Information on Parties
Information for providers
on Parties to Budapest Convention
Partnership agreement with providers
Powers to request information
Production order
In the sense of Article 18 of the Budapest Convention
Competent authority
- Article 18 (1) lit. a:
Stored data -> Public Prosecutor or Court
Subscriber data -> Police / Public Prosecutor or Court
- Article 18 (1) lit. b: Court, in cases of emergency not concerning mandatorily retained data: Public Prosecutor.
Basis in law
Regarding stored data:
Instead of seizing the storage media, stored data can be obtained by an order to produce the relevant storage media according to Section 95 Code of Criminal Procedure.If different for subscriber information
Regarding subscriber data:
The collection of subscriber information in the form of customer data, including a subscriber’s name and address and assigned subscriber numbers and identification codes, is permitted in the case of telecommunications undertakings, provided that this is required for investigation of the case or determination of the suspect’s whereabouts (Section 100j, Code of Criminal Procedure). This applies only if - as in the case of all criminal procedural measures - there is an initial suspicion of a criminal offence.
A court order is not required.
If different for traffic data
Traffic data may be obtained through a production order in accordance with Section 100g Code of Criminal Procedure.
In case of Section 100g (1) of the above Code, this requires the suspicion of either:
- a criminal offence which qualifies as significantly important - not only with regard to the general definition of the offence in question (which would particularly apply to offences listed in Section 100a (2) of the Code of Criminal Procedure), but also with regard to the circumstances of the individual case –
- or a criminal offence using telecommunications
has been committed.
If the measure refers to traffic data which must be stored by the telecommunications undertakings over a certain period in accordance with the Act introducing a storage obligation to store data and a maximum retention period for traffic data, which entered into force on 18 December 2015, collection is permitted only in the case of particularly serious criminal offences within the meaning of the offences listed in Section 100g (2) of the above Code.Form
As a rule, all orders need to be issued in written form.
Preservation order
In the sense of Articles 16 and 17 of the Budapest Convention
Competent authority
See above
Basis in law
Stored data may be secured not only by a production request (see above), but also by seizing the storage media. In accordance with Sections 94 and 98 of the Code of Criminal Procedure. This requires that a criminal offence is suspected. Further, the fact that the data may be of importance as evidence for the investigation must be substantiated.
As a rule, seizing storage media requires that a court order has been issued. In exigent circumstances, seizure may also be ordered by the public prosecutor’s office and the police (first sentence of Section 98(1), Code of Criminal Procedure).
Sections 94 and 98 of the Code of Criminal Procedure do not apply to measures aiming to obtain traffic data from a provider of telecom services; in such cases, Section 100g of the Code of Criminal Procedure will apply (see Article 18).
If different for subscriber information
Providers of telecom services are generally obliged to record subscriber data according to the Telecommunications Act. For obtaining subscriber data, see above, Section 100j of the Code of Criminal Procedure Law
If different for traffic data
With regard to traffic data, preservation will – to a certain extent – be generally mandatory according to the Act introducing a Storage Obligation and a Maximum Storage Period for Traffic Data, which entered into force on 18 December 2015. The act lays down a storage period for traffic data, which are defined more closely in the Telecommunications Act, of four or ten weeks.
For obtaining traffic data, see above, Section 100j of the Code of Criminal Procedure
Form
see above
Emergency situations
Definition of emergency situation
An emergency situation requires the possibility that the delay resulting from obtaining a court order will endanger the success of the measure in question
Obligation to cooperate
Where there is a specific provision for investigative measures in emergency situations, all obligations which are usually related to such measures will equally apply under the emergency regime.
Confidentiality obligation
Obligation of secrecy
Pursuant to section 67 (1) of the Act on Federal Civil Servants (BBG) civil servants shall maintain confidentiality concerning official matters of which they become aware in the course of their official activity. This obligation applies to federal judges, federal public prosecutors and police officers.
Equivalent, but slightly different provisions may apply to the judges and public prosecutors of the Länder (states of the Federal Republic).
Non respect of the obligation of secrecy
According to section 353b of the Criminal Code (StGB) a public official who unlawfully discloses a secret which has been confided to him and thereby causes the danger to important public interests shall be liable to imprisonment not exceeding five years or a fine. In addition, disciplinary sanctions may be imposed.
Exception
What are the exceptions to this obligation?
Under 67 BBG the following exceptions to the confidentiality obligation are made:
- where official communications are required,
- to information shared that is common knowledge or that by its nature does not require confidentiality, or
- to reasonable suspicion of corruption under Sections 331 through 337 of the Criminal Code (StGB) reported to the responsible highest service authority, a law enforcement agency or other agency or non-service body designated by the highest service authority.
Data protection agreements
European Union Member States/ Adequacy
No
Convention 108
No
Additional Protocol ETS 181 to Convention 108
No
Domestic legal framework on data protection
No
Remedies
Measures based on a court decision can be challenged by a complaint. Further, persons concerned by a decision of the police or the prosecutor can request the subsequent examination of that decision by a court.
Safeguards
See above (regarding measure only permissible on the basis of a court decision).
Sources and links
- German Criminal Code (StGB)
- Code of Criminal Procedure (StPO)
- Act on Federal Civil Servants (BBG)
https://www.gesetze-im-internet.de/englisch_stpo/index.html (not yet reflection the Act introducing a Storage Obligation and a Maximum Storage Period for Traffic Data, which entered into force on 18 December 2015)
These profiles do not necessarily reflect official positions of the States covered or of the Council of Europe.