Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21353/93

by B.C.

against Switzerland

The European Commission of Human Rights sitting in private on

27 November 1995, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 October 1992 by

B.C. against Switzerland and registered on 9 February 1993 under file

No. 21353/93;

Having regard to :

- the Commission's decision of 27 February 1995 to declare the

application partly inadmissible and to communicate the remainder

of the application;

- the observations submitted by the respondent Government on

28 April 1995 and the observations in reply submitted by the

applicant on 26 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swiss citizen born in 1930. He is a lawyer

and resides in Fribourg. Before the Commission he is represented by

Mr. Martin Portmann, a lawyer practising in Fribourg.

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

summarised as follows.

The particular circumstances of the case

On 5 December 1991 the radio communications surveillance unit of

the Swiss Post, Telephone and Telegraph Company (Sektion

Funküberwachung der Generaldirektion PTT) located a private telephone

conversation being held by means of a cordless telephone which did not

conform to the PTT standards. The conversation was located on a wave-

band reserved for civil and military aviation. The surveillance unit

recorded the conversation and established that it was carried out on

the line to which the applicant had subscribed. The surveillance unit

informed the appropriate PTT authority about this fact under Section

19 of the 1974 Administrative Criminal Law Act (Bundesgesetz über das

Verwaltungsstrafrecht).

The applicant was suspected of having committed a contravention

(Widerhandlung) within the meaning of Section 42 of the 1922 Telegraph

and Telephone Communications Act (Bundesgesetz betreffend den

Telegrafen- und Telefonverkehr). On 11 December 1991 the PTT district

telecommunications administration (Fernmeldekreisdirektion) in Berne

instituted criminal proceedings against him under the Administrative

Criminal Law Act.

On 13 December 1991 the head of the PTT telecommunications

administration in Berne issued a warrant to search the applicant's

house pursuant to Sections 48-50 of the Administrative Criminal Law

Act. The aim of the search was to find and seize the unauthorised

cordless telephone.

On 21 January 1992 at 9.50 a.m. two PTT officials came to the

applicant's door. The applicant informed them that he had tested a

cordless telephone once in the past and that he no longer had it. When

he was told that by virtue of the warrant the officials were entitled

to enter his house, he consented to the search.

The PTT officials then summoned an officer of the cantonal

police, and the applicant let the three persons enter the entrance

hall. The applicant in fact used only one room of his house, the

remaining parts being rented to a third person.

In the entrance hall the applicant was briefed on the legal

aspects of the search. He also consulted the file concerning his case

and made phone calls with a lawyer and with an official of the PTT

telecommunications administration in Berne.

As requested by the applicant, the search was carried out by a

single PTT official in his presence. The official searched the whole

house. He restricted himself to checking whether the telephones and

TV sets in the applicant's house complied with the PTT standards. He

did not touch any objects, open any drawers or consult any documents.

At 11.55 a.m. a record was drawn up and signed both by the applicant

and the investigating official. A copy thereof was immediately handed

over to the applicant.

On 24 January 1992 the applicant introduced a complaint with the

Federal Court (Bundesgericht). He claimed that the search of his house

by the PTT officials was unlawful, and that it should therefore be

declared null and void.

On 27 March 1992 the Federal Court rejected the complaint. It

held that since the search no longer infringed the applicant's rights,

there was no further legal interest in his protection in this respect

as required by law. The judgment was served on 3 April 1992.

Relevant domestic law

House searches in the context of administrative criminal

proceedings are governed by the 1974 Administrative Criminal Law Act.

The relevant provisions stipulate as follows:

[Translation]

Section 20

"1. Administrative authorities are empowered to institute

investigation. Hearings of which official records are drawn up,

inspections of the premises and coercive measures shall be

entrusted to officials who have been specially trained for that

purpose." ...

Section 48

"1. Dwellings and other premises including adjoining enclosed

pieces of land can only be searched when it is probable that the

accused is hiding therein or if objects or valuables liable to

sequestration or traces of an offence can be found therein. ...

3. The search is carried out by virtue of a written order

issued by the director or head of the administrative authority

or, if the investigation is within his or her competence, by the

director of the customs district or the PTT district director."

...

Section 49

"1. At the beginning of the search the investigating official

shall justify that he is authorised to carry out the search.

2. The purpose of the search shall be communicated to the

dweller. The latter shall be invited to attend the search if he

or she is present. In case of his or her absence a relative or

a person from the household shall be asked to attend the search.

A public official designated by the competent cantonal authority

or, if the investigating official acts on his own initiative, a

member of the municipal authority or an official of the canton,

district or municipality shall also be summoned to attend the

search in order to see that it is in conformity with its aim.

