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Case:
VG Köln NJW 1981, 1630
Date:
11 December 1980
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Copyright:
Professor Basil Markesinis

Facts:

The President of the Federal Office for Protection of the Constitution applied to the Federal Minister for the Interior to have the claimant's two telephones monitored from midday on the 22nd March 1974 to midday on the 22nd June 1974. This was because he was suspected of being involved in preparation for a treasonable enterprise under §§ 83, 81 (1) no 2 of the StGB by supporting terrorist successor groups to the Baader-Meinhof gang. In his reasoning he explained that the claimant had already come under suspicion once in 1971 of maintaining a contact point and refuge for the Baader-Meinhof gang in his home, as H, who was a member of the gang, had been arrested when she had left 20 or 22 T Street, presumably after a visit to the claimant. Further, the claimant had met S conspiratorially on the 11th January 1974, as an observer from the Federal Office had reported. Finally, the police had found a notebook containing, amongst other things, the claimant's address when searching a safe house of a successor group to the Baader-Meinhof gang in connection with the arrest of T and P who were members of the gang. It did not appear possible to elucidate the facts without the telephone monitoring applied for, as the officials currently had no intelligence access to the claimant enabling them to clarify the type and extent of his contacts with terrorism. The Federal Minister for the Interior thereupon ordered unlimited monitoring of the telephone named in the application by the President of the Federal Office for Protection of the Constitution for the period applied for. On the same date the Commission formed under § 9 of the Act for Limiting the Secrecy of Letters, Post and Telecommunications (Act on Art 10 of the Basic Law - G10) declared the order to be permissible and necessary.

The Federal Minister for the Interior informed the claimant of the monitoring measure by a letter of the 28th June 1979.

The claimant applied for a declaration that the tapping of the telephone conversations conducted through his two telephones and their recording had been illegal.

The claim was successful.

Reasons:

...I.

The tapping of the claimant's telephone connections was unlawful anyway because the authority making the decision, the Federal Minister for the Interior, did not sufficiently assess the facts forming the basis of the order. He has therefore not properly exercised the discretion which he had in ordering a surveillance operation.

1. According to § 2 (1) of G 10 (old version) restrictions could be ordered against a user of the postal and telecommunication systems under the prerequisites of § 1 of G 10 (old version) amongst other things if actual grounds existed for suspecting that he was planning, was committing or had committed crimes of endangering peace (Friedensverrat) or treason. The President of the Federal Office for Protection of the Constitution or his deputy for his area of operations was entitled to make an application in accordance with § 4 (2) no 1a of G 10 (old version). But the task of the Federal Office for Protection of the Constitution is the collection and analysis of information, intelligence and other documents principally about efforts which are directed against the free democratic basic order or the continued existence and the security of the Federation or a state (Land), or have as their aim unlawful interference with the conduct of the office of members of constitutional organs of the Federation or of a state (reference omitted). Surveillance under §§ 2, 4(2) no 1a of G 10 (old version) therefore served to inform the defendant about dangerous attempts to disturb the free democratic basic order and consequently were to avert dangers in the area of state protection. This also follows from § 1 (1) of G 10 according to which surveillance of telecommunications is allowed for averting imminent dangers for the free democratic basic order, the continued existence or the security of the Federation or a state, or the security of troops stationed there (reference omitted). In the general opinion, danger is a sufficient probability of harm to certain protected interests. Restrictions on the secrecy of letters, post and telecommunications may therefore be ordered if there is a sufficient probability that in the future one of the legal interests mentioned will be violated by (as follows from § 2 (2) of G 10) one of the crimes mentioned there. "Harm" in the sense of the general concept of averting danger has in other words already arisen if the legal order is disturbed by the commission of the crime. As averting danger serves to prevent harm arising, the crime does not yet need to be in the attempt stage, much less completed. It suffices if its future commission by a certain person is sufficiently probable. In the case of treason, even suspicion of its preparation is enough, as § 2 (1) no 1 of G 10 expressly mentions preparing for treason (§ 83 of the StPO (Criminal Procedure Code)) in contrast to § 100 a of the StGB. Difficulties in relation to the necessary concretising of the planned criminal action admittedly arise from this authorisation to intervene far in advance of a possible crime (references omitted). The claimant objects on this issue that the suspicion that he would prepare for a treasonable enterprise had in any case never existed. This question only needs to be investigated here in so far as the legislator was aware of these difficulties and sought to control them by the requirement of an "imminent danger" (reference omitted), "actual grounds" and the inclusion of concrete crime definitions (reference omitted). According to the court's view, this in any case assumes that "it is not every kind of danger which justifies interferences with the basic right under Art 10 of the Basic Law" (reference omitted), but only a concrete one; and that, because of the seriousness of the interference with the basic right, the "actual grounds" are carefully weighed with regard to the probability of a certain future criminal act.

