CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 juin 2006

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Zupančič , President ,   Mr   L. Caflisch ,   Mr   C. Bîrsan ,   Mr   V. Zagrebelsky ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson , judges ,   Mr   A. Zimmermann, ad hoc judge , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 10 January 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The first applicant, Ms Gabriele Weber, is a German national. The second applicant, Mr Cesar Richard Saravia, is a Uruguayan national. Both applicants live in Montevideo (Uruguay). They were represented before the Court by Mr W. Kaleck, a lawyer practising in Berlin, and by Mr   E.   Schwan, a university professor in Berlin. The German Government (“the Government”) were represented by their Agents, Mr K. Stoltenberg, Ministerialdirigent , and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     The case concerns several provisions of the Law of 13 August 1968 on restrictions on the secrecy of mail, post and telecommunications ( Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses ), also called “the G 10 Act”, as modified by the Fight Against Crime Act of 28   October 1994 ( Verbrechensbekämpfungsgesetz ). 4.     It notably concerns the extension of the powers of the Federal Intelligence Service ( Bundesnachrichtendienst ) with regard to the recording of telecommunications in the course of so-called strategic monitoring, as well as the use ( Verwertung ) of personal data obtained thereby and their transmission to other authorities. Strategic monitoring is aimed at collecting information by intercepting telecommunications in order to identify and avert serious dangers facing the Federal Republic of Germany, such as an armed attack on its territory or the commission of international terrorist attacks and certain other serious offences (see “Relevant domestic law and practice” below, paragraphs 18 et seq.). In contrast, so-called individual monitoring, that is, the interception of telecommunications of specific persons, serves to avert or investigate certain grave offences which the persons monitored are suspected of planning or having committed. 5.     The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the Federal Intelligence Service, notably armaments, preparations for war, drug and arms trafficking and money laundering. In order to carry out her investigations, she regularly travels to different countries in Europe and South and Central America, where she also meets the persons she wants to interview. 6.     The second applicant, an employee of Montevideo City Council, submitted that he took messages for the first applicant when she was on assignments, both from her telephone and from his own telephone. He then transmitted these messages to wherever she was. 7.     On 19 November 1995 the applicants lodged a constitutional complaint with the Federal Constitutional Court. 8.     They alleged that certain provisions of the Fight Against Crime Act amending the G 10 Act disregarded their fundamental rights, notably the right to secrecy of telecommunications (Article 10 of the Basic Law), the right to self-determination in the sphere of information (Articles 2 § 1 and 1 §   1 of the Basic Law), freedom of the press (Article 5 § 1 of the Basic Law) and the right to effective recourse to the courts (Article 19 § 4 of the Basic Law). 9.     In the applicants’ submission, technological progress had made it possible to intercept telecommunications everywhere in the world and to collect personal data. Numerous telecommunications could be monitored, in the absence of any concrete suspicions, with the aid of catchwords which remained secret. Strategic monitoring could then be used in respect of individuals, preventing the press from carrying out effective investigations into sensitive areas covered by the Act. 10.     The Federal Constitutional Court, having held a hearing, delivered its judgment on 14 July 1999 (running to 125 pages). It found that the constitutional complaint lodged by the second applicant was inadmissible. The court noted that a constitutional complaint could be lodged directly against a statute if the person concerned could not know whether there had actually been an implementing measure applying the statute to him or her. The complainant, however, had to substantiate sufficiently his or her argument that his or her fundamental rights were likely to be breached by measures taken on the basis of the impugned statute. 11.     The Federal Constitutional Court noted that it was irrelevant that the applicants did not reside in Germany, because the impugned provisions were aimed at monitoring international telecommunications. However, it held that, unlike the first applicant, the second applicant had failed to substantiate sufficiently his claim that his rights under the Basic Law were likely to be interfered with by measures based on the impugned provisions of the amended G 10 Act. In the absence of any further details, the mere fact that he dealt with the first applicant’s telecommunications in her absence was not sufficient to demonstrate this. 12.     