Article 10 of the Basic Law for the Federal Republic of Germany

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Article 10 of the German Basic Law (GG) is in its first section, which guarantees fundamental rights . It guarantees the secrecy of letters , mail and telecommunications . Art. 10 GG aims to protect the confidentiality of communication from sovereign access. Therefore, it is a matter of a right to freedom , which primarily serves to ward off sovereign access to confidential communication.

Art. 10 GG has been included in the Basic Law since its entry into force. Its wording has so far remained unchanged. However, due to changes in the legal framework and technical progress, the practical scope of Article 10 GG has changed considerably. For example, the guarantee of postal secrecy lost its original scope as a result of the privatization of the Deutsche Bundespost , since the basic right is directly binding only on the state and not on private individuals. As a result of the increasing spread of means of distance communication and efforts to monitor them by the authorities, the secrecy of telecommunications continued to gain considerable importance.

Normalization

Art. 10 GG has read as follows since its last amendment on June 24, 1968:

(1) The secrecy of letters as well as the secrecy of mail and telecommunications are inviolable.

(2) Restrictions may only be ordered on the basis of a law. If the restriction serves to protect the free democratic basic order or the existence or the safeguarding of the Federation or a Land, the law can stipulate that the person concerned will not be informed and that a review by organs appointed by the People's Representation will take the place of legal recourse Auxiliary organs occurs.

The fundamental right aims to protect privacy. For this purpose, it restricts government access to confidential communication. In procedural terms, Art. 10 GG allows the defense against sovereign interference, which is why it represents a right of freedom.

As a fundamental right, Article 10 of the Basic Law, in accordance with Article 1, Paragraph 3 of the Basic Law, exclusively binds state power. By elevating the confidentiality of communication to the rank of a constitutional principle, the article establishes a duty of protection for the state, which urges the state to ensure respect for the confidentiality of communication between private individuals. Article 10 of the Basic Law does not apply directly to private individuals, but it has indirect third-party effects due to the effects of constitutional law . As a result, the essential statements of the fundamental right are applied in the context of private law disputes. This has a particular effect on the interpretation of indefinite legal terms .

History of origin

Article 10 in the original version at the Reichstag - a work by Dani Karavan on the glass panes at the Jakob-Kaiser-Haus on the Spree side

The Belgian constitution and the Hessian constitution, both of which date from 1831, contained early guarantees of the confidentiality of communications by letter . The Paulskirche constitution of 1849 was based on their guarantees .

In the German Empire , the confidentiality of letters was not constitutionally guaranteed, but it was protected by the law on the postal system. The Weimar Constitution (WRV) of 1919 gave the secrecy of letters constitutional status again: In Art. 117 WRV it guaranteed the secrecy of letters as well as postal, telegraph and telephone secrecy. Art. 117 WRV was suspended during the National Socialist era .

In the course of the development of the Basic Law, the Parliamentary Council followed up on the provisions of the Weimar Constitution. When the Basic Law came into force on May 24, 1949, Art. 10 read: The confidentiality of letters as well as the confidentiality of mail and telecommunications are inviolable. Restrictions may only be ordered on the basis of a law .

In the course of the introduction of the emergency laws , Article 10 of the Basic Law was expanded in the Seventeenth Act to supplement the Basic Law with effect from June 28, 1968 to include additional options for restricting the fundamental right.

Protection area

Art. 10 GG protects the citizen from encroaching on his secrecy of letters, post and telecommunications. To this end, the standard guarantees a sphere of freedom that sovereigns may only intervene under certain conditions. This sphere is called the protection area . If the sovereign intervenes in this and this is not constitutionally justified, Art. 10 GG is violated.

Jurisprudence differentiates between the personal and factual areas of protection. The personal protection area determines who is protected by the fundamental right. The objective area of ​​protection determines which freedoms are protected by the fundamental right.

Personally

Art. 10 GG does not restrict the group of fundamental rights holders, so that the fundamental right protects everyone.

On the one hand, this includes natural persons . On the other hand, according to Art. 19 Paragraph 3 GG, associations of persons , in particular legal persons under private law, can refer to Art. 10 GG, since the fundamental right by its nature is applicable to them. However, this only applies to associations of persons that have their headquarters in Germany. Foreign legal persons themselves are not protected by Article 10 of the Basic Law. However, something else applies to natural persons who act as functionaries of a foreign legal person. In order to avoid undermining Article 19 (3) of the Basic Law, this applies even if the legal person is reflexively benefiting from the protection they claim in individual cases.

If the legal person is controlled by the state, it is not a holder of fundamental rights, as it is itself bound by the fundamental rights as part of the public sector. However, public broadcasters enjoy fundamental rights protection , as these promote the exercise of fundamental rights by citizens.

Factual

Art. 10 GG names several forms of non-public communication and protects them from access by sovereigns. The forms of communication covered by Art. 10 GG are characterized by the fact that they take place with the help of aids. Compared to direct person-to-person communication, the forms of communication covered by Art. 10 GG are characterized by the use of aids, which provides additional points of attack for sovereign access during the transmission process. Public communication is not protected by Art. 10 GG. However, this is covered by the freedom of communication of Art. 5 GG.

It is controversial in jurisprudence whether the different guarantees of Art. 10 GG form independent fundamental rights or whether they are manifestations of a uniform fundamental right to freedom of correspondence. However, this has no effect on the scope of protection of Art. 10 GG.

Confidentiality of letters

On the one hand, Art. 10 GG covers the confidentiality of letters . This ensures that communication via letters remains confidential. He prevents sovereigns from gaining knowledge of the content of the letter or the circumstances of its transmission. According to the prevailing view, Art. 10 GG only protects individual communication that is aimed at a specific addressee. Letters that are intended for an indefinite group of recipients are therefore not protected.

It is controversial in jurisprudence whether the protection of the confidentiality of letters only extends to letters that are locked. Proponents argue that the author deliberately made it possible for third parties to gain unhindered knowledge of the letter's content. Opponents argue that if a letter is not locked, it cannot be inferred that the author approves third-party information.

The protection of Art. 10 GG relates to the communication process. The confidentiality of the letter therefore only protects the confidentiality of the letter during its transmission. However, if this is done by a postal company, postal confidentiality takes precedence over letter confidentiality as a more specific regulation.

Postal secrecy

The postal secrecy guarantees the confidentiality of broadcasts by a postal service transported. Mail is embodied information and goods.

Until it was privatized in 1994 , the Post was directly bound by Article 10 of the Basic Law. As a result of privatization, the state was replaced by private companies that are not part of public authority and are therefore not directly bound by fundamental rights according to Article 1, Paragraph 3 of the Basic Law. According to the prevailing view, postal secrecy has therefore primarily served as a protective mandate to the state since the post-privatization. This obliges the state to issue guidelines for the protection of the confidentiality of communications for the private sector.

Telecommunications secrecy

Telecommunications secrecy relates to intangible communications, for example via telephone or e-mail. This guarantee of Art. 10 GG is of great practical importance in view of the technical progress in the field of telecommunications, which meanwhile exceeds that of the other freedoms of Art. 10 GG. In some rulings, the Federal Constitutional Court refers to it as freedom of telecommunications and emphasizes the openness of its scope of protection to new developments.

Because Art. 10 GG only protects the communication process, only those measures that concern ongoing communication fall into the scope of protection, but not measures that occur after a communication process has been completed. If, for example, a person's computer is searched, this does not affect Article 10 of the Basic Law, insofar as the search relates exclusively to data that is stored on the computer. Such a measure, however, constitutes an interference with the right to informational self-determination ( Art. 2 Paragraph 1 GG, Art. 1 Paragraph 1 GG). If an authority retrieves emails without the consent of the addressee, this is an interference with Art. 10 GG, provided that these are not stored on its receiving device but are called up by an external e-mail server , since the sovereign intervenes in a communication process in this case. If, on the other hand, messages are retrieved that the recipient has already saved, there is no communication process, so that the measure does not affect the scope of protection of Article 10 of the Basic Law. In this context it is irrelevant whether the recipient has taken note of the message. The distinction made by the Federal Constitutional Court is linked to the use of e-mail software, such as Mozilla Thunderbird or Microsoft Outlook . To what extent it can be transferred to pure web services such as GMX and Web.de is a matter of dispute.

