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KLASS AND OTHERS v. GERMANY JUGDMENT
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
(Translation)
I agree with the judgment’s conclusions, but on different grounds.
1. The G 10 Act specifies, in Article 1 para. 1, the cases in which the
competent authorities may impose restrictions, that is to say, may open and
inspect mail and post, read telegraphic messages, listen to and record
telephone conversations. It empowers those authorities so to act, inter alia,
in order to protect against "imminent dangers" threatening the "free
democratic constitutional order", "the existence or the security of the
Federation or of a Land", "the security of the (allied) armed forces"
stationed on the territory of the Republic and the security of "the troops of
one of the Three Powers stationed in the Land of Berlin". According to
Article 1 para. 2, these measures may be taken only where there are factual
indications (tatsächliche Anhaltspunkte) for suspecting a person of
planning, committing, or having committed certain criminal acts punishable
under the Criminal Code, such as offences against the peace or security of
the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1,
no. 2), external security (sub-paragraph 1, no. 3) and the security of the
allied armed forces (sub-paragraph 1, no. 5) (see paragraph 17 of the
judgment).
For all those persons to whom the G 10 can be applied, the mere facts of
its existence creates a very real menace that their exercise of the right to
respect for their private and family life and their correspondence may be the
subject of surveillance.
Clearly, therefore, a person may claim to be a victim for the purposes of
Article 25 (art. 25) of the Convention. Consequently, the applicants have a
direct interest (Jose Alberto dos Reis, Codigo do Processo Civil Anotado,
vol. 1, p. 77), which is an ideal condition (Carnelutti, Sistemo del diritto
processuale civile, vol. 1, pp. 361 and 366) for an application to the
Commission.
In my view, the applicants are the victims of a menace and for this reason
can claim to be victims within the meaning of Article 25 (art. 25).
2. I would mention in passing one point of concern, namely, that the
majority opinion, contained in paragraph 56, could take the interpretation of
Article 8 (art. 8) in a direction which, if I may say so, might not be without
risk.
The measures are ordered, on written application giving reasons, either
by the supreme Land authority in cases falling within its jurisdiction or by a
Federal Minister empowered for the purpose by the Chancellor. The
Chancellor has entrusted these functions to the Ministers of the Interior and
of Defence, each of whom, in the sphere falling within his competence,
must personally take the decision as to the application of the measures