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> The entire population of Afghanistan was biometrically catalogued -- supported by the German Bundeswehr. I wonder if an affected individual could bring this

by lucb1e 4y ago

> The entire population of Afghanistan was biometrically catalogued -- supported by the German Bundeswehr. I wonder if an affected individual could bring this before the European Court of Human Rights for privacy (article 8 ECHR).

codetrotter 4y ago
Seems that article 8 of ECHR could be relevant indeed. > S and Marper v United Kingdom [2008] ECHR 1581 – Retention of DNA information in respect of persons arrested but not convicted of an offence was held to breach Article 8. https://en.wikipedia.org/wiki/Article_8_of_the_European_Convention_on_Human_Rights https://en.wikipedia.org/wiki/Article_8_of_the_European_Conv... (section “Case law”)
lucb1e 4y ago
To add a bit, obviously this was outside of Germany's borders and direct jurisdiction. Does that mean a German citizen can use German public money to perform actions that are against the convention on human rights abroad? And, similar to how the getaway vehicle provider gets a different sentence than the mastermind who also held the gun, probably there is reduced responsibility here. But is there none at all? And all this is still besides the question whether the employment was necessary and the least-invasive method possible. If you can prove a need greater than the lost privacy, as well as the lack of an alternative option, if I understand how the system works correctly, then it's perfectly legal also inside of Germany.
- Grollicus 4y ago
  German law knows no jurisdiction boundary for german citizens. A german that breaks german law but can't be charged in the country were they did it can still be charged in germany. (Weltrechtsprinzip)
  - davrosthedalek 4y ago
    The Weltrechtsprinzip only applies for a limited set of laws. I am not sure this would fall under them.
    - xcambar 4y ago
      Also, the Weltrechtsprinzip doesn't seem to be specific to Germany. Is there something in its German flavor that is remarkable?
    - Xylakant 4y ago
      The list of laws can be found here (German) https://de.m.wikipedia.org/wiki/Weltrechtsprinzip https://de.m.wikipedia.org/wiki/Weltrechtsprinzip and almost certainly does not cover this. However, you could try to argue that § 5 StGB 12 (Auslandstaten mit besonderem Inlandsbezug) applies https://www.gesetze-im-internet.de/stgb/__5.html https://www.gesetze-im-internet.de/stgb/__5.html “Taten, die ein deutscher Amtsträger oder für den öffentlichen Dienst besonders Verpflichteter während eines dienstlichen Aufenthalts oder in Beziehung auf den Dienst begeht” Now, all of this first requires that a crime was committed - and that’s not even clear. If the collection happened on the basis of a law, doing the collection would not be a crime. The article shows no proof that the Bundeswehr mishandled the data.
eloy 4y ago
No, because Afghanistan is not a member of the Council of Europe and has no jurisdiction there.
- 3np 4y ago
  Assuming the claim is true: How about those in the dataset who are now EU residents? How about EU citizens?
- malermeister 4y ago
  The Bundeswehr, however, is a part of the German state, which is a member. They are still bound to their treaties.
- samus 4y ago
  Afghan jurisdiction is irrelevant. The aim would be for the case to be tried by a German court.
codethief 4y ago
…or before the German Constitutional Court[0], given that the German government is bound by the German constitution (which includes a right to privacy / informational self-determination[1]). [0]: https://en.wikipedia.org/wiki/Federal_Constitutional_Court https://en.wikipedia.org/wiki/Federal_Constitutional_Court [1]: https://en.wikipedia.org/wiki/Informational_self-determination https://en.wikipedia.org/wiki/Informational_self-determinati...
- Xylakant 4y ago
  You can’t just bring stuff before the German constitutional court in most cases. The court is no ordinary court, it does not judge on cases. It judges on whether a decision of an ordinary court or a law violated your constitutional rights. So you’d have to bring this to a normal court first, go through the appellate process and then, maybe, the constitutional court will accept your case.
  - lhoff 4y ago
    That is not entirely true. There is the „Verfassungsbeschwerde“. There are limitations in place that boil down to three criteria that have to be met. The complainant has to be personally, currently and immediately effected. The later is the criteria that is fulfilled if you were convicted. That’s why a lot of decisions of the court are part of an ongoing process. However a decision of a lower court is not the only way to fulfill that criteria. A recent example is the decision regarding the climate protection act https://en.m.wikipedia.org/wiki/Verfassungsbeschwerde https://en.m.wikipedia.org/wiki/Verfassungsbeschwerde
    - Xylakant 4y ago
      Hence I wrote “in most cases”. Note that the Verfassungsbeschwerde in the climate protection case argued that the state failed to create sufficient laws to protect constitutional rights (sorry, edit, I recalled that wrong): the challenge was actually directed at a specific law, arguing that the law is insufficient to protect constitutional right. It was partially successful in that regard. https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2021/bvg21-031.html https://www.bundesverfassungsgericht.de/SharedDocs/Pressemit... This, however, is unlikely to be a successful line of arguing here: A law exists, and I doubt the affected afghan people would like to challenge that law’s constitutionality. (Sidetrack): there are more cases where you can appeal directly to the Verfassungsgericht. A relatively common case is when the police forbids or severely limits demonstrations and time is to short for a regular court to make a decision. This is still similar to going through the ordinary courts, because you’re challenging the constitutionality of a state-actor decision.
curiousgal 4y ago
Well you know, they hate us for our freedom ...
deleted 4y ago
[deleted]

by lucb1e 4y ago

codetrotter 4y ago

Seems that article 8 of ECHR could be relevant indeed. > S and Marper v United Kingdom [2008] ECHR 1581 – Retention of DNA information in respect of persons arrested but not convicted of an offence was held to breach Article 8. https://en.wikipedia.org/wiki/Article_8_of_the_European_Convention_on_Human_Rights https://en.wikipedia.org/wiki/Article_8_of_the_European_Conv... (section “Case law”)

lucb1e 4y ago

To add a bit, obviously this was outside of Germany's borders and direct jurisdiction. Does that mean a German citizen can use German public money to perform actions that are against the convention on human rights abroad? And, similar to how the getaway vehicle provider gets a different sentence than the mastermind who also held the gun, probably there is reduced responsibility here. But is there none at all? And all this is still besides the question whether the employment was necessary and the least-invasive method possible. If you can prove a need greater than the lost privacy, as well as the lack of an alternative option, if I understand how the system works correctly, then it's perfectly legal also inside of Germany.

Grollicus 4y ago
German law knows no jurisdiction boundary for german citizens. A german that breaks german law but can't be charged in the country were they did it can still be charged in germany. (Weltrechtsprinzip)
- davrosthedalek 4y ago
  The Weltrechtsprinzip only applies for a limited set of laws. I am not sure this would fall under them.
  - xcambar 4y ago
    Also, the Weltrechtsprinzip doesn't seem to be specific to Germany. Is there something in its German flavor that is remarkable?
  - Xylakant 4y ago
    The list of laws can be found here (German) https://de.m.wikipedia.org/wiki/Weltrechtsprinzip https://de.m.wikipedia.org/wiki/Weltrechtsprinzip and almost certainly does not cover this. However, you could try to argue that § 5 StGB 12 (Auslandstaten mit besonderem Inlandsbezug) applies https://www.gesetze-im-internet.de/stgb/__5.html https://www.gesetze-im-internet.de/stgb/__5.html “Taten, die ein deutscher Amtsträger oder für den öffentlichen Dienst besonders Verpflichteter während eines dienstlichen Aufenthalts oder in Beziehung auf den Dienst begeht” Now, all of this first requires that a crime was committed - and that’s not even clear. If the collection happened on the basis of a law, doing the collection would not be a crime. The article shows no proof that the Bundeswehr mishandled the data.

eloy 4y ago

No, because Afghanistan is not a member of the Council of Europe and has no jurisdiction there.

3np 4y ago
Assuming the claim is true: How about those in the dataset who are now EU residents? How about EU citizens?
malermeister 4y ago
The Bundeswehr, however, is a part of the German state, which is a member. They are still bound to their treaties.
samus 4y ago
Afghan jurisdiction is irrelevant. The aim would be for the case to be tried by a German court.

codethief 4y ago

…or before the German Constitutional Court[0], given that the German government is bound by the German constitution (which includes a right to privacy / informational self-determination[1]). [0]: https://en.wikipedia.org/wiki/Federal_Constitutional_Court https://en.wikipedia.org/wiki/Federal_Constitutional_Court [1]: https://en.wikipedia.org/wiki/Informational_self-determination https://en.wikipedia.org/wiki/Informational_self-determinati...

Xylakant 4y ago
You can’t just bring stuff before the German constitutional court in most cases. The court is no ordinary court, it does not judge on cases. It judges on whether a decision of an ordinary court or a law violated your constitutional rights. So you’d have to bring this to a normal court first, go through the appellate process and then, maybe, the constitutional court will accept your case.
- lhoff 4y ago
  That is not entirely true. There is the „Verfassungsbeschwerde“. There are limitations in place that boil down to three criteria that have to be met. The complainant has to be personally, currently and immediately effected. The later is the criteria that is fulfilled if you were convicted. That’s why a lot of decisions of the court are part of an ongoing process. However a decision of a lower court is not the only way to fulfill that criteria. A recent example is the decision regarding the climate protection act https://en.m.wikipedia.org/wiki/Verfassungsbeschwerde https://en.m.wikipedia.org/wiki/Verfassungsbeschwerde
  - Xylakant 4y ago
    Hence I wrote “in most cases”. Note that the Verfassungsbeschwerde in the climate protection case argued that the state failed to create sufficient laws to protect constitutional rights (sorry, edit, I recalled that wrong): the challenge was actually directed at a specific law, arguing that the law is insufficient to protect constitutional right. It was partially successful in that regard. https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2021/bvg21-031.html https://www.bundesverfassungsgericht.de/SharedDocs/Pressemit... This, however, is unlikely to be a successful line of arguing here: A law exists, and I doubt the affected afghan people would like to challenge that law’s constitutionality. (Sidetrack): there are more cases where you can appeal directly to the Verfassungsgericht. A relatively common case is when the police forbids or severely limits demonstrations and time is to short for a regular court to make a decision. This is still similar to going through the ordinary courts, because you’re challenging the constitutionality of a state-actor decision.

curiousgal 4y ago

Well you know, they hate us for our freedom ...

deleted 4y ago

[deleted]