Definition and Legal Basis of the Observation Case
The term ‘observation case’ refers in German law to a specific constellation in police and intelligence law concerning the prevention of danger. Classification as an observation case serves to subject relevant individuals, groups, or organizations, based on specific indications, to a systematic process of monitoring and documentation with regard to criminal or security-relevant behavior. Observation cases are particularly central to the work of the police, constitutional protection authorities, and state offices.
Definition of Terms
An observation case exists when a person, group, or organization is involved in officially documented suspicions without there already being sufficient evidence for prosecutorial measures or a situation that endangers public safety in the narrower sense. It therefore represents a step prior to classification as a threat actor or as the subject of significant police action.
Legal Bases
The legal foundations for observation cases are found in various special legal provisions, in particular the Federal Act for the Protection of the Constitution (VSG), the respective state constitutional protection acts, as well as police law at the state level. Section 8 of the Federal Act for the Protection of the Constitution (BVerfSchG) regulates, among other things, the collection and processing of personal data, while the police laws of the states contain regulations for preventing danger and the collection of police data. Provisions relating to observation cases can also be found in the Federal Criminal Police Act (BKAG).
Types and Classification of Observation Cases
Graduation Model: Assessment Case, Observation Case, Threat Actor
In official parlance, a multi-stage system is used to assess threats:
- Assessment case: Initial indications are present – only publicly available information is evaluated, without systematic surveillance.
- Observation case: More specific indications of security-relevant or extremist activities are identified, so targeted monitoring and documentation measures are initiated.
- Threat actor: Concrete facts exist that suggest a significant danger to public safety; in such cases, preventive police measures are possible.
Systematic classification as an observation case can occur both on a personal basis (e.g., individual suspects) and group-specific basis (e.g., organizations, scenes).
Criteria for Classification as an Observation Case
The decision to classify as an observation case is guided by the respective administrative regulations as well as police and constitutional protection guidelines:
- Suspicions: Concrete indications of anti-constitutional, extremist, or terrorism-related activities
- Facts and Structure: Initial internal investigation results, witness statements, information from other authorities
- Relevance and Risk of Recurrence: Significance for public safety
The distinction from an ‘assessment case’ or classification as a ‘threat actor’ can be fluid, but it follows internal administrative guidelines and regular reviews.
Measures and Legal Consequences in the Observation Case
Data Processing and Observation Techniques
Within the framework of an observation case, authorities may collect personal data using covert and overt methods. The following measures may be applied:
- Open information gathering: Evaluation of publicly accessible sources, online research, press monitoring.
- Covert surveillance: Targeted surveillance, possibly using technical aids, insofar as permitted under the relevant laws.
- Contact and Environment Analysis: Analysis of relationships, contacts, and movement patterns.
Monitoring of telecommunications, mail, or locating individuals in private premises requires stricter conditions and special legal provisions.
Legal Protection and Data Protection
The collection and processing of personal data in observation cases are subject to the data protection provisions of the Federal Data Protection Act (BDSG) and the respective special statutory regulations (e.g., BVerfSchG, BKAG). Persons affected have the right to information and, if applicable, correction, restriction, or deletion of collected data, unless prevented by reasons of hazard prevention.
Legal remedies are available through complaints to data protection supervisory authorities and, where applicable, by judicial review.
Time Limitation and Review
Observation cases are regularly evaluated. It is a legal requirement that the classification as an observation case be reviewed at set intervals, usually annually, for its legality. If the suspicion no longer exists, the measure is downgraded or terminated entirely, and all actions are deleted.
Distinction from Other Police Measures
Difference from Threat Actor Classification and Other Surveillance Measures
The observation case must be clearly distinguished from more intensive measures, such as classification as a threat actor or the implementation of telephone surveillance. While an observation case does not yet involve a concrete danger, only substantiated suspicions are required. The rights of surveillance and intervention are much more limited here than in concrete danger situations.
Cooperation Between Authorities
Observation cases are generally handled by constitutional protection authorities, police state protection departments, and other security agencies. For the protection of internal security, authorities exchange information, often coordinated through joint databases such as the Anti-Terror Database under § 6 ATDG (Anti-Terror Database Act).
Practical Significance and Criticism
Preventive Security Strategy
Classification as an observation case allows authorities to respond at an early stage to security-related developments without immediately acting repressively. This enables extensive intelligence gathering, which can lead to the targeted deployment of repressive measures in the event of an escalation.
