26
WEBER AND SARAVIA v. GERMANY DECISION
oriented manner, notably because the excessive use of such measures,
which, as a rule, remained secret, was unlikely to entail legal or political
sanctions.
114. The Court is aware that the 1994 amendments to the G 10 Act
considerably extended the range of subjects in respect of which so-called
strategic monitoring could be carried out under section 3(1), the central
provision in issue here. Whereas initially such monitoring was permitted
only in order to detect and avert the danger of an armed attack on Germany,
section 3(1) now also allowed strategic monitoring in order to avert further
serious offences listed in points 2-6 of that section. Moreover, technical
progress now made it possible to identify the telephone connections
involved in intercepted communications.
115. While the range of subjects in the amended G 10 Act is very
broadly defined, the Court observes that – just as under the G 10 Act in its
initial version, which was in issue in its Klass and Others judgment – a
series of restrictive conditions had to be satisfied before a measure entailing
strategic monitoring could be imposed. It was merely in respect of certain
serious criminal acts – which reflect threats with which society is
confronted nowadays and which were listed in detail in the impugned
section 3(1) – that permission for strategic monitoring could be sought. As
regards the monitoring of telecommunications in order to avoid the
counterfeiting of money abroad, the Federal Constitutional Court raised the
threshold for interception by finding that such an offence could be serious
enough to justify monitoring only if it was capable of threatening monetary
stability in Germany. Surveillance could be ordered only on a reasoned
application by the president of the Federal Intelligence Service or his deputy
and if the establishment of the facts by another method had no prospect of
success or was considerably more difficult. The decision to monitor had to
be taken by the Federal Minister empowered for the purpose by the
Chancellor or, where appropriate, by the highest authority of the Länder
with the authorisation of the Parliamentary Supervisory Board. The Minister
further had to obtain prior authorisation from the G 10 Commission or, in
urgent cases, ex post facto approval. Consequently, under the amended G 10
Act there was an administrative procedure designed to ensure that measures
were not ordered haphazardly, irregularly or without due and proper
consideration.
116. Moreover, the Court notes, with regard to the implementation of
surveillance measures and the processing of the data obtained, that
safeguards against abuse were spelled out in detail. Monitoring measures
remained in force for a fairly short maximum period of three months and
could be renewed only on a fresh application and if the statutory conditions
for the order were still met. Monitoring had to be discontinued immediately
once the conditions set out in the monitoring order were no longer fulfilled
or the measures themselves were no longer necessary. As regards the