(de-news.net) – Germany’s Federal Constitutional Court has rendered two seminal judgments that impose substantial limitations on the deployment of state surveillance software—commonly referred to as ‘Staatstrojaner’ — while broadly affirming the legality of statutory provisions governing digital monitoring by police and prosecutorial authorities. The rulings, designated ‘Trojaner I’ and ‘Trojaner II,’ uphold the constitutionality of the majority of the contested regulations, though a number of provisions were declared incompatible with the Basic Law.
In ‘Trojaner I,’ the Court reviewed the Police Act of North Rhine-Westphalia, with particular focus on its authorization of covert surveillance measures, including source telecommunications monitoring. The constitutional complaint was dismissed on the grounds that the claimants failed to substantiate a credible infringement of fundamental rights. The Court concluded that the contested provisions were consistent with constitutional standards. Conversely, ‘Trojaner II’ addressed procedural powers within criminal proceedings. The Court partially granted the complaint, ruling that surveillance measures applied to lesser offenses — those punishable by a maximum of three years’ imprisonment — were disproportionate and therefore unconstitutional. Accordingly, the provision permitting covert access to ongoing communications in such cases was annulled.
The Court also scrutinized the legal framework for online searches of entire IT systems. Although the relevant provision was found to be constitutionally deficient due to its failure to explicitly safeguard essential fundamental rights, it remains temporarily valid pending legislative amendment. Despite these targeted restrictions, the Court reaffirmed the general permissibility of both preventive and procedural surveillance mechanisms, provided they are employed in response to serious criminal conduct and are subject to rigorous legal safeguards. The use of investigative spyware, which has been in practice since 2017 and challenged by civil society groups, must now adhere to the clarified constitutional boundaries established by the Court.
