1. As to the admissibility of the claim and the assessment of the victim requirement, the Court underlines that the fact that the Commission has declared the case admissible does not mean that the Court should deal with the case as to its merits. It can still decide to declare the case inadmissible.
2. The Court reiterates that there is no room under the Convention mechanism for actio popularis or in abstracto claims. Still, “a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation.” In addition, it stresses that it cannot be so that because interferences are kept secret by states, applicants are denied the right to submit a claim before the Commission, as they cannot demonstrate harm. The Court seems unable to chose between the two lines of argumentation: (1) The law itself is an interference with every citizen’s right to privacy or (2) The applicant’s might have been harmed individually and specificially, but are unable to find this out, as this is not due to there own fault, that cannot be denied a claim right under the Convention. On the one hand, the Court stresses: ‘As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court’s judgment. To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).’ On the other hand, it also finds: ‘The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.’
3. These are two very different lines of argumentation, which both seem intended to uphold the formal possition of the Court that it cannot assess laws or policies in abstracto and that consequently, the applicant’s must be deemed either by virtue of being a German citizen, which would mean that all German citizens are per sé victims of this law (chilling effect) and could submit a complaint, or that they might have been harmed (hypothetical claim), but are unsure whether this is so. It seems as if the Court favours the former argument, as the Goverment argues that the applicants have never been subject to secret surveillance. ‘The Court takes note of the Agent’s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants’ status as “victims”. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to “(claim) to be the victim of a violation” of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention’s provisions.’ The last sentence, though, comes dangerously close to outright accepting in abstracto claims, something that the Court only officially did in 2015, in the Zakharov case.
4. The Court accepts that the monitoring of telephone communication falls under the material scope of the right to privacy life and correspondence and reiterates that the laws as such restrict citizens in their possitive freedom to communicate with oneanother. Interestingly, the Court also suggests: ‘The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person’s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.’ Apperantly, the Court want to leave open the possibility of finding that secret surveillance penetrates the home and interferes with peoples’ home life.
5. As to the requirements of paragraph 2 or Article 8 ECHR, obviously, there is a law. Interestingly is the discussion over the interests specified in that paragraph. Throughout its jurisprudence, the Commission and the Court have been rather vague and unclear about which ground applies to what instance, as is also evidenced by the case. In this case, the government relies on national security, public safety, prevention of disorder and crime and the protection of the rights and freedoms of others. The Court accepts that the laws was aimed at national security and the prevention of disorder and crime, but not the other two grounds. Why is left unexplained.
6. As to the question of necessity, the Court recounts that it is not its role to substitute its judgement for that of the national authorities, but that the national authorities are bound by the limits set out by the Convention, that the Court’s assessment depends on the circumstances of the case and is thus relative to those circumstances and that is will determine whether the law has put in place sufficient checks and balances against abuse of power. It does, the Court find, refering to the limited circumstances in which the secret surveillance measures can be deployed, the fact that such measures must be authoritised by the Federal Minister, the administrative procedure, the maximum limits of duration, the rules on processing the data obtained through the secret surveillance measures and the existence of supervision. The fact that people are not informed when they have been subjected to secret surveillance measures is understandable given the special reasons for deploying such measures and does not amount to a violation of the Convention per sé.
7. Perhaps as an interesting side note, the Court does not refer to Article 18 ECHR, but rather stresses that in the defence of democracy, state’s may sometimes need to curtail the rights under the Convention. Both Article 17 and 18 are seldom discussed in connection to Article 8 ECHR.
8. The Court agrees that because there is no notification to victims of secret surveillance measures, they are particullarly curtailed in their right to an effective remedy. However, it feels that it is difficult to imagine another mechanism for secret surveillance and that there are various legal possibilities left for potential victims. Hence, no violation of Article 13 ECHR.
9. The same basically applies to Article 6 ECHR, even if that would apply in this matter.
10. In a seperate opinion, judge Pinheiro Farinha, follows most of the Court’s reasoning, but also warns explicitly against the executive power determining whether there is reason to deploy secret surveillance measures. He underlines the importance of the seperation of power.