" Imminent danger" admittedly does not mean that the violation of the legal interest must lie immediately ahead. It only has to be sufficiently probable (reference omitted). The high ranking of the legal interests to be protected justifies even the distant possibility of harm authorising surveillance measures if the "actual grounds" justify this.

As a future crime is to be prevented, the decision about the surveillance measure needs a prognosis. The fact that further developments show it to be inappropriate does not make it unlawful. The decisive factor is whether a danger existed according to the possibilities of knowledge available at the time of the decision (reference omitted). Whether this is to be examined by the court in an unlimited way, or whether - as the defendant considers - the authority making the order has an area of discretion here, which cannot be examined by the court, can remain undecided. In particular, it does not need to be decided whether the grounds present at that time justified the suspicion that the claimant had participated in the preparation of a treasonable enterprise. This is because the decision of the Federal Minister for the Interior shows itself to be unlawful on other grounds.

2. Within the framework of the general averting of danger in the field of police work, even where there is danger for public security and order it is in the discretion of the competent authority whether it intervenes or not (the so-called expediency principle) (reference omitted). There is no cause to deviate from this principle when averting danger under §§ 1, 2, 4 (2) no 1a of G 10 (old version).

This is because the expressions "are...entitled" (§ 1 (1) of G 10 (old version)) and "may...be ordered" (§ 2 (1) of G 10 (old version)) only permit the conclusion that when the prerequisites mentioned in §§ 1, 2 of G 10 (old version) are present, telephone surveillance can be ordered, but there is absolutely no compulsion to do so. This also follows from § 9 (2) sentence 2 of G 10 according to which the Commission examines not only the permissibility but also the necessity for the surveillance measures. The control of the necessity for the measure was taken into the text of the statute as a proposal of the Law Committee in order to extend the surveillance by the Commission to the exercise of the discretion of the Minister making the decision. In this connection, the Law Committee apparently assumed it to be self evident that the Minister has an area of discretion (references omitted). The discretion which the Federal Minister for the Interior accordingly has has not however been exercised in a proper manner.

a) A decision in the exercise of discretion is unlawful if it is based on incorrect facts or facts, which are insufficiently explained in essential points, or the authority has not considered all the essential factual circumstances in its decision. Insufficient factual explanation and failure to consider the essential factual circumstances lead in other words to quashing of the decision if it is not established that a different discretionary decision could not have been made (references omitted)... From what is said at 1 above, it follows that a special importance attaches here to the careful assessment and evaluation of all the factual circumstances, and thus the actual grounds, because of the substantial infringement of the basic right protected by Art 10 of the Basic Law.

b) The President of the Federal Office for Protection of the Constitution has based his application in the written reasons on three points of view: firstly on the arrest of H when he left 20 or 22 T Street in 1971; next on the observations reported by an official of the Federal Office for Protection of the Constitution...and finally on the fact that the claimant's address was in a notebook discovered in a "safe house", without explaining in any more detail what the contents of the notebook were. On the evidence of the administration's proceedings as presented by the defendant, the notebook was not called in by the G 10 - Commission in the original or by a photocopy. As follows from a file note of an employee of the Federal Minister for the Interior on a "working paper" which served as preparation for the decision, the fact that the claimant's address was in the notebook which was obtained was rated as an actual ground for saying there was suspicion of support for Baader-Meinhof successor groups. According to the reply to the claim, this was even the decisive factor.

c) As the Federal Minister had to make the order, it did not suffice that the actual grounds which formed the basis of the suspicion were mentioned to him. He had, as the authority making the order, to make the necessary findings of fact himself, and to consider along with them all the essential factual circumstances. The court can leave open here the question of whether he had to have all the pertinent documents produced for that purpose, or whether it sufficed that the actual grounds in the application were described in a way which permitted an evaluation of their importance and thereby a sufficient consideration of the essential factual circumstances.

