KLASS AND OTHERS v. GERMANY JUGDMENT
20
53. Under the G 10, while recourse to the courts in respect of the
ordering and implementation of measures of surveillance is excluded,
subsequent control or review is provided instead, in accordance with Article
10 para. 2 of the Basic Law, by two bodies appointed by the people’s
elected representatives, namely, the Parliamentary Board and the G 10
Commission.
The competent Minister must, at least once every six months, report on
the application of the G 10 to the Parliamentary Board consisting of five
Members of Parliament; the Members of Parliament are appointed by the
Bundestag in proportion to the parliamentary groupings, the opposition
being represented on the Board. In addition, the Minister is bound every
month to provide the G 10 Commission with an account of the measures he
has ordered. In practice, he seeks the prior consent of this Commission. The
latter decides, ex officio or on application by a person believing himself to
be under surveillance, on both the legality of and the necessity for the
measures in question; if it declares any measures to be illegal or
unnecessary, the Minister must terminate them immediately. The
Commission members are appointed for the current term of the Bundestag
by the Parliamentary Board after consultation with the Government; they
are completely independent in the exercise of their functions and cannot be
subject to instructions (see paragraph 21 above).
54. The Government maintain that Article 8 para. 2 (art. 8-2) does not
require judicial control of secret surveillance and that the system of review
established under the G 10 does effectively protect the rights of the
individual. The applicants, on the other hand, qualify this system as a "form
of political control", inadequate in comparison with the principle of judicial
control which ought to prevail.
It therefore has to be determined whether the procedures for supervising
the ordering and implementation of the restrictive measures are such as to
keep the "interference" resulting from the contested legislation to what is
"necessary in a democratic society".
55. Review of surveillance may intervene at three stages: when the
surveillance is first ordered, while it is being carried out, or after it has been
terminated. As regards the first two stages, the very nature and logic of
secret surveillance dictate that not only the surveillance itself but also the
accompanying review should be effected without the individual’s
knowledge. Consequently, since the individual will necessarily be prevented
from seeking an effective remedy of his own accord or from taking a direct
part in any review proceedings, it is essential that the procedures established
should themselves provide adequate and equivalent guarantees safeguarding
the individual’s rights. In addition, the values of a democratic society must
be followed as faithfully as possible in the supervisory procedures if the
bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are
not to be exceeded. One of the fundamental principles of a democratic