Amann v Switzerland Part 1
Donald Ramsbottom
donald at ramsbottom.co.uk
Tue, 07 Mar 2000 08:59:00 +0000
CASE OF AMANN v. SWITZERLAND
(Application no. 27798/95)
JUDGMENT
STRASBOURG
16 February 2000
In the case of Amann v. Switzerland,
The European Court of Human Rights, sitting, in accordance with Article 27
of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention"), as amended by Protocol No. 11 , and the
relevant provisions of the Rules of Court , as a Grand Chamber composed of
the following judges:
Mrs E. PALM, President,
Mr L. WILDHABER,
Mr L. FERRARI BRAVO,
Mr GAUKUR J=D6RUNDSSON,
Mr L. CAFLISCH,
Mr I. CABRAL BARRETO,
Mr J.-P. COSTA,
Mr W. FUHRMANN,
Mr K. JUNGWIERT,
Mr M. FISCHBACH,
Mr B. ZUPANCIC,
Mrs N. VAJIC,
Mr J. HEDIGAN,
Mrs W. THOMASSEN,
Mrs M. TSATSA-NIKOLOVSKA,
Mr E. LEVITS,
Mr K. TRAJA,
and also of Mr M. DE SALVIA, Registrar,
Having deliberated in private on 30 September 1999 and 12 January 2000,
Delivers the following judgment, which was adopted on the last-mentioned=
date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human
Rights ("the Commission") within the three-month period laid down by former
Articles 32 =A7 1 and 47 of the Convention. It originated in an application
(no. 27798/95) against Switzerland lodged with the Commission under former
Article 25 by a Swiss national, Mr Hermann Amann, on 27 June 1995. Having
been designated before the Commission by the initials H.A., the applicant
subsequently agreed to the disclosure of his name.
The Commission's request referred to former Articles 44 and 48 and to the
declaration whereby Switzerland recognised the compulsory jurisdiction of
the Court (former Article 46). The object of the request was to obtain a
decision as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Articles 8 and 13 of the=
Convention.
2. In accordance with the provisions of Article 5 =A7 4 of Protocol No. 11,
the case was referred to the Grand Chamber of the Court. The Grand Chamber
included ex officio Mr L. Wildhaber, the judge elected in respect of
Switzerland (Article 27 =A7 2 of the Convention and Rule 24 =A7 4 of the=
Rules
of Court) and President of the Court, Mrs E. Palm, Vice-President of the
Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice Presidents of Sections
(Article 27 =A7 3 of the Convention and Rule 24 =A7=A7 3 and 5 (a)). The=
other
members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr
Gaukur J=F6rundsson, Mr I. Cabral Barreto, Mr W. Fuhrmann, Mr K. Jungwiert,=
Mr
B. Zupancic, Mrs N. Vajic, Mr J. Hedigan, Mrs W. Thomassen, Mrs M.
Tsatsa-Nikolovska, Mr T. Pant=EEru, Mr E. Levits and Mr K. Traja (Rule 24 =
=A7 3).=20
3. Before the Court the applicant is represented by Mr L.A. Minelli, of the
Z=FCrich Bar, who was given leave by the President of the Grand Chamber, Mrs
Palm, to use the German language (Rules 34 =A7 3 and 71). The Swiss=
Government
("the Government") are represented by Mr P. Boillat, Head of the
International Affairs Division, Federal Office of Justice.
4. After consulting the Agent of the Government and the applicant's lawyer,
the Grand Chamber decided that it was not necessary to hold a hearing.=20
5. The Registrar received the Government's memorial and documents on 15 and
22 April and the applicant's memorial and documents on 11 May 1999, and the
Government's and applicant's memorials and observations in reply on 10 and
14 June 1999 respectively.
6. As Mr Pant=EEru was unable to attend the deliberations on 12 January=
2000,
Mr L. Caflisch, substitute judge, replaced him as a member of the Grand
Chamber (Rule 24 =A7 5 (b)).
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant, who was born in 1940, is a businessman living in
Switzerland. In the early 1980s he imported depilatory appliances into
Switzerland which he advertised in magazines.
