RSF and GFF file complaint against Germany and its Federal intelligence Service Act at the European Court of Human Rights
Reporters Without Borders (RSF) and the Gesellschaft für Freiheitsrechte (GFF) - The Society of Civil Rights - have filed a complaint with the European Court of Human Rights (ECtHR) against Germany for its Federal Intelligence Service Act (BND Act). The organisations are reacting to inadequate reforms to the law, which does not take sufficient account of the necessary protection of media professionals. The decision could be a landmark judgement that would not only have an impact on the legal situation in Germany, but also trigger legal upgrades in all member states of the Council of Europe.
Media professionals are exposed to surveillance measures that do not fulfil the requirements of the ECtHR's case law. Faced with the risks of abusive interceptions given the nature of their activity and the fact that German laws do not sufficiently protect the confidentiality of their correspondence with sources, nor do they offer any satisfactory remedy to contest such interceptions, RSF together with GFF and several other complainants including media professionals and human rights defenders, are filing a complaint against Germany and its Federal Intelligence Service Act before the European Court of Human Rights.
In the opinion of RSF and GFF, the German foreign intelligence service violates several fundamental human rights under the European Convention on Human Rights (ECHR). Following the provisions of the ECHR and the Court's case law, intelligence gathering must have precisely identifiable objectives and may only be used for specific purposes, confidentiality relationships between media professionals and their sources require special protection and an intelligence service may only store the information obtained for specific occasions and for a limited period of time. Even more, anyone who suspects that they have been monitored must have an effective opportunity to demand an independent review. The BND Act does not fulfil these requirements. In sum, the provisions of the BND Act do not provide sufficient protection against violations of the right to information and freedom of the press (Article 10), the right to lodge an effective complaint (Article 13) and the right to respect for private and family life (Article 8).
"The BND Act still enables the broad surveillance of media professionals, especially outside of Germany, and thus jeopardises the freedom of the press. RSF is therefore appealing to the European Court of Human Rights to review the BND Act's effects on press freedom. The provisions of the European Convention on Human Rights on the protection of freedom of the press and the right to information must be observed in Germany. There is a serious protection gap, it must be filled, it’s a question of consistency and effectiveness,’
“At times of major challenges to journalism, we expect Germany to lead by example in sticking to the highest European principles. Also as an EU member state bound by the new European Media Freedom Act (EMFA), Germany’s obligation to protect journalists from undue surveillance justifies serious upgrade in legal protection. We call on the German authorities to trigger fast legal adaptation in line with their commitment to effective protection of press freedom and citizens’ right to information
Faced with the lack of explanation from the German judiciary, the European step
In 2020, RSF and GFF won a much-noticed case before the German Federal Constitutional Court, which declared large parts of the BND's foreign surveillance to be contrary to fundamental rights and imposed on the legislator to provide special protection for the communications of foreign media professionals. Subsequent reforms to the BND Act, however, clearly failed to meet the requirements of the judgement in some cases and resulted in new unconstitutional regulations. At the end of 2022, RSF and GFF filed another constitutional complaint against the BND Act in Karlsruhe. As the court did not accept this complaint for decision in November of this year - without explanation - RSF and GFF are now appealing to the ECtHR.
In addition to RSF Germany and the GFF, Paris-based RSF International is also one of the plaintiffs. Other applicants include media professionals and human rights defenders from Germany, EU and non-EU countries, including Meron Estefanos (Sweden), Goran Lefkov (North Macedonia), Dragana Pećo (Serbia), Kerem Schamberger (Germany) as well as the independent journalist and former RSF fellow Elif Akgül (Turkey). She is held in arbitrary pre-trial detention in Turkey since February 18th. The constitutional complaint was written by Prof Dr Matthias Bäcker from Johannes Gutenberg University Mainz, with the advice of lawyer Stephanie Motz.
The current complaint to the ECtHR is a further building block in the endeavours of RSF and GFF to measure intelligence service surveillance activities against human rights standards. This also includes the first pending complaint filed by RSF with the ECtHR against the BND in 2017, which was accepted for decision in January 2021. RSF claims, among other things, that the right to an effective remedy has been violated. It has not yet been decided when the ECtHR will rule on this.
