18
WEBER AND SARAVIA v. GERMANY DECISION
telecommunications and the use of data obtained thereby, interfered with the
secrecy of telecommunications as protected by Article 8. The applicants
took the same view.
77. The Court reiterates that telephone conversations are covered by the
notions of “private life” and “correspondence” within the meaning of
Article 8 (see, inter alia, Klass and Others, cited above, § 41; Malone v. the
United Kingdom, 2 August 1984, § 64 Series A no. 82; and Lambert v.
France, 24 August 1998, § 21, Reports of Judgments and Decisions
1998-V).
78. The Court further notes that the applicants, even though they were
members of a group of persons who were likely to be affected by measures
of interception, were unable to demonstrate that the impugned measures had
actually been applied to them. It reiterates, however, its findings in
comparable cases to the effect that the mere existence of legislation which
allows a system for the secret monitoring of communications entails a threat
of surveillance for all those to whom the legislation may be applied. This
threat necessarily strikes at freedom of communication between users of the
telecommunications services and thereby amounts in itself to an interference
with the exercise of the applicants’ rights under Article 8, irrespective of
any measures actually taken against them (see Klass and Others, cited
above, § 41, and Malone, cited above, § 64).
79. Consequently, the impugned provisions of the amended G 10 Act, in
so far as they authorise the interception of telecommunications, interfere
with the applicants’ right to respect for their private life and
correspondence. Furthermore, the Court, like the Federal Constitutional
Court, takes the view that the transmission of data to and their use by other
authorities, which enlarges the group of persons with knowledge of the
personal data intercepted and can lead to investigations being instituted
against the persons concerned, constitutes a further separate interference
with the applicants’ rights under Article 8 (see, mutatis mutandis, Leander
v. Sweden, 26 March 1987, § 48, Series A no. 116; Amann v. Switzerland
[GC], no. 27798/95, § 70, ECHR 2000-II; and Rotaru v. Romania [GC],
no. 28341/95, § 46, ECHR 2000-V). Moreover, the impugned provisions
interfere with these rights in so far as they provide for the destruction of the
data obtained and for the refusal to notify the persons concerned of
surveillance measures taken, in that this may serve to conceal monitoring
measures interfering with the applicants’ rights under Article 8 which have
been carried out by the authorities.
2. Whether the interference was justified
80. Such interferences are justified by the terms of paragraph 2 of
Article 8 if they are “in accordance with the law”, pursue one or more of the
legitimate aims referred to in paragraph 2 and, furthermore, are “necessary
in a democratic society” in order to achieve them.