EUROPEAN COMMISSION OF HUMAN RIGHTS

                         FIRST CHAMBER

                   Application No. 23224/94

                           H. W. K.

                            against

                          Switzerland

                   REPORT OF THE COMMISSION

                 (adopted on 16 October 1996)

                       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. 16-55) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 16-50). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law

          (paras. 51-55). . . . . . . . . . . . . . . . . . .8

III. OPINION OF THE COMMISSION

     (paras. 56-105). . . . . . . . . . . . . . . . . . . . 10

     A.   Complaints declared admissible

          (para. 56). . . . . . . . . . . . . . . . . . . . 10

     B.   Points at issue

          (para. 57). . . . . . . . . . . . . . . . . . . . 10

     C.   As regards Article 8 of the Convention

          (paras. 58-82). . . . . . . . . . . . . . . . . . 10

          CONCLUSION

          (para. 83). . . . . . . . . . . . . . . . . . . . 13

     D.   As regards Article 13 of the Convention

          (paras. 84-102) . . . . . . . . . . . . . . . . . 13

          CONCLUSION

          (para. 103) . . . . . . . . . . . . . . . . . . . 16

     E.   Recapitulation

          (paras. 104-105). . . . . . . . . . . . . . . . . 16

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 1931, is a lawyer residing

in Zurich in Switzerland.  He is represented before the Commission by

Messrs B. Badertscher and Th. Poledna, lawyers practising in Zurich.

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 monitoring

of his telephone lines and that he did not have an effective remedy at

his disposal to complain thereof.  The applicant invokes Articles 8 and

13 of the Convention.

B.   The proceedings

5.   The application was introduced on 15 December 1993 and registered

on 10 January 1994.

6.   On 31 August 1994 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 23 December 1994.

The applicant replied on 10 April 1995.

8.   On 12 April 1996 the Commission declared the application

admissible.

9.   The text of the Commission's decision on admissibility was sent

to the parties on 18 April 1996 and they were invited to submit such

further information or observations on the merits as they wished.  No

further information or observations were submitted.

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:

          Mrs. J. LIDDY, President

          MM.  S. TRECHSEL

               M.P. PELLONPÄÄ

               E. BUSUTTIL

               A. WEITZEL

               B. MARXER

               G.B. REFFI

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               G. RESS

               A. PERENIC

               C. BÎRSAN

               K. HERNDL

               M. VILA AMIGÓ

12.  The text of this Report was adopted on 16 October 1996 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

a.   Parliamentary Commission of Enquiry

16.  The applicant's wife was a member of the Federal Council

(Bundesrat) and Head of the Federal Department of Justice and Police

(Eidgenössisches Justiz- und Polizeidepartement).  On 14 December 1988

the applicant's wife announced her resignation as from 28 February 1989

in view of allegations, which she disputed, that she had passed on

secret information to the applicant in a telephone conversation.  On

31 January 1989 the Swiss Parliament established a Parliamentary

Commission of Enquiry (Parlamentarische Untersuchungskommission) to

examine the exercise of her office and her resignation.

17.  The Commission submitted its Report on 22 November 1989.  While

identifying various issues in connection with the exercise of the

office of the applicant's wife, the Report also concluded that she had

dealt with her work carefully and prudently.  In February 1990 the

Federal Court (Bundesgericht) acquitted the applicant's wife of the

charge of a breach of official secrets (Amtsgeheimnisverletzung).

b.   Requests for letters rogatory

18.  On 28 January 1988 a client asked the lawyer H., who worked in

the applicant's office, to examine the legality of certain letters

rogatory (Rechtshilfeersuchen) of the United States.  H. undertook a

preliminary examination of the matter whereupon he refused to deal with

the matter, referring to an instruction in the applicant's office not

to take on any cases concerning the Federal Department of Justice and

Police, or the applicant's wife.  The case was then passed on to the

law firm N.

19.  On 10 June 1988 the law firm N. filed a request with the Federal

Office for the Police (Bundesamt für Polizeiwesen) to consult the

letters rogatory.  On 23 August 1988 the Federal Office transmitted to

the law firm N. a shortened ("gestrippte") version of the letters

rogatory.

c.   Document of the Federal Department of Justice and Police

20.  Shortly after the Parliamentary Commission (see above, para. 16)

was established, its President L. obtained information that a certain

X., a US citizen, had apparently obtained a particular document from

the applicant which both the Federal Office for the Police and the

Federal Court had previously refused to make available.  X. had

allegedly offered the applicant CHF 250,000 to obtain this document

from the Federal Department of Justice and Police.  L. obtained this

information from a certain Y. who in turn had obtained the information

from the main informant Z.

