21
KLASS AND OTHERS v. GERMANY JUGDMENT
society is the rule of law, which is expressly referred to in the Preamble to
the Convention (see the Golder judgment of 21 February 1975, Series A no.
18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an
interference by the executive authorities with an individual’s rights should
be subject to an effective control which should normally be assured by the
judiciary, at least in the last resort, judicial control offering the best
guarantees of independence, impartiality and a proper procedure.
56. Within the system of surveillance established by the G 10, judicial
control was excluded, being replaced by an initial control effected by an
official qualified for judicial office and by the control provided by the
Parliamentary Board and the G 10 Commission.
The Court considers that, in a field where abuse is potentially so easy in
individual cases and could have such harmful consequences for democratic
society as a whole, it is in principle desirable to entrust supervisory control
to a judge.
Nevertheless, having regard to the nature of the supervisory and other
safeguards provided for by the G 10, the Court concludes that the exclusion
of judicial control does not exceed the limits of what may be deemed
necessary in a democratic society. The Parliamentary Board and the G 10
Commission are independent of the authorities carrying out the surveillance,
and are vested with sufficient powers and competence to exercise an
effective and continuous control. Furthermore, the democratic character is
reflected in the balanced membership of the Parliamentary Board. The
opposition is represented on this body and is therefore able to participate in
the control of the measures ordered by the competent Minister who is
responsible to the Bundestag. The two supervisory bodies may, in the
circumstances of the case, be regarded as enjoying sufficient independence
to give an objective ruling.
The Court notes in addition that an individual believing himself to be
under surveillance has the opportunity of complaining to the G 10
Commission and of having recourse to the Constitutional Court (see
paragraph 23 above). However, as the Government conceded, these are
remedies which can come into play only in exceptional circumstances.
57. As regards review a posteriori, it is necessary to determine whether
judicial control, in particular with the individual’s participation, should
continue to be excluded even after surveillance has ceased. Inextricably
linked to this issue is the question of subsequent notification, since there is
in principle little scope for recourse to the courts by the individual
concerned unless he is advised of the measures taken without his knowledge
and thus able retrospectively to challenge their legality.
The applicants’ main complaint under Article 8 (art. 8) is in fact that the
person concerned is not always subsequently informed after the suspension
of surveillance and is not therefore in a position to seek an effective remedy
before the courts. Their preoccupation is the danger of measures being