8. On 12 October 1981 a woman telephoned the applicant from the former
Soviet embassy in Berne to order a "Perma Tweez" depilatory appliance.
9. That telephone call was intercepted by the Federal Public Prosecutor's
Office (Bundesanwaltschaft - "the Public Prosecutor's Office"), which then
requested the Intelligence Service of the police of the Canton of Z=FCrich=
to
carry out an investigation into the applicant and the goods he sold.
10. The report drawn up by the police of the Canton of Z=FCrich in December
1981 stated that the applicant, who had been registered in the Commercial
Registry since 1973, was in the aerosols business. It stated that "Perma
Tweez" was a battery-operated depilatory appliance; a leaflet describing the
appliance was appended to the report.
11. On 24 December 1981 the Public Prosecutor's Office drew up a card on
the applicant for its national security card index on the basis of the
particulars provided by the police of the Canton of Z=FCrich.
12. In 1990 the public learnt of the existence of the card index being kept
by the Public Prosecutor's Office and many people, including the applicant,
asked to consult their card.
13. Various laws on accessing and processing the Confederation's documents
were then enacted.
14. On 12 September 1990 the special officer in charge of the
Confederation's national security documents ("the special officer") sent the
applicant, at his request, a photocopy of his card.
15. The applicant's card, which was numbered (1153:0) 614 and on which two
passages had been blue-pencilled (=85), contained the following information:
"from the Z=FCrich Intelligence Service: A. identified as a contact with the
Russian embassy according to =85 . A. does business of various kinds with=
the
company Air-spray-System. Appendices: extract from the Commercial Registry
and leaflet =85"
16. As soon as he received his card, the applicant asked the Ombudsman at
the Public Prosecutor's Office to disclose the blue-pencilled passages.
17. On 9 October 1990 the Ombudsman replied that the censored passage at
the end of the card rightly concealed the initials of the federal police
officers who had obtained the information on the card. The other censored
passage related to a technical surveillance measure ordered against a third
party; the Ombudsman stated that he would be recommending that the special
officer disclose that information, since - in his view - the applicant's
interest prevailed over the public interest in keeping it secret.
18. On 19 April 1991 the special officer decided, on the basis of Article 5
=A7 1 of the Order of 5 March 1990 on the Processing of Federal National
Security Documents, that the initials at the end of the card could=20
not be disclosed. He also considered that the other censored passage
contained counter-intelligence which, pursuant to Article 5 =A7 3 (a) of the
order, should not be disclosed. On the basis of those considerations, the
disclosure of the applicant's card was extended to one word ("report"):
"from the Z=FCrich Intelligence Service: A. identified as a contact with the
Russian embassy according to report =85 . A. does business of various kinds
with the Air-spray-System company. Appendices: extract from the Commercial
Registry and leaflet =85"
19. On 26 October 1991 the applicant filed a request for compensation with
the Federal Department of Finance. His request was refused on 28 January=
1992.
20. On 9 March 1992 the applicant filed an administrative-law action with
the Federal Court claiming compensation from the Swiss Confederation of
5,000 Swiss francs for the unlawful entry of his particulars in the card
index kept by the Public Prosecutor's Office. He also requested that his
file and card be sent immediately to the Federal Archives with a prohibition
on making any copies and that they be ordered to store the information under
lock and key and not disclose any of it without his agreement.
21. On being invited to submit its written observations, the Confederation
stated, in its memorial of 26 May 1992, that according to the information
provided by the Public Prosecutor's Office and the special officer the
record of the surveillance was no longer in the federal police's files. It
pointed out in that connection that, pursuant to section 66(1 ter) of the
Federal Criminal Procedure Act ("FCPA"), documents which were no longer
necessary had to be destroyed (Das Protokoll der technischen Ueberwachung
ist gem=E4ss Auskunft der Bundesanwaltschaft und des Sonderbeauftragten =85=
in
den Akten der Bundespolizei nicht mehr vorhanden. In diesem Zusammenhang ist
anzumerken, dass nicht mehr ben=F6tigte Akten gem=E4ss Art. 66 Abs. 1ter=
BStP =85
vernichtet werden m=FCssen).
22. The Federal Court held hearings on 27 October 1993 and 14 September=
1994.
