WEBER AND SARAVIA v. GERMANY DECISION
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established by the Convention sets limits on the scope of the power of
review exercisable by the Court in this respect. It is in the first place for the
national authorities, notably the courts, to interpret and apply the domestic
law: the national authorities are, in the nature of things, particularly
qualified to settle the issues arising in this connection (see, mutatis
mutandis, Kruslin, cited above, § 29, and Barthold v. Germany, 25 March
1985, § 48, Series A no. 90). In a sphere covered by written law, the “law”
is therefore the enactment in force as the competent courts have interpreted
it in the light, if necessary, of any new practical developments, and the
Court cannot question the national courts’ interpretation except in the event
of flagrant non-observance of, or arbitrariness in the application of, the
domestic legislation in question (see, inter alia, Kruslin, cited above, § 29;
Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR
2002-III; and, mutatis mutandis, Lavents v. Latvia, no. 58442/00, § 114,
28 November 2002, and Leyla Şahin v. Turkey [GC], no. 44774/98, § 88,
ECHR 2005-XI).
91. The Court notes that the Federal Constitutional Court, in its
judgment in the present case, found that the exclusive legislative power
vested in the federal legislature in the sphere of foreign affairs pursuant to
Article 73, point 1, of the Basic Law also authorised it to legislate in the
matters laid down in section 3(5) of the amended G 10 Act. The Court
considers that the national courts’ interpretation to the effect that the
transmission to other authorities of information obtained by the Federal
Intelligence Service in the performance of its tasks was covered by the
federal legislature’s powers in the sphere of foreign affairs does not disclose
any flagrant non-observance of the Basic Law or arbitrariness in its
application. It is accordingly satisfied that there was a sufficient legal basis
for the impugned measure.
(ii) Quality of the law
92. The second requirement which emerges from the phrase “in
accordance with the law” – the accessibility of the law – does not raise any
problem in the instant case.
93. As to the third requirement, the law’s foreseeability, the Court
reiterates that foreseeability in the special context of secret measures of
surveillance, such as the interception of communications, cannot mean that
an individual should be able to foresee when the authorities are likely to
intercept his communications so that he can adapt his conduct accordingly
(see, inter alia, Leander, cited above, § 51). However, especially where a
power vested in the executive is exercised in secret, the risks of arbitrariness
are evident (see, inter alia, Malone, cited above, § 67; Huvig, cited above,
§ 29; and Rotaru, cited above, § 55). It is therefore essential to have clear,
detailed rules on interception of telephone conversations, especially as the
technology available for use is continually becoming more sophisticated