WEBER AND SARAVIA v. GERMANY DECISION
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(a) Were the interferences “in accordance with the law”?
81. The Government took the view that the interferences were in
accordance with the law. On the one hand, they were not contrary to public
international law because the monitoring of wireless telecommunications
did not interfere with the territorial sovereignty of foreign States. In any
event, the first applicant could not rely on an alleged violation of a State’s
territorial sovereignty in the context of an individual application to the
Court. On the other hand, the interferences in question were based on the
amended provisions of the G 10 Act and, in so far as the Federal
Constitutional Court had declared some of the impugned provisions to be
unconstitutional, on that court’s rulings concerning the manner in which
these provisions were to be applied during a transitional period. In
particular, section 3(5), as confirmed by the Federal Constitutional Court,
constituted a sufficient legal basis for the transmission of data by the
Federal Intelligence Service to other authorities.
82. The Government further submitted that the circumstances in which
telecommunications could be monitored and the data thus obtained used
were set out in a precise manner in the amended provisions of the G 10 Act
and in the Constitutional Court’s judgment. There were, in particular,
sufficient procedural safeguards against abuse of powers of surveillance.
83. The applicant argued that the interception of telecommunications
interfered illegally with the sovereignty of the foreign States in which the
persons being monitored resided. Moreover, section 3(5) of the amended
G 10 Act provided no valid legal basis for the transmission of information
obtained by means of the interception of telecommunications to the Offices
for the Protection of the Constitution of the Federation and of the Länder
and to the Military Counter-Intelligence Service. Contrary to the Federal
Constitutional Court’s view, Article 73, point 1, of the Basic Law did not
authorise the federal legislature to enact such a regulation.
84. The Court reiterates that the expression “in accordance with the law”
within the meaning of Article 8 § 2 requires, firstly, that the impugned
measure should have some basis in domestic law; it also refers to the quality
of the law in question, requiring that it should be accessible to the person
concerned, who must, moreover, be able to foresee its consequences for
him, and compatible with the rule of law (see, among other authorities,
Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig v.
France, 24 April 1990, § 26, Series A no. 176-B; Lambert, cited above,
§ 23; and Perry v. the United Kingdom, no. 63737/00, § 45, ECHR
2003-IX).
(i) Whether there was a statutory basis in German law
85. The Court notes at the outset that in the present case, the interference
with the applicants’ right to respect for their private life and correspondence
resulted from provisions of the amended G 10 Act, an Act passed by