CEDH · CASELAW;CLIN;ENG — 29 juin 2006

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Germany (dec.) - 54934/00 Decision 29.6.2006 [Section III] Article 8 Article 8-1 Respect for correspondence Respect for private life Strategic monitoring of telecommunications, follow-up case to Klass v. Germany : inadmissible   In 1994 the Act 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” (See Klass and Others v. Germany , judgment of 6 September 1978, Series A no. 28) was amended to accommodate the so-called strategic monitoring of telecommunications, that is, 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. The changes notably concern the extension of the powers of the Federal Intelligence Service ( Bundesnachrichtendienst ) with regard to the recording of telecommunications in the course of strategic monitoring, as well as the use of personal data obtained thereby and their transmission to other authorities. The first applicant, a German national, is a freelance journalist; the second applicant, a Uruguayan national, took telephone messages for the first applicant and passed them on to her. In 1995 the applicants lodged a constitutional complaint with the Federal Constitutional Court challenging the new amendments. In a judgment of 14 July 1999, the Federal Constitutional Court held that the second applicant had no locus standi but upheld the first applicant’s complaint in part. The application is based on the applicants’ remaining complaints. A new version of the G   10 Act entered into force on 29 June 2001. Article   8 – Restating earlier case-law, the Court notes that the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This   threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants’ rights under Article   8, irrespective of any measures actually taken against them. The transmission of data to and their use by other authorities, which enlarges the group of persons with knowledge of the personal data intercepted and can lead to investigations being instituted against the persons concerned, constitutes a further separate interference with the applicants’ rights under Article   8. Moreover, the impugned provisions interfere with these rights in so far as they provide for the destruction of the data obtained and for the refusal to notify the persons concerned of surveillance measures taken in that this may serve to conceal monitoring measures interfering with the applicants’ rights under Article   8 which have been carried out by the authorities. As to whether these interferences are “in accordance with the law”, the Court notes that the term “law” within the meaning of the Convention refers back to national law, including rules of public international law applicable in the State concerned; as regards allegations that a respondent State has violated international law by breaching the territorial sovereignty of a foreign State, the Court requires proof in the form of concordant inferences that the authorities of the respondent State have acted extraterritorially in a manner that is inconsistent with the sovereignty of the foreign State and therefore contrary to international law. The impugned provisions of the amended G   10 Act authorise the monitoring of international wireless telecommunications, that is, telecommunications which are not effected via fixed telephone lines but, for example, via satellite or radio relay links, and the use of data thus obtained. Signals emitted from foreign countries are monitored by interception sites situated on German soil and the data collected are used in Germany. In the light of this, the Court finds that the applicants failed to provide proof in the form of concordant inferences that the German authorities, by enacting and applying strategic monitoring measures, have acted in a manner which interfered with the territorial sovereignty of foreign States as protected in public international law. As to the statutory basis of the amended G   10 Act, the Court accepts the judgment of the Federal Constitutional court that it satisfies the Basic Law and finds no arbitrariness in its application. As to the quality of the law, firstly, its accessibility raises no problem; secondly, the Court concludes that the impugned provisions of the G   10 Act, seen in their legislative context, contained the minimum safeguards against arbitrary interference as defined in the Court’s case-law and therefore gave citizens an adequate indication as to the circumstances in which and the conditions on which the public authorities were empowered to resort to monitoring measures, and the scope and manner of exercise of the authorities’ discretion. The “legitimate aims” pursued were to safeguard national security and/or to prevent crime. As to whether the interferences were “necessary in a democratic society”, the Court recognises that the national authorities enjoy a fairly wide margin of appreciation in choosing the means for protecting national security. Nevertheless, in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist adequate and effective guarantees against abuse. As to strategic monitoring per se , although the amended G   10 Act broadens the range of subjects in respect of which it can be carried out, safeguards against abuse were spelled out in detail and the Federal Constitutional Court in fact raised the threshold in respect of at least one crime; the Court is satisfied that there was an administrative procedure designed to ensure that measures were not ordered haphazardly, irregularly or without due and proper consideration. As regards supervision and review of monitoring measures, the system of supervision was essentially the same as that found by the Court in its Klass and Others judgment not to violate the Convention; there is no reason to reach a different conclusion in the present case. As to the transmission of non-anonymous personal data obtained by the Federal Intelligence Service to the Federal Government, the Court accepts that transmission of personal – as opposed to anonymous – data might prove necessary. The additional safeguards introduced by the Federal Constitutional Court, namely that the personal data contained in the report to the Federal Government were marked and remain connected to the purposes which had justified their collection, are appropriate for the purpose of limiting the use of the information obtained to what is necessary to serve the purpose of strategic monitoring. As to the transmission of personal data to, among other authorities, the Offices for the Protection of the Constitution, the Court notes that the crimes for which this was possible were limited to certain designated serious criminal offences and that following the Federal Constitutional Court’s judgment such transmission, which had to be recorded in minutes, was only possible if the suspicion that someone had committed such an offence was based on specific facts as opposed to mere factual indications; the safeguards against abuse, as thus strengthened by the Federal Constitutional Court, were adequate. As to the destruction of personal data, an acceptable procedure for verifying whether the conditions were met was in place; moreover, the Federal Constitutional Court had ruled that data which were still needed for court proceedings could not be destroyed immediately and had extended the supervisory powers of the G   10 Commission to cover the entire process of using data up to and including their destruction. Finally, as to the notification of persons whose communications had been monitored, this was to be done as soon as possible without jeopardising the purpose of the monitoring; rules contained in the judgment of the Federal Constitutional Court prevented the duty of notification from being circumvented, save in cases where the data were destroyed within three months without ever having been used. Manifestly ill-founded . Article   10 – The first applicant submitted that the amended G   10 Act prejudiced the work of journalists investigating issues targeted by surveillance measures. She could no longer guarantee that information she received in the course of her journalistic activities remained confidential. In the Court’s view, the threat of surveillance constitutes an interference to her right, in her capacity as a journalist, to freedom of expression. The Court finds, on the reasons set out under Article   8, that this interference is prescribed by law and pursues a legitimate aim. As to necessity in a democratic society, the Court notes that strategic surveillance was not aimed at monitoring journalists; generally the authorities would know only when examining the intercepted telecommunications, if at all, that a journalist’s conversation had been monitored. Surveillance measures were, in particular, not directed at uncovering journalistic sources. The interference with freedom of expression by means of strategic monitoring cannot, therefore, be characterised as particularly serious. It is true that the impugned provisions of the amended G   10 Act did not contain special rules safeguarding the protection of freedom of the press and, in particular, the non-disclosure of sources, once the authorities had become aware that they had intercepted a journalist’s conversation. However, the Court, having regard to its findings under Article   8, observes that the impugned provisions contained numerous safeguards to keep the interference with the secrecy of telecommunications – and therefore with the freedom of the press – within the limits of what was necessary to achieve the legitimate aims pursued. In particular, the safeguards which ensured that data obtained were used only to prevent certain serious criminal offences must also be considered adequate and effective for keeping the disclosure of journalistic sources to an unavoidable minimum. Manifestly ill‑founded . Article   13 – No arguable claim under Article   8 or Article   10; Article   13 is therefore not applicable. Manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes