CASE OF KLASS AND OTHERS v. GERMANY
(Application no. 5029/71)
In the case of Klass and others,
The European Court of Human Rights, taking its decision in plenary session in application of Rule 48 of the Rules of Court and composed of the following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. H. MOSLER,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. P. O’DONOGHUE,
Mr. Thór VILHJÁLMSSON,
Mr. W. GANSHOF VAN DER MEERSCH,
Sir Gerald FITZMAURICE,
Mrs D. BINDSCHEDLER-ROBERT,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
and also Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 11, 13 and 14 March, and then on 30 June, 1, 3 and 4 July 1978,
Delivers the following judgment, which was adopted on the last- mentioned date:
Mr. Balladore Pallieri assumed the office of president of the Chamber in accordance with Rule 21 para. 5.
There appeared before the Court:
- for the Government:
Mrs. I. MAIER, Ministerialdirigentin
at the Federal Ministry of Justice, Agent,
Mr. H. G. MERK, Ministerialrat
at the Federal Ministry of the Interior,
Mr. H. STÖCKER, Regierungsdirektor
at the Federal Ministry of Justice,
Mrs. H. SEIBERT, Regierungsdirektorin
at the Federal Ministry of Justice, Advisers;
- for the Commission:
Mr. G. SPERDUTI, Principal Delegate,
Mr. C. A. NØRGAARD, Delegate,
Mr. H.-J. POHL, Applicant, assisting the Delegates
under Rule 29 para. 1, second sentence.
The Court heard addresses by Mrs. Maier for the Government and by Mr. Sperduti, Mr. Nørgaard and Mr. Pohl for the Commission, as well as their replies to questions put by several members of the Court.
AS TO THE FACTS
All five applicants claim that Article 10 para. 2 of the Basic Law (Grundgesetz) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as "the G 10"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court (Bundesverfassungsgericht).
Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.
"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..." (ibid, pp. 16-17).
On this point, the Agent of the Government made the following declaration before the Court:
"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission’s approval, authorised me to make the following statement:
At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure."
The contested legislation
The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:
"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective."
"(1) Secrecy of the mail, post and telecommunications shall be inviolable.
(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives."
Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult (aussichtslos oder wesentlich erschwert). The surveillance may cover only "the suspect or such other persons who are, on the basis of clear facts (bestimmter Tatsachen), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use" (sub-paragraph 2).
The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).
Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).
The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).
The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court’s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).
The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.
The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.
For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.
"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures."
The official statement of reasons accompanying the Bill contains the following passage in this connection:
"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...
The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ..." (Bundestag document V/1880 of 13 June 1967, p. 8).
The Agent of the Government admitted that this remedy might be employed only on rare occasions.
Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor’s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).
These provisions are not, however, in issue in the present case.
PROCEEDINGS BEFORE THE COMMISSION
On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:
"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25)."
"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.
As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims."
The Commission then expressed the opinion:
- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion "civil rights";
- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion "criminal charge";
- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).
The report contains various separate opinions.
"I ... invite the Court
to find that the application was inadmissible;
in the alternative, to find that the Federal Republic of Germany has not violated the Convention."
She repeated these concluding submissions at the hearing on 10 March 1978.
"May it please the Court to say and judge
1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘victims’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;
2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them."
AS TO THE LAW
I. ON ARTICLE 25 PARA. 1 (art. 25-1)
"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ..."
In the Government’s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.
The Delegates considered that the Government were requiring too rigid a standard for the notion of a "victim" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.
The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.
The present case concerns, inter alia, the interpretation of the notion of "victim" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).
The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.
36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.
In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:
"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..."
This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).
The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.
At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent’s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants’ status as "victims".
Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.
II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of "private life" and "correspondence" referred to by this provision.
In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual’s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an "interference by a public authority" with the exercise of the applicants’ right to respect for private and family life and for correspondence.
The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person’s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.
On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.
Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.
The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court’s judgment of 15 December 1970, must therefore be examined in the light of the Convention.
Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).
As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).
The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).
It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the "interference" resulting from the contested legislation to what is "necessary in a democratic society".
The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.
Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.
The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.
The applicants’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.
In the Government’s view, the subsequent notification which must be given since the Federal Constitutional Court’s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).
The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court’s view, in so far as the "interference" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the "interference". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court’s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).
The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.
The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, "Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.
III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.
In the Court’s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.
The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).
IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) - assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.
As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.
The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).
The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated.
FOR THESE REASONS, THE COURT
1. holds unanimously that it has jurisdiction to rule on the question whether the applicants can claim to be victims within the meaning of Article 25 (art. 25) of the Convention;
2. holds unanimously that the applicants can claim to be victims within the meaning of the aforesaid Article (art. 25);
3. holds unanimously that there has been no breach of Article 8, Article 13 or Article 6 (art. 8, art. 13, art. 6) of the Convention.