Partly allowing the first applicant’s constitutional complaint, the Federal Constitutional Court held that certain provisions of the Fight Against Crime Act were incompatible or only partly compatible with the principles laid down in the Basic Law (see “Relevant domestic law and practice” below, paragraphs 18 et seq.). In particular, section 3(1), first and second sentence, point 5, section 3(3), (4), (5), first sentence, (7), first sentence, (8), second sentence, and section 9(2), third sentence, of the Act were found to be incompatible with Article 10, Article 5 or Article 19 § 4 of the Basic Law (see paragraphs 26 et seq. below). It fixed a deadline of 30   June 2001 for the legislature to bring the situation into line with the Constitution. 13.     On 29 June 2001 a new version of the G 10 Act came into force (BGBl.   I 2001, pp. 1254, 2298) and the G 10 Act in its version as amended by the Fight Against Crime Act of 28 October 1994 ceased to apply. B.     Relevant domestic law and practice 1.     The Basic Law 14.     The Basic Law provides for the following fundamental rights, in so far as relevant: Article 5 Right to freedom of expression “(1)     Everyone shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to obtain freely information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship. (2)     These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour.” Article 10 Secrecy of mail, post and telecommunications “(1)     Secrecy of 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 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 review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives.” Article 19 Restriction on basic rights “... (4)     If a person’s rights are violated by a public authority, he may have recourse to the courts. If no other jurisdiction has been established, the civil courts shall have jurisdiction. Article 10 § 2, second sentence, remains unaffected by this paragraph.” 15.     The separation of legislative powers between the Federation and the Länder is laid down in Articles 70 et seq. of the Basic Law. Pursuant to Article   70 § 1 the Länder , in principle, have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Such legislative power is conferred on the Federation, in particular, in Article 73: “The Federation shall have exclusive power to legislate [ ausschließliche Gesetzgebungskompetenz ] on: 1.     foreign affairs and defence, including the protection of civilians; ...” 2.     The Law of 13 August 1968 on restrictions on the secrecy of mail, post and telecommunications 16.     Being the statute envisaged by Article 10 § 2, second sentence, of the Basic Law (cited above, paragraph 14), which provides for exceptions to the general rule of inviolability of telecommunications, the Law of 13   August 1968 on restrictions on the secrecy of mail, post and telecommunications ( Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses ), also called “the G 10 Act”, lays down the conditions under which the authorities may introduce the restrictions referred to in that provision of the Basic Law. 17.     In a judgment delivered on 6 September 1978 ( Klass and Others v. Germany , Series A no. 28), the Court held that the provisions of the G 10 Act of 13 August 1968, in its original version and as regards the monitoring of individuals, did not contravene the Convention. It found that the German legislature was justified in considering that the interference resulting from the legislation in question with the rights guaranteed by Article 8 § 1 of the Convention was necessary in a democratic society within the meaning of paragraph 2 of that Article. The Court also considered that the remedies provided for in the G 10 Act complied with the requirements of Article 13 of the Convention. 3.     The Fight Against Crime Act of 28 October 1994 in the light of the Federal Constitutional Court’s judgment of 14 July 1999 (a)     Legislative background 18.     The Federal Law of 28 October 1994 on the fight against crime amended the G 10 Act. Among other things, it extended the range of subjects in respect of which “strategic monitoring” (as opposed to monitoring of individuals) could be carried out. In the original version of the G 10 Act, such monitoring was permitted only in order to detect and avert the danger of an armed attack on the Federal Republic of Germany and at that time was therefore merely focused on the States belonging to the Warsaw Pact. Furthermore, owing to technical progress it had become possible to identify the telephone connections ( Anschlüsse ) involved in an intercepted telecommunication. 19.     Pursuant to the provisions of the G 10 Act which either remained unchanged by the Fight Against Crime Act or were not contested in the present case, the Offices for the Protection of the Constitution of both the Federation and the Länder ( Verfassungsschutzbehörden des Bundes und der Länder ), the Military Counter-Intelligence Service ( Militärischer Abschirmdienst ) and the Federal Intelligence Service were entitled to monitor and record telecommunications within their own sphere of activities (section   1(1) of the G 10 Act). Monitoring of individuals was limited to serious threats to national security (for example, high treason or threatening the democratic order) and was permissible only if less intrusive means of investigation had no prospect of success or were considerably more difficult (section 2 of the G 10 Act). As to strategic monitoring, only the head of the Federal Intelligence Service or his deputy were entitled to lodge an application for a surveillance order. The application had to be lodged in writing, had to describe and give reasons for the nature, scope and duration of the measure and had to explain that other means of carrying out the investigations either had no prospect of success or were considerably more difficult (section 4 of the G 10 Act). 