21.  It later transpired that X. was involved in letters rogatory from

the USA, containing secret information as to his role in organised

crime.  The suspicion therefore arose that the document which the

applicant had allegedly been asked to obtain concerned these letters

rogatory; and that a person at the Federal Department of Justice and

Police could, in breach of official secrets, have handed out documents

to unauthorised persons.

22.  On 21 November 1989 the Federal Attorney (Bundesanwalt)

instituted judicial investigations (gerichtspolizeiliches Ermittlungs-

verfahren) against unknown persons.  The purpose thereof was to

interview (ansprechen) the informant Y. and eventually to identify the

person in the Federal Department of Justice and Police who might have

breached official secrets.

d.   Monitoring of the applicant's telephone lines

23.  In the course of the investigations it transpired that the

applicant's law firm, and later the law firm N. (see above, para. 18)

had attempted to obtain documents from the Federal Office for the

Police, though the latter had refused to transmit those parts of the

letters rogatory which concerned X.'s involvement in organised crime.

24.  The judicial investigations of 21 November 1989 (see above,

para. 22) included the monitoring of the telephone lines of X., Y., the

applicant and his wife.  The applicant was involved as a "third person"

(see below, para. 53) and not as a suspect.

25.  On 23 November 1989 the President of the Indictment Chamber

(Anklagekammer) of the Federal Court granted the Federal Attorney's

request to monitor altogether 13 lines, including the applicant's

private telephone lines, the telephone lines of his office and his

wife's telephone lines, in particular a secret number granted to her

as a former Federal Councillor.  The order contained the remark

"Lawyers' conversations must be disregarded" ("Anwaltsgespräche sind

nicht zu erfassen").

26.  Six of these lines were no longer monitored after

1 December 1989.  On the other hand, the President of the Indictment

Chamber granted on 1 December 1989 permission for the monitoring of a

further telephone line.  The order again contained the remark "Lawyers'

conversations must be disregarded".

27.  Also on 1 December 1989 a meeting took place between the Federal

police, the informant Y. and the President of the Parliamentary

Commission L.

28.  On 4 December 1989 L. contacted the main informant Z.  The latter

was questioned by the Federal Attorney's Office on 8 December 1989.

29.  On 11 December 1989 the Federal Office for the Police, having

found that the suspicion of a breach of official secrets had been

unfounded, terminated the monitoring of all telephone lines of the

applicant and his wife.

30.  On 14 December 1989 the Federal Attorney's Office (Bundesanwalt-

schaft) issued its final report in which it concluded that there was

no solid evidence to support the suspicion of a breach of official

secrets.  The Report noted that in 1988 the lawyer H., who worked in

the applicant's office, had passed on a case, concerning the letters

rogatory, to the law firm N., and that there were no indications that

the applicant or his wife could have been directly involved in the

matter.

31.  On 6 March 1990 the Federal Attorney's Office decided to close

the investigations as there was nothing to confirm the suspicion that

the applicant's wife or a collaborator of the Federal Department of

Justice and Police had breached official secrets by passing on secret

parts of letters rogatory.

32.  By letter of 9 March 1990 the applicant was informed that under

SS. 320 and 340 para. 1, subpara. 7 of the Penal Code (Straf-

gesetzbuch, see below, para. 51) judicial investigations had been

instituted on suspicion of a breach of official secrets, and that under

SS. 66 et seq. of the Federal Code of Criminal Procedure

(Bundesstrafprozessordnung, see below, paras. 52 et seq.) his private

and professional telephone lines had been monitored.  The letter stated

that the monitoring had lasted from 21 November 1989 until

11 December 1989 and that "conversations conducted as part of his

function as a lawyer had been excluded from the monitoring" ("von der

Ãœberwachung ausgenommen waren die in anwaltschaftlicher Eigenschaft

geführten Gespräche").  It was also stated that in application of

S. 66 para. 1ter of the Federal Code of Criminal Procedure (see below,

para. 54) all recordings had been destroyed.

e.   Communiqué of the Parliamentary Commission of Enquiry

33.  On 12 March 1990 the Parliamentary Commission (see above,

para. 16) issued a communiqué stating inter alia:

     "In the course (of the investigations of the Federal Attorney's

     Office), which also included authorised telephone monitoring, the

     Office found that Swiss representatives of a US citizen had

     attempted, with the help (of the applicant), to obtain access to

     a secret document.  They hoped for an easier access to the

     Federal Department of Justice and Police, as he was the husband

     of the Federal Councillor concerned.  A lawyer of (the

     applicant's) office examined, for a fee, the possibility of

     taking over the case, but then refused.  As a result, there was

     an attempt to obtain the secret part of the documents with the

     help of another lawyer.  The US letters rogatory were finally

     handed out, though the crucial parts were censored.  Based on

     this result the Federal Attorney's Office closed its

     investigations ...  The suspicion of a breach of official secrets

     thus proved to be unfounded.  The police investigations

     demonstrate, however, how the rumour arose which led to the

     indications and the suspicion."

