SEPARATE OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

I agree with the judgment ’ s conclusions, but on different grounds.

1. The G 10 Act specifies, in Article 1 para. 1, the cases in which the competent authorities may impose restrictions, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. It empowers those authorities so to act, inter alia, in order to protect against "imminent dangers" threatening the "free democratic constitutional order", "the existence or the security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic and the security of "the troops of one of the Three Powers stationed in the Land of Berlin". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing, or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5) (see paragraph 17 of the judgment).

For all those persons to whom the G 10 can be applied, the mere facts of its existence creates a very real menace that their exercise of the right to respect for their private and family life and their correspondence may be the subject of surveillance.

Clearly, therefore, a person may claim to be a victim for the purposes of Article 25 (art. 25) of the Convention. Consequently, the applicants have a direct interest (Jose Alberto dos Reis, Codigo do Processo Civil Anotado, vol. 1, p. 77), which is an ideal condition (Carnelutti, Sistemo del diritto processuale civile, vol. 1, pp. 361 and 366) for an application to the Commission.

In my view, the applicants are the v ictims of a menace and for this reason can claim to be victims within the meaning of Article 25 (art. 25).

2. I would mention in passing one poi nt of concern, namely, that the majority opinion, contained in paragraph 56, could take the interpretation of Article 8 (art. 8) in a direction which, if I may say so, might not be without risk.

The measures are ordered, on writ ten application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence, each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2) (see paragraph 18 of the judgment).

Implementation of the measures order ed is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1) (see paragraph 20 of the judgment).

I believe that separation of p owers is a basic principle of a democratic society and that, since the measures can be ordered where there are mere factual indications that criminal acts are about to be or are in the course of being committed, this principle requires that the measures be ordered by an independent judge - as was in fact contemplated by the German legislature (see paragraph 22 of the judgment).

I have difficulty in accepting that the political authority may decide by itself whether there exist factual indications that criminal acts are about to be or are in the course of being committed.

3. Acting in the general interest, the States, as the High Contracting Parties, safeguard the Convention against any breaches attributable to another State; such breaches can consist in the danger and threat to democracy which the publication of a law in itself may pose.

In cases originating in an application by individuals, it is necessary to show, in addition to the threat or danger, that there has been a specific violation of the Convention of which they claim to be the victims.

There is no doubt that a law can in itself violate the rights of an individual if it is directly applicable to that individual without any specific measure of implementation.

This is the case with a law whi ch denies those who reside in a particular area access to certain educational establishments, and with a law which makes sex education one of the compulsory subjects on the curriculum: these laws are applicable without the need for any implementing measure (see the "Belgian Linguistic" case and the Kjeldsen, Busk Madsen and Pedersen case).

The same does not hold true for the German G 10.

The Act certainly makes provision for t elephone-tapping and inspection of mail, although it delimits the scope of such measures and regulates the methods of enforcing them.

Surveillance of an "exploratory" o r general kind is not, however, authorised by the legislation in question. If it were, then the Act would be directly applicable.

Instead, the measures cannot be applied without a specific decision by the supreme Land authority or the competent Federal Minister who must, in addition, consider whether there exist any factual indications that a criminal act is about to be or is in the course of being committed.

Thus, only where a surveillance measur e has been authorised and taken against a given individual does any question arise of an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence.

So far as the case sub judice is concerned, on the one hand, the applicants do not know whether the G 10 has in fact been applied to them (see paragraph 12 of the judgment) and, on the other hand, the respondent Government state - and we have no reason to doubt this statement - that "at no time have surveillance measures provided for by the Act passed in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants.

The applicants have not been subje cted to such measures either as persons suspected of one or more of the offences specified in the Act or as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10.

There is also no question of the app licants ’ 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 ap plicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure" (see paragraph 13 of the judgment).

The Court may take into consideration only the case of the applicants (Engel and others judgment of 8 June 1976 , Series A no. 22, p. 43, para. 106) and not the situation of other persons not having authorised them to lodge an application with the Commission in their name.

These are the reasons which lead me to conclude, as the Court does, that the case sub judice does not disclose any violation of the Convention.