WEBER AND SARAVIA v. GERMANY DECISION
5
2. The Law of 13 August 1968 on restrictions on the secrecy of mail,
post and telecommunications
16. Being the statute envisaged by Article 10 § 2, second sentence, of
the Basic Law (cited above, paragraph 14), which provides for exceptions to
the general rule of inviolability of telecommunications, the Law of
13 August 1968 on restrictions on the secrecy of mail, post and
telecommunications (Gesetz zur Beschränkung des Brief-, Post- und
Fernmeldegeheimnisses), also called “the G 10 Act”, lays down the
conditions under which the authorities may introduce the restrictions
referred to in that provision of the Basic Law.
17. In a judgment delivered on 6 September 1978 (Klass and Others v.
Germany, Series A no. 28), the Court held that the provisions of the G 10
Act of 13 August 1968, in its original version and as regards the monitoring
of individuals, did not contravene the Convention. It found that the German
legislature was justified in considering that the interference resulting from
the legislation in question with the rights guaranteed by Article 8 § 1 of the
Convention was necessary in a democratic society within the meaning of
paragraph 2 of that Article. The Court also considered that the remedies
provided for in the G 10 Act complied with the requirements of Article 13
of the Convention.
3. The Fight Against Crime Act of 28 October 1994 in the light of the
Federal Constitutional Court’s judgment of 14 July 1999
(a) Legislative background
18. The Federal Law of 28 October 1994 on the fight against crime
amended the G 10 Act. Among other things, it extended the range of
subjects in respect of which “strategic monitoring” (as opposed to
monitoring of individuals) could be carried out. In the original version of
the G 10 Act, such monitoring was permitted only in order to detect and
avert the danger of an armed attack on the Federal Republic of Germany
and at that time was therefore merely focused on the States belonging to the
Warsaw Pact. Furthermore, owing to technical progress it had become
possible to identify the telephone connections (Anschlüsse) involved in an
intercepted telecommunication.
19. Pursuant to the provisions of the G 10 Act which either remained
unchanged by the Fight Against Crime Act or were not contested in the
present case, the Offices for the Protection of the Constitution of both the
Federation and the Länder (Verfassungsschutzbehörden des Bundes und der
Länder), the Military Counter-Intelligence Service (Militärischer
Abschirmdienst) and the Federal Intelligence Service were entitled to
monitor and record telecommunications within their own sphere of activities
(section 1(1) of the G 10 Act). Monitoring of individuals was limited to
serious threats to national security (for example, high treason or threatening