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Case:
BVerwG NJW 2000, 824 BVerwG, judgment of 7. 12. 1999 - 1 C 30/97 (Lüneburg)
Date:
07 December 1999
Judges:
Professor Sir Basil Markesinis QC
Copyright:
Raymond Youngs

The claimant - the Lower Saxony state (Land) association of "The Republicans" party objects to the fact that the defendant's state Office for Protection of the Constitution (LvF) is observing it by intelligence methods on the basis of ministerial approvals. The claimant made its claim on the 8. 3. 1993 with the aim of preventing the defendant from observing it by these methods. After the defendant had explained that only the intelligence methods of using intermediary agents, and other secret informants and sources were employed, as well as undercover investigations and inquiries (§ 6 (1) sentence 1 nos 1 and 5 of the NdsVerfSchG (Lower Saxony Constitutional Protection Act)), and the claimant would be informed of intended observation by methods going beyond this, the parties declared the legal action to be settled, in so far as it had concerned the employment of other intelligence methods mentioned in § 6 of the NdsVerfSchG. In other respects the administrative court allowed the claim because no sufficient factual indications had been present for endeavours directed against any constitutional principle included in the liberal democratic basic order in an actively combative and aggressive fashion - as would have been necessary, according to the determinative legal position at the time.

The senate by its decision of the 9. 1. 1995 (reference omitted) quashed the decision of the Oberverwaltungsgericht, which was made in accordance with § 130a of the VwGO (Administrative Courts Order) and by which the defendant's appeal was rejected, because of a procedural defect, and referred the legal action back to the Oberverwaltungsgericht.

Reasons
The appeal in law leads to quashing of the disputed decision and to reference of the matter back to the appeal court, in so far as the proceedings are not already discontinued. The appeal court judgment is admittedly in harmony with the law to be applied in the appeal in so far as it considers that the basic prerequisites for observation of the claimant by the LfV with intelligence methods are present. The appeal court has not however examined whether the employment of intelligence methods in the present case corresponds with the principle of proportionality. The matter must be referred back to the appeal court for a further hearing and decision for elucidation of the necessary factual grounds for this.

1. The appeal court considered the legal basis for observation of the claimant by intelligence methods to be the provisions of the Act regarding Protection of the Constitution in the State of Lower Saxony (NdsVerfSchG) of the 3. 11. 1992 (reference omitted) in the version of the 4. 4. 1995 statute (reference omitted). The further amendment of the Lower Saxony Constitutional Protection Act by the 21. 11. 1997 statute (reference omitted) is not relevant her.

According to § 6 (1) of the NdsVerfSchG, the LfV may employ certain intelligence methods for covert procuring of information, in particular for secret collection of data relating to persons. The methods provided for here of using intermediary agents, and other secret informants (male and female) and sources (§ 6 (1) sentence 1 no 1 of the NdsVerfSchG) as well as undercover investigations and inquiries (§ 6 (1) sentence 1 no 5 of the NdsVerfSchG) are included in this. The application of these methods is, according to § 6 (2) of the NdsVerfSchG, dependent on certain prerequisites. According to § 6 (2) no 1 of the NdsVerfSchG, the methods under para 1 may only be used if their employment is directed against combinations of persons or persons active in them or for them when there are actual grounds for suspicion about their endeavours or activities under § 3 (1) of the NdsVerfSchG. § 3 (1) of the NdsVerfSchG describes the function of LfV. This includes, according to § 3 (1) no 1 of the NdsVerfSchG, the gathering and utilisation of information: in particular of information, news and documents related to persons and issues about endeavours which, amongst other things, are directed against the liberal democratic basic order. § 4 of the NdsVerfSchG contains definitions for this purpose. Endeavours in the sense of this provision are, according to § 4 (1) sentences 1 and 2 of the NdsVerfSchG, forms of behaviour in or for a combination of persons which are politically determined and directed towards aims or purposes. In this connection, a person acts for a combination of persons if he supports it firmly in his endeavours. There was originally a restriction according to which endeavours in the sense of § 3 (1) no 1 of the NdsVerfSchG are only those forms of behaviour which are directed towards the use of force or against one of the principles of the constitution mentioned in paragraph 3 in an actively combative and aggressive fashion. But this has been repealed by the statute of the 4. 4. 1995 which has already been mentioned. § 4 (2) no 3 of the NdsVerfSchG describes endeavours directed against the liberal democratic basic order in the sense of § 3 (1) no 1 of the NdsVerfSchG as those which are aimed at eliminating a principle of the constitution mentioned in paragraph 3 or rendering it ineffective. The constitutional principles listed in § 4 (3) of the NdsVerfSchG include, amongst other things, the right of the people to exercise state power in elections and referenda and through special organs of the legislature, the executive and the judiciary, and to elect Parliament in general, direct, free, equal and secret elections (no 1), the right to form and exercise a parliamentary opposition (no 3) and the removability of the government and its responsibility to Parliament (no 4).

