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BVerwG 6 C 11.18 of 14 December 2020
https://www.bverwg.de/141220U6C11.18.0
After 38 years of „constitutional protection“ surveillance and 15 years of proceedings, finally a legally binding conclusion: On 14 December 2020, the 6th Senate of the Federal Administrative Court (BVerwG) dismissed the appeal of the defendant Federal Republic of Germany in the legal dispute between Dr Gössner and the Federal Office for the Protection of the Constitution (BfV) in its entirety as unfounded (see our press release of 17 December 2020). After 3 months, the 37-page grounds for the judgement are now available, the core statements of which will be presented below in order to subsequently derive legal policy demands.
With this judgement, the Federal Administrative Court rejected the substantive and procedural objections that the defendant BfV had raised in its appeal against the appeal judgement of the Higher Administrative Court of North Rhine-Westphalia (2018) (including for allegedly interpreting its intelligence service powers too narrowly and for „contrary to the file“ and „arbitrary“ assessment of evidence). The BVerwG thus confirmed the judgements of the two lower courts and made them legally binding:
1. the lawyer, publicist and civil rights activist Rolf Gössner was wrongly under decades-long surveillance by the BfV, which was not authorised to keep a personal file on him (which comprises over 2,000 pages and the content of which is still largely kept secret to this day for reasons of the „good of the state“ and „source protection“).
2) In his writings, speeches and discussions critical of the state and society, the plaintiff at no time held anti-constitutional views, nor did he pursue such goals or engage in such activities. The BVerwG thus contradicts the defamatory allegations of the „Office for the Protection of the Constitution“, which had declared the plaintiff to be an enemy of the constitution and the state because of his writings, speeches and professional contacts.
3. the decades-long observation of Gössner based on „factual indications“ of „emphatic support for anti-constitutional endeavours“ was, according to the BVerwG, „grossly inappropriate“.
4 Thus, it is finally certain that the BfV violated the plaintiff’s fundamental rights to informational self-determination, freedom of opinion, freedom of the press and freedom of profession for decades, and the Federal Ministry of the Interior, which has official and technical supervision, allowed the BfV to do so.
5 According to the BVerwG, the associated long-lasting and serious encroachments on fundamental rights „continue to have considerable weight, justifying the plaintiff’s interest in rehabilitation without further ado“ (RN 14). With this judgement, Rolf Gössner has finally been legally rehabilitated.
However, legal rehabilitation cannot be everything in view of this scandalous surveillance case. As far as can be seen, no state security organisation has ever been certified by the highest court for such a long-lasting breach of fundamental rights against a citizen of this country. To make matters worse, the person under surveillance is a dual holder of professional secrets – professional secrets as a lawyer and publicist, which could not be guaranteed for decades under the conditions of targeted state surveillance. The constitutionally protected relationship of trust between lawyer and client and between journalist and informant has been permanently shattered as a result.
The plaintiff Dr Rolf Gössner, member of the board of trustees of the International League for Human Rights, sees the judgements of the Federal Administrative Court and the lower courts as a „judicial victory over intelligence service control of opinion, defamation and arbitrariness as well as over anti-democratic patterns of thought, interpretation and action of a state security body. These are clear decisions in favour of freedom of opinion, freedom of the press, freedom to choose one’s profession and informational self-determination. It is now urgent to draw legal policy conclusions from this secret service scandal.“
Dr Udo Kauß , lawyer in Freiburg, Chairman of the Humanist Union / LV Baden-Württemberg, which is supporting the trial.
Dr Rolf Gössner , member of the board of trustees of the International League for Human Rights, which, together with other civil rights organisations, politicians, writers and artists, protested against his surveillance by the secret service.