Amann v Switzerland Part 2
Donald Ramsbottom
donald at ramsbottom.co.uk
Tue, 07 Mar 2000 08:59:28 +0000
In the Government's submission it was of little importance whether the
measure had been ordered in the context of criminal proceedings which had
already been instituted or with the aim of preventing the commission of an
offence, since section 17(3) (based on Article 102 =A7=A7 9 and 10 of the
Federal Constitution), section 72 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 formed a sufficient legal basis in either case.
It pointed out that the Court had concluded in a similar case that there had
been a legal basis in Swiss law (see the Kopp judgment cited above, pp.
540-41, =A7=A7 56-61).
The only decisive question was whether the safeguards provided for by law
had been complied with. In that connection the Government stated that since
they were unable to consult the file they could not verify whether the
approval of the President of the Indictment Division of the Federal Court
required under section 66 bis FCPA had been granted. In the light of the
statement in the report by the Parliamentary Commission of Inquiry set up to
examine the so-called "card-index affair" that the President of the
Indictment Division of the Federal Court had approved all the investigating
judge's decisions, they presumed, however, that he had also done so in this
case.
50. The Court draws attention to its established case-law, according to
which the expression "in accordance with the law" requires not only that the
impugned measure should have some basis in domestic law, but also refers to
the quality of the law in question, requiring that it should be accessible
to the person concerned and foreseeable as to its effects (see the Kopp
judgment cited above, p. 540, =A7 55).
(i) Whether there was a legal basis in Swiss law
51. The Government and the applicant disagreed as to whether that condition
had been met. The Government's submission that sections 17(3) and 72 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 amounted to a sufficient
legal basis was disputed by the applicant.
52. The Court reiterates that it is primarily for the national authorities,
notably the courts, to interpret and apply domestic law (see the Kruslin v.
France judgment of 24 April 1990, Series A no. 176-A, pp. 21-22, =A7 29, and
the Kopp judgment cited above, p. 541, =A7 59). In that connection it points
out that the Federal Court, in its judgment of 14 September 1994, held that
it was unnecessary to examine whether sections 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 could justify the alleged infringement of
the applicant's personality rights. Moreover, that court expressed itself
only in very general terms regarding section 72 FCPA, confining itself to
pointing out that information could lawfully be gathered 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.
53. The Court has, admittedly, already ruled on the issue whether the
Federal Criminal Procedure Act amounted, under Swiss law, to a sufficient
legal basis for telephone tapping (see the Kopp judgment cited above, pp.
540-41, =A7=A7 56-61). Unlike the position in the instant case, however, the
authority to which Mr Kopp had submitted his complaint (the Federal Council)
had examined in detail whether the surveillance was lawful (ibid., p. 533, =
=A7
31(b)) and section 72 FCPA was not in issue.
54. In the instant case the Court does not consider it necessary to
determine whether there was a legal basis for the interception of the
telephone call of 12 October 1981. Even assuming that there was, one of the
requirements flowing from the expression "in accordance with the law",
namely - here - foreseeability, was not satisfied.=20
(ii) Quality of the law
55. The Court reiterates that the phrase "in accordance with the law"
implies conditions which go beyond the existence of a legal basis in
domestic law and requires that the legal basis be "accessible" and
"foreseeable".
56. According to the Court's established case-law, a rule is "foreseeable"
if it is formulated with sufficient precision to enable any individual - if
need be with appropriate advice - to regulate his conduct (see the Malone v.
the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 31-32, =
=A7
66). With regard to secret surveillance measures the Court has underlined
the importance of that concept in the following terms (ibid., pp. 32-33, =A7=
=A7
67-68):
"The Court would reiterate its opinion that the phrase 'in accordance with
the law' does not merely refer back to domestic law but also relates to the
quality of the 'law', requiring it to be compatible with the rule of law,
which is expressly mentioned in the preamble to the Convention =85 The=
phrase
thus implies - and this follows from the object and purpose of Article 8 -
that there must be a measure of legal protection in domestic law against
arbitrary interferences by public authorities with the rights safeguarded by
paragraph 1 =85 Especially where a power of the executive is exercised in
secret, the risks of arbitrariness are evident =85
=85 Since the implementation in practice of measures of secret surveillance=
of
communications is not open to scrutiny by the individuals concerned or the
public at large, it would be contrary to the rule of law for the legal
discretion granted to the executive to be expressed in terms of an
unfettered power. Consequently, the law must indicate the scope of any such
discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity, having regard to the legitimate aim of the
measure in question, to give the individual adequate protection against
arbitrary interference."
It has also stated that "tapping and other forms of interception of
telephone conversations constitute a serious interference with private life
and correspondence and must accordingly be based on a 'law' that is
particularly precise. It is essential to have clear, detailed rules on the
subject, especially as the technology available for use is continually
becoming more sophisticated" (see the Kopp judgment cited above, pp. 542-43,
=A7 72).
57. The "quality" of the legal provisions relied on in the instant case
must therefore be considered.
58. The Court points out first of all that Article 1 of the Federal
Council's Decree of 29 April 1958 on the Police Service of the Federal
Public Prosecutor's Office, according to which the federal police "shall
provide an investigation and information service in the interests of the
Confederation's internal and external security", including by means of
"surveillance" measures, contains no indication as to the persons concerned
by such measures, the circumstances in which they may be ordered, the means
to be employed or the procedures to be observed. That rule cannot therefore
be considered to be sufficiently clear and detailed to afford appropriate
protection against interference by the authorities with the applicant's
right to respect for his private life and correspondence.
59. It considers that the same is true of section 17(3) FCPA, which is
drafted in similar terms.
60. As regards the other provisions of the Federal Criminal Procedure Act,
the Court observes that section 66 defines the categories of persons in
respect of whom telephone tapping may be judicially ordered and the
circumstances in which such surveillance may be ordered. Furthermore,
sections 66 bis et seq. set out the procedure to be followed; thus,
implementation of the measure is limited in time and subject to the control
of an independent judge, in the instant case the President of the Indictment
Division of the Federal Court.
61. The Court does not in any way minimise the importance of those
guarantees. It points out, however, that the Government were unable to
establish that the conditions of application of section 66 FCPA had been
complied with or that the safeguards provided for in sections 66 et seq.
FCPA had been observed.
It points out further that, in the Government's submission, the applicant
had not been the subject of the impugned measure, either as a suspect or an
accused, or as a third party presumed to be receiving information or sending
it to a suspect or an accused, but had been involved "fortuitously" in a
telephone conversation recorded in the course of surveillance measures taken
against a particular member of staff of the former Soviet embassy in Berne.=
=20
The primary object of the Federal Criminal Procedure Act is the surveillance
of persons suspected or accused of a crime or major offence (section 66(1)
FCPA), or even third parties presumed to be receiving information from or
sending it to such persons (section 66(1 bis) FCPA), but the Act does not
regulate in detail the case of persons monitored "fortuitously" as
"necessary participants" in a telephone conversation recorded by the
authorities pursuant to those provisions. In particular, the Act does not
specify the precautions which should be taken with regard to those persons.
62. The Court concludes that the interference cannot therefore be
considered to have been "in accordance with the law" since Swiss law does
not indicate with sufficient clarity the scope and conditions of exercise of
the authorities' discretionary power in the area under consideration.
It follows that there has been a violation of Article 8 of the Convention
arising from the recording of the telephone call received by the applicant
on 12 October 1981 from a person at the former Soviet embassy in Berne.
(b) Purpose and necessity of the interference
63. Having regard to the foregoing conclusion, the Court does not consider
it necessary to examine whether the other requirements of paragraph 2 of
Article 8 were complied with.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ARISING FROM THE
CREATION OF A CARD AND THE STORING THEREOF IN THE CONFEDERATION'S CARD INDEX
64. The applicant complained that the creation of a card on him, following
the interception of a telephone call he had received from a person at the
former Soviet embassy in Berne, and the storing thereof in the
Confederation's card index had resulted in a violation of Article 8 of the
Convention.
A. Applicability of Article 8
65. The Court reiterates that the storing of data relating to the "private
life" of an individual falls within the application of Article 8 =A7 1 (see
the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, =
=A7 48).
It points out in this connection that the term "private life" must not be
interpreted restrictively. In particular, respect for private life comprises
the right to establish and develop relationships with other human beings;
there appears, furthermore, to be no reason in principle why this
understanding of the notion of "private life" should be taken to exclude
activities of a professional or business nature (see the Niemietz v. Germany
judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, =A7 29, and the
Halford judgment cited above, pp. 1015-16, =A7 42).
