12
WEBER AND SARAVIA v. GERMANY DECISION
44. The Federal Constitutional Court ruled that, pending the entry into
force of legislation in compliance with the Constitution, section 3(5), first
sentence, could be applied provided that data were only transmitted if
specific facts aroused the suspicion that offences listed in section 3(3) had
been committed. Furthermore, the transmission had to be recorded in
minutes.
(f) Section 3(6) and (7) and section 7(4) of the amended G 10 Act: Destruction
of data
45. Section 3(6) and (7) and section 7(4) regulated the procedure for
destruction of the data obtained by strategic monitoring.
46. Section 3(6) provided that if the data obtained in the circumstances
set out in section 3(1) were no longer necessary to achieve the purposes
listed in that provision and if they did not have to be transmitted to other
authorities pursuant to section 3(5), they had to be destroyed and deleted
from the files under the supervision of a staff member who was qualified to
hold judicial office (first sentence). The destruction and deletion had to be
recorded in minutes (second sentence). It was necessary to verify every six
months whether the conditions for destruction or deletion were met (third
sentence).
47. Section 3(7) provided that the recipient authorities were likewise to
verify whether they needed the data transmitted to them in order to achieve
the aims laid down in section 3(3) (first sentence). If this was not the case,
they also had to destroy the data immediately (second sentence). The
destruction could be dispensed with if separation of the data from other
information which was necessary for the fulfilment of the tasks set was
impossible or could only be carried out through unjustifiable effort; the use
of such data was prohibited (third sentence).
48. Section 7(4), first sentence, provided that personal data obtained by
means of monitoring measures pursuant to sections 2 and 3 about a person
involved in the telecommunications monitored had to be destroyed if they
were no longer necessary for the purposes listed in the Act and could no
longer be of significance for an examination by the courts of the legality of
the measure. The destruction had to be carried out under the supervision of a
person qualified to hold judicial office. Pursuant to section 7(4), second
sentence, the destruction had to be recorded in minutes. It was necessary to
examine every six months whether personal data obtained could be
destroyed (third sentence). Access to data which were merely kept for the
purpose of judicial review of the monitoring measure had to be blocked
(fourth sentence). They could only be used for that purpose (fifth sentence).
49. The Federal Constitutional Court found that the provisions on the
destruction of data laid down in section 3(6) and (7), second and third
sentences, and section 7(4) complied with Article 19 § 4 of the Basic Law.
The provisions had, however, to be interpreted so as not to frustrate judicial