Communicated on 9 December 2020
Published on 11 January 2021
THIRD SECTION
Application no. 81993/17
REPORTERS WITHOUT BORDERS, GERMAN SECTION
and application no. 81996/17
Niko HÄRTING
against Germany
lodged on 30 November 2017
SUBJECT MATTER OF THE CASE
The applications concern the strategic (as opposed to individual) monitoring of international telecommunications by the Federal Intelligence Service in order to avert serious dangers faced by the Federal Republic of Germany under section 5 of the Act on restrictions on the secrecy of mail, post and telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses).
The first applicant is an association defending freedom of the press; the second applicant is a lawyer. Both applicants complain under Article 8 of the Convention, and the first applicant in addition under Article 10 of the Convention, about an excessive interception of emails by the Federal Intelligence Service in 2013 and 2012 respectively, arguing that it was likely that in view of their activities, emails sent by them had been intercepted and read. Both applicants further claim that they did not have an effective remedy for the purposes of Article 13 of the Convention to complain about a breach of their Convention right(s) by the impugned surveillance measures.
QUESTIONS TO THE PARTIES
1. Did the applicants exhaust all effective domestic remedies, as required by Article 35 § 1 of the Convention, with regard to their complaint under Article 8 of the Convention and, as regards the first applicant, also with regard to its complaint under Article 10 of the Convention?
2. Can the applicants in the present case claim to be victims of a violation of the Convention, within the meaning of Article 34 (compare, inter alia, Roman Zakharov v. Russia [GC], no. 47143/06, § 171, ECHR 2015)?
3. Has there been an interference with the applicants’ right to respect for their private life or correspondence, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (compare, inter alia, the principles laid down in Roman Zakharov, cited above, §§ 227 et seq.)?
4. Has there been an interference with the first applicant’s right to freedom of expression within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
5. Did the applicants have an “arguable claim” that there had been a violation of their rights under Article 13 read in conjunction with Article 8 and, as regards the first applicant, also read in conjunction with Article 10 of the Convention?
If so, did the applicants have at their disposal an effective domestic remedy for their Convention complaint(s), as required by Article 13 of the Convention, notably in view of the fact that the domestic courts obliged the applicants to show that they had been affected by a surveillance of telecommunications, the limited circumstances in which the Federal Intelligence Service notified the persons concerned of an interception of their telecommunications and the rapid deletion of data examined, but not considered relevant by that Service?
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