Does the secret service violate fundamental rights? Federal court requests review

Does the secret service violate fundamental rights? Review of federal court orders

The Federal Administrative Court must examine whether the radio and cable reconnaissance carried out by the intelligence service (NDB) violates the basic rights of seven complainants. Together with the “Digitale Gesellschaft” association, they had unsuccessfully asked the FIS to refrain from clarifying the matter.

The Federal Administrative Court did not respond to a complaint from the association or individuals in 2019. The Federal Supreme Court has now reversed this decision in a ruling published on Monday.

He returned the matter to the Federal Administrative Court for substantive examination. In the event of an assertion of violation of fundamental rights, it must decide what legal consequences it has. When examining the possible violation of fundamental rights, the court of first instance must investigate according to the Federal Supreme Court whether the current radio and cable recognition regime offers adequate and effective protection against abuse.

Not only the legal basis should be observed, but also the application practice and how effective the control mechanisms provided are. If necessary, according to the Federal Court, reports must also be obtained from the supervisory and control bodies and experts.

Internal audit is essential

In its decision, the Federal Supreme Court refers to the jurisprudence of the European Court of Human Rights (ECHR). This emphasizes the central importance of national legal protection when reviewing secret systems for mass surveillance. Such systems should be able to be controlled by at least one independent body before the interested parties could reach the ECHR.

The Federal Administrative Court had argued that complainants could use the Data Protection Act to request access to any data collected about them and therefore processed. However, according to the Federal Supreme Court, this procedure does not apply.

Radio and cable recognition is secret and those affected are not informed even later. If someone requests information on the basis of the Data Protection Act, an overriding interest in confidentiality can be asserted. Those affected would have to wait until the end of the storage period, which in some cases could take several decades.

In its ruling, the Federal Supreme Court emphasizes that it is not the radio and cable recognition law that should be examined by the Federal Administrative Court for compliance with the higher law, but the system as such. The Federal Supreme Court also offers the possibility that, if necessary, only the interruption of recognition by radio and cable could provide effective protection of fundamental rights.

The “Digitale Gesellschaft” association was particularly pleased to point out this point in the ruling of the Federal Supreme Court, as can be seen in a press release. The association is committed to the rights of freedom in the digital world. A complaint against mass surveillance through data retention is pending before the ECHR.

(Judgment 1C_377 / 2019 of December 1, 2020)

(sda)