That broad interpretation tallies with that of the Council of Europe's
Convention of 28 January 1981 for the protection of individuals with regard
to automatic processing of personal data, which came into force on 1 October
1985, whose purpose is "to secure in the territory of each Party for every
individual =85 respect for his rights and fundamental freedoms, and in
particular his right to privacy, with regard to automatic processing of
personal data relating to him" (Article 1), such personal data being defined
as "any information relating to an identified or identifiable individual"
(Article 2).
66. In the present case the Court notes that a card was filled in on the
applicant on which it was stated that he was a "contact with the Russian
embassy" and did "business of various kinds with the company [A.]" (see
paragraphs 15 and 18 above).=20
67. The Court finds that those details undeniably amounted to data relating
to the applicant's "private life" and that, accordingly, Article 8 is
applicable to this complaint also.=20
B. Compliance with Article 8
1. Whether there was any interference
68. The Government submitted that the issue whether there had been
"interference" within the meaning of Article 8 of the Convention remained
open since "the card contained no sensitive information about the
applicant's private life", the latter "had not in any way been
inconvenienced as a result of the creation and storing of his card" and that
it had "in all probability never been consulted by a third party".=20
69. The Court reiterates that the storing by a public authority of data
relating to the private life of an individual amounts to an interference
within the meaning of Article 8. The subsequent use of the stored
information has no bearing on that finding (see, mutatis mutandis, the
Leander judgment cited above, p. 22, =A7 48, and the Kopp judgment cited
above, p. 540, =A7 53).=20
70. In the instant case the Court notes that a card containing data
relating to the applicant's private life was filled in by the Public
Prosecutor's Office and stored in the Confederation's card index. In that
connection it points out that it is not for the Court to speculate as to
whether the information gathered on the applicant was sensitive or not or as
to whether the applicant had been inconvenienced in any way. It is
sufficient for it to find that data relating to the private life of an
individual was stored by a public authority to conclude that, in the instant
case, the creation and storing of the impugned card amounted to an
interference, within the meaning of Article 8, with the applicant's right to
respect for his private life.
2. Justification for the interference
71. 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, in addition, is necessary in a democratic society to
achieve those aims.
(a) Was the interference "in accordance with the law"?
72. The applicant submitted that there was no legal basis for creating and
storing a card on him. In particular, he asserted that section 17(3) FCPA
did not authorise the federal police to record the results of their
surveillance measures. As to the Federal Council's Directives of 16 March
1981 applicable to the Processing of Personal Data in the Federal
Administration, these were intended for the civil servants of the
administration and were not therefore sufficiently clear and precise to
enable citizens to ascertain their rights and obligations.
In his submission the authorities had, furthermore, failed to comply with
the rules in force, since section 66(1 ter) FCPA and section 414 of the
Federal Council's Directives of 16 March 1981 applicable to the Processing
of Personal Data in the Federal Administration stipulated that recordings
which turned out not to be necessary to the conduct of an investigation
should be destroyed.=20
Lastly, he pointed out that the legislation which had come into force in the
early 1990s, after the so-called "card-index" affair had broken, did not
provide for the possibility of instituting judicial proceedings to have a
card destroyed. Thus, under the Federal Decree of 9 October 1992 on the
Consultation of Documents of the Federal Public Prosecutor's Office and the
Federal Council's Order of 20 January 1993 on the Consultation of Documents
of the Federal Public Prosecutor's Office, cards were stored in the Federal
Archives and all interested persons could do was have their card annotated
if they disputed its contents.
73. The Commission agreed with the applicant. In particular, it considered
that the Federal Council's Directives of 16 March 1981 applicable to the
Processing of Personal Data in the Federal Administration were
insufficiently precise and merely presupposed that there was a legal basis
to the storing of information without themselves providing one.
74. The Government submitted that the Swiss legal system provided a
sufficiently accessible and foreseeable legal basis having regard to "the
special nature of secret measures in the field of national security".
Before 1990, they submitted, the impugned measures had mainly been based on
section 17(3) FCPA and Article 1 of the Federal Council's Decree=20
of 29 April 1958 on the Police Service of the Federal Public Prosecutor's
Office, those provisions being given concrete form by the Federal Council's
Directives of 16 March 1981 applicable to the Processing of Personal Data in
the Federal Administration. They pointed out that those directives had been
published in the Federal Gazette (FF 1981,1, p. 1314).