     "Im Rahmen (der Ermittlungen der Bundesanwaltschaft), zu welchen

     auch bewilligte Telefonabhörungen eingesetzt wurden, eruierte

     diese, dass die Schweizer Vertreter des amerikanischen

     Staatsangehörigen versucht hatten, durch Einschaltung (des

     Beschwerdeführers) zum geheimen Aktenstück zu gelangen.  Sie

     versprachen sich einen leichteren Zugang ins EJPD, weil er Gatte

     der zuständigen Bundesrätin war.  Ein Rechtsanwalt des Büros (des

     Beschwerdeführers) prüfte gegen Honorar die allfällige

     Mandatsübernahme, lehnte sie jedoch ab.  In der Folge wurde mit

     einem anderen Rechtsanwalt die Herausgabe des geheimen Teils der

     Akten versucht.  Schliesslich wurde zwar das amerikanische

     Rechtshilfegesuch herausgegeben, die entscheidenden Passagen

     jedoch abgedeckt.  Gestützt auf dieses Ergebnis stellte die

     Bundesanwaltschaft die Ermittlungen ein. ... Der Verdacht auf

     Verletzung des Amtsgeheimnisses erwies sich als unbegründet.  Die

     polizeilichen Ermittlungen zeigen jedoch auf, wie das Gerücht,

     das zu Hinweis und Verdacht führte, entstanden ist."

34.  On 13 March 1990, various Swiss newspapers published articles on

the communiqué of the Parliamentary Commission.  Therein, reference was

made to the applicant as one of the persons involved, and to telephone

monitoring which had been undertaken.

f.   Complaint to the Federal Department of Justice and Police

35.  On 10 April 1990 the applicant filed a complaint (Beschwerde)

with the Federal Department of Justice and Police about a breach of the

provisions concerning telephone monitoring, and of Article 8 of the

Convention.

36.  Following a further complaint about the delay in the proceedings

the Department dismissed the complaint on 2 November 1992.  The

Department, which dealt with the complaint as a hierarchical complaint

(Aufsichtsbeschwerde), decided inter alia to refuse the applicant's

request for unrestricted access to the case-file.

g.   Administrative Appeal to the Federal Council

37.  On 2 December 1992 the applicant filed an administrative appeal

(Verwaltungsbeschwerde) with the Federal Council against the decision

of the Federal Department of Justice and Police of 2 November 1992.

In his appeal he complained inter alia that the telephone monitoring

had been unlawful and that he had been refused unrestricted access to

the case-file.

38.  In his appeal the applicant stated inter alia that S. 66

para. 1bis of the Federal Code of Criminal Procedure expressly

prohibited the tapping of a lawyer's telephone calls.  The tapping of

the telephone conversations with the applicant's law firm was therefore

unlawful under Swiss law.

39.  The Federal Council dismissed the administrative appeal on

30 June 1993.

40.  In its decision the Federal Council recalled that, even without

a legal basis, hierarchical complaints in cases of telephone monitoring

were treated as formal administrative appeals.  The Federal Council

found that it was competent to examine, inter alia, whether the

monitoring of the applicant's telephone lines was unlawful; whether it

contradicted the Convention; and whether the applicant's right of

access to his case-file had been breached.  Where the applicant's

personality rights had been breached, he could file a request for

damages.  On the basis of the Federal Council's decision he could also

file with the Federal Court (Bundesgericht) a request for satisfaction

(Genugtuung).

41.  The Federal Council found that the applicant should have access

to the case-file only to the extent that the documents directly related

to his telephone monitoring as a "third person".  The Federal Council

noted that the applicant had had restricted access to documents some

of which had been censored in particular in respect of names of

informants.  Other documents, concerning for instance telephone

monitoring, had not been supplied, though the applicant had been orally

informed of their existence and content.  Insofar as documents

concerning third persons had not been supplied, the interests of the

latter outweighed the applicant's interest therein.

