KLASS AND OTHERS v. GERMANY JUGDMENT
8
judgment of 15 December 1970, the Commission has, since that judgment,
also been called upon when decisions are taken on whether the person
concerned should be notified of the measures affecting him (see paragraph
19 above).
The G 10 Commission consists of three members, namely, a Chairman,
who must be qualified to hold judicial office, and two assessors. The
Commission members are appointed for the current term of the Bundestag
by the above-mentioned Board of five Members of Parliament after
consultation with the Government; they are completely independent in the
exercise of their functions and cannot be subject to instructions.
The G 10 Commission draws up its own rules of procedure which must
be approved by the Board; before taking this decision, the Board consults
the Government.
For the Länder, their legislatures lay down the parliamentary supervision
to which the supreme authorities are subject in the matter. In fact, the
Länder Parliaments have set up supervisory bodies which correspond to the
federal bodies from the point of view of organisation and operation.
22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:
"... there shall be no legal remedy before the courts in respect of the ordering and
implementation of restrictive measures."
The official statement of reasons accompanying the Bill contains the
following passage in this connection:
"The surveillance of the post and telecommunications of a certain person can serve a
useful purpose only if the person concerned does not become aware of it. For this
reason, notification to this person is out of the question. For the same reason, it must
be avoided that a person who intends to commit, or who has committed, the offences
enumerated in the Act can, by using a legal remedy, inform himself whether he is
under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive
measures had to be denied ...
The Bill presented during the 4th legislative session ... provided for the ordering (of
such measures) by an independent judge. The Federal Government abandoned this
solution in the Bill amending Article 10 of the Basic Law, introduced as part of the
Emergency Legislation, mainly because the Executive, which is responsible before the
Bundestag, should retain the responsibility for such decisions in order to observe a
clear separation of powers. The present Bill therefore grants the power of decision to a
Federal Minister or the supreme authority of the Land. For the (above-)mentioned
reasons ..., the person concerned is deprived of the opportunity of having the
restrictive measures ordered examined by a court; on the other hand, the constitutional
principle of government under the rule of law demands an independent control of
interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance
of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to
a Parliamentary Board and the supervision of the ordering of the restrictive measures
by a Control Commission appointed by the Board ..." (Bundestag document V/1880 of
13 June 1967, p. 8).