The applicant's lawyer pointed out that the case number of the card, namely
(1153:0) 614, was a code meaning "communist country" (1), "Soviet Union"
(153), "espionage established" (0) and "various contacts with the Eastern
block" (614).
The Confederation's representative stated that where someone (jemand) at the
former Soviet embassy was under surveillance, on every telephone call both
parties to the conversation were identified, a card drawn up on them and a
telephone monitoring report (Telefon-Abh=F6r-Bericht) made. In that=
connection
she stated that most of the reports had been destroyed and that those which
had not been were now stored in bags; the intention had=20
been to destroy them as well, but when the post of special officer had been
instituted everything had had to be maintained "in its present state". She
went on to state that she did not know whether the telephone monitoring
report in respect of the applicant had or had not been destroyed. According
to information she had received from the special officer, the reports had
not been classified and it would require about five people and one year's
work to examine the contents of all the bags still in existence.
23. In a judgment of 14 September 1994, which was served on 25 January
1995, the Federal Court dismissed all the applicant's claims.
24. Regarding the issue whether there was a legal basis for the measures
complained of, the Federal Court referred first to section 17(3) FCPA and
Article 1 of the Federal Council's Decree of 29 April 1958 on the Police
Service of the Federal Public Prosecutor's Office. However, it considered it
unnecessary to examine whether those provisions could have provided a lawful
basis for the alleged infringement of the applicant's personality rights,
since one of the conditions for awarding compensation had not been met.
25. The court then referred to sections 66 et seq., and particularly
section 72, FCPA on the monitoring of telephone communications and postal
correspondence, and to Articles 265 et seq. of the Criminal Code, which
govern "crimes or major offences against the State," and reiterated that
information could lawfully be gathered - even before a prosecution was
brought - in order to prevent an offence being committed against the State
or national security if there was evidence that such an offence was being
prepared.
26. In that connection the Federal Court found:
"=85 a card was drawn up on the plaintiff in connection with the then
monitoring of telephone communications with the Soviet embassy for
counter-intelligence reasons. As he had contacts with a male or female
employee of the Soviet embassy and it was not immediately clear that the
'Perma Tweez' appliance which he sold was a harmless depilatory instrument,
the authorities acted correctly in investigating his identity, his
circumstances and the 'Perma Tweez' appliance in question and recording the
result."
27. The Federal Court held, however, that it did not have to rule on
whether those provisions, particularly section 66(1 ter) FCPA, allowed the
information thus obtained to be kept after it had become apparent that no
criminal offence was being prepared (Fraglich ist, ob die Aufzeichnungen
weiter aufbewahrt werden durften, nachdem sich offenbar herausgestellt
hatte, dass keine strafbare Handlung vorbereitet wurde), since the applicant
had not suffered a serious infringement of his personality rights.
28. In that connection the Federal Court reiterated that, pursuant to
section 6(2) of the Federal Liability Act of 14 March 1958, the Swiss=20
Confederation had a duty to pay compensation in cases of serious
infringement of personality rights, but considered that in this case that
condition had not been met. The Federal Court held that the mere fact that
the applicant had been named in the file as a "Russian embassy contact"
could hardly be considered as an infringement of his personality rights.
Moreover, even if part of the case number meant "espionage established",
there was nothing to indicate that the authorities had considered the
applicant to be a spy and although the expression "contact with the Russian
embassy" could conceivably imply that the applicant had effectively had
regular contact with the embassy, his card had to be seen, not in isolation,
but in the wider context of the card index as a whole and the other
circumstances of the case; in particular, the fact that no other entry had
been made on his card suggested that the authorities did not suspect the
applicant of having illegal contacts with the embassy. Furthermore, it could
not be presumed that the applicant had been subject to surveillance on other
occasions or that the recorded information had been disclosed to third
parties. Taken as a whole, the applicant's file thus appeared to be of minor
importance and there was nothing to indicate that it had been used for other
purposes or unlawfully disclosed.
