the complainants had really sought to achieve was a constitutional review in the abstract.
Yet the Court arrived at the following:
“As to the facts of the particular case, the Court observes that the contested legislation institutes a
system of surveillance under which all persons in the Federal Republic of Germany can potentially have
their mail, post and telecommunications monitored, without their ever knowing this […]. To that extent,
the disputed legislation directly affects all users or potential users of the postal and telecommunication
services in the Federal Republic of Germany. Furthermore […] this menace of surveillance can be
claimed in itself to restrict free communication through the postal and telecommunication services,
thereby constituting for all users or potential users a direct interference with the right guaranteed by
Article 8 (art. 8). […] Having regard to the specific circumstances of the present case, the Court
concludes that each of the applicants is entitled to "(claim) to be the victim of a violation" of the
Convention, even though he is not able to allege in support of his application that he has been subject to
a concrete measure of surveillance. [Case of Klass and Others v. Germany (Application no. 5029/71)
Judgment of 6 September 1978, pp. 37-38.]
1.3. Even though the fact that all individuals potentially under surveillance are affected by
the provisions contested herein stands demonstrated by analogy, we nonetheless wish to
emphasize that, by virtue of our profession, we are affected by the possibility of
surveillance even more directly than is generally the case. We are both members of the
staff of the Eötvös Károly Institute, a watchdog organization dedicated to scrutinizing the
government that be using the civilian means at our disposal. We regularly voice harsh
criticism of the government’s measures that dismantle constitutionalism. [Cf. for instance
the volume entitled Az elveszejtett alkotmány (“Constitution Lost”, Eötvös Károly Institute:
Budapest, 2011) and various positions drafted in collaboration with other watchdogs at
http://www.alaptorveny.eu.] In this capacity, we are even more susceptible than the
average citizen to being coerced into conformity by acts of actual or potential covert
surveillance perpetrated by executive power.
1.4. When surveillance is made known to the public for any reason, it obviously cannot be
covert by definition. Consequently, covert intelligence must be regarded as clearly distinct
from the problem of stockpiling personal data for records, particularly in respect of the
possibility of vindicating or enforcing certain rights. And because there can be no doubt
that covert surveillance does happen, no remedy against them can be considered actually
existing unless potential targets are recognized as being affected for purposes of a
constitutional complaint. Should the Constitutional Court nevertheless determine the
absence of personal, effective, and direct influence in spite of the precedents in the practice
of courts in Karlsruhe and Strasbourg as discussed above, this would entirely remove legal
protection from the sphere of life as well as minimize any risk of being held accountable
for a violation in this context. (Here we refrain from addressing in detail the problem that
the powers of the National Authority for Data Protection and Freedom of Information and the
Parliamentary Committee for National Security do not even come close to presenting an alternative
to the constitutional complaint, nor do they afford ancillary legal protection for the type of case
contemplated here. Of course, we will be ready to elaborate an argument to this effect should the
Honorable Constitutional Court deem it necessary.)