Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27798/95

by H. A.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 June 1995 by

H. A. against Switzerland and registered on 6 July 1995 under file

No. 27798/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

4 April 1997 and the observations in reply submitted by the

applicant on 22 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1940, is a businessman

residing in Berikon in Switzerland. Before the Commission he is

represented by Mr L.A. Minelli, a lawyer practising in Forch in

Switzerland.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

In 1981 the applicant imported depilatory equipment to

Switzerland which he advertised in women's magazines.

On 12 October 1981 a woman from the then Soviet Embassy in Bern

ordered by telephone a depilatory apparatus "Perma Tweeze" from the

applicant.

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.

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.

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.

On 24 December 1981, the Federal Attorney's Office prepared a

card ("fiche") for its card-index on State protection

(Staatsschutzkartothek) containing the applicant's particulars. The

card which contained two deleted passages ("...") stated:

": 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

Commercial Register> 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. (...)"

The card contained the number (1153:0) 614. The figure 1

referred to "communist governed countries". 153 referred to the then

Soviet Union. 0 referred to established espionage. 614 meant "various

contacts with the Eastern Block".

In 1990 it became known to the public that such a card-index on

State protection had been prepared, and various persons requested

consultation of their card. As a result, the Federal Council

(Bundesrat) enacted in 1990 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.

Upon the applicant's request, in 1990 the Special Delegate for

State Protection Files transmitted to the applicant a photocopy of his

card.

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.

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

should not be disclosed either. The only words originally deleted and

now to be disclosed was "according to the report (...)."

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.

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.

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.

With regard to the issue of a legal basis for the information

stored on the applicant, the Court referred first to SS. 66 et seq. of

the Federal Code on Criminal Procedure which permitted the monitoring

of telephone and postal communications and, as a result, its storing

(see below, Relevant domestic law.) The Court also noted that such

interferences were justified in the case of offences against the State

and State defense within the meaning of SS. 265 et seq. of the Swiss

Penal Code.

As a further possible legal basis the Court 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, Relevant domestic

law). However, the Federal Court found it unnecessary to examine

whether this provision sufficed as a legal basis since other grounds

for granting compensation had not been met. The 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 Überwachung 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."

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.

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. The judgment

concluded that there was no serious breach of personality:

"on the whole the case-file on the plaintiff appears to have been

of little relevance, and there is nothing which would indicate

that his file specifically was in any way further handled or

unlawfully passed on."

"Insgesamt scheint das Dossier über den Kläger von geringer

Relevanz zu sein, und es weist nichts darauf hin, dass gerade

sein Dossier je in irgendeiner Weise weiterbearbeitet oder

unbefugterweise weiterverbreitet wurde."

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

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 survey and prevent activities endangering the

interior or exterior security of the Confederation.

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.

According to S. 66 of the Federal Code, in force since 1975,

postal and telephone communications of an accused or suspected person,

or other persons standing in connection with them, may be monitored in

order to investigate an offence against the State and State defence.

S. 66 para. 1 bis of the Federal Code, in force since 1992,

postal and telephone communications of third persons may be monitored

if the accused or suspected person would also meet the conditions

herefor. Moreover, the telephone of the third person may always be

monitored if there is a suspicion that it would be used by the accused.

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.

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 1981 vol. I,

p. 1314). These Directives 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.

COMPLAINTS

1. 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.

2. The applicant further 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 compensation and

even to state the unlawfulness of the measure. 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.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 June 1995 and registered on

6 July 1995.

On 17 January 1997 the Commission decided to communicate the

applicant's complaints concerning Article 8 of the Convention to the

respondent Government.

The Government's written observations were submitted on 4 April

1997. The applicant replied on 22 May 1997.

THE LAW

1. The applicant complains of an interference with his right to

respect for his private life under Article 8 (Art. 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 (Art. 8-2) of the Convention

to store such information about him on a card.

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."

a) The Government contend that the applicant did not file his

application with the Commission within six months as from the final

decision, as required by Article 26 (Art. 26) of the Convention. Thus,

after the hearing on 14 September 1994 before the Federal Court, the

judges deliberated in public and the tenor of the judgment was read

out. As the applicant only filed his application on 27 June 1995, he

has not complied with the requirements under Article 26 (Art. 26) of

the Convention.

The applicant replies that he could not follow the deliberations

of the Federal Court in detail. Thus, his hearing is reduced;

moreover, while his knowledge of the French language is limited, two

of the Federal Court judges sitting spoke in French. Moreover, in the

present case the actual reasons of the decision were only prepared many

months after the oral deliberations of the judges. The period to be

considered under Article 26 (Art. 26) of the Convention therefore

commenced on 25 January 1995 when the Federal Court's decision was

served on the applicant.

Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter "within a period of six months from the date

on which the final decision was taken."

According to the Convention organs' case-law, the object and

purpose of Article 26 (Art. 26) of the Convention are best served by

counting the six-month period as running from the date of service of

the written judgment where there is an entitlement to be served ex

officio under national law (see Eur. Court HR, Worm v. Austria judgment

of 29 August 1997, to be published in Reports of Judgments and

Decisions 1997, para. 33).

In the present case, the Federal Court's judgment of 14 September

1994 was served on the applicant on 25 January 1995. His application

was introduced within six months as from this date, i.e. on

27 June 1995.

The applicant's complaints cannot therefore be rejected for non-

compliance with the time-limit stated in Article 26 (Art. 26) of the

Convention.

b) The Government contend that the application would in any event

also be manifestly ill-founded. 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 (Art. 8-1) 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 there will not be any access

to it for the next 50 years.

On the other hand, even if there had been an interference, the

measure would in the Government's opinion be justified under Article 8

para. 2 (Art. 8-2) 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.

The Government moreover submit that the measure served the

purpose of national security within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention, and could be considered "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.

The applicant replies 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 the he 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 is also complaining that a card was made out at

all, which is in breach of Article 8 (Art. 8) of the Convention.

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.

The applicant fails to see why 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 any

disadvantages. It is only clear that no detrimental effects of the

storing of the card have become known on the applicant's business or

military circumstances. The sole decisive factor is the principle of

the informational right of self-determination, which prohibits

government authorities from making recordings on any conversations

between private individuals.

The Commission finds that this complaint raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This aspect of the case

cannot, therefore, be regarded as being manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and

no other ground for declaring it inadmissible has been established.

2. The applicant complains that he did not have an effective remedy

at his disposal within the meaning of Article 13 (Art. 13) of the

Convention in that the Federal Court refused to grant compensation and

even to state the unlawfulness of the measure. 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.

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."

The Commission finds that this complaint, which is closely

related to the applicant's complaint under Article 8 (Art. 8) of the

Convention, raises serious questions of fact and law which are of such

complexity that their determination should depend on an examination of

the merits. This aspect of the case cannot, therefore, be regarded as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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H.A. v. SWITZERLAND

H.A. v. SWITZERLAND