## Facts

- Germany’s Basic Law protected the secrecy of correspondence, post, and telecommunications, while permitting restrictions “pursuant to a law.”
- During Cold War–era security concerns, Article 10 was amended to allow secret interception without notifying affected individuals when needed to protect the free democratic basic order or the Federation’s existence or security.
- Implementing legislation (the “G-10” law) authorized intelligence interception and replaced ordinary judicial review with confidential oversight mechanisms appointed by Parliament, including a commission receiving regular reports and reviewing the permissibility and necessity of measures.
- Several complainants, including individuals who were subject to or feared surveillance, filed constitutional challenges to the amended regime.
- The challengers alleged violations of communications secrecy, human dignity and personality protections, rule-of-law principles, and the right to effective legal protection given the absence of notice and ordinary-court review.

## Issues

1. Whether secret interception of communications without notifying affected persons is compatible with constitutional protection of communications secrecy.
2. Whether the surveillance framework violates human dignity, the protected personal sphere, or the free democratic basic order by creating pervasive fear of monitoring.
3. Whether replacing ordinary judicial review with special parliamentary/commission oversight satisfies the constitutional requirement of effective legal protection.
4. What requirements of statutory clarity, proportionality, and institutional safeguards must constrain secret surveillance powers.

## Decision

- The court upheld the constitutionality of the amended Article 10 framework and the G-10 surveillance regime, subject to a restrictive interpretation and strict conditions.
- Secret, non-notified interception was not unconstitutional per se when directed at protecting the free democratic basic order or the Federation’s security.
- The constitutionality of non-notification depended on narrow statutory limits and effective substitute oversight that could functionally replace individual judicial remedies.
- The court accepted specialized, Parliament-appointed oversight bodies as capable of satisfying the requirement of effective legal protection where secrecy is indispensable, but only if they are independent, well-informed, and empowered to end unlawful measures.
- The court required that surveillance be confined to clearly definable, serious threats and applied in a strictly proportionate manner.

## Legal Principles

- Fundamental-right restrictions authorizing secret surveillance require clear, precise statutory authorization; vague discretionary clauses are unconstitutional.
- Proportionality governs secret interception: the measure must pursue a legitimate security aim, be suitable, necessary (no equally effective less intrusive means), and proportionate in the strict sense.
- Lack of individual notice can be constitutional in intelligence contexts only when notice would frustrate the measure’s purpose and when robust alternative controls provide functional protection.
- Effective legal protection is not limited to ordinary courts; in exceptional secrecy-dependent fields, independent statutory bodies can provide constitutionally sufficient review if they have real access to information and power to stop unlawful surveillance.
- Communications secrecy protects individual autonomy and democratic discourse; a regime creating generalized fear of interception threatens the free development of personality and democratic functioning, requiring narrow tailoring and strong safeguards.

## Conclusion

The court permitted secret interception for grave national-security threats while conditioning its validity on strict statutory clarity, tight substantive limits, and independent, empowered oversight mechanisms that compensate for the absence of notice and ordinary-court review.


Privacy of Communications Case (F.R.G. Fed. Const. Ct.) 30 BVerfGE 1 (1970)