The protection provided by the secrecy of telecommunications is realized on the one hand in the defense function of the fundamental right, on the other hand in the definition of procedural requirements. If a sovereign intervenes in the fundamental right, the addressee of the measure must be informed of this interference according to the case law of the Federal Constitutional Court. Furthermore, the sovereign must ensure that the legality of the interference is checked by independent control bodies. Ultimately, the authority must destroy data obtained from the interference as soon as the authority no longer needs it for the purpose for which it was obtained.

Fundamental rights competitions

If the area of ​​protection of several fundamental rights is affected in one issue, these are in competition with one another.

As a special right to freedom, Art. 10 GG is more specific than the general freedom of action (Art. 2 Paragraph 1 GG) and informational self-determination, insofar as these guarantees overlap. The technical monitoring of living space does not fall under the protection of Art. 10 GG, but rather that of the inviolability of the dwelling ( Art. 13 GG). The monitoring of a person by means of IMSI-Catchers does not interfere with Art. 10 GG, because it is not related to a communication process, but with the right to informational self-determination.

Intervention

An encroachment occurs when the guarantee content of a basic right is shortened by sovereign action. A shortening of the guarantee of Article 10 of the Basic Law applies to measures that impair the confidentiality of a communication process. This applies in particular to official monitoring measures , such as the interception circuit and data retention . Interventions in Art. 10 GG are thus typically carried out by state security authorities.

Justification of an Intervention

If there is a sovereign interference, it is lawful if it is constitutionally justified. A justification can arise from the consent of all those involved in the communication process. On the other hand, Art. 10 Paragraph 2 GG allows the rights guaranteed in Art. 10 Paragraph 1 GG to be restricted on the basis of a law . The guarantees of Article 10, Paragraph 1 of the Basic Law are therefore subject to a simple legal reservation . The criminal procedure authorizations to intervene for telecommunications surveillance ( § 100a StPO) and online searches ( § 100b StPO) are of great practical importance .

In order for a law to interfere with freedom of movement or to provide the basis for such interventions, it must be in conformity with the constitution in both formal and material terms.

Formal constitutionality

The formal constitutionality of a law presupposes that it is based on a competence title and has been passed in a proper legislative process . Of particular importance in the context of Article 10 of the Basic Law is Article 73, Paragraph 1, Number 1 of the Basic Law, which grants the Federation exclusive legislative competence for foreign affairs, the defense and protection of the civilian population. The powers of intervention of the Federal Intelligence Service are based on this competence basis . Article 74, Paragraph 1, Number 1 of the Basic Law contains a further competence title, according to which the federal and state authorities compete for judicial proceedings. The federal government has finally made use of the regulation of telecommunications monitoring in the Code of Criminal Procedure , so that there is no room for state regulations in this area.

Material constitutionality

The substantive constitutionality of an intervening law presupposes that the law explicitly mentions Article 10 of the Basic Law as a restricted basic right. This requirement follows from the citation requirement contained in Art. 19, Paragraph 1, Sentence 2 of the Basic Law . This is intended to make the legislature aware that it is interfering with the fundamental right.

Furthermore, the law must respect the principle of proportionality . This principle is derived from the rule of law ( Art. 20 Paragraph 3 GG) and the fundamental rights. It demands that the law pursues a legitimate purpose, is suitable to promote it, is necessary for this purpose and constitutes an appropriate regulation. Goals that the legislature can reasonably pursue are legitimate. These include in particular goals of the common good, such as the protection of the Federal Republic of Germany. A measure is suitable if it can at least promote the legitimate purpose. Action is required when there is no more lenient means that is equally suitable for achieving the goal. An intervention is appropriate if the burden it causes on the holder of the fundamental rights is not disproportionate to the intended purpose of the intervention. The Federal Constitutional Court often declares interference with Article 10 of the Basic Law to be incompatible with the Basic Law and null and void because of the lack of the latter requirement. Data retention, for example, is only proportionate if it is ordered when there is a specific risk . This is a situation that, if proceeding unhindered, can with sufficient probability lead to damage to public safety or order in the foreseeable future .