42.  The Federal Council considered that S. 66 of the Federal Code of

Criminal Procedure permitted the telephone monitoring of third persons

such as the applicant if there were indications that the latter would

receive information from, or pass it on to, the perpetrator of an

offence.

43.  The Federal Council found that at a time of general insecurity

following rumours of subversion (eine durch Unterwanderungsgerüchte

verunsicherte Zeit) there had been concrete indications of a breach of

official secrets within the Federal Department of Justice and Police.

The document at issue concerned secret information in respect of which

assurances had been given to the United States; thus, Switzerland's

credibility was at stake.  A risk arose as the applicant, the husband

of the former Head of the Department of Justice and Police, had been

mentioned.

44.  In the Federal Council's view, the telephone monitoring had to

occur at the beginning of the investigations before contacts were

established with Y. and Z.  Thus, the civil servants concerned had not

immediately examined the credibility of the informants as any further

contact would have jeopardised the investigations.

45.  The Federal Council found that the applicant's phones had been

monitored, not as those of a suspect, but as those of a "third person"

within the meaning of S. 66 para. 1bis of the Federal Code of Criminal

Procedure; conversations which he conducted as a lawyer had expressly

been excluded.  As the applicant was not a civil servant, he could not

have been the perpetrator of the offence.  His wife had been included

in the theoretical circle of suspects, but there were no concrete

suspicions either against her or against other persons.  The

applicant's telephone monitoring thus neither amounted to a suspicion

in the criminal sense nor was it conducted against unknown persons

merely for the sake of appearances.  There were also no political

motives, and the President of the Parliamentary Commission had not been

in a position to influence the police investigations.

46.  The decision concluded that the conversations monitored had been

irrelevant for the investigations, and no written record had been

prepared.  In any event, even if such a record had been given to the

Parliamentary Commission, it could not have been abused, as the

Commission members were bound by the secret of office (Amtsgeheimnis).

h.   Administrative Law Appeal to the Federal Court

47.  Against the decision of the Federal Department of Justice and

Police of 2 November 1992 (see above, para. 36), the applicant also

filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with

the Federal Court.  In his appeal he requested the Court to conclude

that the telephone monitoring had been unlawful, and that for this

reason criminal proceedings should be instituted against the persons

concerned.

48.  On 8 March 1994 the Federal Court dismissed the applicant's

administrative law appeal.

49.  The Court first dealt with the issue whether the applicant should

have been permitted to consult the entire case-file during the

proceedings before the Federal Department of Justice and Police.  The

Court found that those parts of the document which had been essential

for the decision (entscheidungswesentlich) had been shown to the

applicant, and that it had been correct not to disclose the names of

the informants; in the Court's opinion, this conclusion also

corresponded with a decision of the Parliamentary Commission of Enquiry

(see above, para. 16) to keep informants' names confidential.  Indeed,

the applicant had been sufficiently able to file complaints on the

basis of a partial consultation of the case-file (gestützt auf die ihm

zugestellten "gestrippten" Akten).

50.  The Court then examined the issue whether criminal proceedings

should be instituted in view of the monitoring of the applicant's

telephones.  It found that it was not required conclusively

(abschliessend) to examine the issue whether or not the telephone

monitoring breached Article 8 of the Convention, inter alia, as the

applicant had already filed a complaint with the Federal Council.  The

Court considered that, based on information received from the President

of the Parliamentary Commission of Enquiry, proceedings had been

instituted on suspicion of a breach of official secrets.  There was a

connection with the applicant's office in that a partner of his office

had examined whether or not to take over the case.  The supposition of

the Federal Attorney's Office, namely that the original informant or

the disloyal civil servant would contact the applicant did not appear

incorrect.

B.   Relevant domestic law

a.   Swiss Penal Code

51.  According to S. 320 para. 1 of the Penal Code (Strafgesetzbuch),

whoever discloses a secret entrusted to him in his function as a civil

servant is punishable with imprisonment or a fine.  S. 340 para. 1 (7)

of the Penal Code determines the jurisdiction of the Federal Court

(Bundesgericht) in respect of this offence.

b.   Federal Code of Criminal Procedure

52.  S. 66 para. 1 of the Federal Code of Criminal Procedure

(Bundesstrafprozessordnung) envisages telephone monitoring if a person

is suspected of a criminal offence.

53.  S. 66 para. 1bis of the Federal Code of Criminal Procedure states

as follows:

     "If the conditions concerning the accused or the suspect have

     been met, third persons may also be monitored if it must be

     assumed on the basis of certain facts that they will receive

     certain messages from, or transmit such messages to, him.

