Judgment (Merits) of European Court of Human Rights, September 06, 1978 (case CASE OF KLASS AND OTHERS v. GERMANY)
|Resolution Date:||September 06, 1978|
Preliminary objection rejected (victim) No violation of Art. 8 No violation of Art. 13 No violation of Art. 6
CASE OF KLASS AND OTHERS v. GERMANY
(Application no. 5029/71)
6 September 1978
In the case of Klass and others,
The European Court of Human Rights, taking its decision in plenary session in application of Rule 48 of the Rules of Court and composed of the following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. H. MOSLER,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. P. O’DONOGHUE,
Mr. Thór VILHJÁLMSSON,
Mr. W. GANSHOF VAN DER MEERSCH,
Sir Gerald FITZMAURICE,
Mrs D. BINDSCHEDLER-ROBERT,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
and also Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 11, 13 and 14 March, and then on 30 June, 1, 3 and 4 July 1978,
Delivers the following judgment, which was adopted on the last- mentioned date:
The case of Klass and others was referred to the Court by the European Commission of Human Rights (hereinafter called "the Commission"). The case originated in an application against the Federal Republic of Germany lodged with the Commission on 11 June 1971 under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter called "the Convention") by five German citizens, namely Gerhard Klass, Peter Lubberger, Jürgen Nussbruch, Hans-Jürgen Pohl and Dieter Selb.
The Commission’s request, which referred to Articles 44 and 48, paragraph (a) (art. 44, art. 48-a), and to which was attached the report provided for in Article 31 (art. 31), was lodged with the registry of the Court on 15 July 1977, within the period of three months laid down in Articles 32 para. 1 and 47 (art. 32-1, art. 47). The purpose of the request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Articles 6 para. 1, 8 and 13 (art. 6-1, art. 8, art. 13) of the Convention.
On 28 July, the President of the Court drew by lot, in the presence of the Registrar, the names of five of the seven judges called upon to sit as members of the Chamber; Mr. H. Mosler, the elected judge of German nationality, and Mr. G. Balladore Pallieri, the President of the Court, were ex officio members under Article 43 (art. 43) of the Convention and Rule 21 para. 3 (b) of the Rules of Court respectively. The five judges thus designated were Mr. J. Cremona, Mr. W. Ganshof van der Meersch, Mr. D. Evrigenis, Mr. G. Lagergren and Mr. F. Gölcüklü (Article 43 in fine of the Convention and Rule 21 para. 4 of the Rules of Court) (art. 43) .
Mr. Balladore Pallieri assumed the office of president of the Chamber in accordance with Rule 21 para. 5.
The President of the Chamber ascertained, through the Registrar, the views of the Agent of the Government and the Delegates of the Commission regarding the procedure to be followed. By an Order of 12 August, the President decided that the Government should file a memorial within a time-limit expiring on 28 November and that the Delegates of the Commission should be entitled to file a memorial in reply within two months of receipt of the Government’s memorial.
At a meeting held in private on 18 November in Strasbourg, the Chamber decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court, on the ground "that the case raise(d) serious questions affecting the interpretation of the Convention".
The Government filed their memorial on 28 November. On 27 January 1978, a memorial by the Principal Delegate of the Commission was received at the registry; at the same time, the Secretary to the Commission advised the Registrar that the Delegates would reply to the Government’s memorial during the oral hearings.
After consulting, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President directed by an Order of 24 February 1978 that the oral hearings should open on 10 March.
The Court held a preparatory meeting on 10 March, immediately before the opening of the hearings. At that meeting the Court, granting a request presented by the Government, decided that their Agent and counsel would be authorised to address the Court in German at the hearings, the Government undertaking, inter alia, responsibility for the interpretation into French or English of their oral arguments or statements (Rule 27 para. 2). In addition, the Court took note of the intention of the Commission’s Delegates to be assisted during the oral proceedings by one of the applicants, namely Mr. Pohl; the Court also authorised Mr. Pohl to speak in German (Rules 29 para. 1 in fine and 27 para. 3).
The oral hearings took place in public at the Human Rights Building, Strasbourg, on 10 March.
There appeared before the Court:
- for the Government:
Mrs. I. MAIER, Ministerialdirigentin
at the Federal Ministry of Justice, Agent,
Mr. H. G. MERK, Ministerialrat
at the Federal Ministry of the Interior,
Mr. H. STÖCKER, Regierungsdirektor
at the Federal Ministry of Justice,
Mrs. H. SEIBERT, Regierungsdirektorin
at the Federal Ministry of Justice, Advisers;
- for the Commission:
Mr. G. SPERDUTI, Principal Delegate,
Mr. C. A. NØRGAARD, Delegate,
Mr. H.-J. POHL, Applicant, assisting the Delegates
under Rule 29 para. 1, second sentence.
The Court heard addresses by Mrs. Maier for the Government and by Mr. Sperduti, Mr. Nørgaard and Mr. Pohl for the Commission, as well as their replies to questions put by several members of the Court.
AS TO THE FACTS
The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans-Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.
All five applicants claim that Article 10 para. 2 of the Basic Law (Grundgesetz) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as "the G 10"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court (Bundesverfassungsgericht).
Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).
Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.
As regards the applicants’ right to apply to the Constitutional Court, that Court held, inter alia:
"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..." (ibid, pp. 16-17).
Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.
On this point, the Agent of the Government made the following declaration before the Court:
"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission’s approval, authorised me to make the following statement:
At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants’...
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