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Germany: The Electronic Eavesdropping Case

Nicolas Nohlen*

Human dignityinviolability of the homeConstitutional amendments and the

Eternity ClauseInterpretation of constitutional amendmentsGerman 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 peoples 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 Constitution2 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:10.1093/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 (www.HeidelbergStudentLawReview.com);
email: Nicos.nohlen@studzr.de
1
The Ministerium fur Staatssicherheit (Ministry for State Security, commonly elided as Stasi) was
the main security and intelligence organization of the German Democratic Republic.

nderung des GrundgeGRUNDGESETZ [hereinafter the Basic Law], as amended by Gesetz zur A
setzes, 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:
2

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 Bekampfung der Organisierten Kriminalitat, BGBl I, 845 (May 4, 1998); see
especially x 100c (1) No. 3 StPO and its following regulations.

As part of the debate about the so-called Groer 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 groe Lauschangriff Sicherheit statt Freiheit [Large Sale WiretappingSecurity Ahead of Freedom], 31 ZEITSCHRIFT FUR RECHTSPOLITIK 87 (1998); Otto Schily,
Nachbesserungsbedarf bei der Wohnraumuberwachung? [Need for better home surveillance?], 32 ZEITSCHRIFT FUR RECHTSPOLITIK 129 (1999).

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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 Courts 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.

Groer Lauschangriff, 109 BVerfGE 279 (2004); reprinted in 57 NEUE JURISTISCHE

WOCHENZEITSCHRIFT 999 (2004).
6

See Carsten Momsen, Der groe Lauschangriff, [Large-scale wiretapping] 31 ZEITSCHRIFT

RECHTSPOLITIK 459, 460462 (1998).

FUR

See Juliane Kokott, in CONSTITUTIONALISM, UNIVERSALISM AND DEMOCRACYA 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 Versorgungsanspruche
der Fluchtlingsbeamten und ehemaligen Berufssoldaten [On the actionability of pension claims by
refugees and former professional soldiers], 65 DEUTSCHES VERWALTUNGSBLATT 458 (1950); Herbert
Kruger, 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] 148 (C. F. Muller 1979).

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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 peoples 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,
Menschenwurde als Verfassungsgarantie im modernen Staat [Constitutional Guarantees in the Modern
State], 36 JURISTENZEITUNG 457464 (1981).
11

See Eberle supra note 10, at 972973.

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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
Laws fundamental principles and its systems of values (verfassungskonforme
Auslegung). This principle of interpretation is one of the Courts 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 Republicthe German constitution was changed substantially eight
times by constitutional amendments between 1920 and 1932the framers

12

Cf. Erhard Denninger, Der groe Lauschangriff auf dem Prufstand 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, 42 AM. J. COMP. L.
395, 396399 (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); Jorn Ludemann, Die
verfassungskonforme Auslegung von Gesetzen [Constitution-conforming Interpretation of Laws],
44 JURISTISCHE SCHULUNG 27 (2004).
17

See the Klass case (Abhorentscheidung), 30 BVerfGE 1, 1920 (1970), translated in part in
KOMMERS, supra note 9, at 228229.

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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 affecting20
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 Laws 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 2004. 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 1949. 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 Abhorurteil, 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 beruhrt, which literally means touches.

21

See Jorg Lucke, 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 Haberle, Die Abhorentscheidung des Bundesverfassungsgerichts vom 15.12.1970

[Decision of the Federal Constitutional Court of December 15, 1970], 26 JURISTENZEITUNG 145, 148
(1971); GUNTER DURIG & HANS-ULRICH EVERS, ZUR VERFASSUNGSANDERNDEN BESCHRANKUNG 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 Laws
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).

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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 amendmentunlike a constitutional provision not resulting from a constitutional amendmenthas 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 arguingwhile conducting surveillance of a
suspectwhether 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, Groer
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.

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a foreign language.28 It remains to be seen how the legislature will develop

new electronic eavesdropping rules that meet the standards of the Courts
conditions.
To find the right balance between individual freedom and national
securityespecially in the context of the fight against terrorismis one of
the great challenges for liberal democracies.29 The Courts 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
Courts 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.31

28

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. SUDDEUTSCHE ZEITUNG (SZ), Mar. 4, 2004.

29

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 FUR 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 Courts decision has been publicly interpreted in many different ways: for example, Volker
Beck, a politician from the Green Party, has stated that the Groer Lauschangriff has been
smashed by the Courts decision, see DER SPIEGEL, Mar. 8, 2004, at 48; Heribert Prantl, a journalist of the SUDDEUTSCHE ZEITUNG (SZ), spoke of a stop sign for the policy, see SZ, Mar. 4, 2004;
Reinhard Muller, journalist from the FRANKFURTER ALLGEMEINE ZEITUNG (FAZ), stuck to the facts
and tried to minimize the decisions political significance, see FAZ, Mar. 4, 2004, at 1.
31

See supra note 25, at 391. Editors note: This is I
CONs translation. The original
German expression, dem bitteren Ende Zu wehren may be literally translated as averting a
bitter end.