The employment of intelligence methods in the sense of § 6 (1) of the NdsVerfSchG is regulated in greater detail in § 6 (3) to (7) of the NdsVerfSchG. § 6 (4) of the NdsVerfSchG is of particular importance here. According to this, the procuring of information by these methods is not permissible if investigation of the facts is possible in another manner which is less detrimental to the persons affected. This should, as a rule, be assumed if the information can be obtained from generally accessible sources or through a request under § 15 (3) of the NdsVerfSchG. The use of a method under § 6 (1) of the NdsVerfSchG should not be obviously out of proportion to the importance of the facts to be elucidated, and in particular not out of proportion to the danger which results, or can result, from the endeavour or activity in question under § 3 (1) of the NdsVerfSchG. The measure should be terminated without delay if its purpose has been attained, or indications occur that suggest this purpose cannot be attained, or not in this way.

For the procuring of information from generally accessible sources, the general authority norm of § 5 (1) of the NdsVerfSchG applies. According to this, the LfV may, subject to any special rules, collect and process information, inclusive of personal data, which is necessary for the fulfilment of its tasks. It is a prerequisite for the gathering of information in the sense of § 3 (1) of the NdsVerfSchG that actual indications should be present which, viewed as a whole, and bearing in mind the knowledge gained from intelligence, justify suspicion of one of the endeavours or activities mentioned in § 3 (1) of the NdsVerfSchG. § 5 (2) to (5) of the NdsVerfSchG limits the general authorities of the LfV, amongst other things, by maintaining the principle of proportionality.

The request of the LfV under § 15 (3) of the NdsVerfSchG, mentioned in § 6 (4) of the NdsVerfSchG, has as its subject matter the transmission of the information necessary for the fulfilment of its functions, inclusive of personal data, through the state authorities, in particular the state prosecution services and the police authorities. The LfV is permitted to place such a request if the information cannot be gathered from generally accessible sources, or only with excessive expenditure, or only by a measure which disadvantages the person affected more severely (§ 15 (3) sentence 2 of the NdsVerfSchG). In this connection, it is of significance that the state prosecution services and the police authorities (and, in narrower circumstances, the other state authorities) transmit information, including personal data, to the LfV about endeavours under § 3 (1) of the NdsVerfSchG of their own accord when there are actual indications that transmission is necessary for the fulfilment of the LfV's functions (see § 15 (1), (2) of the NdsVerfSchG).

2. The appeal court has recognised, without violating federal law, that the LfV may observe even a political party by the intelligence methods in question here under the prerequisites mentioned.

a) Observation of a political party by an Office for Protection of the Constitution based on suspicion of endeavours inimical to the constitution does not represent a measure which would be irreconcilable with Art 21 para 2 sentence 2 of the Basic Law. According to this provision, the Federal Constitutional Court decides exclusively on the question of unconstitutionality of political parties. Before the issue of such a decision, any administrative proceedings against the existence of a political party are ruled out. No legal sanctions may be threatened or imposed against the party, its functionaries, members and supporters because of activities of its party officials conducted by means which are generally permissible (references omitted).

