WEBER AND SARAVIA v. GERMANY DECISION
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democratic society. Despite the restrictions ordered by the Federal
Constitutional Court, the scope of the cases in which the transmission of
data was permitted remained wide and indeterminate. It was
disproportionate to use information obtained by means of a serious
interference with the secrecy of communications to combat a multitude of
offences – some of which were rather petty – even if they were only in the
planning stage. The obvious danger of abuse was not counterbalanced by
sufficient procedural safeguards. Even though the decision to transmit data
was taken by an official who was qualified to hold judicial office, there was
no independent scrutiny, as the official in question was a staff member of
the Federal Intelligence Service.
125. The Court finds that the transmission of personal data obtained by
general surveillance measures without any specific prior suspicion in order
to allow the institution of criminal proceedings against those being
monitored constitutes a fairly serious interference with the right of these
persons to secrecy of telecommunications. It observes in this connection
that the catalogue of offences for the investigation of which knowledge
obtained by means of strategic monitoring could be used was considerably
enlarged by the amendment of the G 10 Act in issue.
126. However, it notes that the use of information obtained by strategic
monitoring to these ends was limited: personal data could be transmitted to
other authorities merely in order to prevent or prosecute the serious criminal
offences listed in section 3(3) of the amended G 10 Act.
127. Moreover, the Court observes that the Federal Constitutional Court
found that the impugned section, in its version in force at the relevant time,
interfered disproportionately with the secrecy of telecommunications as
protected by the Basic Law. That court therefore ordered that, pending the
entry into force of legislation in compliance with the Constitution,
section 3(5) could only be applied and data transmitted if specific facts – as
opposed to mere factual indications – aroused the suspicion that someone
had committed one of the offences listed in section 3(3). Furthermore, the
transmission had to be recorded in minutes. Accordingly, that court again
considerably strengthened the safeguards against abuse.
128. In addition, the decision to transmit data had to be taken by a staff
member of the Federal Intelligence Service qualified to hold judicial office,
who was particularly well trained to verify whether the conditions for
transmission were met. Moreover, as clarified in the Federal Constitutional
Court’s judgment, the independent G 10 Commission’s powers of review
extended to verifying that the statutory conditions for data transmission
were complied with.
129. In the light of the above, the Court takes the view that the
interference with the secrecy of the communications made by persons
subject to monitoring in accordance with the impugned provision was
counterbalanced both by a reasonable limitation of the offences for which