WEBER AND SARAVIA v. GERMANY DECISION
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finding was not called into question by the fact that the initial collection of
data by means of the random interception of telecommunications in order to
prevent or investigate offences, without any prior suspicion of a specific
offence being planned or having been committed, would breach Article 10.
40. However, in the opinion of the Federal Constitutional Court, the
transmission of data under section 3(5), first sentence, in its present version,
disproportionately interfered with the right to secrecy of
telecommunications and freedom of the press. The transmission of data
constituted a further serious interference with the secrecy of
telecommunications, because criminal investigations could be instituted
against persons concerned by the interception of telecommunications which
had been carried out without any prior suspicion of an offence.
Consequently, such transmission was proportionate only if it served the
protection of an important legal interest and if there was a sufficient factual
basis for the suspicion that criminal offences were being planned or had
been committed.
41. Section 3(5), first sentence, read in conjunction with section 3(3),
did not fully comply with these requirements.
42. The catalogue of offences in respect of which the transmission of
data was permitted also included less serious offences such as fraud relating
to economic subsidies. Moreover, the impugned provision authorised the
transmission of data in cases in which there were merely factual indications
for the suspicion that one of the offences listed in that provision had been
committed or was even only being planned. The transmission of data for the
investigation of an offence which had already been committed was to be
authorised only if the factual basis for the transmission was the same as that
required by Article 100a of the Code of Criminal Procedure. Article 100a
provided, however, that interferences with the secrecy of
telecommunications in order to investigate crimes required the presence of
specific facts – as opposed to mere factual indications – warranting the
suspicion that the person concerned had committed an offence listed in that
provision. As regards the transmission of data for the prevention of crime,
the combination of the following elements led to a disproportionate
interference with the fundamental rights affected: the fact that mere factual
indications were sufficient, that the mere planning of an offence could
suffice, and that transmission could also be justified in the case of less
serious offences.
43. The Federal Constitutional Court further found that section 3(5),
second sentence, was likewise not compatible with the right to secrecy of
telecommunications. It considered it unnecessary to entrust the decision on
transmission of data to an independent body. However, there was no
requirement to record in minutes the transmission or the destruction or
deletion of the data. This rendered effective supervision of the transmission
of the data impossible.