     Persons who according to S. 77 can refuse to give evidence shall

     be excluded.  The telephone of third persons may always be

     monitored if there is a well-founded suspicion that the accused

     uses it."

     "Sind die Voraussetzungen beim Beschuldigten oder Verdächtigen

     erfüllt, so können Drittpersonen überwacht werden, wenn aufgrund

     bestimmter Tatsachen angenommen werden muss, dass sie für ihn

     bestimmte oder von ihm herrührende Mitteilungen entgegennehmen

     oder weitergeben.  Ausgenommen sind Personen, die nach Art. 77

     das Zeugnis verweigern dürfen.  Der Telefonanschluss von

     Drittpersonen kann stets überwacht werden, wenn der Verdacht

     begründet ist, dass der Beschuldigte ihn benutzt."

54.  According to S. 66 para. 1ter of the Federal Code of Criminal

Procedure telephone recordings which are not necessary for the

investigations are kept under lock and key (unter Verschluss) and are

destroyed after the termination of the proceedings.

55.  S. 77 of the Federal Code of Criminal Procedure states:

     "Clergy, lawyers, notaries, doctors, pharmacists, midwives and

     their professional assistants shall not be ordered to give

     evidence in respect of secrets which have been entrusted to them

     officially or professionally."

     "Geistliche, Rechtsanwälte, Notare, Ärzte, Apotheker, Hebammen

     und ihre beruflichen Gehilfen dürfen über Geheimnisse, die ihnen

     in ihrem Amte oder Berufe anvertraut worden sind, nicht zum

     Zeugnis angehalten werden."

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

56.  The Commission has declared admissible the applicant's complaints

under Article 8 (Art. 8) of the Convention that his telephones were

monitored; and under Article 13 (Art. 13) of the Convention that he had

no effective remedy at his disposal to complain thereof.

B.   Points at issue

57.  Accordingly, the issues to be determined are:

-    whether there has been a violation of Article 8 (Art. 8) of the

Convention; and

-    whether there has been a violation of Article 13 (Art. 13) of the

Convention.

C.   As regards Article 8 (Art. 8) of the Convention

58.  Under Article 8 (Art. 8) of the Convention the applicant

complains of the telephone monitoring which did not serve to clarify

an alleged criminal offence, but to check on the behaviour of him and

his wife in the course of the proceedings of the Parliamentary

Commission of Enquiry.

59.  The applicant submits that the authorities only insufficiently

examined the credibility of the information as to a breach of official

secrets.  There were no indications as to the applicant's participation

therein.  The duration of the monitoring was disproportionate, having

commenced before it had been authorised by the President of the

Indictment Chamber of the Federal Court and before the main informant

Z. had been questioned.  The monitoring of all private and official

telephone lines - even the secret line of his wife - and the disclosure

by the Parliamentary Commission thereof to the public severely damaged

the confidence placed in him by his partners, employees and clients.

60.  In the Government's submissions, due regard must be had to the

political and legal framework of the case.  Reference is made in

particular to the Parliamentary Commission of Enquiry.  It is further

recalled that the US citizen X. tried all possible legal means to

obtain the document of the Federal Department of Justice and Police;

that the confidentiality of the proceedings had in fact been requested

by US authorities; and that the President of the Parliamentary

Commission of Enquiry had himself confirmed the credibility of the

informants.

61.  Article 8 (Art. 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."

62.  The Commission observes that altogether fourteen telephone lines

of the applicant and his wife were monitored (see above, paras. 25 et

seq.), among them the applicant's private telephone lines and the

telephone lines of his law office and of his law partners.

63.  According to the Convention organs' case-law, telephone

conversations are in principle covered by the notions of "private life"

and "correspondence" within the meaning of Article 8 (Art. 8) of the

Convention.  The right to respect for private life can furthermore be

invoked in relation to telephone conversations conducted over office

telephones (see Eur. Court HR, Huvig v. France judgment of

24 April 1990, Series A no. 176-B, p. 52, para. 25;  Halford v. United

Kingdom, Comm. Report 18.4.96, paras. 56 et seq.).

64.  Thus, the monitoring of the applicant's various telephone lines

amounted to an interference with "right to respect for his private ...

life ... and his correspondence" within the meaning of Article 8

para. 1 (Art. 8-1) of the Convention.

65.  The Commission must now examine whether the measure complained

of was justified under Article 8 para. 2 (Art. 8-2) of the Convention.

The question arises in particular whether the measure at issue was "in

accordance with the law" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

66.  The applicant submits that the measure was not "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.  According to SS. 66 para. 1bis and 77 of the Federal Code

of Criminal Procedure, a lawyer may assume that his telephone and the

telephones of his partners and other lawyers in his office are not

monitored.  Article 8 (Art. 8) of the Convention prohibits telephone

monitoring regardless of whether a written record is prepared.  The aim

of the Federal Attorney's Office was to monitor a particular discussion

between client and lawyer as well as all telephone conversations of a

legal nature.

67.  The applicant contends that the Government's reference to the

Swiss interception procedures does not alter the fact that when

officials of the Swiss Postal Services listen in to telephone

conversations, this constitutes an interference within the meaning of

Article 8 (Art. 8) of the Convention.  In this respect it is irrelevant

whether transcripts have been prepared, whether these transcripts still

exist or whether they have been destroyed.  It is equally irrelevant

whether the officials were instructed not to record conversations with

lawyers, since they have first to be listened to before a decision is

taken on their suitability for use as evidence.  In any event, the

files given to the applicant for consultation in no way indicate that

no transcripts were made or that they were destroyed.

68.  The Government contend that the interference at issue was

justified under Article 8 para. 2 (Art. 8-2) of the Convention.  The

lawfulness of the measure could not be called in question by the fact

that the telephone monitoring did not confirm the original suspicions.

69.  The Government recall the practice of the Swiss authorities in

such matters.  Thus, the decision of the Federal Attorney's Office to

monitor a person's telephone is transmitted to the President of the

Indictment Chamber of the Federal Court as well as to the Law

Department of the General Directorate of the Swiss Federal Postal,

Telephone and Telegraph Services.  The latter will then record the

telephone conversations.  Specialised staff will listen to the tapes

to determine any pertinent conversation in respect of the proceedings

at issue.  If no pertinent conversations are conducted, no transcripts

will be prepared, and no information on the conversation will be

transmitted to the prosecuting authorities.  The recorded tapes are

simply kept for ten days in case the authorities put further questions;

if not, the recordings are deleted.

70.  The Government point out that in the present case the control of

the monitored telephone conversations was personally entrusted to the

head of the service concerned in Zurich.  Moreover, no recording was

held back and transmitted to the Federal Attorney's Office; all

recordings of the applicant's telephone conversations were deleted.

The telephone monitoring of the applicant and his family thus remained

within the legal framework of secrecy of the Swiss Postal, Telephone

and Telegraph Services.  The rules at issue thus protected the

applicant, as the Swiss authorities were prevented from learning, even

by coincidence, of information which he was not obliged to give in view

of this right to refuse to give evidence.

71.  The Government state that they are aware of the difficulties of

distinguishing between telephone conversations conducted "with a

lawyer" and those which are not.  However, this distinction is

irrelevant in the present case as the applicant's telephone

conversations were not transmitted to the Federal Attorney's Office.

72.  According to the Convention organs' case-law, the term "in

accordance with the law" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention requires in particular that the contested

measure should have some basis in domestic law (see Eur. Court HR,

Kruslin v. France judgment, loc. cit., pp. 20 and 23, paras. 27 and 30,

respectively).  Nevertheless, the scope of the Convention organs' 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 Eur. Court HR, Barthold v. Germany judgment of 25 March 1985,

Series A no. 90, p. 22, para. 48).

73.  In the present case, the applicant was not himself regarded as

the possible perpetrator of a breach of official secrets.  Rather, it

transpires from the Federal Council's decision of 30 June 1993 (see

above, para. 45) that the telephone lines of the applicant were

monitored as those of a "third person" within the meaning of S. 66

para. 1bis of the Federal Code of Criminal Procedure.

74.  However, in respect of "third persons" S. 66 para. 1bis of the

Federal Code of Criminal Procedure expressly excludes the telephone

monitoring of the persons referred to in S. 77 of that Code, in

particular of "lawyers ... in respect of secrets which have been

entrusted to them ... professionally" (see above, paras. 53 and 55).

75.  The question arises as to whether SS. 66 para. 1bis and 77 of the

Federal Code of Criminal Procedure permitted in the applicant's case

the monitoring of his telephone lines.

76.  The President of the Indictment Chamber who ordered the

monitoring of the applicant's telephone lines, stated that "lawyers'

conversations must be disregarded" (see above, para. 25).  The Federal

Council, in its decision of 30 June 1993, interpreted this instruction

to mean that conversations which the applicant had conducted as a

lawyer were excluded from monitoring (see above, para. 45).

77.  Before the Commission the Government have explained the practice

of the Swiss authorities in this respect.  Thus, the Swiss Postal

Services will record the telephone conversations.  Specialised staff

then listen to the tapes to determine any pertinent conversation in

respect of the proceedings at issue.  If no pertinent conversations are

conducted, no transcripts will be prepared, and no information on the

conversation will be transmitted to the prosecuting authorities.  The

recorded tapes are kept for ten days in case the authorities put

further questions; if not, the recordings are deleted.

78.  The Government have emphasised that in the present case no

recording of the applicant's telephone conversations was held back and

transmitted to the Federal Attorney's Office; all recordings were

deleted.

79.  In the Commission's opinion, the purpose of SS. 66 para. 1bis and

77 of the Federal Code of Criminal Procedure is to protect the

professional relationship between, inter alia, the lawyer and his

clients.  For an effective respect of this privileged relationship, it

must be assumed that all telephone conversations from a lawyer's office

are of a professional nature.

80.  The Commission cannot accept the interpretation by the

authorities that SS. 66 para. 1bis and 77 of the Federal Code of

Criminal Procedure permits them first to record, and listen to, a

lawyer's telephone conversations and then to assess whether the

conversations listened to are covered by professional secrecy.

81.  It follows that the measure was not "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

82.  It is therefore unnecessary further to examine whether or not the

interference at issue was justified for other reasons within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

     CONCLUSION

83.  The Commission concludes, unanimously, that in the present case

there has been a violation of Article 8 (Art. 8) of the Convention.

D.   As regards Article 13 (Art. 13) of the Convention

84.  The applicant complains under Article 13 (Art. 13) of the

Convention that for two different reasons he had no effective remedy

at his disposal to complain of the telephone surveillance.

85.  The applicant submits, first, that the Federal Department of

Justice and Police and the Federal Council treated his complaint as a

hierarchical complaint in respect of which they had no full powers of

examination.  No authority examined his complaint in substance.  The

Federal Council examined neither the legality nor the proportionality

of the measure.  It has also not been examined whether the suspicion

of a breach of official secrets could justifiably have been assumed,

or continued to exist.

86.  In the applicant's view, the Federal Court's judgment of 8 March

1994 is irrelevant as those proceedings concerned the institution of

criminal proceedings.  They did not concern the issue whether the

administrative appeal before the Federal Council was an effective

remedy within the meaning of Article 13 (Art. 13) of the Convention.

The President of the Indictment Chamber of the Federal Court, on the

other hand, when he authorised the telephone surveillance, only

undertook a cursory examination of the matter.

87.  The applicant complains, secondly, that he could only consult

certain documents of the case-file in part, and other documents not at

all.  He refers inter alia to the letters rogatory, to various

documents, including written records of the telephone surveillance,

concerning X. and Y. and to the written records of the surveillance of

his own telephones.  If the suspicion directed against him stemmed from

third persons, he should have had the possibility of commenting on the

credibility of the statements and the persons themselves.  As he could

not do so, the remedy was ineffective.  It was irrelevant that the

Federal Department of Justice and Police in its decision of

2 November 1992 did not rely on these documents as he had been deprived

of the possibility to inform himself fully of the legality of the

measure.

88.  The applicant submits that the documents which he could not

consult constituted very important files which had to be consulted in

order to lodge an effective remedy.  In particular, they would have

helped in an assessment of the question whether it was necessary to

order the telephone surveillance; whether the surveillance was properly

carried out; and whether the applicant had sufficient opportunity to

put forward his case.  Partial consultation did not suffice in his

case.  The Government have admitted that they did not have the full

file at their disposal; the applicant submits that the Federal Court

was also not in possession of the full file.

89.  The Government refer to the Commission's case-law according to

which the administrative appeal to the Federal Department of Justice

and Police met the requirements of Article 13 (Art. 13) of the

Convention (see No. 11811/85, Spillmann v. Switzerland, Dec. 8.3.88,

D.R. 55 p. 182).  In any event, the procedure has to be considered as

a whole.  In the present case the President of the Indictment Chamber

of the Federal Court as well as the Federal Court in its judgment of

8 March 1994 examined the justification of the telephone surveillance.

90.  The Government further submit that the applicant was considered

a "third person" for purposes of the criminal investigation and could

not, therefore, have access to the entire case-file.  Indeed, the

Parliamentary Commission of Enquiry aimed at protecting the informants.

In the present case the applicant had access to all the documents

enabling him effectively to file an appeal.  While the Government admit

that they have not consulted all documents mentioned by the applicant,

it is submitted that the applicant could consult all files directly

relating to the telephone surveillance and even other documents.

Finally, the Federal Court, which possessed the entire case-file, was

able to conclude in its judgment of 8 March 1994, on the one hand, that

the applicant had had access to all the pertinent documents in order

effectively to file an appeal: and on the other that it appeared

justified that informants' names remained confidential.

91.  Article 13 (Art. 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."

92.  According to the Convention organs' case-law, where an individual

considers himself to have been prejudiced by a measure allegedly in

breach of the Convention, he should have a remedy before a national

authority in order both to have his claim decided and, if appropriate,

to obtain redress.  The authority referred to in this provision may not

necessarily be a judicial authority but, if it is not, its powers and

the guarantees which it affords are relevant in determining whether the

remedy before it is effective (see Eur. Court HR, Silver and Others v.

the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 42,

para. 113).

93.  The Commission recalls its conclusion above that there has been

a breach of Article 8 (Art. 8) of the Convention as regards the

monitoring of the applicant's telephone lines (see above, para. 83).

94.  The Commission further notes that the applicant's complaints are

not directed against the Federal Court's decision of 8 March 1994 which

was called upon to consider the institution of criminal proceedings and

which indeed stated that it was not required conclusively to examine

whether the telephone monitoring breached Article 8 (Art. 8) of the

Convention (see above, para. 48).  Rather, his complaints are directed

against the decisions of the Federal Department of Justice and Police

of 2 November 1992 (see above, para. 36) and of the Federal Council of

30 June 1993 (see above, para. 39).  These instances were called upon

to examine the applicant's hierarchical complaint about the monitoring

of his telephone lines.

95.  However, according to the Commission's case-law, the hierarchical

complaint about telephone monitoring to the Federal Department of

Justice and Police and, upon appeal, to the Federal Council constitutes

in principle an effective remedy within the meaning of Article 13

(Art. 13) of the Convention in that the measure had been subject to an

advance control by the President of the Indictment Chamber of the

Federal Court; that the Federal Department of Justice and Police, when

dealing with the complaint, had examined the legitimacy of the

surveillance; and that a further appeal had been possible to the

Federal Council (see No. 11811/85, Spillmann v. Switzerland, loc. cit.;

No. 13563/88, S. v. Switzerland, Dec. 4.9.89, unpublished).

96.  The applicant nevertheless complains of the restricted

examination by the Federal Council.  Moreover, he could only consult

certain documents of the case-file in part, and other documents not at

all.

97.  The Commission recalls the Convention organs' case-law according

to which the guarantees of Article 13 (Art. 13) of the Convention are

less strict that those of Article 6 para. 1 (Art. 6-1) of the

Convention (see Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment

of 23 September 1982, Series A no. 52, p. 32, para. 88).  Moreover, in

cases such as the present one the effectiveness of remedies in respect

of measures of secret surveillance is inevitably limited by the fact

of the secrecy itself (see Eur. Court HR, Klass v. Germany judgment of

6 September 1978, Series A no. 28, p. 31, para. 69).

98.  In the present case the Commission has noted the Federal

Council's broad scope of examination in its decision of 30 June 1993.

Thus, the Federal Council regarded itself competent to examine whether

the monitoring of the applicant's telephone lines had been unlawful;

whether it had contradicted in particular Article 8 (Art. 8) of the

Convention; and whether the applicant's right of access to his case-

file had been breached.

99.  The Federal Council then proceeded to analyse Swiss law and

practice as to the monitoring of the applicant's complaints (see above,

paras. 41 et seq.), and it explained why the applicant and his wife had

been the object of the telephone surveillance (see above, para. 43).

100. As regards the applicant's access to the case-file, the

Commission notes that he was not involved as an accused in criminal

proceedings.  Rather, the suspicion arose that a Federal civil servant

had acted in breach of official secrets and had passed on documents to

unauthorised persons.  For purposes of the investigation, the applicant

was only considered as a "third person".

101. Moreover, it transpires that the applicant was able to consult

a large part of the case-file, and that the parts which he was not able

to consult remained confidential mainly in order to protect other

persons, in particular informants.

102. The Commission is therefore satisfied that the hierarchical

appeal at the applicant's disposal satisfied the requirements of

Article 13 (Art. 13) of the Convention.

     CONCLUSION

103. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 13 (Art. 13) of the Convention.

E.   Recapitulation

104. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 8 (Art. 8) of the Convention (see

above, para. 83).

105. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 13 (Art. 13) of the Convention

(see above, para. 103).

  M.F. BUQUICCHIO                            J. LIDDY

     Secretary                               President

to the First Chamber                    of the First Chamber