The search can be carried out in the absence of public officials,

members of the household or relatives in cases of imminent danger

or with the dweller's consent.

3. As a general rule, with the exception of important cases and

cases of imminent danger, searches must not be carried out on

Sundays, public holidays and at night.

4. A record of the search shall be drawn up immediately in the

presence of those who attended it. Upon their request a copy of

the search warrant and of the record shall be handed over to

these persons."

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the search of his house was unlawful, groundless and disproportionate.

He further alleges that by searching his house the PTT officials

violated his rights guaranteed by Article 13 of the Convention. He

claims that contrary to the opinion expressed by the Federal Court,

there was a need for his legal protection (Rechtsschutzbedürfnis) as

regards the search of his house.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 October 1992 and the

applicant claimed, inter alia, that his rights under Article 13 of the

Convention had been violated, and that there still existed a need for

his legal protection. The application was registered on

9 February 1993.

On 27 February 1995 the Commission declared the application

partly inadmissible but decided to communicate to the respondent

Government the complaints under Articles 8 and 13 of the Convention as

regards the search of the applicant's house, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

28 April 1995. The applicant replied on 26 June 1995.

THE LAW

The applicant complains that the search of his house was

unlawful. He alleges a violation of Articles 8 and 13

(Art. 8, 13) of the Convention which provide, so far as relevant, as

follows:

Article 8 (Art. 8)

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

life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society ... for the

prevention of disorder or crime, ..."

Article 13 (Art. 13)

"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."

As to the complaint under Article 8 (Art. 8) of the Convention,

the Government contend that the applicant can be regarded as a "victim"

only as regards the search of the single room which he actually uses.

They submit that the search had a legal basis under Swiss law, namely

Section 48 of the Administrative Criminal Law Act, and that it was

carried out for the prevention of crime which is a legitimate aim under

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

In the Government's view Swiss law provides adequate and

effective safeguards against abuse of house searches in the context of

administrative criminal proceedings. The Government conclude that the

interference complained of complied with the requirements of Article

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

The applicant contends that he has been acting also at the

request and on behalf of the tenant residing in his house. Moreover,

he considers himself entitled to complain of the search of the whole

house in his capacity of house-owner and landlord.

The applicant further submits that there was no satisfactory

legal basis for the search of his house, and that therefore it was

unlawful. In his view, the search was in any event disproportionate.

As to the complaint under Article 13 (Art. 13) of the Convention,

the Government submit that the applicant has failed to raise it in his

application before the Commission. Subsidiarily, they contend that as

the applicant's claim under Article 8 (Art. 8) of the Convention is

manifestly ill-founded, it cannot be regarded as arguable.

In the Government's view, the complaint under Article 13

(Art. 13) of the Convention is in any event manifestly ill-founded

since, for one thing, anybody who was discharged in the context of

administrative criminal proceedings is entitled to claim damages.

Within such proceedings the court has to examine also the merits of the

coercive measure ordered pursuant to the Administrative Criminal Law

Act.

Further, anybody whom an administrative authority has found

guilty of an offence can bring his or her case before a court. The

Government contend that if the court concerned wishes to found its

decision on the result of the coercive measures at issue, it has to

examine the merits of such measures.

The applicant contends that he expressly raised the complaint

under Article 13 (Art. 13) of the Convention in the final part of his

application, and that it relates to the application as a whole. In his

view the search has had adverse effects on him, and therefore his claim

is arguable and cannot be regarded as manifestly ill-founded.

The Commission notes that in his submission of 2 October 1992 the

applicant expressly alleged a violation of Article 13 (Art. 13) of the

Convention by the search of his house.

Moreover, the Commission recalls that the Convention organs have

jurisdiction to review in the light of the entirety of the Convention's

requirements circumstances complained of by an applicant. In

particular, they may attribute to the facts of the case a

characterisation in law different from that given by the applicant (cf.

Eur. Court H.R., Foti and others judgment of 10 December 1982, Series

A no. 56, p. 15, para. 44, with further references). In his submission

of 2 October 1992 the applicant invoked, inter alia, the need for legal

protection in connection with the Federal Court's refusal to examine

his complaint.

The Commission may therefore examine the complaint under Article

13 of the Convention.

Having examined the above complaints, the Commission finds that

they raise serious questions of fact and law which are of such

complexity that their determination should depend on an examination of

the merits. The remainder of the application 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 REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (H. DANELIUS)

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B.C. v. SWITZERLAND

B.C. v. SWITZERLAND

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