KLASS AND OTHERS v. GERMANY JUGDMENT
26
any remedy of his own accord, particularly while surveillance is in progress
(see paragraph 55 above). Secret surveillance and its implications are facts
that the Court, albeit to its regret, has held to be necessary, in modern-day
conditions in a democratic society, in the interests of national security and
for the prevention of disorder or crime (see paragraph 48 above). The
Convention is to be read as a whole and therefore, as the Commission
indicated in its report, any interpretation of Article 13 (art. 13) must be in
harmony with the logic of the Convention. The Court cannot interpret or
apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to
nullifying its conclusion that the absence of notification to the person
concerned is compatible with Article 8 (art. 8) in order to ensure the
efficacy of surveillance measures (see paragraphs 58 to 60 above).
Consequently, the Court, consistently with its conclusions concerning
Article 8 (art. 8), holds that the lack of notification does not, in the
circumstances of the case, entail a breach of Article 13 (art. 13).
69. For the purposes of the present proceedings, an "effective remedy"
under Article 13 (art. 13) must mean a remedy that is as effective as can be
having regard to the restricted scope for recourse inherent in any system of
secret surveillance. It therefore remains to examine the various remedies
available to the applicants under German law in order to see whether they
are "effective" in this limited sense.
70. Although, according to the G 10, there can be no recourse to the
courts in respect of the ordering and implementation of restrictive measures,
certain other remedies are nevertheless open to the individual believing
himself to be under surveillance: he has the opportunity of complaining to
the G 10 Commission and to the Constitutional Court (see paragraphs 21
and 23 above). Admittedly, the effectiveness of these remedies is limited
and they will in principle apply only in exceptional cases. However, in the
circumstances of the present proceedings, it is hard to conceive of more
effective remedies being possible.
71. On the other hand, in pursuance of the Federal Constitutional Court’s
judgment of 15 December 1970, the competent authority is bound to inform
the person concerned as soon as the surveillance measures are discontinued
and notification can be made without jeopardising the purpose of the
restriction (see paragraphs 11 and 19 above). From the moment of such
notification, various legal remedies - before the courts - become available to
the individual. According to the information supplied by the Government,
the individual may: in an action for a declaration, have reviewed by an
administrative court the lawfulness of the application to him of the G 10 and
the conformity with the law of the surveillance measures ordered; bring an
action for damages in a civil court if he has been prejudiced; bring an action
for the destruction or, if appropriate, restitution of documents; finally, if
none of these remedies is successful, apply to the Federal Constitutional