Furthermore, an encroachment on Art. 10 GG can in principle only be decided by a judge. If there is an imminent danger , i.e. obtaining a court order would endanger the purpose of the measure, the order by the public prosecutor's office is sufficient. 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 stipulate that the person concerned will not be informed and that a review by organs and auxiliary organs appointed by the representatives of the people will take the place of legal recourse occurs. The law on the restriction of the secrecy of letters, post and telecommunications has been regulating the powers of the German intelligence services to intervene in the secrecy of letters, mail and telecommunications since November 1, 1968 .

literature

  • Reinhard Riegel: The quantum leap of the law to Article 10 GG (G 10). In: Journal for Legal Policy (ZRP) 1995, p. 176 f
  • Manfred Baldus : Art. 10. In: Volker Epping, Christian Hillgruber (Hrsg.): Beck'scher Online Comment GG , 34th Edition 2017.
  • Annette Guckelberger: Art. 10 . In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  • Christoph Gusy: Art. 10 . In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 1 . Preamble, Articles 1 to 19. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  • Georg Hermes: Art. 10 . In: Horst Dreier (Ed.): Basic Law Comment: GG . 3. Edition. Volume I: Preamble, Articles 1-19. Tübingen, Mohr Siebeck 2013, ISBN 978-3-16-150493-8 .
  • Hans Jarass: Art. 10 . In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  • Martin Pagenkopf: Art. 10 . In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  • Ralf Schenke: Art. 10 . In: Klaus Stern, Florian Becker (Ed.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .

Web links

Individual evidence

  1. ↑ Annette Guckelberger: Art. 10 , Rn. 2. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  2. ↑ BVerfGE 85, 386 (396) : Interception circuits.
  3. ↑ Friedrich Schoch: The constitutional protection of telecommunications secrecy (Art. 10 GG) . In: Jura 2011, p. 194.
  4. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 576.
  5. ↑ a b Friedrich Schoch: The constitutional protection of telecommunications secrecy (Art. 10 GG) . In: Jura 2011, p. 194 (196).
  6. ^ A b Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 17, Rn. 1.
  7. ↑ a b c Annette Guckelberger: Art. 10 , Rn. 2. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  8. ↑ a b Andreas Funke, Jörn Lüdemann: Basic cases to Art. 10 GG . In: Juristische Schulung 2008, p. 780.
  9. ↑ a b BGBl. 1968 I p. 709
  10. ↑ Hans Jarass: Preparation before Art. 1 , marginal no. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  11. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  12. ↑ Hans Jarass: Preparation before Art. 1 , marginal no. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  13. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  14. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 688.
  15. ↑ BVerfGE 106, 28 (43) : listening device.
  16. ↑ BVerfG, judgment of 19 May 2020 - 1 BvR 2835/17 para. 69: Foreign-foreign telecommunications intelligence according to the BND law
  17. ↑ Annette Guckelberger: Art. 10 , Rn. 10. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  18. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 568.
  19. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , § 9, marginal no. 318.
  20. ↑ Annette Guckelberger: Art. 10 , Rn. 6. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  21. ↑ Georg Hermes: Art. 10 , Rn. 25. In: Horst Dreier (Ed.): Basic Law Comment: GG . 3. Edition. Volume I: Preamble, Articles 1-19. Tübingen, Mohr Siebeck 2013, ISBN 978-3-16-150493-8 .
  22. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , § 9, marginal no. 321.
  23. ↑ a b Friedrich Schoch: The constitutional protection of telecommunications secrecy (Art. 10 GG) . In: Jura 2011, p. 194 (195).
  24. ↑ Malte Sievers: The protection of communication on the Internet by Article 10 of the Basic Law . Nomos, Baden-Baden 2003, ISBN 978-3-8329-0018-2 , p. 121 .
  25. ↑ BVerfGE 67, 157 (171) : G-10.
  26. ↑ Christoph Gusy: Art. 10 , Rn. 27. In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 1 . Preamble, Articles 1 to 19. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  27. ↑ a b c Martin Pagenkopf: Art. 10 , Rn. 12. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  28. ↑ For their inclusion in Art. 10 GG: Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , § 9, marginal no. 322.
  29. ↑ Andreas Funke, Jörn Lüdemann: Basic cases to Art. 10 GG . In: Juristische Schulung 2008, p. 780. (781).
  30. ↑ Georg Hermes: Art. 10 , Rn. 27. In: Horst Dreier (Ed.): Basic Law Comment: GG . 3. Edition. Volume I: Preamble, Articles 1-19. Tübingen, Mohr Siebeck 2013, ISBN 978-3-16-150493-8 .
  31. ↑ Wolfgang Durner: Art. 10 , Rn. 68. In: Theodor Maunz, Günter Dürig (ed.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  32. ↑ Manfred Baldus : Art. 10 , Rn. 4. In: Christian Volker Epping, Christian Hillgruber (Ed.): Beck'scher Online-Comment GG , 34th Edition 2017
  33. ↑ Rupert Stettner: § 92 , Rn. 52. In: Detlef Merten, Hans-Jürgen Papier (ed.): Handbook of fundamental rights in Germany and Europe . Volume IV: Fundamental Rights in Germany - Individual Fundamental Rights ICH Beck, Munich 2011, ISBN 978-3-8114-4443-0 .
  34. ↑ BVerfGE 67, 157 (171) : G 10.
  35. ↑ Hans Jarass: Art. 10 , Rn. 4. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  36. ↑ Ralf Schenke: Art. 10 , Rn. 30. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  37. ↑ a b BVerfGE 130, 151 (179) : Assignment of dynamic IP addresses.
  38. ↑ BVerfGE 125, 260 (309) : Data retention.
  39. ↑ BVerfGE 115, 166 (182) : Communication connection data.
  40. ↑ a b BVerfGE 124, 43 (54) : Confiscation of e-mails.
  41. ↑ BVerfGE 115, 166 : communication connection data.
  42. ↑ Friedrich Schoch: The constitutional protection of telecommunications secrecy (Art. 10 GG) . In: Jura 2011, p. 194 (199).
  43. ↑ Stephan Pötters, Christopher Foreman: The constitutional conflict between freedom and security in the Internet age . In: Jura 2013, p. 5 (7–8).
  44. ↑ BVerfGE 100, 313 (361) : Telecommunications surveillance I.
  45. ↑ BVerfGE 107, 299 (312) .
  46. ↑ BVerfGE 113, 348 (364) : Preventive telecommunications monitoring.
  47. ↑ BVerfGK 9, 62 .
  48. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 8, Rn. 1.
  49. ↑ Friedrich Schoch: The constitutional protection of telecommunications secrecy (Art. 10 GG) . In: Jura 2011, p. 194 (200).
  50. ↑ a b BVerfGE 85, 386 (396) : Interception circuits.
  51. ↑ BVerfGE 125, 260 (310) : Data retention.
  52. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 17, Rn. 12.
  53. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 17, Rn. 13.
  54. ↑ BVerfGE 100, 313 (368) : Telecommunications surveillance I.
  55. ↑ BVerfGE 113, 348 (367) : Preventive telecommunications monitoring.
  56. ↑ BVerfGE 100, 313 (371) : Telecommunications surveillance I.
  57. ↑ Friedrich Schoch: The constitutional protection of telecommunications secrecy (Art. 10 GG) . In: Jura 2011, p. 194 (201).
  58. ↑ BVerfGE 100, 313 (358) : Telecommunications surveillance I.
  59. ↑ Thorsten Kingreen, Ralf Poscher: Police and regulatory law: with the right of assembly . 10th edition. CH Beck, Munich 2018, ISBN 978-3-406-72956-0 , § 8, Rn. 2.
  60. ↑ BVerfGE 100, 313 (361) : Telecommunications surveillance I.