KLASS AND OTHERS v. GERMANY JUGDMENT
16
II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
39. The applicants claim that the contested legislation, notably because
the person concerned is not informed of the surveillance measures and
cannot have recourse to the courts when such measures are terminated,
violates Article 8 (art. 8) of the Convention which provides as follows:
"1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others."
40. According to Article 10 para. 2 of the Basic Law, restrictions upon
the secrecy of the mail, post and telecommunications may be ordered but
only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain
authorities to open and inspect mail and post, to read telegraphic messages
and to monitor and record telephone conversations (see paragraph 17
above). The Court’s examination under Article 8 (art. 8) is thus limited to
the authorisation of such measures alone and does not extend, for instance,
to the secret surveillance effect in pursuance of the Code of Criminal
Procedure (see paragraph 25 above).
41. The first matter to be decided is whether and, if so, in what respect
the contested legislation, in permitting the above-mentioned measures of
surveillance, constitutes an interference with the exercise of the right
guaranteed to the applicants under Article 8 para. 1 (art. 8-1).
Although telephone conversations are not expressly mentioned in
paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the
Commission, that such conversations are covered by the notions of "private
life" and "correspondence" referred to by this provision.
In its report, the Commission expressed the opinion that the secret
surveillance provided for under the German legislation amounted to an
interference with the exercise of the right set forth in Article 8 para. 1 (art.
8-1). Neither before the Commission nor before the Court did the
Government contest this issue. Clearly, any of the permitted surveillance
measures, once applied to a given individual, would result in an interference
by a public authority with the exercise of that individual’s right to respect
for his private and family life and his correspondence. Furthermore, in the
mere existence of the legislation itself there is involved, for all those to
whom the legislation could be applied, a menance of surveillance; this
menace necessarily strikes at freedom of communication between users of
the postal and telecommunication services and thereby constitutes an
"interference by a public authority" with the exercise of the applicants’ right
to respect for private and family life and for correspondence.