KLASS AND OTHERS v. GERMANY JUGDMENT
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
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(Article 1 para. 5, sub-paragraphs 1 and 2) (see paragraph 18 of the
judgment).
Implementation of the measures ordered is supervised by an official
qualified for judicial office (Article 1 para. 7, sub-paragraph 1) (see
paragraph 20 of the judgment).
I believe that separation of powers is a basic principle of a democratic
society and that, since the measures can be ordered where there are mere
factual indications that criminal acts are about to be or are in the course of
being committed, this principle requires that the measures be ordered by an
independent judge - as was in fact contemplated by the German legislature
(see paragraph 22 of the judgment).
I have difficulty in accepting that the political authority may decide by
itself whether there exist factual indications that criminal acts are about to
be or are in the course of being committed.
3. Acting in the general interest, the States, as the High Contracting
Parties, safeguard the Convention against any breaches attributable to
another State; such breaches can consist in the danger and threat to
democracy which the publication of a law in itself may pose.
In cases originating in an application by individuals, it is necessary to
show, in addition to the threat or danger, that there has been a specific
violation of the Convention of which they claim to be the victims.
There is no doubt that a law can in itself violate the rights of an
individual if it is directly applicable to that individual without any specific
measure of implementation.
This is the case with a law which denies those who reside in a particular
area access to certain educational establishments, and with a law which
makes sex education one of the compulsory subjects on the curriculum:
these laws are applicable without the need for any implementing measure
(see the "Belgian Linguistic" case and the Kjeldsen, Busk Madsen and
Pedersen case).
The same does not hold true for the German G 10.
The Act certainly makes provision for telephone-tapping and inspection
of mail, although it delimits the scope of such measures and regulates the
methods of enforcing them.
Surveillance of an "exploratory" or general kind is not, however,
authorised by the legislation in question. If it were, then the Act would be
directly applicable.
Instead, the measures cannot be applied without a specific decision by
the supreme Land authority or the competent Federal Minister who must, in
addition, consider whether there exist any factual indications that a criminal
act is about to be or is in the course of being committed.
Thus, only where a surveillance measure has been authorised and taken
against a given individual does any question arise of an interference by a