Article 10 Law
| Basic data | |
|---|---|
| Title: | Law on the restriction of the secrecy of letters, mail and telecommunications |
| Short title: | Article 10 Law |
| Previous title: | Law on Article 10 of the Basic Law |
| Abbreviation: | G 10 |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Constitutional law |
| References : | 190-4 |
| Original version from: | August 13, 1968 ( Federal Law Gazette I p. 949 ) |
| Entry into force on: | 1st November 1968 |
| Last revision from: | June 26, 2001 ( BGBl. I p. 1254 , ber. P. 2298 , ber. 2017 I p. 154 ) |
| Entry into force of the new version on: |
June 29, 2001 |
| Last change by: |
Art. 38 VO of June 19, 2020 ( Federal Law Gazette I p. 1328, 1332 ) |
| Effective date of the last change: |
June 27, 2020 (Art. 361 of June 19, 2020) |
| Weblink: | Text of G 10 |
| Please note the note on the applicable legal version. | |
The Article 10 Act (G 10) regulates the requirements, the procedure and the control of encroachments on the basic rights of the secrecy of letters , mail and telecommunications guaranteed under Article 10 of the Basic Law (GG) . The Federal Office for the Protection of the Constitution (BfV), the 16 state authorities for the protection of the constitution , the Federal Intelligence Service (BND) and the Military Counter-Intelligence Service (MAD) are authorized to monitor and record telecommunications as well as to open and inspect mail . Appropriate action is called G 10 measure . The prerequisite for a G 10 measure is that this is done to avert impending dangers to the free democratic basic order or the existence or security of the federal government or a state or to fulfill the BND's mandate. Section 3 contains further requirements.
History of origin
Article 10 of the Basic Law was changed by the 17th law amending the Basic Law of June 24, 1968 ( Federal Law Gazette I p. 709 ). This happened in the course of the emergency laws that the first grand coalition , which ruled from 1966 to 1969 , passed. Article 10 has been supplemented by a paragraph 2: Restrictions (on the confidentiality of letters as well as postal and telecommunications confidentiality) may only be ordered on the basis of a law. (Status up to the change in the current paragraph 1) If the restriction serves to protect the free democratic basic order or the existence or the safeguarding of the federal government or a state, the law can determine that it is not communicated to the person concerned and that instead of the The review by organs and auxiliary organs appointed by the parliament takes legal action. The guarantee of legal recourse under Article 19 Paragraph 4 of the Basic Law is an exception. The control is carried out by the G10 commission . This is appointed by the parliamentary control body set up by the German Bundestag and consisting of members of the Bundestag . The Article 10 Act came into force on November 1, 1968, the amendment to the Basic Law on June 25, 1968.
The law, originally enacted in 1968, was revised in 2001 after the Federal Constitutional Court declared parts of the Article 10 Act to be unconstitutional.
structure
The law has the following structure:
Section 1 General Provisions
Section 2 Restrictions in Individual Cases
- § 3 requirements
- § 3a Protection of the core area of private life
- § 3b Protection of persons entitled to refuse to testify
- § 4 Inspection, labeling and deletion obligations, transfers, earmarking
Section 3 Strategic Restrictions
- § 5 requirements
- § 5a Protection of the core area of private life
- § 6 inspection, labeling and deletion obligations, earmarking
- § 7 transmissions by the Federal Intelligence Service
- § 7a transfers by the Federal Intelligence Service to foreign public bodies
- § 8 Danger to life or limb of a person abroad
Section 4 Procedure
- § 9 Application
- § 10 arrangement
- § 11 Implementation
- § 12 notifications to data subjects
- § 13 legal process
Section 5 Control
- § 14 Parliamentary Control Body
- § 15 G 10 Commission
- § 16 Parliamentary control in the federal states
Section 6 Penalty and Fine Regulations
- Section 17 Notification Prohibitions
- Section 18 Offenses
- Section 19 Administrative offenses
Section 7 Final Provisions
- Section 20 Compensation
- Section 21 Restriction of Fundamental Rights
Obligations of providers of postal and telecommunications services
Providers of postal and telecommunications services are obliged to enable the monitoring of telecommunications, to provide information about the circumstances of the postal service and to hand over consignments. The employees commissioned with the implementation are bound to secrecy and have to undergo a simple security check.
Restrictions in individual cases
A prerequisite for a G 10 measure is that there are actual indications for the planning or commissioning of certain catalog crimes , which, in addition to peace or high treason ( Sections 80 to 83 of the Criminal Code ), meanwhile also breaches of the peace or sedition ( Sections 129a to 130 of the Criminal Code) and Criminal offenses under Section 95 (1) No. 8 of the Residence Act (smuggling in of foreigners ) are given. The catalog of criminal offenses is essentially the same as that of Section 100a of the Code of Criminal Procedure , which regulates telecommunications monitoring for the purpose of criminal investigations by the public prosecutor , although this is carried out under a different procedure under the control of independent courts.
Strategic constraints
In contrast to the measures in individual cases, so-called “strategic restrictions” are also possible. If bundled transmission takes place, G 10 measures for international telecommunications relationships may be ordered at the request of the BND. However, these may only be ordered in order to identify the dangers mentioned in Section 5, Paragraph 1, Clause 3 in good time and to counter them. In addition, the approval of the parliamentary control body is required. In a decision of January 2008 , the Federal Administrative Court declared the strategic monitoring of telecommunications by the Federal Intelligence Service to be permissible after the attacks of September 11, 2001.
