EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27798/95

H. A.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-43)              3

A. The particular circumstances of the case

(paras. 16-36)              3

B. Relevant domestic law

(paras. 37-43)              6

III. OPINION OF THE COMMISSION

(paras. 44-84)              8

A. Complaints declared admissible

(para. 44) 8

B. Points at issue

(para. 45) 8

C. As regards Article 8 of the Convention

(paras. 46-73)              8

CONCLUSION

(para. 74) 12

D. As regards Article 13 of the Convention

(paras. 75-79)              12

CONCLUSION

(para. 80) 13

E. Recapitulation

(paras. 81-82)              13

DISSENTING OPINION OF MR B. MARXER JOINED BY

MR A. WEITZEL, MRS J. LIDDY, MM B. CONFORTI,

I. BÉKÉS, G. RESS, A. PERENIČ AND MRS M. HION 14

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant, a Swiss citizen born in 1940, is a businessman residing in Berikon in Switzerland.  He is represented before the Commission by Mr L.A. Minelli , a lawyer practising in Forch in Switzerland.

3. The application is directed against Switzerland.  The respondent Government are represented by Mr Ph . Boillat , Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.

4. The case concerns the applicant's complaints about the preparing and storing of a card (fiche) relating to him, resulting from a telephone call with the then Soviet Embassy.  The applicant invokes Articles 8 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 27 June 1995 and registered on 6 July 1995.

6. On 17 January 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 4 April 1997.  The applicant replied on 22 May 1997.

8. On 3 December 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 17 December 1997 and they were invited to submit such further information or observations on the merits as they wished.  The applicant submitted observations on 2 February 1998.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM N. BRATZA, Acting President

S. TRECHSEL

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In 1981 the applicant imported depilatory equipment to Switzerland which he advertised in women's magazines.

17. On 12 October 1981 a woman from the then Soviet Embassy in Bern ordered by telephone a depilatory apparatus " Perma Tweeze" from the applicant.

18. This telephone conversation was monitored by the Swiss Federal Attorney's Office ( Bundesanwaltschaft ).  According to the Government, judicial investigations were at that time being undertaken against a member of the Soviet Embassy.  The applicant contests that such judicial investigations were pending, claiming there is no evidence herefor .

19. The Swiss Federal Attorney's Office then requested the Intelligence Service ( Nachrichtendienst ) of the police of the Canton of Zürich to investigate particulars of the applicant.

20. In the report of the Zürich police, it was stated that the applicant did business with air-spray-systems and had an entry in the commercial registry.  The report explained that " Perma Tweeze" was a battery-operated depilatory apparatus.  The Report included a prospectus of the apparatus.

21. On 24 December 1981, the Federal Attorney's Office prepared a card ("fiche") for its card-index on State security ( Staatsschutzkartothek ) containing the applicant's particulars.  The card which contained two deleted passages ("...") stated:

" Zürich intelligence service>: The identity of (the applicant) as a contact person with the Russian Embassy according to (...).  (The applicant) does business of different sorts with the Air-Spray-System company.  Annex: Extract and prospectus. (...)"

"v. ND ZH: Ident . des A. als Kontaktperson zur Russ. Botschaft gemäss (...).  A. betreibt Handel verschiedenster Art mit der Fa . Air-Spray-Systems. Beilage : HR- Auszug und Prospekt . (...)"

22. The card contained the number (1153:0) 614.  The figure 1 referred to "communist governed countries".  The figure 153 referred to the then Soviet Union.  The figure 0 referred to established espionage.  The figure 614 meant "various contacts with the Eastern Block".

23. In 1990 it became known to the public that such a card-index on State security had been prepared, and various persons requested consultation of their card.  As a result, various laws were enacted concerning the handling of the card-index (see below, para. 41).

24. Upon the applicant's request, in 1990 the Special Delegate for State Protection Files transmitted to the applicant a photocopy of his card.

25. The applicant requested the Ombudsman of the Federal Attorney's Office to disclose the deleted passages.  The Ombudsman replied on 9 October 1990 that the deleted passage at the end of the card correctly suppressed the initials of the names of officers of the Federal Police who had obtained information of the entry.  The deleted passage in the entry itself referred to a technical surveillance measure in respect of which he, the Ombudsman, would advise the Special Delegate to disclose the information.