Done in French and English, both texts being authentic, at the Human Rights Building, Strasbourg, this sixth day of September, nineteen hundred and seventy-eight.
For the President
On behalf of the Registrar
The separate opinion of Judge PINHEIRO FARINHA is annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
I agree with the judgment’s conclusions, but on different grounds.
1. The G 10 Act specifies, in Article 1 para. 1, the cases in which the competent authorities may impose restrictions, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. It empowers those authorities so to act, inter alia, in order to protect against "imminent dangers" threatening the "free democratic constitutional order", "the existence or the security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic and the security of "the troops of one of the Three Powers stationed in the Land of Berlin". According to Article 1 para. 2, these measures may be taken only where there are factual indications (tatsächliche Anhaltspunkte) for suspecting a person of planning, committing, or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5) (see paragraph 17 of the judgment).
For all those persons to whom the G 10 can be applied, the mere facts of its existence creates a very real menace that their exercise of the right to respect for their private and family life and their correspondence may be the subject of surveillance.
Clearly, therefore, a person may claim to be a victim for the purposes of Article 25 (art. 25) of the Convention. Consequently, the applicants have a direct interest (Jose Alberto dos Reis, Codigo do Processo Civil Anotado, vol. 1, p. 77), which is an ideal condition (Carnelutti, Sistemo del diritto processuale civile, vol. 1, pp. 361 and 366) for an application to the Commission.
In my view, the applicants are the victims of a menace and for this reason can claim to be victims within the meaning of Article 25 (art. 25).
2. I would mention in passing one point of concern, namely, that the majority opinion, contained in paragraph 56, could take the interpretation of Article 8 (art. 8) in a direction which, if I may say so, might not be without risk.
The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence, each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2) (see paragraph 18 of the judgment).
Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1) (see paragraph 20 of the judgment).
I believe that separation of powers is a basic principle of a democratic society and that, since the measures can be ordered where there are mere factual indications that criminal acts are about to be or are in the course of being committed, this principle requires that the measures be ordered by an independent judge - as was in fact contemplated by the German legislature (see paragraph 22 of the judgment).
I have difficulty in accepting that the political authority may decide by itself whether there exist factual indications that criminal acts are about to be or are in the course of being committed.
3. Acting in the general interest, the States, as the High Contracting Parties, safeguard the Convention against any breaches attributable to another State; such breaches can consist in the danger and threat to democracy which the publication of a law in itself may pose.
In cases originating in an application by individuals, it is necessary to show, in addition to the threat or danger, that there has been a specific violation of the Convention of which they claim to be the victims.
There is no doubt that a law can in itself violate the rights of an individual if it is directly applicable to that individual without any specific measure of implementation.
This is the case with a law which denies those who reside in a particular area access to certain educational establishments, and with a law which makes sex education one of the compulsory subjects on the curriculum: these laws are applicable without the need for any implementing measure (see the "Belgian Linguistic" case and the Kjeldsen, Busk Madsen and Pedersen case).
The same does not hold true for the German G 10.
The Act certainly makes provision for telephone-tapping and inspection of mail, although it delimits the scope of such measures and regulates the methods of enforcing them.
Surveillance of an "exploratory" or general kind is not, however, authorised by the legislation in question. If it were, then the Act would be directly applicable.
Instead, the measures cannot be applied without a specific decision by the supreme Land authority or the competent Federal Minister who must, in addition, consider whether there exist any factual indications that a criminal act is about to be or is in the course of being committed.
Thus, only where a surveillance measure has been authorised and taken against a given individual does any question arise of an interference by a public authority with the exercise of that individual’s right to respect for his private and family life and his correspondence.
So far as the case sub judice is concerned, on the one hand, the applicants do not know whether the G 10 has in fact been applied to them (see paragraph 12 of the judgment) and, on the other hand, the respondent Government state - and we have no reason to doubt this statement - that "at no time have surveillance measures provided for by the Act passed in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants.
The applicants have not been subjected to such measures either as persons suspected of one or more of the offences specified in the Act or as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10.
There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification.
Finally, there is no question of the applicants’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure" (see paragraph 13 of the judgment).
The Court may take into consideration only the case of the applicants (Engel and others judgment of 8 June 1976, Series A no. 22, p. 43, para. 106) and not the situation of other persons not having authorised them to lodge an application with the Commission in their name.
These are the reasons which lead me to conclude, as the Court does, that the case sub judice does not disclose any violation of the Convention.