20151128 Grundrechte schleifen bis zur Unkenntlichkeit

28.11.2015 Grundrechte schleifen bis zur Unkenntlichkeit

Fundamental Rights, up and down in German History

Some weeks before we met for "Lesen gegen Überwachung" (Reading against surveillance) and we learnt about surveillance in the old BRD (West-Germany) and found some similarities to the DDR (East-Germany).

Reading the book Überwachtes Deutschland from Josef Foschepoth and in old versions of the German fundamental laws we saw a steady decrease of fundamental rights in West-Germany, in the same way the Allies (supposedly) gave away their occupation rights. A major step backwards was formed while the emergency legislation in 1968 and the introduction of the G10 law.

While we find an inviolable right of privacy of communication in the original constitution of 1949 and no military, aninviolability of the home and ...

... a degradation of fundamental rights is seen with any constitutional amendment.

How perfidious this has worked, we would like to illustrate with the example of the fundamental right dismantling 1968.

"There was a section (§ 100) on treason in the German Criminal Code from 1951 (l st Criminal Law Amendment Act) to June 1968 (8th Criminal Law Amendment Act - note that this was debated and adopted at the same time as legislation concerning states of emergency and surveillance) which included the following noteworthy clause:

A member ofthe Federal Parliament who, often conscientious examination of the facts and the law and careful consideration ofthe conflicting interests, feels himself obliged in Parliament or in one of its committees to reprehend a breach of Constitutional order committed by the state or his Land and in doing so reveals an official secret, is not acting against the law if the Intention of his reprehension is to prevent a breach of the Basic Law or the constitution of Land. (BGBl 1951, p.742)

This paragraph was repealed in 1968 without replacement after the occupying powers and the federal government had already agreed that the ruling for MPs would not apply to military secrets and written this into the Forces Convention in 1954. Since the Americans considered (and still consider) all secrets handled by the intelligence agencies to be military secrets, this ruling applied and still applies to the whole field of surveillance of post and telecommunications, e-mail and internet and any other form of electronic communication."

So we only can agree with the conclusion of Josef Foschepoth who detects this monstrosity, that "a state whose parliamentarians risk being accused of treason if they publicly reveal any intelligence secrets during their efforts to prevent a breach of the constitution. A state such as this has truly lost any sense of freedom, democracy or constitutionality when it comes to overseeing the surveillance carried out by intelligence agencies. It has indeed become a surveillance state."

Whistleblower in Security Policy, Dieter Deisenroth, Annegret Falter, p 147-150

At last another monstrosity we want to cite: The incompatibility of the supplementary agreement with applicable legal principles

Article 38 of the Supplementary NATO Status of Forces Agreement still obliges Germany to treat Allied and German official secrets equally and maintain strict secrecy in this regard. Should there be a court case whose proceedings threaten to reveal a secret covered by this agreement, American intelligence agencies are authorised to intervene directly in the course of German justice. "In the event that the appropriate authority [i.e. an intelligence agency such as the NSA] advances considerations against disclosure, the court or authority shall take all steps in its power ... to prevent such disclosure." (Foschepoth, Überwachtes Deutschland, Document 8, p. 284)

This in turn leads to the third and most important of our necessary consequences if we are to restore the principles of constitutionality and justice: an urgent revision of the May 1968 amendment to Article 10 of the Basic Law. Considering the Federal Constitutional Court's recent jurisprudence, there is a fair chance that the additions to Paragraph 2 would today be judged as unconstitutional, in contrast to the 5:3 decision from 1970, due to the clause which determines that "the person affected shall not be informed" of surveillance measures and that "recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the Parliament."

Not informing an affected person of their surveillance and denying them recourse to the courts are both essentially unconstitutional. In its decision on the "amendment of legislation on undercover investigation in criminal proceedings" from December 7, 2011, the Federal Constitutional Court determined:

The right to be notified of undercover investigation measures is one ofthe essential pre-conditions of effective fundamental rights protection. Without being informed at least retrospectively, thepersons affected can neither assert the unlawfulness ofthe investigation measure norpossible rights to deletion, correction or legal redress."

Conclusion

After our "Lesen gegen Überwachung" - session we have again tried to understand the events in that distant past. It has opened our eyes and we will pursue the issue further.

... to be continued

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