KLASS AND OTHERS v. GERMANY JUGDMENT
6
security of the Federation or of a Land, the statute may provide that the person
concerned shall not be notified of the restriction and that legal remedy through the
courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies
appointed by the people’s elected representatives."
17. The G 10, adopting the solution contemplated by the second sentence
of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para.
1) the cases in which the competent authorities may impose the restrictions
provided for in that paragraph, that is to say, may open and inspect mail and
post, read telegraphic messages, listen to and record telephone
conversations. Thus, Article 1 para. 1 empowers those authorities so to act
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).
Paragraph 2 of Article 1 further states that the surveillance provided for
in paragraph 1 is permissible only if the establishment of the facts by
another method is without prospects of success or considerably more
difficult (aussichtslos oder wesentlich erschwert). The surveillance may
cover only "the suspect or such other persons who are, on the basis of clear
facts (bestimmter Tatsachen), to be presumed to receive or forward
communications intended for the suspect or emanating from him or whose
telephone the suspect is to be presumed to use" (sub-paragraph 2).
18. Article 1 para. 4 of the Act provides that an application for
surveillance measures may be made only by the head, or his substitute, of
one of the following services: the Agencies for the Protection of the
Constitution of the Federation and the Länder (Bundesamt für
Verfassungsschutz; Verfassungsschutzbehörden der Länder), the Army
Security Office (Amt für Sicherheit der Bundeswehr) and the Federal
Intelligence Service (Bundesnachrichtendienst).
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 (Article 1
para. 5, sub-paragraphs 1 and 2).