26. On 19 April 1991 the Special Delegate found on the basis of the 1990 Federal Ordinance that the deleted passage at the end containing the initials of names should not be disclosed.  The deleted passage in the entry itself contained information as to counter-intelligence which should not be disclosed either.  The only words originally deleted and now to be disclosed was "according to the report (...)."

27. On 26 October 1991 the applicant filed a request with the Federal Finance Department ( Eidgenössisches Finanzdepartement ) for compensation.  The Department refused the request on 28 January 1992.

28. On 9 March 1992 the applicant filed an administrative action ( verwaltungsrechtliche Klage ) with the Federal Court, claiming compensation from the Swiss Confederation to the amount of 5,000 Swiss Francs (CHF) for the unlawful entry in the card-index of the Federal Attorney's Office.  The applicant also requested that his file and the card-index on his person should immediately be transmitted to the Federal Archives ( Bundesarchiv ) which were to be prohibited from preparing any copies thereof.  The Federal Archives were moreover to be ordered to store the material under lock and key and not to hand out any information without the applicant's consent.

29. On 14 September 1994 the Federal Court held a hearing at which the applicant spoke.  Following deliberations conducted in public, it dismissed the applicant's action on the same day.  The decision was served on 25 January 1995.

30. With regard to the issue of a legal basis for the measures complained of, the Court referred first to S. 17 para. 3 of the Federal Code of Criminal Procedure ( Bundesstrafprozessordnung ; see below, para. 38) according to which the Federal Attorney's Office is granted the necessary staff to obtain information necessary for the security of the Confederation.  The Federal Court then referred to S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office ( Bundesratsbeschluss betreffend den Polizeidienst der Bundesanwaltschaft ; see below, para. 37).  According to this provision, the authorities are authorised to monitor and prevent activities capable of endangering the interior or exterior security of the Confederation.  However, the Federal Court found it unnecessary to examine whether these provisions sufficed as a legal basis since other grounds for awarding compensation had not been met (see below, para. 34).

31. The Federal Court referred finally to SS. 66 et seq. of the Federal Code on Criminal Procedure which permitted the monitoring by the criminal investigating authorities of telephone and postal communications before criminal investigations are instituted (see below, paras. 39 et seq.).  As a result, it was admissible to obtain information in order to prevent criminal offences against the State or national defence if there were certain circumstances indicating that such an offence was being prepared.   However, the Court did not regard it necessary to examine whether this provision also permitted the storing of the information thus obtained since there had been no serious breach of the applicant's personality.

32. The Federal Court's decision continued:

"The plaintiff was registered in connection with the then monitoring of telephone communications with the Soviet Embassy for reasons of counter-intelligence.  As he had contact with a male or female employee of the Soviet Embassy and as it was not immediately clear that the ' Perma Tweeze Apparatus' which he sold was a harmless depilatory instrument, the authorities correctly undertook investigations as to his identity, his circumstances and the ' Perma Tweeze Apparatus', and registered the result.  The question arises whether the information may continue to be stored after it apparently transpired that no criminal offence was being prepared ...  The question need not be resolved since in any event - as shall be demonstrated - no serious breach of personality has resulted and no damage has been demonstrated."

" Der Kläger wurde im Zusammenhang mit der Spionageabwehr dienenden damaligen Ãœberwachung des Telefonverkehrs der sowjetischen Botschaft erfasst . Nachdem er mit einem oder einer Angestellten der sowjetischen Botschaft Kontakt hatte und nicht sogleich feststand , dass es sich bei dem von ihm vertriebenen ' Perma Tweez Gerät ' um ein harmloses Epiliergerät handelte , durften die Behörden über seine Identität , sein Umfeld und das ' Perma Tweez Gerät ' nähere Abklärungen treffen und das Ergebnis aufzeichnen . Fraglich ist , ob die Aufzeichnungen weiter aufbewahrt werden durften , nachdem sich offenbar herausgestellt hatte , dass keine strafbare Handlung vorbereitet wurde ... Die Frage braucht nicht beantwortet zu werden , da sich daraus - wie sich zeigen wird - jedenfalls keine schwere Verletzung der Persönlichkeit ergibt und kein Schaden geltend gemacht wird ."

