Edited by Martin Scheinin, Helle Krunke and Marina Aksenova
Chapter 6: The judiciary and the surveillance state: general trends and German experiences
Professor Wolfgang Hoffmann-Riem, former judge of the Federal Constitutional Court of Germany. The author introduces the well-known tension between freedom and security, even if both are central pillars of democratic states based on the rule of law. As a manifestation of this tension he introduces the notion of the ‘prevention state’. It is no longer enough to simply avert concrete threats; preventing them from even coming into existence has become a primary state responsibility. This is an important dimension of the current reliance on surveillance. The author outlines several ways in which the judiciary can act as a guardian of constitutionalism and human rights. From the experience of the German Constitutional Court he names, in particular, three dimensions: (1) By expanding the criteria for legal standing, courts can support citizens to address the phenomenon of secret surveillance where there is no proof of someone individually being subject to such pracices. (2) The judiciary is in a position to keep an eye that the aims for which surveillance is conducted remain constitutionally permissible, despite the evolution of threats and technologies. (3) The courts will need to rely on multiple provisions on fundamental rights in order to provide effective protection in respect of surveillance. The author acknoledges that when a court corrects the legislature in respect to its attempt to balance freedom and security, it is intervening in politics. That said, this is no differenent from what always occurs in connection with judicial review by constitutional courts, and it should be remembered that even a judicial decision that does not overturn a law as unconstitutional equally has political implications. The author closes with a confident note that despite its extensive review over the constitutionality of laws, the German Constitutional Court has through its rulings gathered strong legitimacy and acceptance, including among media, academia and politicians.
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