WEBER AND SARAVIA v. GERMANY DECISION
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(c) Section 3(2) of the amended G 10 Act: Monitoring through catchwords
32. Pursuant to section 3(2), the Federal Intelligence Service was only
authorised to carry out monitoring measures with the aid of catchwords
(Suchbegriffe) which served, and were suitable for, the investigation of the
dangers described in the monitoring order (first sentence). The second
sentence of that provision prohibited the catchwords from containing
distinguishing features (Identifizierungsmerkmale) allowing the interception
of specific telecommunications. However, this rule did not apply to
telephone connections situated abroad if it could be ruled out that
connections concerning German nationals or German companies were
deliberately being monitored (third sentence). The catchwords had to be
listed in the monitoring order (fourth sentence). The execution of the
monitoring process as such had to be recorded in minutes by technical
means and was subject to supervision by the G 10 Commission (fifth
sentence). The data contained in these minutes could be used only for the
purposes of reviewing data protection and had to be deleted at the end of the
year following their recording (sixth and seventh sentences).
(d) Section 3(3) of the amended G 10 Act: Restrictions on the permitted use of
personal data
33. Section 3(3), first sentence, provided that personal data
(personenbezogene Daten) obtained through the interception of
telecommunications could only serve the prevention, investigation and
prosecution of offences listed in section 2 of the Act and in certain other
provisions, notably of the Criminal Code. These offences included, in
particular, high treason against the peace or security of the State, crimes
threatening the democratic order, the external security of the State or the
security of the allied forces based in the Federal Republic of Germany, the
formation of terrorist associations, murder, manslaughter, robbery, the
forgery of payment cards or cheques, fraud relating to economic subsidies,
infiltration of foreigners and the production, importation and trafficking of
illegal drugs. Personal data thus obtained could be used only if the person
concerned was either subject to individual monitoring under section 2 of the
Act or if there were factual indications (tatsächliche Anhaltspunkte) for
suspecting a person of planning, committing or having committed one of the
offences mentioned above. This catalogue of offences for the investigation
of which knowledge obtained by strategic monitoring could be used was
considerably enlarged by the amendment of the G 10 Act in issue.
34. Pursuant to section 3(3), second sentence, the obligation on the
Federal Intelligence Service to inform the Federal Government of its
findings obtained by strategic monitoring, including personal data, under
section 12 of the Federal Intelligence Service Act remained unaffected.
35. The Federal Constitutional Court found that section 3(3), second
sentence, in its present version, failed to comply with Articles 10 and 5 § 1,