KLASS AND OTHERS v. GERMANY JUGDMENT
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admissibility requirements are satisfied. The question arises in the present
proceedings whether an individual is to be deprived of the opportunity of
lodging an application with the Commission because, owing to the secrecy
of the measures objected to, he cannot point to any concrete measure
specifically affecting him. In the Court’s view, the effectiveness (l’effet
utile) of the Convention implies in such circumstances some possibility of
having access to the Commission. If this were not so, the efficiency of the
Convention’s enforcement machinery would be materially weakened. The
procedural provisions of the Convention must, in view of the fact that the
Convention and its institutions were set up to protect the individual, be
applied in a manner which serves to make the system of individual
applications efficacious.
The Court therefore accepts that an individual may, under certain
conditions, claim to be the victim of a violation occasioned by the mere
existence of secret measures or of legislation permitting secret measures,
without having to allege that such measures were in fact applied to him. The
relevant conditions are to be determined in each case according to the
Convention right or rights alleged to have been infringed, the secret
character of the measures objected to, and the connection between the
applicant and those measures.
35. In the light of these considerations, it has now to be ascertained
whether, by reason of the particular legislation being challenged, the
applicants can claim to be victims, in the sense of Article 25 (art. 25), of a
violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the
provision giving rise to the central issue in the present case.
36. The Court points out that where a State institutes secret surveillance the
existence of which remains unknown to the persons being controlled, with
the effect that the surveillance remains unchallengeable, Article 8 (art. 8)
could to a large extent be reduced to a nullity. It is possible in such a
situation for an individual to be treated in a manner contrary to Article 8
(art. 8), or even to be deprived of the right granted by that Article (art. 8),
without his being aware of it and therefore without being able to obtain a
remedy either at the national level or before the Convention institutions.
In this connection, it should be recalled that the Federal Constitutional
Court in its judgment of 15 December 1970 (see paragraphs 11 and 12
above) adopted the following reasoning:
"In order to be able to enter a constitutional application against an Act, the applicant
must claim that the Act itself, and not merely an implementary measure, constitutes a
direct and immediate violation of one of his fundamental rights ... These conditions
are not fulfilled since, according to the applicants’ own submissions, it is only by an
act on the part of the executive that their fundamental rights would be violated.
However, because they are not apprised of the interference with their rights, the
persons concerned cannot challenge any implementary measure. In such cases, they
must be entitled to make a constitutional application against the Act itself, as in cases