Observation by an Office for Protection of the Constitution is not such a measure; it serves to clear up the suspicion that the party is pursuing goals hostile to the constitution. The permissibility of such elucidation is assumed by the constitution. It is recognised in the case law of the Federal Constitutional Court that, even without a finding that a party is unconstitutional, it is possible to acquire and hold the belief that a party is pursuing goals hostile to the constitution. This belief can lead to an application for a ban under § 43 of the Federal Constitutional Court Act (BVerfGG). But the persons entitled to make the application can, according to the Federal Constitutional Court, also prefer political debate with the party, because this suffices to protect of the liberal democratic basic order and may even protect more effectively than a formal party ban (reference omitted). The Federal Constitutional Court has deduced from this that the laying before Parliament and the public of the government's annual report about the development of forces, groups and parties which are hostile to the constitution is unobjectionable in constitutional law, and required by the government's political responsibility. In so far as actual disadvantages arise from this for a party, it is not protected from them by Art 21 of the Basic Law (references omitted). The reports mentioned are based in substance on the observations of the Offices for Protection of the Constitution. Actual disadvantages proceed at the most from those observations and reports which are not encompassed by the content of the rule in Art 21 para 2 of the Basic Law.

b) The standard for examination in constitutional law is Art 21 para 1 sentences 1 and 2 of the Basic Law. According to this, parties co-operate in the formation of the political will of the people, and parties may be freely formed. The Basic Law assumes the state freedom of parties as groups which are freely formed and rooted in the socio-political realm, and it guarantees their independence from the state (reference omitted). Parties have - subject to the democracy requirement established in Art 21 para 1 sentence 3 of the Basic Law - the right of self-determination in no different way to associations in the sense of Art 9 para 1 of the Basic Law (references omitted). The right of parties to decide themselves, and without state influence or surveillance, about their goals, organisation and activities is included in this core area. Freedom of internal formation of intention as well as free development of activities as a party are guaranteed (reference omitted).

The right of parties to self-determination finds its limit in the fundamental decision in the Basic Law in favour of an "robust" democracy. This fundamental decision is essentially to be derived from Arts 9 para 2, 18, 20 para 4, 21 para 2 and 28 para 3 of the Basic Law, and is confirmed in the competence provisions of Art 73 no 10 letter b and 87 para 1 sentence 2 of the Basic Law. It means that, on the grounds of historical experience, the Basic Law does not only rely on liberal democracy simply asserting itself in the process of public formation of opinion. Over and above this it has entrusted the state with ensuring and guaranteeing the central basic values of the constitution by (repressive) protective provisions (reference omitted)...

The legislature must determine the functions and authorities of the Offices for Protection of the Constitution in such a way that invasions of the parties' right of self-determination remain limited to what is compellingly required for the self-defence of liberal democracy. The conflicting principles of party freedom and robust democracy must be brought to an appropriate settlement with the help of the principle of proportionality. That means, in particular, that the more strongly state measures intrude into the parties' right of self-determination, the stricter the requirements to which they are subject. Measures, for example, which have an effect on the parties' internal realm, particularly those which investigate the formation of their intention or even influence it, can accordingly only exceptionally be justified.

This would be so in so far as there is sufficiently weighty suspicion of endeavours hostile to the constitution, and the employment of less burdensome methods of elucidation does not suffice to inform the government and the public about the danger to the liberal democratic basic order which the party possibly poses in a manner which allows an effective debate by political means and, if necessary, administrative proceedings in the form of an application to the Federal Constitutional Court for a ban.

c) The provisions of the Lower Saxony Constitutional Protection Act referred to by the appeal court satisfy the constitutional law requirements in so far - and this is the exclusive issue to be considered here - as political parties are affected. As has been explained, this statute contains a series of special prerequisites for the employment of intelligence methods, as a manifestation of the principle of proportionality. Besides this, general boundaries are set to the procuring of information by methods of this kind, particularly in §§ 5 (5) and 6 (4) of the NdsVerfSchG, which give shape to the (federal) constitutional law principle of proportionality and do not fall short of it. The provisions in their totality require the interests worthy of protection of the person affected in the balancing exercise to be adjusted to the purpose of the observation, and to be appropriately evaluated. The right of self-determination of a political party must be considered in this legal connection.

