15
KLASS AND OTHERS v. GERMANY JUGDMENT
where a constitutional application against an implementary measure is impossible for
other reasons ..."
This reasoning, in spite of the possible differences existing between
appeals to the Federal Constitutional Court under German law and the
enforcement machinery set up by the Convention, is valid, mutatis
mutandis, for applications lodged under Article 25 (art. 25).
The Court finds it unacceptable that the assurance of the enjoyment of a
right guaranteed by the Convention could be thus removed by the simple
fact that the person concerned is kept unaware of its violation. A right of
recourse to the Commission for persons potentially affected by secret
surveillance is to be derived from Article 25 (art. 25), since otherwise
Article 8 (art. 8) runs the risk of being nullified.
37. As to the facts of the particular case, the Court observes that the
contested legislation institutes a system of surveillance under which all
persons in the Federal Republic of Germany can potentially have their mail,
post and telecommunications monitored, without their ever knowing this
unless there has been either some indiscretion or subsequent notification in
the circumstances laid down in the Federal Constitutional Court’s judgment
(see paragraph 11 above). To that extent, the disputed legislation directly
affects all users or potential users of the postal and telecommunication
services in the Federal Republic of Germany. Furthermore, as the Delegates
rightly pointed out, this menace of surveillance can be claimed in itself to
restrict free communication through the postal and telecommunication
services, thereby constituting for all users or potential users a direct
interference with the right guaranteed by Article 8 (art. 8).
At the hearing, the Agent of the Government informed the Court that at
no time had surveillance measures under the G 10 been ordered or
implemented in respect of the applicants (see paragraph 13 above). The
Court takes note of the Agent’s statement. However, in the light of its
conclusions as to the effect of the contested legislation the Court does not
consider that this retrospective clarification bears on the appreciation of the
applicants’ status as "victims".
38. Having regard to the specific circumstances of the present case, the
Court concludes that each of the applicants is entitled to "(claim) to be the
victim of a violation" of the Convention, even though he is not able to allege
in support of his application that he has been subject to a concrete measure
of surveillance. The question whether the applicants were actually the
victims of any violation of the Convention involves determining whether
the contested legislation is in itself compatible with the Convention’s
provisions.
Accordingly, the Court does not find it necessary to decide whether the
Convention implies a right to be informed in the circumstances mentioned
by the Principal Delegate.