33. The Court further noted that the applicant had had the possibility of instituting proceedings in which he had contested certain data in the files of the Federal Attorney's Office or requested their amendment.

34. The Court then examined whether the seriousness of the violation warranted compensation.  It found that the mere circumstance that the applicant had been referred to as a "contact person with the Russian Embassy" could hardly imply a breach of his personality.  Indeed, there was no indication that the authorities considered the applicant to be a spy.  While the term "contact person with the Russian Embassy" could possibly imply that he had actually had regular contacts, this card, rather than being viewed on its own, had to be seen in the wider context of the whole case-file and the other circumstances of the case. The fact that no further entries were made permitted the conclusion that the authorities did not suspect the applicant of having unlawful contacts with the Soviet Embassy.  It could not be assumed either that the applicant had been observed on other occasions, or that the information stored had been passed on to other persons.

35. The Federal Court's judgment concluded that there had been no serious breach of personality.  Thus, the applicant's case-file appeared on the whole to have been of little relevance, and there was nothing which indicated that his file in particular ( gerade sein Dossier) had in any way been further manipulated or unlawfully passed on.

36. In 1996 the applicant's card was removed from the central card- index and transferred to the Federal Archives where during 50 years there will be no access to it.

B. Relevant domestic law

37. S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office ( Bundesratsbeschluss betreffend den Polizeidienst der Bundesanwaltschaft ) provides that the police are competent to monitor and prevent activities endangering the interior or exterior security of the Confederation.

38. S. 17 para. 3 of the Federal Code of Criminal Procedure ( Bundesstrafprozessordnung ), in force since 1945, grants the Federal Attorney's Office the necessary staff to obtain information necessary for the security of the Confederation.

39. According to S. 66 of the Federal Code, in force since 1975, the investigating judge may monitor the postal and telephone communications of an accused or suspected person, or other persons having a connection with them, in order to investigate an offence against the State and State defence .

40. S. 66 para. 1 bis of the Federal Code, in force since 1992, states that postal and telephone communications of third persons may also be monitored if the accused or suspected person would also meet the same conditions.  Moreover, the telephone of the third person may always be monitored if there is a suspicion that it would be used by the accused.

41. SS. 66 bis , ter and quater , in force since 1979, determine the procedure for the monitoring of such communications.  Thus, the investigating judge transmits his decision to monitor postal or telephone communications within 24 hours for approval to the President of the Indictment Chamber of the Federal Court.  After examining the decision, the President may approve or annul the decision.

42. On 16 March 1981 the Swiss Government adopted Directives on the Handling of Personal Data in the Federal Administration of 16 March 1981 (published in Official Journal < Feuille fédérale > 1981 vol. I, p. 1314).  These Directives state, inter alia , that the handling of such data must have a legal basis, and must occur for a well established purpose.  The Directives list the conditions, upon request of the person concerned, for correcting any data which prove to be incorrect, and for communicating such data to other persons.  Data which have become useless should be destroyed, subject to their being deposited in the archives of the Confederation.

43. In 1990 the Federal Council ( Bundesrat ) enacted  an Ordinance on the Handling of State Protection Files of the Confederation ( Verordnung des Bundesrates über die Behandlung von Staatsschutzakten des Bundes ).  The post of Special Delegate for State Protection Files ( Sonderbeauftragter für Staatsschutzakten ) was created.  In 1992 a Federal Act on Consultation of the Files of the Federal Attorney's Office was enacted providing, inter alia , that files no longer necessary for State protection activities are sent to the Federal Archives where they remain inaccessible for consultation for 50 years.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

44. The following complaints were declared admissible:

- that the monitoring of the applicant's telephone conversation and the storage of the information obtained therefrom violated his right to respect for his private life; and

- that he had no domestic remedy at his disposal to complain thereof.

B. Points at issue

45. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 8 of the Convention;

- whether there has been a violation of Article 13 of the Convention.

