25
KLASS AND OTHERS v. GERMANY JUGDMENT
contention. Consequently, although the applicants are challenging the terms
of the legislation itself, the Court must examine, inter alia, what remedies
are in fact available under German law and whether these remedies are
effective in the circumstances.
66. The Court observes firstly that the applicants themselves enjoyed "an
effective remedy", within the meaning of Article 13 (art. 13), in so far as
they challenged before the Federal Constitutional Court the conformity of
the relevant legislation with their right to respect for correspondence and
with their right of access to the courts. Admittedly, that Court examined the
applicants’ complaints with reference not to the Convention but solely to the
Basic Law. It should be noted, however, that the rights invoked by the
applicants before the Constitutional Court are substantially the same as
those whose violation was alleged before the Convention institutions (cf.,
mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine
Drivers’ Union case, Series A no. 20, p. 18, para. 50). A reading of the
judgment of 15 December 1970 reveals that the Constitutional Court
carefully examined the complaints brought before it in the light, inter alia,
of the fundamental principles and democratic values embodied in the Basic
Law.
67. As regards the issue whether there is "an effective remedy" in
relation to the implementation of concrete surveillance measures under the
G 10, the applicants argued in the first place that to qualify as a "national
authority", within the meaning of Article 13 (art. 13), a body should at least
be composed of members who are impartial and who enjoy the safeguards
of judicial independence. The Government in reply submitted that, in
contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal
remedy through the courts.
In the Court’s opinion, the authority referred to in Article 13 (art. 13)
may not necessarily in all instances be a judicial authority in the strict sense
(see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para.
33). Nevertheless, the powers and procedural guarantees an authority
possesses are relevant in determining whether the remedy before it is
effective.
68. The concept of an "effective remedy", in the applicants’ submission,
presupposes that the person concerned should be placed in a position, by
means of subsequent information, to defend himself against any
inadmissible encroachment upon his guaranteed rights. Both the
Government and the Commission were agreed that no unrestricted right to
notification of surveillance measures can be deduced from Article 13 (art.
13) once the contested legislation, including the lack of information, has
been held to be "necessary in a democratic society" for any one of the
purposes mentioned in Article 8 (art. 8).
The Court has already pointed out that it is the secrecy of the measures
which renders it difficult, if not impossible, for the person concerned to seek