19
KLASS AND OTHERS v. GERMANY JUGDMENT
of the case, such as the nature, scope and duration of the possible measures,
the grounds required for ordering such measures, the authorities competent
to permit, carry out and supervise such measures, and the kind of remedy
provided by the national law.
The functioning of the system of secret surveillance established by the
contested legislation, as modified by the Federal Constitutional Court’s
judgment of 15 December 1970, must therefore be examined in the light of
the Convention.
51. According to the G 10, a series of limitative conditions have to be
satisfied before a surveillance measure can be imposed. Thus, the
permissible restrictive measures are confined to cases in which there are
factual indications for suspecting a person of planning, committing or
having committed certain serious criminal acts; measures may only be
ordered if the establishment of the facts by another method is without
prospects of success or considerably more difficult; even then, the
surveillance may cover only the specific suspect or his presumed "contactpersons" (see paragraph 17 above). Consequently, so-called exploratory or
general surveillance is not permitted by the contested legislation.
Surveillance may be ordered only on written application giving reasons,
and such an application may be made only by the head, or his substitute, of
certain services; the decision thereon must be taken by a Federal Minister
empowered for the purpose by the Chancellor or, where appropriate, by the
supreme Land authority (see paragraph 18 above). Accordingly, under the
law there exists an administrative procedure designed to ensure that
measures are not ordered haphazardly, irregularly or without due and proper
consideration. In addition, although not required by the Act, the competent
Minister in practice and except in urgent cases seeks the prior consent of the
G 10 Commission (see paragraph 21 above).
52. The G 10 also lays down strict conditions with regard to the
implementation of the surveillance measures and to the processing of the
information thereby obtained. The measures in question remain in force for
a maximum of three months and may be renewed only on fresh application;
the measures must immediately be discontinued once the required
conditions have ceased to exist or the measures themselves are no longer
necessary; knowledge and documents thereby obtained may not be used for
other ends, and documents must be destroyed as soon as they are no longer
needed to achieve the required purpose (see paragraphs 18 and 20 above).
As regards the implementation of the measures, an initial control is
carried out by an official qualified for judicial office. This official examines
the information obtained before transmitting to the competent services such
information as may be used in accordance with the Act and is relevant to the
purpose of the measure; he destroys any other intelligence that may have
been gathered (see paragraph 20 above).