C. As regards Article 8 of the Convention

46. The applicant complains of an interference with his right to respect for his private life under Article 8 of the Convention.  He submits that there was no legal basis either for the monitoring of his telephone conversation with the Soviet Embassy or for the preparation and storing of a card.  It was also disproportionate within the meaning of Article 8 para. 2 of the Convention to store such information about him on a card.

47. Article 8 of the Convention states, insofar as relevant:

"1. Everyone has the right to respect for his private ... life ... 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."

48. The applicant submits that there is no guarantee that the waiting period of 50 years will actually be observed, since the legislator is quite free to abolish it wholly or in part.  He also contests that the card contained no sensitive information.  The fact that the applicant was labelled a "Russian Embassy contact" actually amounted to a substantial threat for him.  Anybody who knows of this and for this reason does not establish business relations with him, will not tell him so.  Nowhere is it stated that every consultation of his card has been recorded, and it cannot be excluded that the Zürich cantonal police still have documents available that mention this alleged contact with the Embassy.  In fact, the applicant also complains that a card was made out at all, which is in breach of Article 8 of the Convention.

49. The applicant points out that the collecting of data was unlawful in itself.  S. 17 para. 3 of the Federal Code of Criminal Procedure, which only refers to offences that come under the jurisdiction of Federal criminal courts, does not contain a reference to the conditions for monitoring telephones and does not provide for sufficient measures to protect against abuse.  The Directives on the Handling of Personal Data in the Federal Administration of 16 March 1981, referred to by the Government, do not mention the actual conditions that would allow the authorities extensively to monitor telephone calls.  On the whole, there is no legal basis for the Government's interference with the applicant's private life.  As a result, it was a totalitarian practice to record and store trifling matters for decades.

50. The applicant fails to see how the ordering and delivery of a battery-operated depilatory device could adversely affect national security, as claimed by the Government.  Moreover, it cannot be said that the card contained no sensitive elements and did not cause the applicant any disadvantage.  All that can be said is that no detrimental effect to the applicant's business has become apparent as a result of the storing of the card.  The decisive factor is the principle of the right of self-determination, which prohibits government authorities from making recordings of any conversations between private individuals.

51. The Government contend that the measures taken are in conformity with the Convention.  On the one hand, the storing of the applicant's card does not amount to an interference with his rights under Article 8 para. 1 of the Convention, as in 1996 it was removed from the central card index and transferred to the Federal Archives where it may not be consulted and where there will be no access to it for the next 50 years.

52. On the other hand, even if there has been an interference, the measure would in the Government's opinion be justified under Article 8 para. 2 of the Convention.  The interference was "in accordance with the law" in that, before 1990, the situation was governed by  S. 17 para. 3 and SS. 66 et seq. of the Federal Code of Criminal Procedure, and by the Directives on the Handling of Personal Data in the Federal Administration of 16 March 1981.  After 1990, the situation was governed by the Ordinances on the Handling of State Protection Files of the Confederation and on the Consultation of Documents of the Public Prosecutor's Office and by the Federal Act on the Protection of Personal Data.

53. The Government moreover submit that the measure served the purpose of national security within the meaning of Article 8 para. 2 of the Convention, and could be considered as "necessary in a democratic society" in view of the margin of appreciation left to the authorities. In particular, the applicant suffered no disadvantage whatsoever from the storing of the card.  The latter contained no sensitive information concerning his private life.  Moreover, the card-index in which the applicant's card was stored, was only consulted twice; in all probability, the applicant's card was never consulted.

54. The Commission recalls that, according to the Court's case-law, the interception of telephone calls constitutes "interference by a public authority", within the meaning of Article 8 para. 2 of the Convention, with the exercise of a right guaranteed under paragraph 1 (see Eur. Court HR, Kopp v. Switzerland judgment of 25 March 1998, to be published in Reports of Judgments and Decisions, para. 53).  The storing of information concerning a person's private life in a secret register kept by a State authority equally amounts to an interference with the right to respect for private life as guaranteed by Article 8 para. 1 of the Convention (Eur. Court HR, Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, para. 48).

55. In the present case, the Commission considers that the monitoring of the applicant's telephone conversation with the then Soviet Embassy and the subsequent preparation and storing of a card on the applicant amounted to interferences with his right to respect for his private life within the meaning of Article 8 para. 1 of the Convention.  The Government object in this respect that the applicant's card is now stored in the Federal Archives where it may not be consulted.  However, the Commission notes that from 1981 until 1990 the card was filed with the Federal Attorney's Office where it was open for consultation without the applicant being aware of it.  Furthermore, the existence of an interference cannot depend upon the applicant having suffered any identifiable damage, as such a requirement would render the Convention guarantees in Article 8 of the Convention theoretical and illusory, whereas they are intended to be practical and effective (see Eur. Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33).

56. The Commission must therefore examine whether these interferences were justified under Article 8 para. 2 of the Convention.

57. The expression "in accordance with the law" in paragraph 2 of Article 8 of the Convention requires that the interferences must have some basis in domestic law.  Moreover, the law in question must be accessible to the individual concerned and its consequences for him must also be foreseeable (see Eur. Court HR, Leander judgment, loc. cit., p. 23, para. 50).

58. In the context of secret measures of surveillance or interception of communications by public authorities, the expression "in accordance with the law" not only necessitates compliance with the law, but also relates to the quality of that law, requiring it to be compatible with the rule of law.  Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances and conditions on which public authorities are empowered to resort to any such secret measures (see Eur. Court HR, Halford v. United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1017, para. 49).

59. Nevertheless, the Commission's power to review compliance with the relevant domestic legislation is limited under the Convention.  It is in the first place for the national authorities, notably the courts, to interpret and to apply the domestic law (see Friedl v. Austria, Comm. Report 19.5.94, para. 58, Eur. Court HR, Series A no. 305-B, p. 22).

60. The Commission has first examined the monitoring of the applicant's telephone conversation with the Soviet Embassy.  In this respect, the Federal Court mentioned in its judgment of 14 September 1994 two sets of legal provisions (see above, para. 30).  It referred, first, to S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office which authorises the authorities to monitor and prevent activities capable of endangering the interior or exterior security of the Confederation (see above, para. 37).  Reference was further made to SS. 66 et seq. of the Federal Code on Criminal Procedure which permits the monitoring of telephone and postal communications before criminal investigations are instituted (see above, paras. 39 et seq.).  In this respect, the Court found that it was admissible to obtain information in order to prevent criminal offences against the State if there were circumstances indicating that such an offence was being prepared.

61. In this respect, the Commission considers that the present case related to far-reaching secret measures of surveillance, in particular as to the applicant's professional activities.  As a result, specification in some detail would be required in the domestic legal provisions as to the envisaged measures (see Eur. Court HR, Halford case, loc. cit.).

62. As regards S. 2 of the Federal Council's Ordinance referred to by the Federal Court, the Commission considers that this provision is overly general and cannot serve as a legal basis for the monitoring of the applicant's telephone.

63. It is true that the second set of provisions referred to, in particular SS. 66 et seq. of the Federal Code on Criminal Procedure, expressly refer to the monitoring of telephone communications.  Nevertheless, these provisions also envisage various procedural safeguards when intercepting telephone conversations.  Thus, S. 66 of the Federal Code authorises the investigating judge to monitor such conversations; according to SS. 66 bis , ter and quater , the investigating judge shall transmit his decision to monitor telephone conversations within 24 hours for approval to the President of the Indictment Chamber of the Federal Court (see above, para. 41).

64. However, there is no indication that the procedures mentioned in SS. 66 et seq. of the Federal Code were applied in the applicant's case.  In particular, no reference is made thereto in the decision of the Federal Court of 14 September 1994.

65. As a result, it has not been shown that the monitoring of the applicant's telephone conversation complied with the requirements under domestic law.

66. The Commission must next examine whether there was a legal basis for the preparation and storing of the card at issue.

67. It is true that according to the Commission's case-law, a legal provision laying down the circumstances in which information may be obtained will generally provide a sufficient legal basis for the subsequent retention of such material (see McVeigh and others v. United Kingdom, Comm. Report 18.3.81, D.R. 25, p. 15, p. 50 at para. 228).

68. However, the Commission has just found that S. 2 of the Federal Council's Ordinance of 1958, and SS. 66 et seq. of the Federal Code on Criminal Procedure could not serve as a legal basis for monitoring the applicant's telephone conversation (see above, para. 64).  These provisions can equally not, therefore, serve as a legal basis for the preparation of the applicant's card.  In this connection, the Commission also notes that the Federal Court itself left open whether SS. 66 et seq. of the Federal Code also served as a legal basis to prepare a card and store the information obtained (see above, para. 31).

69. The respondent Government have referred, in addition, to the Directives on the Handling of Personal Data in the Federal Administration adopted by the Swiss Government on 16 March 1981.  These Directives contain provisions as to the handling of such data.

70. In the Commission's opinion, however, these Directives do not provide the required specification for such a far-reaching measure in that they merely presuppose, but do not themselves provide, a legal basis for the preparation and continuing storing of such information.  As a result, they cannot serve as a legal basis in this respect.

71. Thus, Swiss law did not provide a sufficient legal basis for the monitoring of the applicant's telephone conversation, or for the preparation and storing of the card prepared on him.

72. It cannot therefore be said that the interferences at issue were "in accordance with the law" for the purposes of Article 8 para. 2 of the Convention.

73. In the circumstances, the Commission does not find it necessary further to consider whether the interferences were "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention.

CONCLUSION

74. The Commission concludes, by 9 votes to 8, that in the present case there has been a violation of Article 8 of the Convention.

D. As regards Article 13 of the Convention

75. The applicant complains that he did not have an effective remedy at his disposal within the meaning of Article 13 of the Convention in that the Federal Court refused to grant him compensation or even to declare the unlawfulness of the various measures in issue.  It does not suffice, in the applicant's opinion, that he could institute proceedings in which he requested the amendment of certain facts mentioned on the card.

76. Article 13 of the Convention states:

"Everyone whose rights and freedoms as set forth in this 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."

77. According to the Convention organs' case-law, Article 13 of the Convention requires the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Eur. Court HR, Halford v. United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1020, para. 64).

78. In the present case, the applicant filed an administrative action with the Federal Court, claiming compensation for the unlawful entry into the card-index of the Federal Attorney's Office.  The Federal Court could have determined the unlawfulness of the various measures and also awarded compensation.  However, on 14 September 1994, after conducting a hearing, the Federal Court dismissed the applicant's action, inter alia , as not all the grounds for awarding compensation had been met (see above, paras. 28 et seq.).

79. In the Commission's opinion, therefore, the applicant had a remedy at his disposal meeting the requirements of Article 13 of the Convention.

CONCLUSION

80. The Commission concludes, unanimously, that in the present case there has been no violation of Article 13 of the Convention.

E. Recapitulation

81. The Commission concludes, by 9 votes to 8, that in the present case there has been a violation of Article 8 of the Convention (see above, para. 74).

82. The Commission concludes, unanimously, that in the present case there has been no violation of Article 13 of the Convention (see above, para. 80).

  M.F. BUQUICCHIO                               N. BRATZA

     Secretary                             Acting President

to the First Chamber                          of the First Chamber

(Or. English)

DISSENTING OPINION OF MR B. MARXER

JOINED BY MR A. WEITZEL, MRS J. LIDDY, MM B. CONFORTI,

I. BÉKÉS, G. RESS, A. PERENIČ AND MRS M. HION

I regret that I cannot agree with the conclusion of the majority that the measures at issue were not "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.

The point of departure in this respect is the Federal Court's judgment of 14 September 1994 which mentioned two sets of legal provisions.  It mentioned, on the one hand, S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office which authorises the authorities to monitor and prevent activities capable of endangering the interior or exterior security of the State; and, on the other, SS. 66 et seq. of the Federal Code on Criminal Procedure which permitted the monitoring of telephone and postal communications before criminal investigations are instituted (see the Report, para. 60).

I accept that these provisions served as a legal basis for the monitoring of the applicant's telephone conversation.