20.     Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister assigned by the Chancellor or the highest authority of the Länder (in respect of applications by their Offices for the Protection of the Constitution). The order was made in writing and specified the exact nature, scope and duration of the monitoring measure. The duration of the measure was to be limited to a maximum of three months; the execution of the measure could be prolonged for a maximum of three months at a time as long as the statutory conditions for the order were met (see section 5 of the G 10 Act). 21.     The monitoring measures authorised were to be carried out under the responsibility of the requesting authority and under the supervision of a staff member qualified to hold judicial office. Monitoring had to be discontinued immediately if the conditions of the monitoring order were no longer met or the measure was no longer necessary (section 7 of the G 10 Act). 22.     Section 3(4) provided that the Federal Intelligence Service was to verify whether the personal data obtained by measures taken under subsection   1 of section 3 were necessary to pursue the aims laid down in that subsection. 23.     The Federal Constitutional Court found that in its present version section   3(4) was incompatible with Article 10 and Article 5 § 1, second sentence, of the Basic Law. It found that the provision did not contain sufficient safeguards to guarantee that personal data which were not destroyed or deleted as being unnecessary for the purposes of the Federal Intelligence Service would be used only for the purposes which had justified their collection. Furthermore, the provision also failed to comply with the identification requirements flowing from Article 10. In addition, there were insufficient safeguards to guarantee that the Federal Intelligence Service would only use such data as were relevant for the dangers listed in section   3(1). Such safeguards should also ensure that the Federal Intelligence Service would take into account the important concerns of non ‑ disclosure of sources and confidentiality of editorial work as protected by the freedom of the press under Article 5 § 1 of the Basic Law. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(4) was to be applied only if the data were specially marked and were not used for purposes other than those listed in section   3(1). 24.     Monitoring measures were supervised by two bodies, the Parliamentary Supervisory Board and the so-called G 10 Commission (see section 9 of the G 10 Act). At the relevant time, the Parliamentary Supervisory Board consisted of nine members of parliament, including representatives of the opposition. The Federal Minister authorising monitoring measures had to inform the board at least every six months about the implementation of the G 10 Act (section 9(1) of the G 10 Act). 25.     The G 10 Commission consisted of a president who was qualified to hold judicial office and three additional members who were appointed by the Parliamentary Supervisory Board for the duration of one legislative term and who were independent in the exercise of their functions (see section   9(4) of the G 10 Act). The Federal Minister authorising surveillance measures had to inform the G 10 Commission monthly about planned monitoring measures and had to obtain its consent (section 9(2) of the G 10 Act; see paragraphs 55-58 below). Moreover, the Federal Minister had to inform the Commission whether or not persons concerned by such measures had been notified of them. If the Commission decided that notification was necessary, the Federal Minister had to arrange for it to be given without undue delay (section 9(3) of the G 10 Act). (b)     Section 3(1) of the amended G 10 Act: Dangers for the avoidance of which monitoring of telecommunications could be ordered 26.     Section 1(1), points 1 and 2, in conjunction with section 3(1), first and second sentence, authorised the monitoring of wireless telecommunications, that is, telecommunications which were not effected via fixed telephone lines, but, for example, via satellite connections ( Überwachung nicht leitungsgebundener Fernmeldeverkehrsbeziehungen ). 27.     Section 3(1), first sentence, provided that restrictions on the secrecy of telecommunications could be ordered by the competent Federal Minister with the approval of the Parliamentary Supervisory Board, on an application by the Federal Intelligence Service, for international wireless telecommunications. Under the second sentence of that provision, such restrictions were permitted only in order to collect information about which knowledge was necessary for the timely identification and avoidance of certain dangers, namely: (1)     an armed attack on the Federal Republic of Germany; (2)     the commission of international terrorist attacks in the Federal Republic of Germany; (3)     international arms trafficking within the meaning of the Control of Weapons of War Act and prohibited external trade in goods, data-processing programmes and technologies in cases of considerable importance; (4)     the illegal importation of drugs in substantial quantities into the territory of the Federal Republic of Germany; (5)     the counterfeiting of money ( Geldfälschung ) committed abroad; (6)     the laundering of money in the context of the acts listed under points   3 to 5. Pursuant to section 3(1), third sentence, restrictions on the secrecy of telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in order to identify and avert the dangers listed in section 3(1), second sentence, point 1. 