That did not in any case occur in relation to the third element of suspicion. On this, it merely says in the application, as well as in the corresponding note, that the notebook which was discovered contains the claimant's address. That does not suffice for an exhaustive finding of facts in which all essential factual circumstances are to be considered. The claimant's address in a notebook used by presumed terrorists can form the basis of serious suspicion. It can also have a quite harmless explanation. That depends entirely on the content of the book, and on the manner in which it is used. It appears from the notebook, as called on by the court, that it contains a wealth of entries for which, as a rule, the telephone number, sometimes the address and telephone number, and in a few cases only the address, is entered. There are also numerous addresses in it of persons, institutions and authorities which are obviously not involved. The mere fact that someone is entered in this book can therefore not form the basis of a ground for suspicion of preparation for treason.

In contrast to most of the other addresses, the claimant's address additionally lacks a telephone number and, besides this, it is incorrectly written. A special assessment of the contents of the book as a whole would therefore have been necessary in order to be able to make a correct judgement about the meaning of this discovery. It does not however follow either from the administration proceedings submitted or from the defendant's submissions that this has happened, eg from an appending of the notebook to the decision in question. The ... note argues instead for the mere existence of the claimant's address in this notebook having been regarded as a sufficient ground for the decision.

As the Federal Minister for the Interior has not based his decision on any more detail, it cannot be established what importance he has attributed to the entry of the claimant's address in the notebook mentioned in his discretionary decision. It cannot in any case be excluded that the ordering of the surveillance was based on an incorrect idea about the importance of the entries in the notebook, and therefore on an incomplete elucidation of the facts. In other words, there is a possibility that the Federal Minister for the Interior, on assessing the content of the notebook as a whole, would have denied the need for surveillance, and therefore exercised his discretion in a different way. The lack of reasoning for the surveillance order must to this extent operate to the defendant's disadvantage.

d) In the same way, the G 10 Commission, which has to undertake legal control like a court, had to test whether the Federal Minister for the Interior considered all the essential factual circumstances.

In addition, it had likewise to obtain proof about the contents of the notebook. This is because after the decision of the Federal Constitutional Court of the 15th December 1970 (reference omitted) it is necessary for "all the documents which are important for the decision to be made accessible to the control body". It is not, however, evident that this occurred. It can therefore be left undecided whether it is in any way possible for defective decisions of the authority making orders to be "healed" by the G 10 Commission.

e) Defects in the elucidation and assessment of the facts are also significant procedural failures. The (at least provisional) exclusion of notification to the person affected gives rise to the danger of the surveillance options being handled liberally. G 10 is intended to counteract this by, amongst other things, strict procedural provisions. Thus § 4 (2) no 1, III of G 10 requires an application by the head (or deputy) of the authority entitled to make the application, with written reasons. This shows that because of the withdrawal of substantive law control by the exclusion of the legal remedy under § 9 (5) of G 10 (old version), the principles developed by the case law for administrative proceedings (which have in the meantime been codified in the Administrative Procedure Act [VwVfG]) acquire a special legal protective function for the citizen affected (references omitted).

It follows from this that strict requirements are to be placed on the official duty of determination (which exists in all administrative proceedings: § 24 of the VwVfG) of the authorities involved within the framework of G 10. These requirements can admittedly be reduced to meet the situation in a case where danger arises from delay (§ 9 (2) sentence 2 of G 10 (old version)). It is not, however, evident that the decision of the Federal Minister was especially urgent. The notebook was secured on the 4th February 1974 and the order was made on the 21st March 1974.

II.

The claimant's rights have been infringed by the defective exercise of discretion, because due to the substantial interference with his basic right under Art 10 of the Basic Law he has a claim that the competent authority for the ordering of telephone surveillance should exercise the discretion which it has without error (reference omitted).

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