14
WEBER AND SARAVIA v. GERMANY DECISION
(h) Section 9(2) of the G 10 Act: Supervision of monitoring measures
55. Section 9(2) provided for supervision of the monitoring measures by
an independent body, the so-called G 10 Commission.
56. Pursuant to section 9(2), first sentence, the competent Federal
Minister was to inform the G 10 Commission on a monthly basis about the
measures he had ordered to restrict the secrecy of telecommunications
before such measures were implemented.
57. The Federal Minister could, however, order the execution of the
measure before informing the G 10 Commission if there was a risk that a
delay might frustrate the purpose of the measure (second sentence of
section 9(2)). The Commission gave a decision of its own motion or further
to complaints contesting the legality and necessity of monitoring measures
(third sentence). Monitoring orders which the Commission deemed illegal
or unnecessary had to be immediately revoked by the Minister (fourth
sentence).
58. The Federal Constitutional Court considered that section 9(2), in its
present wording, was incompatible with Article 10 of the Basic Law. It
failed to provide in a sufficiently clear manner that supervision by the G 10
Commission covered the whole process of obtaining and using the data
(including measures taken under section 3(3), (5), (6) and (8)), and not only
the monitoring orders by the competent Minister. The court ruled that,
pending the entry into force of legislation in compliance with the
Constitution, the provision in question was only to be applied if the
Commission’s supervisory powers extended to measures taken under
section 3(3), (5), (6) and (8).
(i) Section 9(6) of the amended G 10 Act: Exclusion of judicial review
59. Section 9(6) excluded the possibility of judicial review in the case of
monitoring measures ordered and executed to prevent an armed attack on
the territory of the Federal Republic of Germany within the meaning of
section 3(1), second sentence, point 1.
60. Pursuant to section 5(5) of the G 10 Act, which remained unchanged
in substance, the person concerned had to be notified of measures restricting
the secrecy of telecommunications as soon as these measures were
discontinued, provided that such notification did not jeopardise the purpose
of the restriction (first and second sentence). After notification, the person
concerned could have recourse to the courts; section 9(6) did not apply
(third sentence).
61. The Federal Constitutional Court found that section 9(6) constituted
a justified restriction on the secrecy of telecommunications in accordance
with Article 10 § 2, second sentence, of the Basic Law. Moreover, a person
concerned by a monitoring measure could have recourse to the courts
following notification of the restriction under section 5(5), third sentence, of