KLASS AND OTHERS v. GERMANY JUGDMENT
18
aim remain in all respects within the bounds of what is necessary in a
democratic society.
47. The applicants do not object to the German legislation in that it
provides for wide-ranging powers of surveillance; they accept such powers,
and the resultant encroachment upon the right guaranteed by Article 8 para.
1 (art. 8-1), as being a necessary means of defence for the protection of the
democratic State. The applicants consider, however, that paragraph 2 of
Article 8 (art. 8-2) lays down for such powers certain limits which have to
be respected in a democratic society in order to ensure that the society does
not slide imperceptibly towards totalitarianism. In their view, the contested
legislation lacks adequate safeguards against possible abuse.
48. As the Delegates observed, the Court, in its appreciation of the scope
of the protection offered by Article 8 (art. 8), cannot but take judicial notice
of two important facts. The first consists of the technical advances made in
the means of espionage and, correspondingly, of surveillance; the second is
the development of terrorism in Europe in recent years. Democratic
societies nowadays find themselves threatened by highly sophisticated
forms of espionage and by terrorism, with the result that the State must be
able, in order effectively to counter such threats, to undertake the secret
surveillance of subversive elements operating within its jurisdiction. The
Court has therefore to accept that the existence of some legislation granting
powers of secret surveillance over the mail, post and telecommunications is,
under exceptional conditions, necessary in a democratic society in the
interests of national security and/or for the prevention of disorder or crime.
49. As concerns the fixing of the conditions under which the system of
surveillance is to be operated, the Court points out that the domestic
legislature enjoys a certain discretion. It is certainly not for the Court to
substitute for the assessment of the national authorities any other assessment
of what might be the best policy in this field (cf., mutatis mutandis, the De
Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp.
45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no.
18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others
judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the
Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).
Nevertheless, the Court stresses that this does not mean that the
Contracting States enjoy an unlimited discretion to subject persons within
their jurisdiction to secret surveillance. The Court, being aware of the
danger such a law poses of undermining or even destroying democracy on
the ground of defending it, affirms that the Contracting States may not, in
the name of the struggle against espionage and terrorism, adopt whatever
measures they deem appropriate.
50. The Court must be satisfied that, whatever system of surveillance is
adopted, there exist adequate and effective guarantees against abuse. This
assessment has only a relative character: it depends on all the circumstances