Klass and others v Federal Republic of Germany,  European Court of Human Rights (Series A, NO 28) (1979-80) 2 EHRR 214, 6 September 1978

FACTS:

Legislation in Germany permitted the State authorities to open and inspect mail and listen to telephone conversations in order to protect against, inter alia, 'imminent dangers' threatening the 'free democratic constitutional order' and 'the existence or the security' of the State. Certain 'factual indications' had to be present before such surveillance could be undertaken, which required the approval of the supreme Land authority or a designated federal minister, on the application of the head of one of four security agencies. The measures lapsed after three months, but could be renewed. The subject of the surveillance had to be notified after termination if it could be done without jeopardizing the purpose of the surveillance, and a statutory commission supervised this aspect of the system. The surveillance itself was supervised by an official qualified for judicial office. The Minister had to make regular reports on the law's use to an all-party parliamentary committee; and the statutory commission normally had to approve surveillance desired by the Minister.

The applicants, five German lawyers, claimed that the legislation infringed Articles 6 (right to a fair hearing, 8 (right to respect for correspondence) and 13 (effective remedy before a national authority in respect of breaches of the Convention) of the European Convention on Human Rights. They accepted the State's right to have recourse to such measures, but challenged the legislation on the grounds that it contained no absolute requirement to notify the persons after surveillance of their mail etc had ceased and that it excluded any remedy before the courts against the ordering and implementation of the measures. The Government denied that the legislation infringed the Convention and question whether the applicants were 'victims of a violation' within the terms of Article 25(1), since they had not themselves been subject to surveillance. The Commission having declared the application admissible in 1974, concluded that the secret nature of the exercise made it necessary to regard the applicants as possible victims for the purpose of Article 25, but decided that no breaches of the Convention were disclosed.

The plenary Court held unanimously that it was necessary to regard the applicants as possible victims in the special circumstances of the case but that the measures taken, having regard to the safeguards provided, though interferences with the right guaranteed in Article 8(1), were 'necessary in a democratic society in the interests of national security' within the terms of paragraph 2 of Article 8.

Jurisdiction of Court. Whether Court empowered to review aspects of a case already properly considered by Commission in connection with admissibility of application.

1. The Court was endowed with full jurisdiction over a case referred to it and could take cognizance of all questions of fact or law, including questions which might have been raised before the Commission when considering the admissibility of the application.

Meaning of 'victim of a violation' in Article 25(1). Whether State's law in question must have been applied to applicant. Exception where law is operated secretly. Secret surveillance laws. Need to make Convention protection effective where applicant unaware of possible violation of his rights.

2. (a) Article 25 did not institute for individuals an action popularize for the interpretation of the Convention and it did not permit individuals to complain against a law in abstractor because they felt that it contravened the Convention.

(b) It did not suffice for an applicant to claim that the mere existence of a law violated his rights under the Convention. The law must have been applied to his detriment.

(c) A law might however violate the rights of an individual if he was directly affected by the law in the absence of any specific measure of implementation.

(d) The effectiveness of the Convention implied some possibility of having access to the Commission where the secrecy of the measures objected to precluded the applicant from pointing to an concrete measure specifically affecting him.

(e) An individual might claim to be the victim of a violation occasioned by the mere existence of secret measures without having to allege that they were applied to him, but each must be considered in the light of the right alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.

(f) Where a State instituted secret surveillance unknown to the persons under control, so that the surveillance was unchallengeable, Article 8 could to a large extent be reduced to a nullity.

(g) It was unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be removed by the simple fact that the person concerned was kept unaware of its violation.

(h) Everyone in Germany was potentially subject to having his mail, post and telecommunications monitored, without his ever knowing, which constituted a direct interference with the right guaranteed under Article 8, so that each applicant was entitled to claim to be the victim of a violation of the Convention.

(i) the Government's retrospective statement that none of the applicants had ever been subject to surveillance did not alter their status as 'victims'.

(j) Whether the applicants were actually victims of a violation involved determining whether the contested legislation was compatible with the Convention.

Respect for private and family life, home and correspondence (Art 8). Surveillance of letters, telegrams and telephone conversations by State officials. Whether justified by paragraph 2 as being 'necessary in a democratic society in the interests of national security' or 'for the prevention of disorder or crime'. Whether procedures to safeguard individual rights adequate.

3. (a) Telephone conversations are covered by the notions of 'private life' and 'correspondence' in Article 8.

(b) The legislation permitting monitoring of mail etc clearly interfered with an individual's rights under Article 8(1) once applied to him.

