Concept and Fundamental Principles of the Inviolability of the Letter and Postal Secrecy
The letter and postal secrecy is a central fundamental right and a basic element of data protection as well as freedom of communication. It protects the confidentiality of private correspondence and ensures that letters, postal consignments, and other communications transmitted by post are not opened, viewed, or disclosed without authorization. The inviolability of this secrecy safeguards privacy and is of particular importance within the legal framework of the state, as it is fundamental in protecting against state and private investigation.
Constitutional Foundation
Basic Law of the Federal Republic of Germany
The principle of inviolability of the letter and postal secrecy is codified in Article 10 paragraph 1 of the Basic Law (GG):“The secrecy of letters, as well as the secrecy of the post and telecommunications, shall be inviolable.”Thus, the scope of protection is broad and extends both to traditional letter correspondence and to other, post-contractual forms of communication.
Significance as a Fundamental Right
The letter and postal secrecy is considered a so-called “formal communication fundamental right.” It is primarily directed against the State, for the administration as well as law enforcement and security authorities. There is also an indirect third-party effect in the context of private law, the so-called duty of protection.
Scope of Protection of Letter and Postal Secrecy
Personal Scope of Protection
The protection of letter and postal secrecy applies to all natural persons, regardless of nationality or residency status. Legal entities under private law (e.g., associations, GmbHs) can also invoke this protection, provided they fall within its scope.
Material Scope of Protection
Protected are all written communications not intended exclusively for the public and sent via postal services or similar institutions. This includes, among others:
- Letters
- Postcards
- Telegrams
- Packages (provided these serve as means of confidential communication)
Obvious merchandise consignments or public communications are not protected. Shipments that have already reached the recipient remain protected as long as they are in the recipient’s custody.
Prerequisites for and Limitations on Interventions
Permissible Interventions in the Letter and Postal Secrecy
Article 10(2) GG stipulates that interventions are only permissible on a legal basis. Such restrictions can occur, for example, in the following areas:
- Criminal procedure law (upon judicial order, see §§ 99 and 100 Code of Criminal Procedure)
- Prevention of danger (e.g., by state police laws)
- Surveillance for danger prevention in special cases (e.g., under the Law on Restrictions of the Secrecy of Mail, Post, and Telecommunications – G 10)
Interventions generally require specific statutory regulation and are usually subject to judicial authorization and rule-of-law control mechanisms.
Protection of the Exercise of Fundamental Rights
There are procedural and substantive standards to prevent unauthorized access. Postal service providers are obliged by the Postal Act (PostG) and data protection laws to implement and maintain letter and postal secrecy.
Violations constitute criminal offenses and are punishable according to § 202 StGB (“Violation of letter secrecy”) and § 206 StGB (“Violation of postal or telecommunications secrecy”).
Relationship to Telecommunications Secrecy and Data Protection
The letter and postal secrecy is closely linked with telecommunications secrecy. While the secrecy of letters protects the confidential transmission of written content, telecommunications secrecy concerns the transmission of information via telecommunications services. Together, they form the secrecy of communications.
Additionally, overlapping provisions of data protection law apply, such as the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR), which govern the processing and storage of personal data.
Exceptions and Special Provisions
Criminal Procedure Exceptions
Opening of letters and other consignments by law enforcement authorities is possible in the following cases:
- Seizure and inspection on suspicion of criminal offenses (§§ 99, 100 Code of Criminal Procedure)
- Monitoring and recording of communication by judicial order (§ 101 Code of Criminal Procedure)
- special regulations in cases of imminent danger
These measures are subject to strict legal requirements and judicial oversight in order to protect the core content of the fundamental right.
Postal Services and Commercial Deliverers
Postal service companies are subject, in addition to the general legal requirements, to specific rules from the Postal Act (§§ 39 ff. PostG). These include duties of confidentiality and measures to ensure the integrity of consignments. Breach of these duties may result in civil, criminal, and administrative consequences.
International Perspective and Applicability
European Convention on Human Rights
Article 8 of the European Convention on Human Rights (ECHR) guarantees the protection of correspondence as part of the right to respect for private and family life. National courts regularly refer to the interpretations of the European Court of Human Rights (ECHR).
International Postal System
The Universal Postal Convention and other international treaties obligate the signatory states to maintain postal secrecy and ensure mutual cooperation in the protection of postal consignments.
Practice and Significance in Digital Communication
With technological change, new challenges arise for the enforcement of the letter and postal secrecy in the digital age. While traditional letter secrecy is limited to physical consignments, comparable protection standards apply to electronic mail (e-mails) under telecommunications secrecy and special legislation.
For hybrid forms of dispatch (e.g., electronic registered mail or scanning services for letter post), compliance with these protective rights is equally mandatory.
Legal Consequences of Violating Letter and Postal Secrecy
Unauthorized violation of letter and postal secrecy is a criminal offense. In addition to criminal law consequences, labor law, civil law, and administrative consequences may also arise. The individuals affected have claims for injunctive relief, damages, or restoration of the lawful situation.
Criminal Law Sanctions
- § 202 StGB: Violation of letter secrecy (up to one year imprisonment or fine)
- § 206 StGB: Violation of postal and telecommunications secrecy (up to five years imprisonment or fine)
Civil Claims
- Claim for injunctive relief against further intrusions
- Claims for damages and compensation for pain and suffering in case of proven damage
Summary
The inviolability of letter and postal secrecy is an essential fundamental right for the protection of privacy. It safeguards the integrity of individual written communications and provides both citizens and companies with comprehensive state protection. Any intervention in this right is only permissible under strict legal conditions and with judicial oversight. Especially in light of increasing digital communication channels, ensuring letter and postal secrecy remains a central task of the rule of law.
Frequently Asked Questions
Who is legally allowed to break the letter and postal secrecy?
Letter and postal secrecy is a fundamental right specifically protected by the Basic Law (Art. 10 GG). It obliges, in particular, postal service providers to protect letters and other consignments from unauthorized access, disclosure, or use. A lawful breach of this secrecy is only permitted under very narrow circumstances. Under § 39 of the Postal Act such measures are generally only permitted on the basis of law, in particular under the provisions of the Code of Criminal Procedure (e.g., house searches or seizures by court order) or under the Law on Restrictions of the Secrecy of Mail, Post, and Telecommunications (Article 10 Act). Typically, authorities such as the police, public prosecutor’s office, or intelligence services act within their statutory powers and under strict conditions, for example in cases of serious criminal offenses and with a judicial order. Private companies and individuals may under no circumstances break the letter and postal secrecy, except where the sender or recipient has expressly consented.
Are there exceptions to letter and postal secrecy in employment relationships?
Yes, exceptions may exist in employment relationships under very strict conditions. As a matter of principle, letter and postal secrecy also applies in the workplace. However, if a company receives clearly marked business post, such letters may be opened by authorized employees. For private letters addressed to employees at the workplace, the postal secrecy remains in force. If the employer opens private mail without the employee’s express consent or a corresponding contractual provision, this constitutes a violation of letter secrecy, which can have both labor law and criminal consequences. Employers must ensure sufficient transparency and, if necessary, establish workplace rules on the handling of incoming mail.
To what extent does letter and postal secrecy protect digital means of communication such as email?
Letter and postal secrecy as defined in Art. 10 GG originally referred to physical consignments such as letters and parcels. With advancing digitalization, however, telecommunications secrecy has been differentiated as protection for electronic communication. The contents of e-mails are, therefore, not protected by letter secrecy, but by telecommunications secrecy. As long as e-mails are in the process of transmission or are on servers not within the sender’s or recipient’s control, telecommunications secrecy applies. Once the e-mails have reached the recipient’s inbox, special telecommunications protection ceases; however, other protective provisions such as data protection law or general personality rights may apply.
What legal consequences are there for violating letter and postal secrecy?
Violation of letter and postal secrecy is a criminal offense under § 202 StGB (Criminal Code). Anyone who, without authorization, opens a sealed document not intended for their knowledge, or otherwise gains unauthorized knowledge of its content, may be punished by imprisonment for up to one year or by a fine. For public officials, special criminal offenses may apply with correspondingly stricter consequences. In addition, civil claims for damages may be asserted, and in employment contexts, warnings or even dismissal may be imposed.
What is the level of protection for letter and postal secrecy in international mail traffic?
Even for consignments sent abroad or received from abroad to Germany, letter and postal secrecy generally applies as long as the consignment is within the territory of the Federal Republic of Germany. In the respective destination country, the local legal regulations apply, and the German letter and postal secrecy no longer has immediate effect. International protection is primarily based on international treaties, with the scope and extent of protection possibly varying. Under European cooperation, especially through the European Convention on Human Rights, comparable rights exist to protect postal secrecy, but their practical enforcement depends on national law.
Are there time limits after which the letter and postal secrecy expires?
Letter and postal secrecy generally protects consignments for the entire period during which they are in postal transit, i.e., until they have been handed over to the recipient or have been destroyed or otherwise dealt with according to statutory provisions (e.g., found items, undeliverable consignments). Once the letter has been delivered to the recipient, subsequent dealings with the content generally fall within the realm of general personality and data protection rights. However, subsequent searches or opening by third parties remains inadmissible as long as the recipient has not surrendered or destroyed the item.
How can an affected person defend themselves in the event of a violation of letter and postal secrecy?
Persons affected by a violation of letter and postal secrecy have various legal remedies. They can file a criminal complaint with the police or public prosecutor in accordance with § 202 StGB. In addition, it is possible to assert civil claims for damages if material or immaterial harm has occurred. In labor law situations, the works council may be involved or claims may be raised before the labor court. A complaint can also be lodged with the Federal Network Agency as the supervisory authority for postal services or with the Federal Data Protection Commissioner.