Art 21 of the Basic Law does not, contrary to the view of the appeal in law, require a special regime for political parties in the sense of the earlier regime in the Lower Saxony Constitutional Protection Act. According to this, the LfV only had a responsibility in relation, amongst other things, to endeavours directed against the liberal democratic basic order if forms of behaviour were involved which were aimed at the use of force or directed against a constitutional principle mentioned in § 4 (3) of the NdsVerfSchG in an actively combative and aggressive manner. The appeal in law derives its contrary view of the law in substance from the fact that observation by an Office for Protection of the Constitution is only permissible for the purpose of introducing proceedings for the banning of a party; accordingly an initial suspicion had to be present which extended to all the prerequisites of a party ban, and therefore also to the party wanting to realise its aims which were hostile to the constitution in a combative and aggressive way.

The view of the appeal in law should not be followed, because observation of a political party in relation to suspicion of endeavours hostile to the constitution, is not, in the same way as those of other associations or individuals, aimed exclusively at preparing for a decision about repressive state measures. As already explained, it also has in view (and, considering long standing state practice, even principally) obtaining and collecting information about the current development of forces, groups and parties hostile to the constitution when danger to the liberal democratic constitutional order is in prospect. This puts the government and the public in a position to recognise the type and extent of possible dangers, and to counteract these in an appropriate way, particularly by political methods. The Offices for the Protection of the Constitution which are recognised as institutions in constitutional law could hardly fulfil the task thereby allotted to them if they could not act simply on suspicion of endeavours hostile to the constitution, and their activity depended on further general prerequisites in relation, for instance, to political parties. Observance of the principle of proportionality in the individual case is sufficient to preserve the rights and the interests of the persons affected which are worthy of protection. This applies for political parties as well.

This senate can accordingly leave open the question of whether the legal view expressed in the appeal in law would lead to palpably stricter requirements for activity on the part of the LfV. This seems doubtful, because the characteristic mentioned of an "actively combative and aggressive attitude towards the existing order" is in fact already fulfilled when the party intends continually to undermine the constitutional order in the sense of "systematically pursued political action", and does not merely disapprove of the constitutional order and set other principles against it (references omitted). As endeavours are defined in the present connection as politically determined forms of behaviour which are directed towards aims and purposes in or for a combination of persons (§ 4 (1) sentence 1 of the NdsVerfSchG), the suspicion that a party is pursuing endeavours hostile to the constitution extends also, as a rule, to the party which pursues its aims in a combatively aggressive way in the sense of the "systematically pursued political action" already mentioned.

3. ...

4. The appeal court has, in reproducing the norms taken as a basis for its decision, mentioned, and even applied in some aspects, the provisions of § 6 (4) of the NdsVerfSchG which express the principle of proportionality in state law in addition to § 5 (5) of the NdsVerfSchG. However, its deliberations referring to this only partially cover the federal law requirements.

The principle of proportionality requires in general that state intervention in an individual's right must be appropriate and necessary for the attaining of the goal pursued. It also requires that, according to a balancing exercise between the public interests and those of the person affected, the intervention should not be unreasonable for the latter. In the present connection, it is of significance for the application of the principle of proportionality that for one thing, observation by the LfV by intelligence service methods is permissible only in the case of actual indications of suspicion of endeavours hostile to the constitution (§ 6 (2) no 1 of the NdsVerfSchG). Such suspicion weighs heavily, however, if it signifies that there is a soundly based fear of a danger to the liberal democratic basic order. Disadvantages associated with clearing up of this suspicion must in principle be accepted by the person affected. For another thing, the peculiarities of inquiry by intelligence methods have to be considered. The Offices for Protection of the Constitution could not perform their task effectively if their proceedings were to be extensively disclosed. The examination by the administrative court must take account of this in the inquiry into the facts - for instance in relation to the degree of evidence - as well as in the implementation of the official balancing exercises. The present case gives no cause for investigating this further. Instead it merely depends on two of the aspects involved.