(c) The mere existence of the legislation involved a menace of surveillance to all those to whom the controls could be applied, which necessarily struck at freedom of communication between users of the postal and telecommunications services and thereby constituted an interference by a public authority with the exercise of the applicants' right to respect for private and family life and for correspondence.

(d) It was not necessary to consider whether an interference with the exercise of a person's right to respect for his home was also involved.

(e) Paragraph 2 of Article 8, being an exception to a right guaranteed by the Convention, was to be narrowly interpreted.

(f) Powers of secret surveillance of citizens, characterizing as they did the police state, were tolerable under the Convention only insofar as strictly necessary for safeguarding democratic institutions.

(g) The aims of the legislation were indeed to safeguard national security and/or to prevent disorder or crime.

(h) The Court had to take judicial notice of the technical advances made in the means of espionage and surveillance and of the development of terrorism in Europe in recent years.

(i) As democratic societies found themselves threatened by highly sophisticated forms of espionage and by terrorism, the Court had to accept that legislation granting powers of secret surveillance over the mail etc of subversive elements within their jurisdiction was under exceptional conditions necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.

(j) The legislature enjoyed a certain but not an unlimited discretion in fixing the conditions under which the system of surveillance was to be operated, which must provide adequate and effective guarantees against abuse.

(k) The contested legislation provided an administrative procedure designed to ensure that surveillance was not ordered haphazardly, irregularly or without due and proper consideration.

(l) Review of surveillance when first ordered or while being carried out must be accompanied by procedures which guaranteed the individual's rights, since the secret nature of the practice necessarily prevented the individual from seeking an effective remedy of his own accord.

(m) If the bounds of necessity in a democratic society were not to be exceeded in a field where abuse was potentially so easy in individual cases and could have such harmful consequences for democratic society, it was in principle desirable to entrust supervisory control to a judge, in accordance with the rule of law, since judicial control offered the best guarantee of independence, impartially and a proper procedure; but other safeguards might nevertheless suffice if independent and vested with sufficient powers to exercise an effective and continuous control.

(n) Failure to inform an individual a posteriori that he had been subject to surveillance was not in principle incompatible with Article 8(2).

(o) While the possibility of improper action by a dishonest, negligent or over-zealous official could never be ruled out whatever the system, the relevant considerations were the likelihood of such action and the safeguards provided to protect against it.

(p) Some compromise between the requirements for defending democratic society and individual rights was inherent in the Convention. Accordingly, a balance had to be sought between the right guaranteed under paragraph 1 and the necessity under paragraph 2 to impose secret surveillance for the protection of the whole society.

(q) As the measures taken in Germany were necessary in a democratic society in the interests of national security and for the prevention of disorder or crime, there had been no breach of Article 8.

Effective remedy before a national authority (Art 13). Whether that authority must be judicial. Nature of remedy in cases of secret surveillance.

4. (a) Where an individual claimed that his rights and freedoms under the Convention had been violated, Article 13 guaranteed a remedy before a national authority in order to have his claim decided and, if appropriate, to obtain redress.

(b) Such 'authority' need not necessarily in all instances be judicial in the strict sense.

(c) For present purposes, a remedy had to be as effective as could be having regard to the restricted scope for recourse inherent in any system of secret surveillance.

(d) The aggregate of remedies provided under German law in the particular circumstances of the case satisfied the requirements of Article 13.

Right to a fair hearing in determination of civil rights and obligations or of any criminal charge (Art 6(1)). Application to secret surveillance.

5. (a) Prior to notification of termination of the surveillance, the decision to place someone under surveillance was, if validly secret, incapable of judicial control on the initiative of the person concerned and of necessity must escape the requirements of Article 6.

(b) Once the individual had been notified of the discontinuance of surveillance, he had at his disposal several legal remedies which satisfied the requirements of Article 6.

The following decisions of the Court are referred to in the Judgment:

1. BELGIAN LINGUISTIC CASE PRELIMINARY OBJECTIONS), 1967, Series A, No 5.
2. BELGIAN LINGUISTIC CASE (MERITS), 1968, Series A, No 6.
3. DE WILDE, OOMS AND VERSYP V BELGIUM, 1971, Series A, No 12.
4. ENGEL AND OTHERS V THE NETHERLANDS, 1976, Series A, No 22.
5. GOLDER V UK, 1975, Series A, No 18.
6. HANDYSIDE V UK, 1976, Series A, No 24.
7. IRELAND V UK, 1978, Series A, No 25; 2 EHRR 25.
8. KJELDSEN, BUSK MADSEN AND PEDERSEN V DENMARK, Series A, No 23.
9. SWEDISH ENGINE DRIVERS' UNION V SWEDEN, Series A, No 20; [1978] ECC 1.

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