5
KLASS AND OTHERS v. GERMANY JUGDMENT
The contested legislation
14. After the end of the Second World War, the surveillance of mail, post
and telecommunications in Germany was dealt with by the occupying
powers. As regards the Federal Republic, neither the entry into force on 24
May 1949 of the Basic Law nor the foundation of the State of the Federal
Republic on 20 September 1949 altered this situation which continued even
after the termination of the occupation régime in 1955. Article 5 para. 2 of
the Convention of 26 May 1952 on Relations between the Three Powers
(France, the United States and the United Kingdom) and the Federal
Republic - as amended by the Paris Protocol of 23 October 1954 - specified
in fact that the Three Powers temporarily retained "the rights ... heretofore
held or exercised by them, which relate to the protection of the security of
armed forces stationed in the Federal Republic". Under the same provision,
these rights were to lapse "when the appropriate German authorities (had)
obtained similar powers under German legislation enabling them to take
effective action to protect the security of those forces, including the ability
to deal with a serious disturbance of public security and order".
15. The Government wished to substitute the domestic law for the rights
exercised by the Three Powers and to place under legal control interferences
with the right, guaranteed by Article 10 of the Basic Law, to respect for
correspondence. Furthermore, the restrictions to which this right could be
subject appeared to the Government to be inadequate for the effective
protection of the constitutional order of the State. Thus, on 13 June 1967,
the Government introduced two Bills as part of the Emergency Legislation.
The first sought primarily to amend Article 10 para. 2 of the Basic Law; the
second - based on Article 10 para. 2 so amended - was designed to limit the
right to secrecy of the mail, post and telecommunications. The two Acts,
having been adopted by the federal legislative assemblies, were enacted on
24 June and 13 August 1968 respectively.
The Three Powers had come to the view on 27 May that these two texts
met the requirements of Article 5 para. 2 of the above-mentioned
Convention. Their statements declared:
"The rights of the Three Powers heretofore held or exercised by them which relate
to the protection of the security of armed forces stationed in the Federal Republic and
which are temporarily retained pursuant to that provision will accordingly lapse as
each of the above-mentioned texts, as laws, becomes effective."
16. In its initial version, Article 10 of the Basic Law guaranteed the
secrecy of mail, post and telecommunications with a proviso that
restrictions could be ordered only pursuant to a statute. As amended by the
Act of 24 June 1968, it now provides:
"(1) Secrecy of the mail, post and telecommunications shall be inviolable.
(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions
are intended to protect the free democratic constitutional order or the existence or