WEBER AND SARAVIA v. GERMANY DECISION
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135. The Court reiterates that the question of subsequent notification of
surveillance measures is inextricably linked to the effectiveness of remedies
before the courts and hence to the existence of effective safeguards against
the abuse of monitoring powers, since there is in principle little scope for
recourse to the courts by the individual concerned unless the latter is
advised of the measures taken without his or her knowledge and thus able to
challenge their legality retrospectively (see Klass and Others, cited above,
§ 57). However, the fact that persons concerned by secret surveillance
measures are not subsequently notified once surveillance has ceased cannot
by itself warrant the conclusion that the interference was not “necessary in a
democratic society”, as it is the very absence of knowledge of surveillance
which ensures the efficacy of the interference. Indeed, such notification
might reveal the working methods and fields of operation of the Intelligence
Service (see Klass and Others, cited above, § 58, and, mutatis mutandis,
Leander, cited above, § 66). As soon as notification can be carried out
without jeopardising the purpose of the restriction after the termination of
the surveillance measure, information should, however, be provided to the
persons concerned (see, mutatis mutandis, Leander, cited above, § 66, and
Klass and Others, cited above, § 58).
136. The Court notes that pursuant to section 3(8), any individuals
monitored were to be informed that their telecommunications had been
intercepted as soon as notification could be carried out without jeopardising
the purpose of monitoring. Moreover, the Court observes that the Federal
Constitutional Court again strengthened the safeguards against abuse
contained in the impugned provision by preventing the duty of notification
from being circumvented; it found that in cases in which data were
destroyed within three months there was justification for never notifying the
persons concerned only if the data had not been used before their
destruction. The Constitutional Court also clarified that the supervisory
powers of the independent G 10 Commission extended to measures taken on
the basis of section 3(8). In particular, the G 10 Commission had the power
to decide whether an individual being monitored had to be notified of a
surveillance measure (section 9(3) of the amended G 10 Act). The Court
finds that the provision in question, as interpreted by the Federal
Constitutional Court, therefore effectively ensured that the persons
monitored were notified in cases where notification could be carried out
without jeopardising the purpose of the restriction of the secrecy of
telecommunications. It therefore contributed to keeping the interference
with the secrecy of telecommunications resulting from the amended G 10
Act within the limits of what was necessary to achieve the legitimate aims
pursued.