9
KLASS AND OTHERS v. GERMANY JUGDMENT
23. Although access to the courts to challenge the ordering and
implementation of surveillance measures is excluded in this way, it is still
open to a person believing himself to be under surveillance pursuant to the
G 10 to seek a constitutional remedy: according to the information supplied
by the Government, a person who has applied to the G 10 Commission
without success retains the right to apply to the Constitutional Court. The
latter may reject the application on the ground that the applicant is unable to
adduce proof to substantiate a complaint, but it may also request the
Government concerned to supply it with information or to produce
documents to enable it to verify for itself the individual’s allegations. The
authorities are bound to reply to such a request even if the information
asked for is secret. It is then for the Constitutional Court to decide whether
the information and documents so obtained can be used; it may decide by a
two-thirds majority that their use is incompatible with State security and
dismiss the application on that ground (Article 26 para. 2 of the
Constitutional Court Act).
The Agent of the Government admitted that this remedy might be
employed only on rare occasions.
24. If the person concerned is notified, after the measures have been
discontinued, that he has been subject to surveillance, several legal remedies
against the interference with his rights become available to him. According
to the information supplied by the Government, the individual may: in an
action for a declaration, have reviewed by an administrative court
declaration, the legality of the application to him of the G 10 and the
conformity with the law of the surveillance measures ordered; bring an
action for damages in a civil court if he has been prejudiced; bring an action
for the destruction or, if appropriate, restitution of documents; finally, if
none of these remedies is successful, apply to the Federal Constitutional
Court for a ruling as to whether there has been a breach of the Basic Law.
25. Article 2 of the G 10 has also amended the Code of Criminal
Procedure by inserting therein two Articles which authorise measures of
surveillance of telephone and telegraphic communications.
Under Article 100 (a), these measures may be taken under certain
conditions, in particular, when there are clear facts on which to suspect
someone of having committed or attempted to commit certain serious
offences listed in that Article. Under Article 100 (b), such measures may be
ordered only by a court and for a maximum of three months; they may be
renewed. In urgent cases, the decision may be taken by the public
prosecutor’s department but to remain in effect it must be confirmed by a
court within three days. The persons concerned are informed of the
measures taken in their respect as soon as notification can be made without
jeopardising the purpose of the investigation (Article 101 para. 1 of the
Code of Criminal Procedure).
These provisions are not, however, in issue in the present case.