KLASS AND OTHERS v. GERMANY JUGDMENT
24
meaningless. On the other hand, both the Government and the Commission
consider that there is no basis for the application of Article 13 (art. 13)
unless a right guaranteed by another Article of the Convention has been
violated.
63. In the judgment of 6 February 1976 in the Swedish Engine Drivers’
Union case, the Court, having found there to be in fact an effective remedy
before a national authority, considered that it was not called upon to rule
whether Article 13 (art. 13) was applicable only when a right guaranteed by
another Article of the Convention has been violated (Series A no. 20, p. 18,
para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June
1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present
case to decide on the applicability of Article 13 (art. 13), before examining,
if necessary, the effectiveness of any relevant remedy under German law.
64. Article 13 (art. 13) states that any individual whose Convention rights
and freedoms "are violated" is to have an effective remedy before a national
authority even where "the violation has been committed" by persons in an
official capacity. This provision, read literally, seems to say that a person is
entitled to a national remedy only if a "violation" has occurred. However, a
person cannot establish a "violation" before a national authority unless he is
first able to lodge with such an authority a complaint to that effect.
Consequently, as the minority in the Commission stated, it cannot be a
prerequisite for the application of Article 13 (art. 13) that the Convention be
in fact violated. In the Court’s view, Article 13 (art. 13) requires that where
an individual considers himself to have been prejudiced by a measure
allegedly in breach of the Convention, he should have a remedy before a
national authority in order both to have his claim decided and, if
appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted
as guaranteeing an "effective remedy before a national authority" to
everyone who claims that his rights and freedoms under the Convention
have been violated.
65. Accordingly, although the Court has found no breach of the right
guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained
whether German law afforded the applicants "an effective remedy before a
national authority" within the meaning of Article 13 (art. 13).
The applicants are not claiming that, in relation to particular surveillance
measures actually applied to them, they lacked an effective remedy for
alleged violation of their rights under the Convention. Rather, their
complaint is directed against what they consider to be a shortcoming in the
content of the contested legislation. While conceding that some forms of
recourse exist in certain circumstances, they contend that the legislation
itself, since it prevents them from even knowing whether their rights under
the Convention have been interfered with by a concrete measure of
surveillance, thereby denies them in principle an effective remedy under
national law. Neither the Commission nor the Government agree with this