28.     The Federal Constitutional Court found that, pursuant to Article 73, point   1, of the Basic Law (see paragraph 15 above), the federal legislature had exclusive legislative power to regulate the matters listed in section 3(1) of the amended G 10 Act, as they concerned foreign affairs. 29.     However, the Federal Constitutional Court took the view that allowing the monitoring of telecommunications in order to prevent the counterfeiting of money abroad, in accordance with point 5 of section 3(1) in its present wording, constituted a disproportionate interference with the secrecy of telecommunications as protected by Article 10 of the Basic Law. It argued that this danger as such could not be considered to be as serious as an armed attack on the German State or any of the other dangers listed in section   3(1). The counterfeiting of money should therefore be included in section   3(1) only if it was restricted to cases in which it threatened the monetary stability of the Federal Republic of Germany. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(1), second sentence, point 5, was to be applied only if the counterfeiting of money abroad threatened monetary stability in Germany. 30.     In practice, wireless telecommunications (as opposed to telecommunications via fixed telephone lines) comprised some ten per cent of the total volume of telecommunications at the relevant time. However, given technical progress, the volume of such telecommunications was expected to rise in the future. 31.     Technically, telecommunications via satellite links (with the satellites being positioned some 36,000 km above the equator) could be intercepted from sites in Germany if the signal reflected by the satellite (the “downlink”) covered the area in which the station was located. The area covered by the satellite beam depended on the satellite technology used. Whereas signals downlinked by older satellites often “beamed” across one ‑ third of the earth’s surface, more modern satellites could concentrate their downlink on smaller areas. Signals could be intercepted everywhere within the area covered by the beam. International radio relay links ( Richtfunkstrecken ) could be intercepted from interception sites on German soil only if the radio relay transmission was effected within close proximity of these sites. (c)     Section 3(2) of the amended G 10 Act: Monitoring through catchwords 32.     Pursuant to section 3(2), the Federal Intelligence Service was only authorised to carry out monitoring measures with the aid of catchwords ( Suchbegriffe ) which served, and were suitable for, the investigation of the dangers described in the monitoring order (first sentence). The second sentence of that provision prohibited the catchwords from containing distinguishing features ( Identifizierungsmerkmale ) allowing the interception of specific telecommunications. However, this rule did not apply to telephone connections situated abroad if it could be ruled out that connections concerning German nationals or German companies were deliberately being monitored (third sentence). The catchwords had to be listed in the monitoring order (fourth sentence). The execution of the monitoring process as such had to be recorded in minutes by technical means and was subject to supervision by the G 10 Commission (fifth sentence). The data contained in these minutes could be used only for the purposes of reviewing data protection and had to be deleted at the end of the year following their recording (sixth and seventh sentences). (d)     Section 3(3) of the amended G 10 Act: Restrictions on the permitted use of personal data 33.     Section 3(3), first sentence, provided that personal data ( personenbezogene Daten ) obtained through the interception of telecommunications could only serve the prevention, investigation and prosecution of offences listed in section 2 of the Act and in certain other provisions, notably of the Criminal Code. These offences included, in particular, high treason against the peace or security of the State, crimes threatening the democratic order, the external security of the State or the security of the allied forces based in the Federal Republic of Germany, the formation of terrorist associations, murder, manslaughter, robbery, the forgery of payment cards or cheques, fraud relating to economic subsidies, infiltration of foreigners and the production, importation and trafficking of illegal drugs. Personal data thus obtained could be used only if the person concerned was either subject to individual monitoring under section 2 of the Act or if there were factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed one of the offences mentioned above. This catalogue of offences for the investigation of which knowledge obtained by strategic monitoring could be used was considerably enlarged by the amendment of the G 10 Act in issue. 34.     Pursuant to section 3(3), second sentence, the obligation on the Federal Intelligence Service to inform the Federal Government of its findings obtained by strategic monitoring, including personal data, under section   12 of the Federal Intelligence Service Act remained unaffected. 35.     The Federal Constitutional Court found that section 3(3), second sentence, in its present version, failed to comply with Articles 10 and 5 § 1, second sentence, of the Basic Law. The provision did not contain sufficient safeguards to guarantee that the duty of the Federal Intelligence Service to report to the Federal Government, which included the transmission of personal data, would be performed solely for the purposes which had justified the collection of the data ( Zweckbindung ). Furthermore, the provision failed to comply with the identification requirements ( Kennzeichnungspflicht ) flowing from Article 10. Ensuring that personal data were not used for illegal purposes was possible only if it remained discernible that the data concerned had been obtained by means of an interference with the secrecy of telecommunications. Likewise, there were no safeguards ensuring that the Federal Government did not keep or use the personal data transmitted to them for purposes other than those listed in section   3(1). The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(3), second sentence, was to be applied only if the personal data contained in the report to the Federal Government were marked and remained bound up with the purposes which had justified their collection. (e)     Section 3(5) of the amended G 10 Act: Transmission of data to other authorities 36.     Section 3(5), first sentence, provided that the data obtained in the circumstances described in subsection 1 of section 3 had to be transmitted to the Offices for the Protection of the Constitution of the Federation and of the Länder , to the Military Counter-Intelligence Service, to the Customs Investigation Office ( Zollkriminalamt ), to the public prosecutors’ offices and to certain police services for the purposes laid down in subsection 3 of section   3 in so far as this was necessary for the recipient authorities to carry out their duties. 37.     Pursuant to section 3(5), second sentence, the decision to transmit data was to be taken by a staff member who was qualified to hold judicial office. 38.     The Federal Constitutional Court found that the federal legislature’s exclusive legislative power under Article 73, point 1, of the Basic Law (see paragraph 15 above) to regulate matters concerning foreign affairs also covered the transmission to other authorities of information obtained by the Federal Intelligence Service in the performance of its tasks as provided for in section 3(5) of the amended G 10 Act. The federal legislature merely had to provide guarantees that the further use of the data did not disregard the primary function of the monitoring measures. 39.     The Federal Constitutional Court further found that section 3(5) was not fully compatible with Articles 10 and 5 § 1, second sentence, of the Basic Law. It held that Article 10 did not prohibit the transmission to the authorities listed in section 3(5), first sentence, of information which was relevant for the prevention and investigation of criminal offences. This finding was not called into question by the fact that the initial collection of data by means of the random interception of telecommunications in order to prevent or investigate offences, without any prior suspicion of a specific offence being planned or having been committed, would breach Article 10. 40.     However, in the opinion of the Federal Constitutional Court, the transmission of data under section 3(5), first sentence, in its present version, disproportionately interfered with the right to secrecy of telecommunications and freedom of the press. The transmission of data constituted a further serious interference with the secrecy of telecommunications, because criminal investigations could be instituted against persons concerned by the interception of telecommunications which had been carried out without any prior suspicion of an offence. Consequently, such transmission was proportionate only if it served the protection of an important legal interest and if there was a sufficient factual basis for the suspicion that criminal offences were being planned or had been committed. 41.     Section 3(5), first sentence, read in conjunction with section 3(3), did not fully comply with these requirements. 42.     The catalogue of offences in respect of which the transmission of data was permitted also included less serious offences such as fraud relating to economic subsidies. Moreover, the impugned provision authorised the transmission of data in cases in which there were merely factual indications for the suspicion that one of the offences listed in that provision had been committed or was even only being planned. The transmission of data for the investigation of an offence which had already been committed was to be authorised only if the factual basis for the transmission was the same as that required by Article 100a of the Code of Criminal Procedure. Article 100a provided, however, that interferences with the secrecy of telecommunications in order to investigate crimes required the presence of specific facts – as opposed to mere factual indications – warranting the suspicion that the person concerned had committed an offence listed in that provision. As regards the transmission of data for the prevention of crime, the combination of the following elements led to a disproportionate interference with the fundamental rights affected: the fact that mere factual indications were sufficient, that the mere planning of an offence could suffice, and that transmission could also be justified in the case of less serious offences. 43.     The Federal Constitutional Court further found that section 3(5), second sentence, was likewise not compatible with the right to secrecy of telecommunications. It considered it unnecessary to entrust the decision on transmission of data to an independent body. However, there was no requirement to record in minutes the transmission or the destruction or deletion of the data. This rendered effective supervision of the transmission of the data impossible. 44.     The Federal Constitutional Court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(5), first sentence, could be applied provided that data were only transmitted if specific facts aroused the suspicion that offences listed in section 3(3) had been committed. Furthermore, the transmission had to be recorded in minutes. (f)     Section 3(6) and (7) and section 7(4) of the amended G 10 Act: Destruction of data 45.     Section 3(6) and (7) and section 7(4) regulated the procedure for destruction of the data obtained by strategic monitoring. 46.     Section 3(6) provided that if the data obtained in the circumstances set out in section 3(1) were no longer necessary to achieve the purposes listed in that provision and if they did not have to be transmitted to other authorities pursuant to section 3(5), they had to be destroyed and deleted from the files under the supervision of a staff member who was qualified to hold judicial office (first sentence). The destruction and deletion had to be recorded in minutes (second sentence). It was necessary to verify every six months whether the conditions for destruction or deletion were met (third sentence). 47.     Section 3(7) provided that the recipient authorities were likewise to verify whether they needed the data transmitted to them in order to achieve the aims laid down in section 3(3) (first sentence). If this was not the case, they also had to destroy the data immediately (second sentence). The destruction could be dispensed with if separation of the data from other information which was necessary for the fulfilment of the tasks set was impossible or could only be carried out through unjustifiable effort; the use of such data was prohibited (third sentence). 48.     Section 7(4), first sentence, provided that personal data obtained by means of monitoring measures pursuant to sections 2 and 3 about a person involved in the telecommunications monitored had to be destroyed if they were no longer necessary for the purposes listed in the Act and could no longer be of significance for an examination by the courts of the legality of the measure. The destruction had to be carried out under the supervision of a person qualified to hold judicial office. Pursuant to section 7(4), second sentence, the destruction had to be recorded in minutes. It was necessary to examine every six months whether personal data obtained could be destroyed (third sentence). Access to data which were merely kept for the purpose of judicial review of the monitoring measure had to be blocked (fourth sentence). They could only be used for that purpose (fifth sentence). 49.     The Federal Constitutional Court found that the provisions on the destruction of data laid down in section 3(6) and (7), second and third sentences, and section 7(4) complied with Article 19 § 4 of the Basic Law. The provisions had, however, to be interpreted so as not to frustrate judicial review of monitoring measures. This meant that data could only be destroyed six months after the person concerned had been notified that monitoring measures had been taken. 50.     However, the Federal Constitutional Court considered section 3(7) to be incompatible with Article 10 of the Basic Law. It was necessary for the recipient authorities to mark the data as having been obtained by means of the interception of telecommunications. Otherwise, following verification that the information obtained was relevant for the tasks of the authorities concerned, personal data could be saved in a manner which made it impossible to identify them as resulting from the strategic monitoring of telecommunications. The restrictions on the permitted use of these data pursuant to section 3(3) would thereby be undermined. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(7) could be applied provided that the data were marked as described. (g)     Section 3(8) of the amended G 10 Act: Notification of the persons concerned by the monitoring 51.     Section 3(8), first sentence, provided that the Federal Intelligence Service or the recipient authorities had to inform the persons monitored about the restriction imposed on the secrecy of telecommunications as soon as such notification could occur without jeopardising the achievement of the aim pursued by the restriction and the use of the data. Pursuant to section   3(8), second sentence, no notification was given if the data obtained had been destroyed within three months after their receipt by the Federal Intelligence Service or the recipient authorities. 52.     The Federal Constitutional Court considered the restriction on the duty of notification as such, as laid down in section 3(8), first sentence, to be compatible with the Basic Law. By virtue of Article 10 § 2, first and second sentences, taken in conjunction with Article 19 § 4, third sentence, of the Basic Law, no notification had to be given if this served to protect the German State or its democratic order or if disclosure of the information obtained or the methods used to this end threatened the fulfilment of the tasks of the authorities concerned. 53.     However, section 3(8), second sentence, violated Articles 10 and 19 § 4 of the Basic Law. There were no safeguards precluding the data from being used before their destruction within the three-month period. The mere destruction of the data within that period alone did not, however, justify dispensing with the duty of notification irrespective of the prior use of the data. 54.     The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(8) could be applied provided that the data had not been used before their destruction. (h)     Section 9(2) of the G 10 Act: Supervision of monitoring measures 55.     Section 9(2) provided for supervision of the monitoring measures by an independent body, the so-called G 10 Commission. 56.     Pursuant to section 9(2), first sentence, the competent Federal Minister was to inform the G 10 Commission on a monthly basis about the measures he had ordered to restrict the secrecy of telecommunications before such measures were implemented. 57.     The Federal Minister could, however, order the execution of the measure before informing the G 10 Commission if there was a risk that a delay might frustrate the purpose of the measure (second sentence of section   9(2)). The Commission gave a decision of its own motion or further to complaints contesting the legality and necessity of monitoring measures (third sentence). Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately revoked by the Minister (fourth sentence). 58.     The Federal Constitutional Court considered that section 9(2), in its present wording, was incompatible with Article 10 of the Basic Law. It failed to provide in a sufficiently clear manner that supervision by the G 10 Commission covered the whole process of obtaining and using the data (including measures taken under section 3(3), (5), (6) and (8)), and not only the monitoring orders by the competent Minister. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, the provision in question was only to be applied if the Commission’s supervisory powers extended to measures taken under section   3(3), (5), (6) and (8). (i)     Section 9(6) of the amended G 10 Act: Exclusion of judicial review 59.     Section 9(6) excluded the possibility of judicial review in the case of monitoring measures ordered and executed to prevent an armed attack on the territory of the Federal Republic of Germany within the meaning of section   3(1), second sentence, point 1. 60.     Pursuant to section 5(5) of the G 10 Act, which remained unchanged in substance, the person concerned had to be notified of measures restricting the secrecy of telecommunications as soon as these measures were discontinued, provided that such notification did not jeopardise the purpose of the restriction (first and second sentence). After notification, the person concerned could have recourse to the courts; section 9(6) did not apply (third sentence). 61.     The Federal Constitutional Court found that section 9(6) constituted a justified restriction on the secrecy of telecommunications in accordance with Article 10 § 2, second sentence, of the Basic Law. Moreover, a person concerned by a monitoring measure could have recourse to the courts following notification of the restriction under section 5(5), third sentence, of the G 10 Act. The same applied if the person concerned had learned of the monitoring measure by another means, without having been notified. 4.     The new G 10 Act 62.     A new version of the G 10 Act, which takes into account the principles laid down by the Federal Constitutional Court in its judgment of 14 July 1999, came into force on 26 June 2001. COMPLAINTS 63.     The applicants claimed that certain provisions of the Fight Against Crime Act amending the G 10 Act, in their versions as interpreted and modified by the Federal Constitutional Court in its judgment of 14 July 1999, violated their right to respect for their private life and their correspondence as protected by Article 8 of the Convention. They complained in particular about section 3(1), (3), (5), (6), (7) and (8) of the amended G 10 Act. 64.     The first applicant further argued that the same provisions of the Fight Against Crime Act infringed freedom of the press as guaranteed by Article   10 of the Convention. 65.     The applicants also submitted that the destruction of data (section   3(6) and (7), read in conjunction with section 7(4)), the failure to give notice of restrictions on the secrecy of telecommunications (section   3(8)) and the exclusion of judicial review in certain cases (section   9(6)) in accordance with the Act breached Article 13 of the Convention. THE LAW A.     The Government’s objections 1.     The parties’ submissions (a)     The Government 66.     The Government argued, firstly, that the application was incompatible ratione personae with the provisions of the Convention. Both applicants resided in Uruguay and claimed that their Convention rights had been infringed as regards telecommunications from their telephone connections in that country. The monitoring of telecommunications made from abroad, however, had to be qualified as an extraterritorial act. In accordance with the Court’s decision in Banković and Others v. Belgium and Others ([GC], no. 52207/99, ECHR 2001-XII), the applicants therefore did not come within Germany’s jurisdiction within the meaning of Article 1 of the Convention – a concept which was primarily territorial – on account of that act. 67.     