KLASS AND OTHERS v. GERMANY JUGDMENT
22
improperly implemented without the individual knowing or being able to
verify the extent to which his rights have been interfered with. In their view,
effective control by the courts after the suspension of surveillance measures
is necessary in a democratic society to ensure against abuses; otherwise
adequate control of secret surveillance is lacking and the right conferred on
individuals under Article 8 (art. 8) is simply eliminated.
In the Government’s view, the subsequent notification which must be
given since the Federal Constitutional Court’s judgment (see paragraphs 11
and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2).
In their submission, the whole efficacy of secret surveillance requires that,
both before and after the event, information cannot be divulged if thereby
the purpose of the investigation is, or would be retrospectively, thwarted.
They stressed that recourse to the courts is no longer excluded after
notification has been given, various legal remedies then becoming available
to allow the individual, inter alia, to seek redress for any injury suffered (see
paragraph 24 above).
58. In the opinion of the Court, it has to be ascertained whether it is even
feasible in practice to require subsequent notification in all cases.
The activity or danger against which a particular series of surveillance
measures is directed may continue for years, even decades, after the
suspension of those measures. Subsequent notification to each individual
affected by a suspended measure might well jeopardise the long-term
purpose that originally prompted the surveillance. Furthermore, as the
Federal Constitutional Court rightly observed, such notification might serve
to reveal the working methods and fields of operation of the intelligence
services and even possibly to identify their agents. In the Court’s view, in so
far as the "interference" resulting from the contested legislation is in
principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48
above), the fact of not informing the individual once surveillance has ceased
cannot itself be incompatible with this provision since it is this very fact
which ensures the efficacy of the "interference". Moreover, it is to be
recalled that, in pursuance of the Federal Constitutional Court’s judgment of
15 December 1970, the person concerned must be informed after the
termination of the surveillance measures as soon as notification can be made
without jeopardising the purpose of the restriction (see paragraphs 11 and
19 above).
59. Both in general and in relation to the question of subsequent
notification, the applicants have constantly invoked the danger of abuse as a
ground for their contention that the legislation they challenge does not fulfil
the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the
possibility of improper action by a dishonest, negligent or over-zealous
official can never be completely ruled out whatever the system, the
considerations that matter for the purposes of the Court’s present review are