27
KLASS AND OTHERS v. GERMANY JUGDMENT
Court for a ruling as to whether there has been a breach of the Basic Law
(see paragraph 24 above).
72. Accordingly, the Court considers that, in the particular circumstances
of this case, the aggregate of remedies provided for under German law
satisfies the requirements of Article 13 (art. 13).
IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1)
which provides:
"In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part of the
trial in the interests of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice."
74. According to the applicants, the surveillance measures which can be
taken under the contested legislation amount both to an interference with a
"civil right", and to the laying of a "criminal charge" within the meaning of
Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this
Article (art. 6-1) in so far as it does not require notification to the person
concerned in all cases after the termination of surveillance measures and
excludes recourse to the courts to test the lawfulness of such measures. On
the other hand, both the Government and the Commission concur in
thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the
case under either the "civil" or the "criminal" head.
75. The Court has held that in the circumstances of the present case the G
10 does not contravene Article 8 (art. 8) in authorising a secret surveillance
of mail, post and telecommunications subject to the conditions specified
(see paragraphs 39 to 60 above).
Since the Court has arrived at this conclusion, the question whether the
decisions authorising such surveillance under the G 10 are covered by the
judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art.
6) to be applicable - must be examined by drawing a distinction between
two stages: that before, and that after, notification of the termination of
surveillance.
As long as it remains validly secret, the decision placing someone under
surveillance is thereby incapable of judicial control on the initiative of the
person concerned, within the meaning of Article 6 (art. 6); as a
consequence, it of necessity escapes the requirements of that Article.
The decision can come within the ambit of the said provision only after
discontinuance of the surveillance. According to the information supplied