22
WEBER AND SARAVIA v. GERMANY DECISION
(see Kopp v. Switzerland, 25 March 1998, § 72, Reports 1998-II, and
Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998-V). The
domestic law must be sufficiently clear in its terms to give citizens an
adequate indication as to the circumstances in which and the conditions on
which public authorities are empowered to resort to any such measures (see
Malone, ibid.; Kopp, cited above, § 64; Huvig, cited above, § 29; and
Valenzuela Contreras, ibid.).
94. Moreover, since the implementation in practice of measures of secret
surveillance of communications is not open to scrutiny by the individuals
concerned or the public at large, it would be contrary to the rule of law for
the legal discretion granted to the executive or to a judge to be expressed in
terms of an unfettered power. Consequently, the law must indicate the scope
of any such discretion conferred on the competent authorities and the
manner of its exercise with sufficient clarity to give the individual adequate
protection against arbitrary interference (see, among other authorities,
Malone, cited above, § 68; Leander, cited above, § 51; and Huvig, cited
above, § 29).
95. In its case-law on secret measures of surveillance, the Court has
developed the following minimum safeguards that should be set out in
statute law in order to avoid abuses of power: the nature of the offences
which may give rise to an interception order; a definition of the categories
of people liable to have their telephones tapped; a limit on the duration of
telephone tapping; the procedure to be followed for examining, using and
storing the data obtained; the precautions to be taken when communicating
the data to other parties; and the circumstances in which recordings may or
must be erased or the tapes destroyed (see, inter alia, Huvig, cited above,
§ 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, § 46;
and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).
96. Turning to the present case, the Court observes that section 3(1) of
the amended G 10 Act, as interpreted by the Federal Constitutional Court,
enumerated in its second sentence, points 1-6, the exact offences for the
prevention of which the strategic interception of telecommunications could
be ordered. The amended G 10 Act therefore defined in a clear and precise
manner the offences which could give rise to an interception order.
97. The Court further observes that the conditions for strategic
monitoring, as laid down in section 3(1) and (2) of the amended G 10 Act,
in particular, indicated which categories of persons were liable to have their
telephone tapped: the persons concerned had to have taken part in an
international telephone conversation via satellite connections or radio relay
links (or also via fixed telephone lines in the case of monitoring to avert an
armed attack on Germany, in accordance with section 3(1), point 1). In
addition, the persons concerned either had to have used catchwords capable
of triggering an investigation into the dangers listed in section 3(1),
points 1-6, or to be foreign nationals or companies whose telephone