Secondly, in the Government’s submission, the second applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. He had not sufficiently substantiated in his constitutional complaint his argument that his rights under the Basic Law were likely to be interfered with by measures taken on the basis of the impugned provisions of the amended G 10 Act. The Federal Constitutional Court had therefore dismissed his complaint as being inadmissible. Moreover, the first applicant had failed to exhaust domestic remedies in so far as she had complained that section   3(2), third sentence, of the amended G 10 Act violated her Convention rights. She had failed to show in her complaint to the Federal Constitutional Court that she was affected by the provision in question and to what extent. 68.     Thirdly, in the Government’s view, the applicants could not claim to be victims of a violation of their Convention rights. They referred to their reasoning with regard to exhaustion of domestic remedies in that connection. Moreover, in so far as the Federal Constitutional Court had already declared the impugned provisions to be unconstitutional, the applicants could no longer claim to be victims of a violation of their Convention rights. In particular, they did not have a legitimate interest in obtaining a decision in so far as that court permitted the continued application of those provisions on a provisional basis. (b)     The applicants 69.     The applicants contested those submissions. As to the application’s compatibility ratione personae with the Convention, the first applicant argued that she came within German jurisdiction within the meaning of Article   1 of the Convention as she was a German national. Both applicants further argued that it could not be decisive that the impugned acts had taken effect abroad. Otherwise a respondent State could circumvent its obligations under the Convention. 70.     The applicants submitted that they had exhausted domestic remedies as they had both obtained a judgment of the Federal Constitutional Court, delivered on 14 July 1999. 71.     The applicants further argued that they had not lost their status as victims of violations of their Convention rights in so far as they had not been granted the redress sought in their constitutional complaints. They stressed that the powers of the Federal Intelligence Service had remained unchanged in the new version of the G 10 Act of 2001 in so far as the Federal Constitutional Court had not objected to them. It was in the nature of secret monitoring that they could not prove that they had actually been subjected to it. However, it was very likely that because of their activities they had used catchwords, within the meaning of section 3(2) of the G 10 Act, which had caused their communications to be recorded and analysed. 2.     The Court’s assessment 72.     The Court does not consider it necessary in the present case to rule on the objections made by the Government since, even assuming that the application is compatible ratione personae with the Convention, that domestic remedies have been exhausted and that both applicants can claim to be victims of Convention violations, it considers that the application is in any event inadmissible for the reasons set out below. B.     Complaints under Article 8 of the Convention 73.     The applicants submitted that certain provisions of the Fight Against Crime Act amending the G 10 Act, in their versions as interpreted and modified by the Federal Constitutional Court, violated their right to respect for their private life and their correspondence. 74.     In particular, the applicants complained about five measures. Firstly, they complained about the process of strategic monitoring (section 3(1) taken in conjunction with section 1(1), point 2, of the G 10 Act). Secondly, they contested the transmission and use of personal data pursuant to section   3(3), second sentence, of the G 10 Act. Thirdly, they complained about the transmission of personal data to the Offices for the Protection of the Constitution and other authorities and its use by them pursuant to section   3(5) of the G 10 Act. Fourthly, they contested the destruction of personal data under section 3(6) and (7) taken in conjunction with section   7(4) of the G 10 Act. Finally, they contested the provision authorising the refusal to give notice of restrictions on the secrecy of telecommunications (section 3(8) of the G 10 Act). 75.     The applicants relied on Article 8 of the Convention which, in so far as relevant, reads: “1.     Everyone has the right to respect for his private ... life, ... and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1.     Whether there was an interference 76.     The Government conceded that the impugned provisions of the amended G 10 Act, in so far as they authorised the monitoring of telecommunications and the use of data obtained thereby, interfered with the secrecy of telecommunications as protected by Article 8. The applicants took the same view. 77.     The Court reiterates that telephone conversations are covered by the notio