a) The appeal court states, taking into consideration § 6 (4) sentence 3 of the NdsVerfSchG (according to which the measure must be terminated without delay if its purpose is attained, or there are indications that it cannot be attained, or not in this way), that the indications which justified the suspicion of endeavours hostile to the constitution had (still) to be current at the crucial point in time of the oral hearing. The appeal court has admittedly not understood this principle in the sense of a time limit to observation, but related its decision in the matter to whether the indications of endeavours hostile to the constitution which were in the more distant past do not justify observation (or no longer justify further observation) by intelligence methods, in the circumstances as a whole. Nothing can be said against this from the point of view of federal law. It would, in fact, not be reconcilable with the federal law principle of a robust democracy, and would run counter to the task entrusted to the Offices for Protection of the Constitution, during a general short period of use - for instance two years - to leave aside indications for suspicion of endeavours hostile to the constitution without concrete suggestions that they have been overtaken by developments in the political party or are obsolete on other grounds. On the other hand it could be irreconcilable with the principle of proportionality if suspicious factors which were once present led to long term observation by intelligence methods, even though according to comprehensive elucidation by observation over several years suspicion of endeavours hostile to the constitution has not been confirmed, and the factual circumstances which were crucial for the observation have substantially remained unchanged. This does not however need any deeper consideration here. For one thing, the observation of the claimant instituted at the beginning of 1993 had not lasted excessively long at the point in time of the appeal hearing. For another thing, the claimant, as is generally well known, and as also corresponds with its own case, has not, either within the party or in its relationships to extreme right wing groupings which are possibly hostile to the constitution, attained the stability which could make a further observation dispensable.

b) The principle of proportionality demands the choosing, from amongst several appropriate measures, of the one which prospectively burdens the person affected the least (reference omitted). Accordingly, under § 6 (4) sentence 1 of the NdsVerfSchG information may not be procured by intelligence methods if the facts can be investigated in another manner which is less injurious to the person affected. This should as a rule be assumed if the information can be obtained from generally accessible sources, or through a request for information addressed to other authorities.

The observation of a party by using intermediary agents, and other secret informants and sources, as well as undercover investigations and inquiries, represents a grave invasion of the party's sphere of freedom protected by Art 21 para 1 sentences 1 and 2 of the Basic Law. In fact, the employment of intermediary agents is apt to undermine the exchange of opinions within the party, as well as having an adverse influence on the formation of its intention. In this way it also indirectly affects the party's activity and chances of success outwardly (references omitted). Accordingly arranging the secret procuring of information presupposes a special balancing exercise which takes account of the party's right of self-determination (reference omitted). The sole consideration employed by the appeal court in this connection was that intelligence observation does not infringe the party's right and factual chances of putting itself up for election; and the party had to accept the disadvantages associated with an intelligence observation because the state's duty to protect the liberal democratic basic order required this possibility even when an actively combative and aggressive attitude is not present. This consideration does not satisfy the above requirements. It admittedly applies for inclusion of a party in the constitutional protection report, and the disadvantage which exists in this as such (references omitted). But this cannot simply be carried over to this case, because intelligence observation with the means mentioned intrudes into the party's internal realm, in contrast to inclusion in a constitutional protection report; and the party has the opportunity, in contrast to that situation, of counteracting the factual disadvantages by appropriate publicity work.

The defendant in the oral hearing before this senate has referred to circumstances which were necessary for briefing the government and the public as to how far it was to be feared that the claimant was endangering the liberal democratic basic order, and this could only be investigated by the planned intelligence methods. This includes, for example, the claimant's personal and other involvements with extreme right wing organisations. Accordingly it must be considered that in spite of the information already obtained, further secret observation of the claimant is justified (references omitted). The appeal court has in this respect made no findings about the factual situation at the close of its oral hearing, so the case must be referred back in accordance with § 144 (3) sentence 1 no 2 of the VwGO.
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