected organized crime and
terrorist activities. However, the restrictions will affect
only a small number of the relatively infrequent cases where
electronic surveillance is used in private homes. END


2. After 15 years of debates, the Kohl government -- at
that time trying to fight the spread of organized crime --
reached agreement with the opposition Social Democrats/SPD
in 1998 to authorize police to enter private homes for
surveillance purposes (the law required a two-thirds
legislative majority). German liberals (then in coalition)
generally opposed the law: Federal Justice Minister Sabine
Leutheuser-Schnarrenberger (FDP/Free Democrat) resigned over
the plan in 1996, and after the law went into effect, former
FDP ministers Leutheuser-Schnarrenberg, Burkhard Hirsch and
Gerhard Baum filed a constitutional challenge against it.


3. Article 13 of the German constitution guarantees the
sanctity of private homes. Judges ruled that electronic
surveillance is not an inherent violation of Article 13, but
certain ways of executing electronic surveillance in private
homes could conflict with Article 1 Para 1, which guarantees
the invulnerability of human dignity, the most important
basic right in the constitution. The state may not
eavesdrop on personal conversations with family members or
confidants (lawyers, priests, and doctors) in private homes,
and electronic surveillance is permissible only when police
have evidence in advance that conversations are likely to
provide information on illegal activities. The court banned
surveillance where the suspect is alone in his home with
family members who are not involved in any criminal
activity, and in cases of misdemeanors and less serious
felonies (those involving prison terms of less than five
years), and stipulated the police must delete any private
conversations immediately. The Court gave the Federal
Government until June 30, 2005 to comply with the new
regulation. Two of the eight judges, Renate Jaeger and
Christine Hohmann-Dennhardt, published a minority opinion
strongly opposing police eavesdropping in private homes.

4. The German police union criticized the verdict as a
setback for the fight against organized crime in Germany.
The Federal Ministry of Justice took a more positive stance,
noting that the court upheld police surveillance (albeit
under restrictive conditions). The Ministry further noted
that almost 90 percent of the cases of electronic
surveillance of private homes already involved very serious
crimes and would be still admissible under the Federal
Constitutional Court ruling. Also, tPolice use this
investigative method in relatively few cases has been
employed is relatively low, with a (total of 119 cases
between 1998 and 2002). Some liberal politicians welcomed
the new restrictions -- such as Baden-Wuerttemberg Minister
of Justice Corinna Werwick-Hertneck (FDP) -- while others
called for further safeguards against invasion of privacy.

5. COMMENT: The verdict imposes several restrictions on
eavesdropping on private residences. For example, suspicion
of mere support for a terrorist organization can no longer
form the basis for eavesdropping on private homes, since
that crime carries a maximum sentence of under five years.
It should be noted, however, that this surveillance
technique has always been a last resort and has been used
infrequently in the past. The ruling did not address Other
other forms of technical surveillance were not addressed in
the ruling.. END COMMENT.


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