KLASS AND OTHERS v. GERMANY JUGDMENT
4
December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of
the G 10 was void, being incompatible with the second sentence of Article
10 para. 2 of the Basic Law, in so far as it excluded notification of the
person concerned about the measures of surveillance even when such
notification could be given without jeopardising the purpose of the
restriction. The Constitutional Court dismissed the remaining claims
(Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).
Since the operative provisions of the aforementioned judgment have the
force of law, the competent authorities are bound to apply the G 10 in the
form and subject to the interpretation decided by the Constitutional Court.
Furthermore, the Government of the Federal Republic of Germany were
prompted by this judgment to propose amendments to the G 10, but the
parliamentary proceedings have not yet been completed.
12. As regards the applicants’ right to apply to the Constitutional Court,
that Court held, inter alia:
"In order to be able to enter a constitutional application against an Act, the applicant
must claim that the Act itself, and not merely an implementary measure, constitutes a
direct and immediate violation of one of his fundamental rights ... These conditions
are not fulfilled since, according to the applicants’ own submissions, it is only by an
act on the part of the executive that their fundamental rights would be violated.
However, because they are not apprised of the interference with their rights, the
persons concerned cannot challenge any implementary measure. In such cases, they
must be entitled to make a constitutional application against the Act itself, as in cases
where a constitutional application against an implementary measure is impossible for
other reasons ..." (ibid, pp. 16-17).
13. Although, as a precautionary measure, the applicants claimed before
both the Constitutional Court and the Commission that they were being
subjected to surveillance measures, they did not know whether the G 10 had
actually been applied to them.
On this point, the Agent of the Government made the following
declaration before the Court:
"To remove all uncertainty as to the facts of the case and to give the Court a clear
basis for its decision, the Federal Minister of the Interior, who has competence in the
matter, has, with the G 10 Commission’s approval, authorised me to make the
following statement:
At no time have surveillance measures provided for by the Act enacted in pursuance
of Article 10 of the Basic Law been ordered or implemented against the applicants.
Neither as persons suspected of one or more of the offences specified in the Act nor as
third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G
10 have the applicants been subjected to such measures. There is also no question of
the applicants’ having been indirectly involved in a surveillance measure directed
against another person - at least, not in any fashion which would have permitted their
identification. Finally, there is no question of the applicants’ having been subjected to
surveillance by mistake - for example through confusion over a telephone number -,
since in such cases the person concerned is notified of the surveillance measure."