Federal Criminal Police Office Act

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Basic data
Title: Law on the Federal Criminal Police Office and cooperation between the Federation and the Länder in criminal police matters
Short title: Federal Criminal Police Office Act
Previous title: Law on the establishment of a Federal Criminal Police Office (Federal Criminal Police Office)
Abbreviation: BKAG
Type: Federal law
Scope: Federal Republic of Germany   
Legal matter: Administrative law
References : 2190-3
Original version from: March 8, 1951
( BGBl. I p. 165 )
Entry into force on: March 15, 1951
Last revision from: June 1, 2017
( BGBl. I p. 1354 ) and
March 25, 2019
( BGBl. I p. 400 )
Entry into force of the
new version on: 		May 25, 2018
Last change by: Art. 152 VO of June 19, 2020
( Federal Law Gazette I p. 1328, 1346 )
Effective date of the
last change: 		June 27, 2020
(Art. 361 of June 19, 2020)
Weblink: Text of the law
Please note the note on the applicable legal version.

The German Federal Criminal Police Office Act (BKAG) regulates the tasks of the Federal Criminal Police Office . On May 25, 2018, a new version adapted to the General Data Protection Regulation and the new Federal Data Protection Act came into force.

Contents overview

The BKAG is divided into 10 sections:

  1. Central institutions for cooperation in criminal police matters, tasks of the Federal Criminal Police Office, §§ 1–8
  2. General powers for data processing , §§ 9–28
  3. Central office , §§ 29–33
  4. Powers in the context of criminal prosecution , §§ 34–37
  5. Powers to avert threats from international terrorism , Sections 38–62
  6. Powers to protect members of the constitutional organs and the management of the Federal Criminal Police Office, §§ 63–65
  7. Witness protection , § 66
  8. Powers to secure the Federal Criminal Police Office and to self- protect the authorities, §§ 67, 68
  9. Data protection and data security, rights of the data subject, §§ 69–86
  10. Final provisions, §§ 87–91

Frames

The law was revised in 1997, in particular to take account of the requirements of the Federal Constitutional Court ( census judgment ). With the amendment of 2008 the Federal Criminal Police Office - limited to the defense against the dangers of international terrorism - was granted further powers that were previously only available to the state police . In addition to the controversial online search , the new Sections 20a to 20x of the Act have, among other things, newly regulated the following powers to avert danger :

In this way, the BKA was placed on an equal footing with the powers of the police forces of the federal states in the area of ​​danger prevention with regard to “international terrorism”. In the opinion of the Federal Ministry of Justice , a previous amendment to Art. 13 of the Basic Law is not necessary ; Article 13 (4) of the Basic Law permits such measures. Incidentally, according to the decision of the Federal Constitutional Court of February 27, 2008, an online search does not constitute an encroachment on Article 13 of the Basic Law. However, all powers of the BKA are subject to the judge's reservation with a high degree of intervention.

With the new version, the BKA has also been given the right to conduct preventive investigations on its own without a specific suspicion . As part of the “preliminary investigations”, the BKA is no longer subject to the authority of the public prosecutor's office. However, the Federal Prosecutor's Office must be informed at the latest when there is an initial suspicion of criminal proceedings . Wiretapping measures may also be carried out against persons holding professional secrecy ( Section 53 of the Code of Criminal Procedure ), with the exception of defense counsel, members of parliament and clergy of a state-recognized religious community ( Section 20u BKAG).

The new version of the BKA law (law to ward off the dangers of international terrorism by the Federal Criminal Police Office) was passed by the German Bundestag on November 12, 2008 with a majority of the votes of the CDU / CSU and SPD . However, on November 28, there was no majority in the Bundesrat for the law requiring approval . After the law passed the mediation committee after some changes and the Federal Council accepted the amended draft on December 19, 2008, the law came into force on January 1, 2009.

In March 2009, the Federal Prosecutor's Office demanded that the code of criminal procedure for combating terrorism be amended in a first step so that the knowledge gained in the preventive area through the BKA Act can also be used in the area of criminal prosecution .

New version from 2008

Discussion of legal policy

The new version of the BKA Act of 2008 was the subject of intense legal and political debates. Aspects that were controversial were:

  • Principle of separation: Journalists and the Chaos Computer Club criticized the fact that the draft of the BKA law softened the principle of separation between the secret services and the police , which was introduced as a lesson from the time of National Socialism and the secret state police . Various experts and politicians such as the Bundestag member Wolfgang Wieland (Greens) took the view that the amendment to the law would create a “German FBI ”. In a comparative legal and security policy perspective, however, the FBI still has considerably greater resources and investigative powers and has been expanded as a “ political police ” in particular as a result of recent US legislation . The BKA also lacks the nationwide executive structure of the American authority.
  • Judge's reservation : The regulation originally provided in the draft law that no judge's reservation is necessary in urgent cases has been changed as part of the legislative process. According to the version passed by the Bundestag and Bundesrat on December 19, 2008, the judge's reservation now also applies in urgent cases. The protection of the core area of ​​private life is to be ensured in that the inspection of the information obtained is placed under the "substantive management of the ordering court" (Section 20k (7) sentence 3 BKAG (new)).
  • Alignment of the powers of state and federal police authorities: Proponents of the new version pointed out that the new search instruments had been available to the state police for decades. It was countered that none of the state police, which have been allowed to conduct preventive investigations in advance since 2006 after a change in the constitution to combat international terrorism , had the concentrated power of a nationwide agency that also passed the collected data on to the police, the constitutional protection and the federal intelligence service .
  • Necessity: The federal government and police authorities justified the necessity with the use of modern technologies by criminals. In the hearing in the Interior Committee of the Bundestag, the President of the Federal Criminal Police Office, Jörg Ziercke, declared : "The online search is an indispensable tool for preventing terrorist attacks".
  • Appropriateness: In their comments on the draft amendment to the law, journalists and media associations, the Federal Data Protection Officer Peter Schaar , the German Chamber of Commerce and Industry and experts such as the constitutional lawyer and former President of the Federal Intelligence Service , Hansjörg Geiger , warned of the disproportionate powers of the investigative authorities . Several other constitutional lawyers, however, described the draft as constitutional. The Bielefeld legal scholar Christoph Gusy stated in his report for the Interior Committee: "The draft submitted does not contain any fundamental shift in the coordinate system of freedom and security at the expense of freedom."
  • Right to refuse to give evidence : The draft of the amendment to the BKA Act was also criticized by the media freedom organization International Press Institute in October 2008, due to the weakening of the right to professional secrecy for doctors, lawyers and journalists contained in Section 53 of the German Code of Criminal Procedure.

Decision of the Federal Constitutional Court

On January 27, 2009, civil rights activist and journalist Bettina Winsemann filed a constitutional complaint against the law. Winsemann had previously successfully sued against the online search in the Constitutional Protection Act of North Rhine-Westphalia. The freelance television journalist Christoph Maria Fröhder , the former editor of “Die Zeit”, Michael Naumann , Gerhart R. Baum , former Minister of the Interior, also turn to the Federal Constitutional Court . D., Ulrich Schellenberg, the chairman of the Berlin State Association of the German Lawyers Association, Jürgen Hardt, President of the State Chamber for Psychological Psychotherapists and Child and Adolescent Psychotherapists Hesse, and Jörg-Dietrich Hoppe , President of the German Medical Association Doctors day. They are represented by the lawyers Gerhart R. Baum, Burkhard Hirsch and Peter Schantz.

On April 20, 2016, the Federal Constitutional Court issued a final judgment that requires the legislature to take action again. Not only has the law been declared unconstitutional in large parts, but numerous central requirements have also been defined that must be met by future and secret interference with the fundamental right to informational self-determination. The actions of the security authorities are primarily measured by the principle of proportionality, which follows from the rule of law and the principle of human dignity anchored in the Basic Law. The Federal Constitutional Court put forward the following central theses in its judgment - based on a long tradition of jurisdiction:

  1. Clandestine surveillance measures, which are associated with a considerable encroachment on informational fundamental rights - such as living space surveillance and access to information technology systems - only meet the requirement of proportionality if they serve to protect important legal interests and if there are reliable, factual indications of their endangerment in individual cases.
  2. Secret surveillance measures must not affect everyone. Rather, the prerequisite for this is that the third party concerned has a specific, individual proximity to the danger or crime to be investigated.
  3. There must be effective prior checking of monitoring measures by an independent body.
  4. In principle, transparency, legal protection and supervisory control must also be possible in the case of secret investigative measures. Appropriate procedural substitute precautions must be taken for this.
  5. The legislature must ensure that the basis of authorization that entitles the holder to a spying measure already contains an obligation to delete the data collected.
  6. If there are particularly drastic encroachments on fundamental rights through state surveillance, particularly high requirements must be placed on core area protection. This is intended to ensure that the area of ​​highly personal privacy is protected from state surveillance.
  7. Permanent monitoring is not permitted.
  8. Special relationships of trust such as those between lawyers and doctors must also be specially protected.
  9. When processing data, the security authorities must observe the principle of purpose limitation. The transfer to other countries is a change of purpose. The legislature must take protective precautions for informational self-determination.

literature

Web links

Individual evidence

  1. ↑ Realignment of the Federal Criminal Police Office: Future of German police work strengthened Website of the Federal Government , May 25, 2018
  2. ↑ Law on the restructuring of the Federal Criminal Police Office Act
  3. ↑ Kurt Graulich : Tasks and powers of the Federal Criminal Police Office in the digital legal area - The law for the redesign of the BKAG in 2017 Kriminalpolitische Zeitschrift (KriPoZ), September 12, 2017. PDF version
  4. ↑ Law to avert the dangers of international terrorism by the Federal Criminal Police Office of December 25, 2008 ( Federal Law Gazette I p. 3083 , pdf)
  5. ^ Result of the roll-call vote on November 12, 2008 ( Memento of December 3, 2008 in the Internet Archive ) (PDF)
  6. ↑ Hamburger Abendblatt: Attorney General calls for more powers in the fight against terror . March 14, 2009.
  7. ^ Kai Biermann : Police in the fight against terrorism, Zeit online, September 14, 2007.
  8. ^ Kai Biermann: Freedom Struggle in the Net, Zeit online, April 17, 2008.
  9. ↑ The BKA will evade control ( memento from January 31, 2012 in the Internet Archive ) (newspaper interview without reference as a Word document) from February 14, 2008
  10. ↑ Andreas Schwegel: On the way to a "German FBI"? Federal Criminal Police Office (BKA) and federal security architecture under the sign of the fight against terrorism, in: Robert Glawe (Ed.): A new German security architecture - impulses for the national strategy debate (Wissenschaft & Sicherheit Vol. 6), Berlin 2009, pp. 307-319.
  11. ↑ taz.de: The Last Compromises, November 7, 2008, accessed on December 17, 2008.
  12. ↑ a b Hearing in the Interior Committee of the Bundestag ( Memento from September 18, 2008 in the Internet Archive )
  13. ↑ Joint statement from the DJV, the Federal Association of German Newspaper Publishers, the Association of German Magazine Publishers, the Association of Private Broadcasting and Telemedia, the German Press Council, ver.di and ARD and ZDF ( Memento of December 5, 2010 in the Internet Archive ), accessed on September 13, 2008.
  14. ^ German Bundestag, Interior Committee: Public hearing of experts ( Memento of September 12, 2008 in the Internet Archive ), accessed on September 8, 2008.
  15. ↑ tagesschau.de: Majority of the experts without concerns ( Memento from September 15, 2008 in the Internet Archive ). Retrieved September 15, 2008.
  16. ^ IPI concerned at draft legal amendments that threaten protection of sources. Retrieved April 23, 2019 .
  17. ^ Constitutional complaint against BKA law, press release of the Humanist Union, January 27, 2009.
  18. ↑ Heise Newsticker : New "basic computer right" also protects laptops and data in the main memory
  19. ↑ German Journalists Association : DJV presents a complaint ( memento of September 28, 2009 in the Internet Archive ). April 23, 2009.
  20. ↑ BVerfG, judgment of April 20, 2016 - 1 BvR 966/09, 1 BvR 1140/09
  21. ↑ Kurt Graulich : Analysis of supreme court decisions on security law discussion of BVerfG, judgment of April 20, 2016 - 1 BvR 966/09, November 16, 2017
  22. ↑ The current judgment of the Federal Constitutional Court on the BKA Act - tutoring in matters of constitutional law for legislators and security authorities | EAID. In: www.eaid-berlin.de. Retrieved May 3, 2016 .