The issue then arises whether there was a legal basis for the preparation and storing of the card at issue.  In this respect, the Federal Court left open whether these provisions also served as a legal basis to prepare a card and store the information obtained, as the applicant's action appeared unfounded for other reasons.

However, according to the Commission's case-law, a legal provision laying down the circumstances, for instance, in which fingerprints, photographs and other information may be obtained on a person, will provide sufficient legal basis for the subsequent retention of such material (see McVeigh and others v. United Kingdom, Comm. Report 18.3.81, D.R. 25, p. 15, p. 50 at para. 228).

In my opinion, therefore, SS. 66 et seq. of the Federal Code on Criminal Procedure which permitted the monitoring of the applicant's telephone conversation, could also be considered as permitting, at least initially, the preparation and storing of information on the applicant.

In addition, the Directives on the Handling of Personal Data in the Federal Administration adopted by the Swiss Government on 16 March 1981 (see the Report, para. 42), concern the handling of such data.  For instance, the Directives list the conditions, upon request of the person concerned, for correcting any data which prove to be incorrect, and for communicating such data to other persons.  Data which have become useless should be destroyed, subject to their deposit in the archives of the Confederation.

It is recalled that the Federal Court, in its judgment of 14 September 1994, considered that the monitoring of the applicant's telephone conversation had a sufficient legal basis under domestic law. In the light of the Commission's case-law, it follows that this legal basis also sufficed for the continuing storage of the card prepared on the applicant.

The interferences were, therefore, "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.

As regards the remaining conditions to be examined under Article 8 para. 2 of the Convention, the Federal Court, in its judgment of 14 September 1994, found that offences against the State and national defence justified such interferences (see the Report, para. 31).  The interferences at issue were, therefore, undertaken "in the interests of national security" within the meaning of Article 8 para. 2 of the Convention.

In examining whether the measures were "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention, the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant's right to respect for his private life.  While the margin of appreciation available to a State in choosing the means for achieving the legitimate aim of protecting national security is in such cases a wide one, there must nevertheless exist adequate and effective guarantees against abuse (see Eur. Court HR, Leander v. Sweden judgment, loc. cit., p. 25, paras. 59-60).

In the present case, only one telephone conversation of the applicant was monitored, and that only limited information was stored on the applicant's card of 24 December 1981, namely that he was a contact person with the Russian Embassy and did business with a particular company.  As the Federal Court noted in its decision of 14 September 1994, there was no indication that the authorities considered the applicant to be a spy (see the Report, para. 34).

Moreover, various safeguards have been introduced in respect of such information stored.  Reference has just been made to the 1981 Directives on the Handling of Personal Data in the Federal Administration which list, inter alia , the conditions, upon request of the person concerned, for correcting any data which prove to be incorrect, and for communicating such data to other persons.  Therefore, under these directives upon request the individual has to be informed about the existence of the card and the information given thereon.  The individual can therefore ask for any corrections of this information.

In addition, in 1990, the Federal Council enacted an Ordinance on the Handling of State Protection Files of the Confederation, and  the post of Special Delegate for State Protection Files was created.  The latter was indeed able to be of assistance to the applicant (see the Report, para. 43).

In this respect, reference can be made to the Commission's case-law according to which the guarantees provided for in the 1990 Ordinance are sufficient to prevent potential abuses which may be engendered by such a system of secret surveillance (see Application No. 25099/94, Dec. 5.4.95, Martin v. Switzerland, D.R. 81-A, p. 136).

Finally, based on the 1992 Federal Act on Consultation of the Files of the Federal Attorney's Office, the applicant's card has meanwhile been removed from the central card-index and transferred to the Federal Archives where during 50 years there will be no access to it (see the Report, para. 43).

As a result, taking into account the margin of appreciation which is left to Contracting States in such cases (see Eur. Court HR, Leander judgment, op. cit.), the interferences to which the applicant was subjected cannot be said to have been disproportionate to the legitimate aim pursued.  The interferences could therefore reasonably be considered "necessary in a democratic society in the interests of national security" within the meaning of Article 8 para. 2 of the Convention.

As a result, there has been no violation of Article 8 of the Convention.