After 1990, they submitted, a number of texts had been enacted on the
processing and consultation of documents containing personal data, in
particular the Federal Council's Order of 5 March 1990 on the Processing of
Federal National Security Documents, the Federal Decree of 9 October 1992 on
the Consultation of Documents of the Federal Public Prosecutor's Office and
the Federal Council's Order of 20 January 1993 on the Consultation of
Documents of the Federal Public Prosecutor's Office.
(i) Creation of the card
75. The Court notes that in December 1981, when the card on the applicant
was created, the Federal Criminal Procedure Act, the Federal Council's
Decree of 29 April 1958 on the Police Service of the Federal Public
Prosecutor's Office and the Federal Council's Directives of 16 March 1981
applicable to the Processing of Personal Data in the Federal Administration
were in force. None of those provisions, however, expressly mentions the
existence of a register kept by the Public Prosecutor's Office, which raises
the question whether there was "a legal basis in Swiss law" for the creation
of the card in question and, if so, whether that legal basis was
"accessible" (see the Leander judgment cited above, p. 23, =A7 51). It
observes in that connection that the Federal Council's Directives of 16
March 1981 were above all intended for the staff of the federal=
administration.
In the instant case, however, it does not consider it necessary to rule on
this subject, since even supposing that there was an accessible legal basis
for the creation of the card in December 1981, that basis was not=
"foreseeable".
76. The Court has found above (see paragraphs 58 and 59) that 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 were drafted in
terms too general to satisfy the requirement of foreseeability in the field
of telephone tapping. For the reasons already set out, it arrives at the
same conclusion concerning the creation of the card on the applicant.
As regards the Federal Council's Directives of 16 March 1981 applicable to
the Processing of Personal Data in the Federal Administration, they set out
some general principles, for example that "there must be a legal basis for
the processing of personal data" (section 411) or that "personal data may be
processed only for very specific purposes" (section 412), but do not contain
any appropriate indication as to the scope and conditions of exercise=20
of the power conferred on the Public Prosecutor's Office to gather, record
and store information; thus, they do not specify the conditions in which
cards may be created, the procedures that have to be followed, the
information which may be stored or comments which might be forbidden.
Those directives, like the Federal Criminal Procedure Act and the Federal
Council's Decree of 29 April 1958 on the Police Service of the Federal
Public Prosecutor's Office, cannot therefore be considered sufficiently
clear and detailed to guarantee adequate protection against interference by
the authorities with the applicant's right to respect for his private life.
77. The creation of the card on the applicant was not therefore "in
accordance with the law" within the meaning of Article 8 of the Convention.
(ii) Storing of the card
78. The Court points out first of all that it would seem unlikely that the
storing of a card which had not been created "in accordance with the law"
could satisfy that requirement.
Moreover, it notes that Swiss law, both before and after 1990, expressly
provided that data which turned out not to be "necessary" or "had no further
purpose" should be destroyed (section 66(1 ter) FCPA, section 414 of the
Federal Council's Directives of 16 March 1981 applicable to the Processing
of Personal Data in the Federal Administration and Article 7 of the Federal
Decree of 9 October 1992 on the Consultation of Documents of the Federal
Public Prosecutor's Office).
In the instant case the authorities did not destroy the stored information
when it emerged that no offence was being prepared, as the Federal Court
found in its judgment of 14 September 1994.
79. For these reasons, the storing of the card on the applicant was not "in
accordance with the law" within the meaning of Article 8 of the Convention.
80. The Court concludes that both the creation of the impugned card by the
Public Prosecutor's Office and the storing of it in the Confederation's card
index amounted to interference with the applicant's private life which
cannot be considered to be "in accordance with the law" since Swiss law does
not indicate with sufficient clarity the scope and conditions of exercise of
the authorities' discretionary power in the area under consideration. It
follows that there has been a violation of Article 8 of the Convention.
(b) Purpose and necessity of the interference
81. Having regard to the foregoing conclusion, the Court does not consider
it necessary to examine whether the other requirements of paragraph 2 of
Article 8 were complied with.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
82. The applicant also alleged a violation of Article 13 of the Convention,
which is worded as follows:
"Everyone whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in
an official capacity."
A. The Government's preliminary objection
83. The Government noted that the applicant had not repeated his complaint
relating to Article 13 of the Convention in his memorial submitted on 11 May
1999. They accordingly considered that there was no need to examine that=
issue.
84. The Court notes that the applicant relied on Article 13 of the
Convention before the Commission, that the Commission examined that
complaint in its report of 20 May 1998 and that, when invited to lodge with
the Court memorials relating to the issues raised by this case, as declared
admissible by the Commission, the applicant submitted observations on
Article 13 in his memorial filed on 14 June 1999.
