way in which the duties to inform are regulated in § 3.8 of the G 10 Act does not violate Article 19.4 of the Basic Law.
The Federal Minister of the Interior accepted that Article 19.4(1) of the Basic Law
can require that the state inform the person whose telecommunications privacy rights
have been secretly restricted of the encroachment because the guarantee of recourse to a court is the citizens' central means of protecting their rights and because
this guarantee depends on whether the citizen knows that his or her rights have been
violated. The Federal Minister of the Interior argued, however, that this duty to inform
does not have unlimited application. It is explicitly restricted by the Constitution itself,
in Article 19.4(3) in conjunction with Article 10.2(2). The Federal Minister of the Interior concluded that the prerequisites for the subsequent provision of information regarding an encroachment of telecommunications privacy, which have been established by the Federal Constitutional Court, are fulfilled by § 3.8 of the G 10 Act.
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The Federal Minister of the Interior argued that even when it is taken into account
that the objectives for which strategic surveillance is permitted have been expanded,
which, as a consequence, involves to an increased extent the defence against and
the prosecution of certain criminal offences and, in this context, the recording of personal data, Article 19.4 of the Basic Law is not violated. The legal interests protected
by § 3.1 sent. 2 nos. 2-6 of the G 10 Act carry such a weight that in the cases covered
by § 3.8(1) of the G 10 Act the citizens' legal protection will have to be subordinated,
at least temporarily. § 3.8(1) of the G 10 Act restricts the monitored persons' factual
possibility of obtaining recourse to a court only to the extent required for achieving the
objective of the Act. In the period of time during which the subject of telecommunications monitoring may not be informed of the surveillance, the monitoring is controlled
by the independent commission established by § 9 of the G 10 Act.
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The Federal Minister of the Interior also asserted that § 3.8(2) of the G 10 Act is consistent with Article 19.4 of the Basic Law because the encroachment upon Article 10
of the Basic Law does not result in any consequences for the person being monitored
and because the intensity of the encroachment is low. The Federal Minister of the Interior suggested that the special provisions that restrict the duty to inform the monitored persons are the appropriate result of the parliament’s weighing of interests and
a fulfilment of its duty to strike a balance between the following interests: (1) the individual's interest in protection; (2) the safeguarding of the objective of the restriction on
the right to telecommunications privacy and of the use of the information obtained
thereby; and (3) the Federal Intelligence Service’s mission and its manner of functioning. The Federal Minister of the Interior argued that the mere fact that a public agency
has obtained knowledge of personal data does not trigger the duty to inform the person being monitored of the encroachment, which derives from the allgemeines Persönlichkeitsrecht (general right to personality) or from the guarantee of legal protection provided by the recourse to a court. The public agency's duties to inform are not
supposed to extend so far as to make it impossible to exercise public functions.
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