24
WEBER AND SARAVIA v. GERMANY DECISION
104. The Court shares the Government’s view that the aim of the
impugned provisions of the amended G 10 Act was indeed to safeguard
national security and/or to prevent crime, which are legitimate aims within
the meaning of Article 8 § 2. It does not, therefore, deem it necessary to
decide whether the further purposes cited by the Government were also
relevant.
105. It remains to be ascertained whether the impugned interferences
were “necessary in a democratic society” in order to achieve these aims.
106. The Court reiterates that, when balancing the interest of the
respondent State in protecting its national security through secret
surveillance measures against the seriousness of the interference with an
applicant’s right to respect for his or her private life, it has consistently
recognised that the national authorities enjoy a fairly wide margin of
appreciation in choosing the means for achieving the legitimate aim of
protecting national security (see, inter alia, Klass and Others, cited above,
§ 49; Leander, cited above, § 59; and Malone, cited above, § 81).
Nevertheless, in view of the risk that a system of secret surveillance for the
protection of national security may undermine or even destroy democracy
under the cloak of defending it, the Court must be satisfied that there exist
adequate and effective guarantees against abuse (see Klass and Others, cited
above, §§ 49-50; Leander, cited above, § 60; Camenzind v. Switzerland,
16 December 1997, § 45, Reports 1997-VIII; and Lambert, cited above,
§ 31). This assessment depends on all the circumstances of the case, such as
the nature, scope and duration of the possible measures, the grounds
required for ordering them, the authorities competent to authorise, carry out
and supervise them, and the kind of remedy provided by the national law
(see Klass and Others, cited above, § 50).
107. The Court, while not losing sight of the legislative context, will
first examine whether the interferences in question were proportionate to the
legitimate aim pursued by each of the impugned provisions in turn, and will
then make an overall assessment.
(i) Strategic monitoring pursuant to section 3(1) taken in conjunction with
section 1(1), point 2, of the amended G 10 Act (as modified by the Fight Against
Crime Act of 28 October 1994)
108. In the Government’s submission, the impugned provision was
necessary in a democratic society. It struck a proper balance between the
public interest in averting the serious dangers listed in points 1-6 of
section 3(1) and the interests of the persons concerned by the monitoring
measures.
109. According to the Government, monitoring measures based on the
G 10 Act had been necessary notably to combat international terrorism
(point 2), by which democratic societies found themselves increasingly
threatened, for instance by uncovering the command structure of al-Qaeda