Actual evidence

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Actual evidence is a term used in German constitutional protection law. It is central to the question of whether there are efforts (e.g. against the free democratic basic order ) or activities (e.g. intelligence ) within the meaning of Section 3 of the  Federal Constitutional Protection Act (BVerfSchG) that the Federal Office for the Protection of the Constitution has to collect and store Authorize and oblige information .

definition

There is no legal definition of the term. As an indefinite legal term , it is fully subject to judicial control. According to the highest court rulings and commentary literature , the element of fact “actual clues” in constitutional protection law demands more than mere assumptions , speculations , speculations or hypotheses that cannot be based on observable facts . On the other hand, certainty is not required. Rather, it must be concrete and compacted to a certain extent circumstances as fact basis for the suspicions exist that would rationally and considering intelligence indicate experience the presence of actual evidence. An overall view of all existing factual indications can also lead to the assumption of a suspicion, even if each individual is not yet able to justify such a suspicion.

The federal legislature has already anchored the requirement of the factual indications in the BVerfSchG at the level of the assignment of tasks, whereas such restrictions can only be found systematically in the area of ​​powers. The wording was not included in the federal government's draft law on the BVerfSchG ( BT-Drs. 11/4306 ). Therefore, no official justification can be used as an aid to interpretation. According to the case law on the BVerfSchG from 1990, the term must be interpreted very broadly. Some state constitutional protection laws contain the wording “actual indications for the suspicion ”, whereby this does not result in a substantive deviation from the BVerfSchG.

The purpose of the connection to actual evidence is that the constitution protection authorities do not take action in the case of mere speculations, hypotheses, prognoses and assumptions. Rather, what is needed is “objective evidence showing a sufficient probability of anti-constitutional activities and the like. Ä. include in the individual case ". Actual indications are already available when behavior that objectively affects the protected interests can be determined. The processing by the Office for the Protection of the Constitution should then determine whether the subjective factual situation exists for an effort . It does not matter whether the conduct in question is lawful or illegal.

Test and suspected case

The existence of factual indications justifies the need for further examination of the facts, not just a determination that an effort is extremist . The subsequent test phase is called test case processing , the endeavor is considered a test case . The Office for the Protection of the Constitution is initially required to get an idea of ​​an endeavor exclusively from sources that are open to everyone. If the suspicion has been substantiated in a certain way without being able to finally categorize an endeavor as extremist, the Office for the Protection of the Constitution will handle the suspected case ; the effort is considered a suspected case . The use of intelligence services and the storage of personal data are permitted when dealing with suspected cases . The use of intelligence resources is essentially a question of proportionality .

Objects of observation and prohibitions

If there is a suspected case or if an effort within the meaning of Section 3 (1) BVerfSchG has been proven to be certain, the effort is considered an object of observation . During the observation there may be enough factual evidence to justify a ban.

Associations whose aims or activities contravene the criminal laws or which are against the constitutional order or the concept of international understanding (judge, are prohibited Art. 9 para. 2 GG , § 3 1 sentence 1. VereinsG ). For clubs and associations part whose organization or activities over the territory of the country extends beyond, is for the determination of the ban, the Ministry of the Interior, for construction and home jurisdiction ( § 3 para. 2 no. 2 VereinsG ).

Parties which, by reason of their aims or the behavior of their followers to affect the free democratic basic order or to endanger or eliminate the existence of the Federal Republic of Germany shall be unconstitutional ( Art. 21 para. 2 GG ). The Federal Constitutional Court determines that it is unconstitutional ( Art. 21 Para. 4 GG ; § 13 No. 2 BVerfGG ). The determination must be linked to the dissolution of the party and the prohibition to create a replacement organization ( Section 46 (2 ) BVerfGG ).

Related terms

Similar terms in German criminal law are suspicion and initial suspicion .

literature

  • Bernadette Droste: Handbook of constitutional protection law . 1st edition. Boorberg, Stuttgart a. a. 2007, ISBN 978-3-415-03773-1 , pp. 175–181 (Chapter “Actual Evidence”).

Individual evidence

  1. ↑ a b Judgment 5 A 130/05. In: http://www.justiz.nrw.de/ . OVG NRW, February 12, 2008, accessed on September 26, 2019 (Rn. 286).
  2. ↑ 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 , § 8a BVerfSchG Rn. 7 .
  3. ↑ Judgment 6 C 22.09. In: https://www.bverwg.de/ . BVerwG, July 21, 2010, accessed on September 26, 2019 (Rn. 30).
  4. ↑ a b Bernadette Droste: Manual of the constitutional protection law . 1st edition. Boorberg, Stuttgart a. a. 2007, ISBN 978-3-415-03773-1 , pp. 176 (Chapter “Actual Evidence”).
  5. ^ Bernadette Droste: Handbook of the constitution protection law . 1st edition. Boorberg, Stuttgart a. a. 2007, ISBN 978-3-415-03773-1 , pp. 177 (Chapter “Actual Evidence”).
  6. ^ Hermann Borgs-Maciejewski, Frank Ebert: The right of the secret services . Boorberg, Stuttgart a. a. 1986, ISBN 978-3-415-01258-5 , B § 2 Rn. 8 .
  7. ↑ a b Bernadette Droste: Manual of the constitutional protection law . 1st edition. Boorberg, Stuttgart a. a. 2007, ISBN 978-3-415-03773-1 , pp. 178 (Chapter “Actual Evidence”).
  8. ↑ Federal Office for the Protection of the Constitution (BfV) announces the test result for the party “Alternative for Germany” (AfD). In: https://www.verfassungsschutz.de/ . January 15, 2019, accessed September 26, 2019 .
  9. ↑ Federal Office for the Protection of the Constitution classifies AfD sub-organization “Der Flügel” as a certain right-wing extremist tendency (press release). In: BfV. March 12, 2020, accessed March 18, 2020 .
  10. ^ Association bans. In: BMI. Retrieved March 18, 2020 .