Criticism and Societal Debate
Criticism is occasionally directed at the lack of transparency in classifying observation cases. Data protection concerns and the risk of stigmatizing affected persons are regularly discussed. Scholarly literature points to the need to observe principles of proportionality, to have clearly defined criteria, and to strictly adhere to data protection standards.
References
- Kirchhof, Paul: Manual of Constitutional Law. Mohr Siebeck Publishing.
- Warg, Joachim: Police Law in Practice. C.F. Müller Publishing.
- Data protection provisions and legal bases (BDSG, BVerfSchG, LVerfSchG, BKAG).
Summary
The observation case is a central instrument of German security authorities in the context of hazard prevention and constitutional protection. It is characterized by specific legal bases, limited rights of intervention, and strict review mechanisms. The system of assessment case, observation case, and threat actor classification provides a graduated approach to effectively address potential threats to public safety while safeguarding the rule of law. The legal and factual framework of this institution is a regular subject of societal and legal debate.
Frequently Asked Questions
What legal requirements must be met for classification as an observation case?
Specific factual indications must exist for the classification of a person, group, or organization as an observation case by the constitutional protection authority, which suggest an effort against the free democratic basic order, the existence or security of the Federation or a state, or the idea of international understanding (§ 4 para. 1 BVerfSchG). The threshold for observation is lower than for a suspicion case or classification as ‘confirmed extremist.’ It is sufficient that there is an initial suspicion, without a sufficient criminal suspicion being required. The decision for surveillance is made after careful examination by the constitutional protection authorities, always observing the principle of proportionality and taking into account both data protection and fundamental rights requirements (especially Articles 10 and 13 GG).
Which rights and obligations apply to persons affected by an observation case?
Persons affected by an observation case are subject to observation by the constitutional protection authorities, which may affect both individuals and associations. In principle, there is no right to information about ongoing surveillance, as this could thwart the purpose of the measure. However, there is a right to the deletion of personal data if it is no longer needed for the original purpose, in accordance with the legal requirements of the Federal Data Protection Act (BDSG) or the respective state protection act. There are no direct obligations for affected persons themselves, but they are prohibited from obstructing the monitoring measures or violating data protection regulations.
What legal control mechanisms exist for observation by the constitutional protection authority?
The activities of the constitutional protection authority, especially the classification as an observation case, are subject to multi-level control. On the one hand, there are parliamentary control committees at both the federal and state level (such as the Parliamentary Control Committee of the Bundestag), which are regularly informed about measures and monitored entities and can inspect files. In addition, the legality of all data collection, storage, or analysis is monitored by the data protection officers of the Federation and the states. Affected parties may seek legal recourse (e.g., by bringing an action before the administrative court) if they become aware of their surveillance and consider it unlawful.
What legal restrictions apply to data processing in the context of an observation case?
The collection, processing, and storage of personal data in observation cases are subject to strict data protection requirements arising from the Federal Act for the Protection of the Constitution (BVerfSchG), the Federal Data Protection Act (BDSG), and, where applicable, European data protection regulations (GDPR). Particular protection is afforded to so-called special categories of personal data under Art. 9 GDPR (e.g., political opinions, religious beliefs). Furthermore, every data processing activity is subject to the proportionality principle, meaning that only as much and such data may be collected as is necessary to fulfill the relevant official tasks. The data must be deleted as soon as they are no longer required, and periodic reviews of their necessity are mandated by law.
What legal remedies are available to persons affected?
Affected persons – once they become aware of the monitoring and data storage – have various legal remedies available. They may request information about stored data under § 15 BDSG (provided this is compatible with the protection of sources, methods, and state interests). It is also possible to submit a complaint to the data protection officer or to request deletion of unlawfully stored data. Finally, administrative courts may be called upon, for example by declaratory action or to compel the deletion of data. However, it should be noted that the interest in legal protection must regularly be weighed against the authority’s interest in secrecy.
How long can an observation case legally continue?
Legally, the duration of an observation case is not rigidly stipulated. Observation and the associated data storage may only continue as long as there are concrete indications of activities hostile to the constitution and a danger exists to the protected interests under the Federal Act for the Protection of the Constitution. Statutory review deadlines provide that it must be regularly—usually annually—reviewed whether the requirements for the observation case continue to exist. If the grounds cease to exist, the data must be deleted and the observation terminated immediately. In administrative practice, this review mechanism is firmly established to prevent permanent or unjustified monitoring.
