440 Journal of the Spanish Institute for Strategic Studies N. 4 / 2014 2.1.2. Necessary in a democratic society The protection of national security is, according to paragraph 2 of Article 8, a legitimate aim that justifies interference with one’s private life (secrecy of communications). However, it is not sufficient that governments invoke this aim, they must demonstrate that such interference is necessary in a democratic society in order to achieve these aims (necessary test) and proportionate to the legitimate aim pursued (proportionality test).46 In the Weber and Saravia v. Germany case, the ECtHR points out those national authorities enjoy certain discretion when choosing the type of surveillance system, but that contracting states do not enjoy an unlimited discretion, as established in the Klass and Others case. Nevertheless, the ECtHR must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse.47 The German government argued that the monitoring measures based on the G 10 Act (after the 1994 amendment) had notably been necessary to combat international terrorism, while the applicants submitted that the scope of automatic surveillance under the amended G 10 Act was far too wide48 and that the system of authorisation and supervision was inadequate.49 After examining the German strategic monitoring system, the ECtHR found that there existed adequate and effective guarantees against abuses of the State’s strategic monitoring powers, as was the case in the Klass and Others case. It was therefore satisfied that the respondent State, within its fairly wide margin of appreciation in that sphere, was entitled to consider the interferences with the secrecy of telecommunications resulting from the impugned provisions to have been necessary in a democratic society in the interests of national security and for the prevention of crime.50 46 Case of Klass and Others v. Germany, paragraph 49 and 50; Case of Weber and Saravia v. German, paragraphs 105 and 107. 47 Case of Weber and Saravia v. Germany, paragraph 106; Case of Klass and Others v. Germany, paragraphs 49 and 50. 48 Case of Weber and Saravia v. Germany “The Federal Intelligence Service was entitled to monitor all telecommunications within its reach without any reason or previous suspicion. Its monitoring powers therefore inhibited open communication and struck at the roots of democratic society. It was irrelevant whether or not it was already possible from a technical point of view to carry out worldwide monitoring (paragraph 111). “In the applicant’s view, these wide monitoring powers did not correspond to a pressing need on the part of society for such surveillance” (paragraph 112). 49 Ibid., paragraph 113. 50 Case of Weber and Saravia v. Germany, paragraph 137.
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