Accordingly, the Court considers that the applicant did not manifest an
intention to waive before it his complaint of a violation of Article 13 of
the Convention which he had alleged before the Commission.
The Government's preliminary objection cannot therefore be upheld.
B. Merits of the complaint
85. The applicant complained that he had not had an "effective remedy"
since he had been unable to raise before the Federal Court the issue whether
the telephone tapping and the creation and storing of the card were lawful.
86. The Commission found that the administrative-law action brought by the
applicant had amounted to an effective remedy.=20
87. The Government agreed with that finding. They stressed that the
applicant, in bringing an administrative-law action in the Federal Court,
had sought compensation for non-pecuniary damage and, in the alternative, a
finding that the card on him was illegal.
88. The Court reiterates first of all that in cases arising from individual
petitions the Court's task is not to review the relevant legislation or
practice in the abstract; it must as far as possible confine itself, without
overlooking=20
the general context, to examining the issues raised by the case before it
(see the Holy Monasteries v. Greece judgment of 9 December 1994, Series A
no. 301-A, pp. 30-31, =A7 55).
It further observes that Article 13 of the Convention requires that any
individual who considers himself injured by a measure allegedly contrary to
the Convention should have a remedy before a national authority in order
both to have his claim decided and, if appropriate, to obtain redress (see
the Leander judgment cited above, pp. 29-30, =A7 77). That provision does=
not,
however, require the certainty of a favourable outcome (see the D. v. the
United Kingdom judgment of 2 May 1997, Reports 1997-III, p. 798, =A7 71).
89. In the instant case the Court notes that the applicant was able to
consult his card as soon as he asked to do so, in 1990, when the general
public became aware of the existence of the card index being kept by the
Public Prosecutor's Office. It also points out that the applicant brought an
administrative-law action in the Federal Court and that on that occasion he
was able to complain, firstly, about the lack of a legal basis for the
telephone tapping and the creation of his card and, secondly, the lack of an
"effective remedy" against those measures. It notes that the Federal Court
had jurisdiction to rule on those complaints and that it duly examined them.
In that connection it reiterates that the mere fact that all the applicant's
claims were dismissed is not in itself sufficient to determine whether or
not the administrative-law action was "effective".
90. The applicant therefore had an effective remedy under Swiss law to
complain of the violations of the Convention which he alleged. There has not
therefore been a violation of Article 13.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
91. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party."
A. Damage
92. The applicant claimed 1,000 Swiss francs (CHF) for non-pecuniary damage
and did not claim any amount in respect of pecuniary damage.
93. The Government maintained that if the Court were to find a violation of
the Convention, the non-pecuniary damage would be adequately compensated by
the publicity given to the judgment.
94. The Court considers that the non-pecuniary damage is adequately
compensated by the finding of violations of Article 8 of the Convention.
B. Costs and expenses
95. The applicant also claimed CHF 7,082.15 in respect of his costs and
expenses for the proceedings before the Convention institutions.
96. The Government stated that, in the light of all the circumstances of
the present case and the amounts awarded by the Court in other applications
directed against Switzerland, they were prepared to pay CHF 5,000.
97. The Court considers that the claim for costs and expenses is reasonable
and that it should be allowed in full.
C. Default interest
98. According to the information available to the Court, the statutory rate
of interest applicable in Switzerland at the date of adoption of the present
judgment is 5% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the Convention
arising from the interception of the telephone call;
2. Holds that there has been a violation of Article 8 of the Convention
arising from the creation and storing of the information card;
3. Dismisses the Government's preliminary objection relating to Article 13
of the Convention;
4. Holds that there has not been a violation of Article 13 of the=
Convention;
5. Holds that the present judgment in itself constitutes sufficient just
satisfaction for the non-pecuniary damage sustained by the applicant;
6. Holds
(a) that the respondent State is to pay the applicant, within three months,
7,082 (seven thousand and eighty-two) Swiss francs, 15 (fifteen) centimes
for costs and expenses;
(b) that simple interest at an annual rate of 5% shall be payable on this
sum from the expiry of the above-mentioned three months until settlement;
7. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 16 February 2000.
Elisabeth PALM
President
Michele DE SALVIA
Registrar
Donald Ramsbottom LL.B, BA (Hons).
RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists