Case of Kohl

The Kohl case is the legal dispute between Helmut Kohl and the Federal Republic of Germany over the release of Stasi documents about Kohl. The litigation is a classic case of a conflict between data protection and freedom of information . Kohl initially achieved a ban on handing over files. After a change in the law, which made it possible to hand over Stasi files about his official activities for research purposes even without his consent, Kohl managed to prevent them from being passed on to third parties or the press.

course

The dispute comprises a total of four judgments ; During its course there was a significant change in the underlying Stasi Records Act (StUG).

Lawsuit before the Berlin Administrative Court, 2000

After the Federal Commissioner for the Records of the State Security Service of the Former German Democratic Republic ( BStU ) had promised to make Stasi records relating to Kohl available for research, political education and use in the media, the latter brought an action for an injunction on November 27, 2000 the Berlin Administrative Court . This upheld the lawsuit and decided in a judgment of July 4, 2001 on the basis of the then valid version of the StUG that no personal data concerning him may be made accessible by the defendant without Kohl's consent , insofar as this data was based on targeted information collection or spying the Ministry for State Security of the GDR or collected through it as a third party (VG Berlin, Az. 1 A 389/00 = NJW 2001, pp. 2987 to 2993). The BStU thereupon issued a declaration of cease and desist not to make any documents accessible that exclusively contain data on the private life or privacy of the plaintiff or consist of tape recordings of telephone calls made by the plaintiff or verbatim transcripts thereof.

Revision at the Federal Administrative Court, 2002

With the subsequent leap revision to the Federal Administrative Court (BVerwG), the BStU pursued the goal of dismissing the complaint, alternatively changing the title . The BStU was of the opinion that the VG had misinterpreted the old version of Section 32 (1) No. 3 StUG (old version) when it came to the judgment. Rather, as part of a balance between general personal rights and interests in political, historical and legal processing, it should be determined whether documents could be made accessible. However, the judging Senate opposed this view and stated that it was not possible to differentiate between victims whether they were spied on by the State Security Service because of their function as public officials or as a private person ("Even a public official in the exercise of his office can, however, face illegal spying measures and the disclosure of the information obtained in this way should not be viewed exclusively as part of the institution without personal concern. "). The BVerwG rejected the appeal in a judgment of March 8, 2002 as unfounded (Az. 3 C 46.01 = NJW 2002, pp. 1815–1817 = BVerwGE 116, 104 ff.).

Amendment to the Stasi Records Act, 2002

In the event of failure, the BStU had already requested that the StUG be changed accordingly. In fact, the StUG was revised in September of the same year (5th StUÄndG of September 2, 2002, Federal Law Gazette 2002 I, p. 3446 f., Entered into force on September 6, 2002). A change was also necessary for another reason: In § 14 StUG a. F. the right of data subjects and third parties to anonymize or delete their personal data was provided; this should - after several postponements - come into force on January 1, 2003. The exercise of this claim would have made it more difficult to process the documents that have not yet been developed and thus indirectly made it more difficult or even impossible for other victims to have access to information. Section 14 was therefore repealed.

In addition, § 32 was revised. Was now allows for an even making available "obvious" personal data (ie those that without intelligence could be obtained methods as from open sources), on the other hand making available of information on persons of contemporary history , holders of political functions or public officials also without their consent, insofar as this concerns information that relates to their role in contemporary history, their function or exercise of office and insofar as this does not affect any overriding legitimate interests of these persons. A section 32a has also been added, which regulates the prior notification of those affected by this in contemporary history, holders of political functions and public officials. This is a procedural regulation for the protection of the fundamental rights of the person concerned.

Another complaint before the VG Berlin, 2002

After the new regulation came into force on September 6, 2002, the BStU received three requests for inspection or surrender of Stasi documents concerning Helmut Kohl in September and October. On October 2, Kohl applied to the Berlin Administrative Court to threaten the BStU with an administrative instrument based on the enforceable copy of the judgment in the event that it should hand over documents concerning him due to the new legal situation (Az. 1 A 315/02). After the VG rejected the application, Kohl appealed. After the BStU had declared that it was bound by the judgment of the VG Berlin of July 4, 2001 and therefore did not make any documents relating to Kohl accessible on the basis of the revised law, the parties declared the legal dispute settled .

The BStU now brought an enforcement counterclaim before the VG Berlin, with which it defended itself against the enforcement of the judgment of the VG of July 4, 2001, alternatively requested the amendment of that very title. In a judgment of September 17, 2003 (Az. 1 A 317/02 = NJW 2004, pp. 457-461), the VG ruled that enforcement of Kohl from the VG judgment of July 4, 2001 was inadmissible because the legislature was involved Amendment of § 32 StUG and addition of § 32a StUG created a new legal situation that was constitutional and here as a legally destructive objection opposed to enforcement, and thus upheld the action. The injunction claim could not be upheld with reference to Section 5 (1) Sentence 1 StUG, as this regulation has been superseded as a result of the exhaustive special regulation of Section 32 StUG, new version (new version). With regard to constitutionality, the VG further stated that §§ 32 and 32a StUG new version, as barriers to the right to informational self-determination , served to enable the legitimate purpose of political and historical processing of the activities of the State Security Service and of political education had already been laid down in the Unification Treaty.

Revision at the Federal Administrative Court, 2004

The VG Berlin had already allowed the jump revision in its judgment due to the fundamental importance of the case. In response to the appeal submitted by Kohl, the BVerwG decided in a judgment of June 23, 2004 (Az. 3 C 41.03 = NJW 2004, pp. 2462 to 2469) that the purpose of personal information made accessible (e.g. if files are released for research purposes) must be ensured and these are not passed on to third parties or published. The provision of Stasi documents with personal information to the press is fundamentally unreasonable. The only exceptions are information from generally accessible sources (within the meaning of Article 5, Paragraph 1, Clause 1 of the Basic Law ) or information based on them, as well as statements made by the person concerned to third parties who have reported on them.

The revision was therefore partially successful; the BStU's counterclaim for enforcement was dismissed to the extent that it is still forbidden to make personal tapes, verbatim protocols and information relating to his private life accessible without Kohl's consent. Also, without his consent, no personal data may be made accessible for purposes of political education or in accordance with Section 34 (1) StUG (i.e. to the press, radio, film, their auxiliary companies and the people who work for them in journalistic and editorial work) if can with certainty "exclude" that the data were obtained due to a violation of spatial privacy or the right to the spoken word directed against Kohl or a third party, or that they originate from files or data of state or private organizations or that such information is used for " possible "basis.

In addition, the enforcement of the judgment of the VG (based on the old legal situation) of July 4, 2001 was rightly declared inadmissible by the judgment of the VG (based on the new legal situation) of September 17, 2003. The constitutionally compliant, restrictive interpretation or application of Sections 32 and 34 (1) StUG results from the right to informational self-determination or the right to the spoken word, whose bearers are also public officials, also with regard to office-related information. The term “ human rights violation ” in Section 32 (1) sentence 3 StUG should be interpreted in such a way that it also encompasses intrusion into privacy and violation of the right to the spoken word. Espionage by the State Security Service is not a violation of human rights, but it should also be given special consideration in the context of the weighing up because of the illegal gathering of information. Furthermore, the recognizability of such a human rights violation can be assumed if the information does not name or reveal a harmless source. Ultimately, a strict standard should be applied to the associated consideration.

The court examined, among other things, a violation of general personal rights, the right to the spoken word and the right to informational self-determination, the applicability of Article 47 of the Basic Law (GG), a violation of the amending law against the requirements of clarity of norms resulting from the rule of law and compliance with norms or the absence of contradictions of the Amendment Act (between § 5 and § 32 StUG) as well as the violation of the principle of equality due to unjustified equal treatment with employees and beneficiaries within the meaning of the StUG

criticism

It was criticized ( literature : Arndt, 2004) that the BVerwG, in its judgment of June 23, 2004, had placed too much emphasis on the holder of basic rights, although holders of basic rights can only be natural persons as well as legal persons within the framework of Article 19.3 of the Basic Law . In the present case, however, it is questionable whether the person concerned was researched as a private person or not rather in his function as a constitutional body, so that he could not have been the bearer of the fundamental rights in question in this context. The core of the problem is therefore the difficulty of differentiating between a private person and this person as a public official. The BVerwG would have failed to develop differentiated issuing criteria in this regard.

When assessing the illegality of the information obtained by the State Security, it would have to be taken into account that Federal German law - with the exception of, for example, Article 10, Paragraph 1 of the Basic Law and in contrast to human rights - cannot generally be used as a yardstick due to its territorial limitation of validity. The considerations cited by the BVerwG on postal and telephone surveillance would have only marginal importance in practice, as the State Security would hardly have obtained information by taking appropriate action in German territory. Inconsistently, however, the BVerwG would not have used the inviolability of the home ( Art. 13 GG) as a yardstick.

In addition, the BVerwG would have misunderstood the meaning and wording of Art. 47 GG, since the protective purpose does not end when information leaves the MP's immediate area.

Apart from that, the BVerwG would have made use of its competence as a specialized court in a questionable way by expressing an interpretation that contradicts the will of the legislature, although it would have had to obtain the decision of the Federal Constitutional Court if it had accepted a violation of the Basic Law in accordance with Art. 100 GG . Finally, it exceeded its competence with its differentiation between science and the press, contrary to the legal equality, which practically let the access rights of the press run dry.

literature

Claus Arndt : The publication of Stasi documents from prominent people. In: New legal weekly . 2004, pp. 3157-3159.

Roland Derksen: Fifth law to change the Stasi records law. In: New journal for administrative law. 2004, pp. 551-555.

Alexander Dix : The amendment to the Stasi Records Act. In: Journal of Property and Real Estate Law (VIZ) 2003, ISSN 1432-8933 , pp. 1–5.

Jeannine Drohla: The "Kohl Case" and the constitutional conformity of the newly drafted Stasi Records Act. In: New legal weekly. 2004, pp. 418-421.

Annina Pollaczek: Freedom of the press and personal rights. Using the example of the Stasi Records Act. In: VDM Müller, Saarbrücken 2007, ISBN 978-3-8364-0788-5 .