US embassy cable - 04FRANKFURT1938

UNCLAS FRANKFURT 001938 
 
SIPDIS 
 
STATE FOR S/CT, L/LEI, EB/ESC, AND EUR/AGS 
 
USDOJ FOR CRIMINAL DIVISION, OFFICE OF TERRORISM AND VIOLENT 
CRIMES - TERESA WALLBAUM 
 
E.O. 12958: N/A 
TAGS: PTER, PINR, PGOV, AG, GM 
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 
SUMMARY. 
 
BACKGROUND 
---------- 
 
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. 
 
VERDICT AND IMPLICATIONS 
------------------------ 
 
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. 
 
BODDE