WEBER AND SARAVIA v. GERMANY DECISION
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review of monitoring measures. This meant that data could only be
destroyed six months after the person concerned had been notified that
monitoring measures had been taken.
50. However, the Federal Constitutional Court considered section 3(7) to
be incompatible with Article 10 of the Basic Law. It was necessary for the
recipient authorities to mark the data as having been obtained by means of
the interception of telecommunications. Otherwise, following verification
that the information obtained was relevant for the tasks of the authorities
concerned, personal data could be saved in a manner which made it
impossible to identify them as resulting from the strategic monitoring of
telecommunications. The restrictions on the permitted use of these data
pursuant to section 3(3) would thereby be undermined. The court ruled that,
pending the entry into force of legislation in compliance with the
Constitution, section 3(7) could be applied provided that the data were
marked as described.
(g) Section 3(8) of the amended G 10 Act: Notification of the persons
concerned by the monitoring
51. Section 3(8), first sentence, provided that the Federal Intelligence
Service or the recipient authorities had to inform the persons monitored
about the restriction imposed on the secrecy of telecommunications as soon
as such notification could occur without jeopardising the achievement of the
aim pursued by the restriction and the use of the data. Pursuant to
section 3(8), second sentence, no notification was given if the data obtained
had been destroyed within three months after their receipt by the Federal
Intelligence Service or the recipient authorities.
52. The Federal Constitutional Court considered the restriction on the
duty of notification as such, as laid down in section 3(8), first sentence, to
be compatible with the Basic Law. By virtue of Article 10 § 2, first and
second sentences, taken in conjunction with Article 19 § 4, third sentence,
of the Basic Law, no notification had to be given if this served to protect the
German State or its democratic order or if disclosure of the information
obtained or the methods used to this end threatened the fulfilment of the
tasks of the authorities concerned.
53. However, section 3(8), second sentence, violated Articles 10 and 19
§ 4 of the Basic Law. There were no safeguards precluding the data from
being used before their destruction within the three-month period. The mere
destruction of the data within that period alone did not, however, justify
dispensing with the duty of notification irrespective of the prior use of the
data.
54. The court ruled that, pending the entry into force of legislation in
compliance with the Constitution, section 3(8) could be applied provided
that the data had not been used before their destruction.