29. Lastly, the Federal Court held that the applicant's administrative-law
action, which he had filed with it on 9 March 1992, was an "effective
remedy" within the meaning of Article 13 of the Convention. It also pointed
out that the applicant could have instituted proceedings challenging certain
data in the Public Prosecutor's card index and requesting that it be
amended. In that connection the Federal Court referred to, inter alia, the
Federal Council's Directives of 16 March 1981 applicable to the Processing
of Personal Data in the Federal Administration (section 44), to the Federal
Decree of 9 October 1992 on the Consultation of Documents of the Federal
Public Prosecutor's Office (Article 7 =A7 1) and to the Federal Council's
Order of 20 January 1993 on the Consultation of Documents of the Federal
Public Prosecutor's Office (Article 11 =A7 1).
30. In 1996 the applicant's card was removed from the card index and
transferred to the Federal Archives where it cannot be consulted for fifty
years.
II. RELEVANT DOMESTIC LAW=20
A. The Federal Constitution
31. The relevant provisions of the Federal Constitution in force at the
material time were worded as follows:
Article 102
"The powers and duties of the Federal Council, as referred to in the present
Constitution, are the following, among others:
=85
9. It shall ensure that Switzerland's external security is protected and
its independence and neutrality maintained;
10. It shall ensure that the Confederation's internal security is protected
and that peace and order are maintained;
=85"
B. The Federal Council's Decree of 29 April 1958 on the Police Service of
the Federal Public Prosecutor's Office
32. The relevant provisions of the Federal Council's Decree of 29 April
1958 on the Police Service of the Federal Public Prosecutor's Office are
worded as follows:
Article 1
"The Police Service of the Federal Public Prosecutor's Office (Federal
Police) shall provide an investigation and information service in the
interests of the Confederation's internal and external security. That
service shall comprise:
1. The surveillance and prevention of acts liable to endanger the
Confederation's internal or external security (police politique);
2. Police investigations in the prosecution of offences against the
internal or external security of the Confederation (police judiciaire)."
C. The Federal Criminal Procedure Act
33. The relevant provisions of the Federal Criminal Procedure Act in force
at the material time were worded as follows:
Section 17
"3. The Federal Public Prosecutor's Office shall be provided with the
personnel necessary to enable it to run a uniform investigation and
information service in the interests of the Confederation's internal and
external security. The Public Prosecutor's Office shall, as a general rule,
act in concert with the relevant police authorities of the cantons. It shall
in each case inform those police authorities of the results of its
investigations as soon as the aim of and stage reached in the proceedings
make it possible to do so."
Section 66
"1. The investigating judge may order monitoring of the accused's or
suspect's postal correspondence and telephone and telegraphic
telecommunications if
(a) the criminal proceedings concern a crime or major offence whose
seriousness or particular nature justifies intervention or a punishable
offence committed by means of the telephone; and if
(b) specific facts cause the person who is to be monitored to be suspected
of being a principal or accessory in the commission of the offence; and if
(c) without interception, the necessary investigations would be
significantly more difficult to conduct or if other investigative measures
have produced no results.
1 bis. Where the conditions justifying the monitoring of the accused or
suspect are satisfied, third parties may also be monitored if specific facts
give rise to the presumption that they are receiving or imparting
information intended for the accused or suspect or sent by him =85 The
telephone connection of third parties may be monitored at any time if there
are reasons to suspect that it is being used by the accused.
1 ter. Recordings which are not needed for the conduct of an investigation
shall be kept in a separate place, under lock and key, and shall be
destroyed at the end of the proceedings."
Section 66 bis
"1. Within twenty-four hours of his decision, the investigating judge shall
submit a copy of it, accompanied by the file and a brief statement of his
reasons, for approval by the President of the Indictment Division.
2. The decision shall remain in force for not more than six months; the
investigating judge may extend its validity for one or more further periods
of six months. The order extending its validity, accompanied by the file and
the statement of reasons, must be submitted, not later than ten days before
expiry of the time-limit, for approval by the President of the Indictment
Division.
3. The investigating judge shall discontinue the monitoring as soon as it
becomes unnecessary, or immediately if his decision is rescinded."
Section 66 ter
"1. The President of the Indictment Division shall scrutinise the decision
in the light of the statement of reasons and the file. Where he finds that
there has been a breach of federal law, including any abuse of a
discretionary power, he shall rescind the decision.
2. He may authorise monitoring provisionally; in that case, he shall lay
down a time-limit within which the investigating judge must justify the
measure, either by adding any relevant material to the file or orally."
Section 66 quater
"1. The procedure shall be kept secret even from the person concerned. The
President of the Indictment Division shall give brief reasons for his
decision and notify the investigating judge thereof within five days of the
date when the monitoring began or, where the period of validity has been
extended, before the further period begins.
2. The President of the Indictment Division shall ensure that the
interception measures are discontinued on expiry of the time-limit."
Section 72
"1. Before the opening of a preliminary investigation the Principal Public
Prosecutor may order interception of postal correspondence and telephone and
telegraphic communications and prescribe the use of technical appliances =85
2. He may also order those measures in order to prevent the commission of a
punishable offence justifying such intervention where particular
circumstances give rise to the presumption that such an offence is being
prepared.
3. Sections 66 to 66 quater shall be applicable by analogy."
D. Legislation on the processing and consultation of the Confederation's
documents
34. The relevant provisions of the Federal Council's Directives of 16 March
1981 applicable to the Processing of Personal Data in the Federal
Administration are worded as follows:
4 General principles
41 Principles governing data processing
"411. There must be a legal basis for the processing of personal data.
412. Personal data may be processed only for very specific purposes. The
data and technique used to process it must be appropriate and necessary to
the performance of the task to be carried out.
413. Inaccurate or incomplete data must be rectified having regard to the
purpose of the processing.
414. Data which is of no foreseeable further use or which has evidently
been processed illegally must be destroyed.
The obligation to store it in the Federal Archives is reserved.
=85"
43 Information
"431. As regards personal data files the federal offices and other
administrative units having the same status must take the necessary measures
to ensure that they can supply information on the legal basis and aim of the
files, the nature of the processed data and the lawful recipients thereof to
anyone requesting the same.
"432. On request, they must indicate in a comprehensible manner to anyone
who has disclosed his identity whether - and which - data on him from a
particular file has been processed.
=85"
44 Rectification or destruction following a request
"If it emerges, on a request, that the data on the person making the request
is inaccurate or incomplete, or inappropriate to the purpose for which it
has been recorded, or that processing is illegal for another reason, the
organ in question must rectify or destroy such data immediately, and at the
latest when the file is next accessed."
35. The relevant provisions of the Federal Council's Order of 5 March 1990
on the Processing of Federal National Security Documents are worded as=
follows:
Article 1=20
"1. The present Order shall guarantee that persons in respect of whom the
federal police possess documents compiled on grounds of national security
can defend their rights of the person without hindering the performance of
national security tasks.
2. Federal documents compiled on grounds of national security shall be
placed in the custody of a special officer =85"
Article 4
"1. The special officer shall have custody of all documents belonging to
the Police Service of the Federal Public Prosecutor's Office.=20
2. He shall then sort the documents and withdraw those which serve no
further purpose =85"
Article 5
"1. The special officer shall allow applicants to consult their cards by
sending them a photocopy thereof.
2. He shall conceal data relating to persons who have processed the cards
and to foreign intelligence and security services.
3. Furthermore, he may refuse or restrict the consultation if it
(a) reveals details of investigative procedures in progress or of knowledge
relating to the fight against terrorism, counter-intelligence or the fight
against organised crime =85"
Article 13
"1. The ombudsman appointed by the Federal Council shall examine, at the
request of the person concerned, whether the present Order has been complied
with."
Article 14
"1. Anyone claiming that his request to consult his card has not been dealt
with in accordance with the present Order may contact the ombudsman within
thirty days.
2. If the ombudsman considers that the Order has been complied with, he
shall inform the applicant accordingly. The applicant may lodge an appeal
with the Federal Council within thirty days of receiving the ombudsman's
decision.
3. If the ombudsman considers that the Order has not been complied with, he
shall inform the special officer and the applicant accordingly. The special
officer shall then give a fresh decision, which is subject to appeal."
36. The relevant provisions of the Federal Decree of 9 October 1992 on the
Consultation of Documents of the Federal Public Prosecutor's Office provide:
Article 4
"1. Authorisation to consult documents shall be granted to persons who
submit a prima facie case that they have sustained pecuniary or
non-pecuniary damage in connection with information transpiring from
documents held by the Police Service or with acts by officers of the Federal
Public Prosecutor's Office."
Article 7
"1. The special officer shall sort the documents placed in his custody and
eliminate those which are no longer necessary for national security and are
no longer the subject of a consultation process.
2. Documents relating to criminal proceedings shall be eliminated if
(a) the time-limit for prosecuting the offence has expired following a stay
of the proceedings;
(b) the proceedings have been closed by an enforceable judgment.
3. The eliminated documents shall be stored in the Federal Archives. They
can no longer be consulted by the authorities and access to them shall be
prohibited for fifty years."
37. The relevant provisions of the Federal Council's Order of 20 January
1993 on the Consultation of Documents of the Federal Public Prosecutor's
Office are worded as follows:
Article 11
"1. A person who contests the accuracy of certain data may request that an
appropriate annotation be marked on the documents or appended thereto.
2. Documents which are manifestly erroneous shall be rectified at the
request of the person concerned.
=85"
E. The Parliamentary Commission of Inquiry set up to investigate the
so-called "card-index" affair
38. A Parliamentary Commission of Inquiry ("PCI") was set up to investigate
the so-called "card-index" affair. In its report published in the Federal
Gazette (FF 1990, I, pp. 593 et seq.) it noted, among other things, in
connection with the telephoning monitoring (pp. 759 and 760):
"According to various sources, a number of people feared that their
telephone conversations were being monitored for political reasons. The PCI
has conducted a thorough examination of the technical surveillance measures
ordered by the Federal Public Prosecutor's Office. In the course of that
examination it requested from the Federal Public Prosecutor's Office a full
and detailed list of the persons whose telephones were tapped and the
telephone connections which were monitored; that list was then compared with
the list requested independently from the Post, Telecommunications and
Telegraph Office. The PCI was then able to satisfy itself, partly with the
help of certain documents and also following an interview with the President
of the Indictment Division of the Federal Court, that there were no
differences between the lists drawn up by the authorities ordering the
telephone tapping and the authorities implementing those orders.
=85
The federal investigating judge and, before the preliminary investigation
begins, the Federal Public Prosecutor have power to order a surveillance
measure. A decision taken to this effect is valid for no more than six
months but may be extended if necessary. It requires in all cases the
approval of the President of the Indictment Division of the Federal Court.
That approval procedure has been considerably formalised over recent years
and is now applied by means of a pre-printed form. The PCI noted that all
decisions had been submitted to the President of the Indictment Division and
that he had approved all of them without exception =85"
PROCEEDINGS BEFORE THE COMMISSION
39. Mr Amann applied to the Commission on 27 June 1995. Relying on Articles
8 and 13 of the Convention, he complained that a telephone call he had
received had been intercepted, that the Public Prosecutor's Office had
filled in a card on him and kept it in the resulting federal card index and
that he had had no effective remedy in that connection.
40. The Commission declared the application (no. 27798/95) admissible on 3
December 1997. In its report of 20 May 1998 (former Article 31 of the
Convention) it concluded, by nine votes to eight, that there had been a
violation of Article 8 and, unanimously, that there had been no violation of
Article 13. The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this judgment .
FINAL SUBMISSIONS TO THE COURT=20
41. In their memorials the Government asked the Court to find that the
applicant had not repeated his complaint of a violation of Article 13 of the
Convention and that there was therefore no need to examine it. With regard
to the merits, the Government asked the Court to hold that the facts which
gave rise to the application introduced by Mr Amann against Switzerland had
not amounted to a violation of the Convention.
42. The applicant asked the Court to find that there had been a violation
of Articles 8 and 13 of the Convention and to award him just satisfaction
under Article 41.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ARISING FROM THE
INTERCEPTION OF THE TELEPHONE CALL OF 12 OCTOBER 1981
43. The applicant complained that the interception of the telephone call he
had received from a person at the former Soviet embassy in Berne had
breached Article 8 of the Convention, which is worded as follows:
"1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public safety
or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others."
A. Applicability of Article 8
44. The Court reiterates that telephone calls received on private or
business premises are covered by the notions of "private life" and
"correspondence" within the meaning of Article 8 =A7 1 (see the Halford v.=
the
United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions
1997-III, p. 1016, =A7 44). This point was not in fact disputed.
B. Compliance with Article 8
1. Whether there was any interference
45. The Court notes that it is not disputed that the Public Prosecutor's
Office intercepted and recorded a telephone call received by the applicant
on 12 October 1981 from a person at the former Soviet embassy in Berne.
There was therefore "interference by a public authority", within the meaning
of Article 8 =A7 2, with the exercise of a right guaranteed to the applicant
under paragraph 1 of that provision (see the Kopp v. Switzerland judgment of
25 March 1998, Reports 1998-II, p. 540, =A7 53).
2. Justification for the interference
46. Such interference breaches Article 8 unless it is "in accordance with
the law", pursues one or more of the legitimate aims referred to in
paragraph 2 and is, in addition, necessary in a democratic society to
achieve those aims.
(a) Whether the interference was "in accordance with the law"
47. The applicant submitted that there was no legal basis for the
interference in Swiss law. In particular, he asserted that the Government
could not rely on sections 66 to 72 FCPA as a basis for the measure
complained of since they had not produced any evidence to prove that
criminal proceedings had been brought against a third party or that the
authorities had complied with the procedure laid down by those provisions.
He argued in that connection that the Government's claim that the documents
were no longer available lacked credibility. It transpired from the report
of the Parliamentary Commission of Inquiry set up to investigate the
so-called "card-index" affair that lists had been kept relating to the
telephone tapping ordered by the Public Prosecutor's Office and carried out
by the Post, Telecommunications and Telegraph Office; furthermore, the
Indictment Division of the Federal Court had kept registers recording the
authorisations issued by the President of the court; moreover, the
Government could not claim that an employee at the former Soviet embassy in
Berne was being monitored unless they had documents to support that
assertion; lastly, the fact that the recording had not been destroyed "at
the end of the proceedings" (section 66(1 ter) FCPA) showed that there had
not been an investigation within the meaning of sections 66 et seq. FCPA.
The applicant maintained that all the telephone lines at the former Soviet
embassy in Berne had been systemically tapped without any specific person
being suspected of committing an offence or judicial proceedings being
instituted in accordance with the law. He submitted that this presumption
was confirmed by the fact that during the proceedings before the Swiss
authorities the latter had expressly mentioned the term
"counter-intelligence". In addition, the inquiries by the Parliamentary
Commission of Inquiry set up to investigate the so-called "card-index"
affair had shown that the federal police had monitored citizens for decades
without a court order. Section 17(3) FCPA could not be relied on as a basis
for such practices by the police politique.
With regard to the Federal Council's Decree of 29 April 1958 on the Police
Service of the Federal Public Prosecutor's Office, the applicant pointed out
that the text contained purely organisational provisions relating to the
various offices of the Federal Department of Justice and Police and did not
in any way empower those offices to interfere with the rights and freedoms
protected by the Convention; it could not therefore be considered to be an
adequate legal basis. Moreover, the applicant considered that the text was
not sufficiently precise and accessible to satisfy the requirement of
"foreseeability" as defined by the Court's case-law.
48. The Commission found that there had not been a sufficient legal basis
for the monitoring of the applicant's telephone conversation. The Federal
Council's Decree of 29 April 1958 on the Police Service of the Federal
Public Prosecutor's Office was drafted in too general terms. Furthermore, it
had not been shown that the procedure laid down in sections 66 et seq. FCPA
had been followed.
49. The Government maintained that there had definitely been a legal basis
in Swiss law. As a preliminary point, they indicated that the measure in
question had been carried out, under section 66(1 bis) FCPA, in the context
of monitoring ordered by the Public Prosecutor's Office of a particular
employee at the former Soviet embassy in Berne and that the applicant had
not been the subject of the telephone tapping, either as a=20
suspect or as a third party (the latter being the person who had ordered
the depilatory appliance); the applicant had therefore been recorded
"fortuitously" as a "necessary participant".
Donald Ramsbottom LL.B, BA (Hons).
RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists