H e a d n o t e s to the Order of the Second Senate of 16 December 2020 - 2 BvE 4/18 - 1. Parliamentary oversight of the intelligence services is of paramount importance given the covert way in which the intelligence services usually operate and the resulting risks of irregularities. In principle, this also applies with regard to the use of confidential informants. 2. Regardless of any risks to specific fundamental rights interests, the Federal Government may invoke the assurances of confidentiality giv- en to confidential informants as grounds for refusing to allow the ex- amination of an informant’s handler as a witness before a parliamen- tary committee of inquiry if this is required by imperative reasons, in the individual case, that arise from the security interests of the state. This may be the case in special circumstances where the proper func- tioning of the intelligence services in a certain milieu can only be guar- anteed by providing assurances of unconditional confidentiality and honouring those assurances. Specific reasons must be provided be- forehand, substantiating the existence of special circumstances capa- ble of justifying the granting and honouring of such assurances of un- conditional confidentiality. 1/34 FEDERAL CONSTITUTIONAL COURT - 2 BvE 4/18 - IN THE NAME OF THE PEOPLE In the proceedings on the application to declare that the respondents violated the rights of applicants nos. 1 to 3 and the rights of the German Bundestag under Art. 44 of the Basic Law (Grundgesetz) by refusing to comply with the decision to take evidence (BMI-11) issued by the Bundestag’s First Committee of Inquiry of the 19th parliamentary term and to reveal the iden- tity of the staff member (“handler”) at the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) who handled the confidential informant or informants referred to in the letter of 25 April 2018 from state secre- tary Hans-Georg Engelke to the chairperson of the committee of inquiry and in reports in the daily newspaper Die Welt of 17 May 2018. Applicants: 1. Parliamentary group in the German Bundestag Freie Demokraten, represented by its chairman Christian Lindner, Platz der Republik 1, 11011 Berlin, 2. Parliamentary group in the German Bundestag Die Linke, represented by its chairpersons Dr. Dietmar Bartsch and Amira Mohamed Ali, Platz der Republik 1, 11011 Berlin, 3. Parliamentary group in the German Bundestag Bündnis 90/Die Grünen, represented by its chairpersons Katrin Göring-Eckardt and Dr. An- ton Hofreiter, Platz der Republik 1, 11011 Berlin, 2/34 4. The qualified minority in the Bundestag’s First Committee of In- quiry of the 19th parliamentary term consisting of members of the Bundestag Dr. Irene Mihalic, Martina Renner and Benjamin Strasser, Platz der Republik 1, 11011 Berlin, - authorised representative: Prof. Dr. Matthias Bäcker, LL.M., Trützschlerstraße 11, 68199 Mannheim, Respondent: 1. Federal Minister of the Interior, Building and Community –Horst Seehofer – Federal Ministry of the Interior, Building and Community, Alt-Moabit 140, 10557 Berlin, 2. Federal Government, represented by Federal Chancellor Dr. Angela Merkel, Bundeskanzleramt, Willy-Brandt-Straße 1, 10557 Berlin, - authorised representative: … - the Federal Constitutional Court – Second Senate – with the participation of Justices Vice-President König, Huber, Hermanns, Müller, Kessal-Wulf, Maidowski, Langenfeld held on 16 December 2020: The application is rejected. R e a s o n s : A. The Organstreit proceedings (dispute between constitutional organs) concern the 1 question of whether the Federal Minister of the Interior, Building and Community was entitled to refuse to reveal to the First Committee of Inquiry of the 19th parliamentary term the identity of the staff member (“handler”) at the Federal Office for the Protec- 3/34 tion of the Constitution (Bundesamt für Verfassungsschutz) responsible for handling the informant or informants in an ongoing intelligence operation so as to allow for the handler’s examination as a witness by the committee of inquiry. Applicants nos. 1 to 3 are the parliamentary groups in the German Bundestag Freie Demokraten, Die Linke and Bündnis 90/Die Grünen; the spokespersons of these parliamentary groups on the committee of inquiry act as applicant no. 4. I. 1. On the evening of 19 December 2016, Anis Amri (the perpetrator) deliberately 2 drove a lorry into a crowd at a Berlin Christmas market. Eleven people died and many others were injured, some of them seriously. Prior to the attack, Amri had shot dead the driver of the stolen lorry. In the course of the investigation into the attack, indications emerged of possible 3 shortcomings on the part of the security authorities. Shortly after his illegal entry into the Federal Republic of Germany in the summer of 2015, Amri had been designated as a violent Islamist and in February 2016 he was categorised as a person posing a terrorist threat (Gefährder). However, surveillance measures targeting him were sus- pended from mid-September 2016. In light of this, there was a public discussion about whether the security authorities 4 were responsible for the failure to prevent the attack, and whether the German secu- rity architecture needed to be reformed in order to counter Islamist terrorism more effectively. In this context, the role of the intelligence services of the Federation and the Länder also came under scrutiny and the question was raised as to whether the domestic intelligence service – the Federal Office for the Protection of the Constitu- tion – had cooperated with confidential informants who had connections to Amri ([…]). [Excerpt from Press Release No. 12/2021 of 3 February 2021 The First Committee of Inquiry of the 19th parliamentary term was established by the Bundestag to investigate what information on Amri and his circle had been avail- able to the security authorities prior to the attack, to evaluate their work and the work of the bodies they report to, and to look into who bears political responsibility for pos- sible shortcomings. Specifically, the committee is to investigate whether and how Am- ri himself, his contacts, potential accomplices, sponsors and supporters cooperated with security or law enforcement authorities by serving as informants or messengers, and whether the authorities for this reason refrained from taking measures against persons who may have been involved in the attack. When it emerged that the Office for the Protection of the Constitution cooperated with at least one confidential informant at a mosque regularly visited by Amri, the committee of inquiry issued a decision to take evidence, requesting that the Federal Ministry of the Interior, Building and Community reveal the identity of staff members that handled the confidential informant in question, in order to arrange for the taking 4/34 of further evidence. The ministry stated that it could not name the informant’s handler because he was part of an ongoing source operation and revealing his identity would create a considerable risk of exposure for the informant in question. According to the ministry, in the Islamist circles under surveillance, which tend to form clandestine mi- cro groups, exposure might result in danger to the life and limb of the confidential informant and their handler. If the committee were to examine as witness the handler of a confidential informant involved in an ongoing source operation, this would have considerable adverse effects on the work and functioning of the intelligence services. The ministry added that the still active informant trusted that the assurances of con- fidentiality given to them were honoured by the authorities. If these assurances were reneged on, there was a risk that the informant would withdraw from the operation. Instead of the informant’s handler, the ministry named as witnesses the head of the intelligence gathering division of the Islamism and Islamist Terrorism department of the Federal Office for the Protection of the Constitution and, subsequently, the head of the unit in charge of handling the informant in question. In their application in Organstreit proceedings, the applicants claim a violation of their rights and of the rights of the Bundestag under Art. 44 of the Basic Law (Grundgesetz – GG). End of excerpt] 2. […] 5 3. […] 6-7 4. […] 8 5. […] 9 6. […] 10 7. […] 11-13 8. […] 14 II. […] 15-27 III. […] 28-39 IV. […] 40-57 V. […] 58 5/34 B. The application is admissible. 59 […] 60-79 C. The application is unfounded. The respondents’ refusal to reveal the identity of the 80 handler (staff member responsible for handling the informant) at the Federal Office for the Protection of the Constitution to allow for witness questioning by the commit- tee of inquiry does not violate Art. 44(1) first sentence GG. I. 1. Under Art. 44(1) first sentence GG, the Bundestag has the right – and, on the 81 motion of one quarter of its members, the duty – to establish a committee of inquiry with the power to take any necessary evidence. a) The parliamentary system of government is characterised by parliamentary over- 82 sight. Such oversight reflects the accountability of the Government vis-à-vis Parlia- ment, which follows from the principle of democracy. Moreover, parliamentary over- sight of the Government and the executive branch gives effect to the principle of the separation of powers, which is one of the fundamental principles informing the func- tions and order under the Basic Law. The principle of the separation of powers does not serve to achieve an absolute separation of state functions; rather, it governs the distribution of political power, the interaction of the three branches of the state with the resulting mutual checks and balances, and hence leads to a moderation of state power (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bun- desverfassungsgerichts – BVerfGE 3, 225 <247>; 7, 183 <188>; 9, 268 <279>; 22, 106 <111>; 34, 52 <59>; 95, 1 <15>).