6
WEBER AND SARAVIA v. GERMANY DECISION
the democratic order) and was permissible only if less intrusive means of
investigation had no prospect of success or were considerably more difficult
(section 2 of the G 10 Act). As to strategic monitoring, only the head of the
Federal Intelligence Service or his deputy were entitled to lodge an
application for a surveillance order. The application had to be lodged in
writing, had to describe and give reasons for the nature, scope and duration
of the measure and had to explain that other means of carrying out the
investigations either had no prospect of success or were considerably more
difficult (section 4 of the G 10 Act).
20. Restrictions on the secrecy of telecommunications were to be
ordered by the Federal Minister assigned by the Chancellor or the highest
authority of the Länder (in respect of applications by their Offices for the
Protection of the Constitution). The order was made in writing and specified
the exact nature, scope and duration of the monitoring measure. The
duration of the measure was to be limited to a maximum of three months;
the execution of the measure could be prolonged for a maximum of three
months at a time as long as the statutory conditions for the order were met
(see section 5 of the G 10 Act).
21. The monitoring measures authorised were to be carried out under the
responsibility of the requesting authority and under the supervision of a staff
member qualified to hold judicial office. Monitoring had to be discontinued
immediately if the conditions of the monitoring order were no longer met or
the measure was no longer necessary (section 7 of the G 10 Act).
22. Section 3(4) provided that the Federal Intelligence Service was to
verify whether the personal data obtained by measures taken under
subsection 1 of section 3 were necessary to pursue the aims laid down in
that subsection.
23. The Federal Constitutional Court found that in its present version
section 3(4) was incompatible with Article 10 and Article 5 § 1, second
sentence, of the Basic Law. It found that the provision did not contain
sufficient safeguards to guarantee that personal data which were not
destroyed or deleted as being unnecessary for the purposes of the Federal
Intelligence Service would be used only for the purposes which had justified
their collection. Furthermore, the provision also failed to comply with the
identification requirements flowing from Article 10. In addition, there were
insufficient safeguards to guarantee that the Federal Intelligence Service
would only use such data as were relevant for the dangers listed in
section 3(1). Such safeguards should also ensure that the Federal
Intelligence Service would take into account the important concerns of
non-disclosure of sources and confidentiality of editorial work as protected
by the freedom of the press under Article 5 § 1 of the Basic Law. The court
ruled that, pending the entry into force of legislation in compliance with the
Constitution, section 3(4) was to be applied only if the data were specially