Transmission to foreign public bodies
The regulation of § 7a allows the BND - for this it needs the consent of the Federal Chancellery - to transmit data to foreign secret services that it obtained within the framework of G 10 measures, insofar as “1. the transmission is necessary to safeguard foreign or security policy interests of the Federal Republic of Germany or substantial security interests of the foreign state, 2.does not conflict with overriding interests of the data subject worthy of protection, in particular an adequate level of data protection is guaranteed in the foreign state and it can be assumed that the use of the Data is carried out by the recipient in accordance with fundamental principles of the rule of law, and 3. the principle of reciprocity is maintained. ”(§ 7a Paragraph 1) In 2010 and 2011, no transmissions of this type took place. In addition, there was an administrative agreement with the USA and Great Britain, which was overridden in 2013 by exchanging a verbal note .
Procedure
An ex officio activity of the intelligence services without application and order is prohibited. The bodies authorized to issue orders (BND, BfV, MAD, LfV) may instruct the body authorized to apply, not even within the framework of their technical supervision , to submit an application. The request must be in writing and justify the reasons . Eligible applicants are the head of agency of the intelligence services or their deputies . In the event that he is prevented from attending, the next official in the order of representation (e.g. department head) may also be entitled to apply.
Are responsible for the arrangement of G 10 measures the motions of the intelligence of the Federal the Ministry of the Interior, for construction and home (BMI) and for the state authorities for Protection of the Constitution each competent supreme authority. The order must be made in writing. It must specify the reason for the order and the type, scope and duration of the measure.
The examination of the legality of the measure is carried out by the authority authorized to apply and the authority to issue orders. The judge's reservation is replaced by the control by the G 10 commission at federal level or corresponding agencies in the federal states. The G 10 Commission must be informed before the G 10 measure is implemented. In the case of imminent danger , the measure may be started beforehand, just as telecommunications monitoring can be started analogously with surveillance measures for criminal prosecution under the Code of Criminal Procedure without judicial approval . The Federal Ministry of the Interior must immediately revoke orders that the Commission declares to be inadmissible or unnecessary.
In addition, the parliamentary control body must be informed about the implementation of the law at intervals of no more than six months.
G 10 commission
As an independent body not bound by any instructions , the G 10 Commission decides ex officio on the necessity and admissibility of all G 10 measures requested by the federal intelligence services (BfV, BND, MAD) and ordered by the Federal Ministry of the Interior before they are implemented.
criticism
As can be seen from the Article 10 Act, pursuant to Section 12, the person concerned must be notified of restriction measures after they have been discontinued. The notification enables those affected to have the legality of the measure reviewed by a court. A notification may finally only be omitted if the G10 Commission unanimously agrees. In 2016, the final non-disclosure was approved by 33 people affected. There is criticism that in these cases no effective legal protection is possible.
See also
literature
- Wolf-Rüdiger Schenke , Kurt Graulich , Josef Ruthig : Federal Security Law - BPolG, BKAG, ATDG, BVerfSchG, BNDG, VereinsG . 2nd Edition. CH Beck, Munich 2019, ISBN 978-3-406-71602-7 , pp. 1567-1674 .
- Josef Foschepoth : Monitored Germany. Post and telephone surveillance in the old Federal Republic. Vandenhoeck & Ruprecht, 1st edition, Göttingen 2012, ISBN 978-3-525-30041-1 ; 2nd edition 2013, same ISBN.
- Dirk Lageveen: Telecommunication surveillance on the Internet: IP addresses in the strategic registration according to Article 10 of the law [sic]. 1st edition, Diplomica (April 2011).
- Volker Neumann: The parliamentary control of the intelligence services in Germany. In: Nikolas Dörr / Till Zimmermann: The intelligence services of the Federal Republic of Germany. Berlin 2007, pp. 13–34.
- Reinhard Riegel : Law on the restriction of the secrecy of letters, post and telecommunications (law on Article 10 of the Basic Law) (G 10) with implementation regulations of the federal states. Comment. CH Beck, Munich 1997.
- Reinhard Riegel: The quantum leap of the law to Article 10 GG (G 10). In: Journal for Legal Policy (ZRP) 1995, p. 176 ff.
Web links
Individual evidence
- ^ Judgment of the First Senate of July 14, 1999 - 1 BvR 2226/94
- ↑ BND was allowed to strategically listen. In: The daily newspaper. January 25, 2008.
- ↑ ( Bundestag printed paper 17/12773, report of March 13, 2013, p. 8) Report on the year 2011 of March 13, 2013 (PDF; 299 kB)
- ↑ Federal government suspends wiretapping pact with USA and UK
- ^ Administrative agreements on the G10 law with the USA and Great Britain no longer in force. In: press release. Federal Foreign Office, August 2, 2013, accessed on November 26, 2016 .
- ↑ Wolf-Rüdiger Schenke , Kurt Graulich , Josef Ruthig : Security Law of the Federal . 1st edition. Verlag CHBeck , Munich 2014, ISBN 978-3-406-64878-6 , p. 1422 , § 9 Rn. 2 .
- ↑ a b Wolf-Rüdiger Schenke , Kurt Graulich , Josef Ruthig : Security Law of the Federal Government . 1st edition. Verlag CHBeck , Munich 2014, ISBN 978-3-406-64878-6 , p. 1422 , § 9 Rn. 3 .
- ↑ Report in accordance with Section 14, Paragraph 1, Clause 2 of the Law on Restricting Correspondence, Postal and Telecommunications Secrecy (Article 10 Law - G 10) on the implementation and type and scope of the measures in accordance with Sections 3, 5, 7a and 8 G 10 - Printed matter 19/163
