Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19822/92

by S. L. O.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 24 February 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 4 April 1992 by

S. L. O. against Switzerland and registered on 13 April 1992 under file

No. 19822/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, a Swiss citizen and member of parliament, resides

at Allschwil in Switzerland. Before the Commission she is represented

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

I.

In 1989 a Parliamentary Investigation Commission (Parlamentari-

sche Untersuchungskommission) was set up to examine certain occurrences

in the Federal Department of Justice and Police (Eidgenössisches

Justiz- und Polizeidepartement). In the ensuing report it transpired

that the Federal Police (Bundespolizei) had collected more than 900,000

files on various persons and organisations. As a result, thousands of

citizens requested access to their files.

On 11 December 1989 the applicant consulted her file at the

Federal Attorney's Office (Bundesanwaltschaft). When consulting her

card she noticed that in respect of a number of entries the Security

Service (Sicherheitsdienst) of Basel-Landschaft was mentioned as the

informer.

On 12 December 1989 the applicant wrote to the Government

(Regierungsrat) of Basel-Landschaft, requesting access to the cantonal

files.

On 18 December 1989 the Police Director (Polizeidirektor) of

Basel-Landschaft forwarded the request to the Federal Attorney's

Office, seeking information on how to deal with it.

On 5 March 1990 the Federal Government (Bundesrat) issued an

Ordinance on the handling of state security files of the Confederation

(Verordnung über die Behandlung von Staatsschutzakten des Bundes).

On 12 March 1990 the Cantonal Police (Kantonspolizei) of Basel-

Landschaft dismissed the applicant's request to consult the cantonal

files, and forwarded her request to the Special Delegate for state

security files (Sonderbeauftragter für die Behandlung der

Staatsschutzakten). It was also stated that the applicant's request

to consult files not relating to state security would be decided later.

Against this decision the applicant on 26 March 1990 filed an

appeal with the Government of Basel-Landschaft on 26 March 1990.

The Government dismissed the appeal on 12 June 1990. The

decision stated inter alia that matters of the Federal Police fell

within the jurisdiction of the Swiss Confederation; that the cantonal

authorities had acted on behalf of the federal authorities; and that

therefore the files, although kept in the Canton, were federal files.

The decision also stated that the Federal Government had been competent

to enact the Ordinance of 5 March 1990 by virtue of both the Swiss

Federal Constitution (Bundesverfassung) and the Federal Act on the

Organisation and Management of the Federal Government and the Federal

Administration (Bundesgesetz über die Organisation und Geschäftsführung

des Bundesrates und der Bundesverwaltung).

The applicant then filed three appeals, namely an appeal

(Beschwerde) with the Administrative Court (Verwaltungsgericht) of

Basel-Landschaft (see below, II.) and an administrative law appeal

(Verwaltungsgerichtsbeschwerde) and a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht;

see below, IV.).

II.

In her appeal of 25 June 1990 to the Administrative Court of

Basel-Landschaft, the applicant argued that the Federal Police were not

competent to keep such files, and that she should be granted access to

the cantonal files concerning state security; in respect of files not

concerning state security she maintained that there was a right at any

time to consult them.

On 7 November 1990 the Administrative Court of Basel-Land partly

upheld the applicant's appeal.

In its decision the Court examined its jurisdiction to deal with

the appeal, in particular the lawfulness of the Ordinance of

5 March 1990. As a result, it found that the Federal Government was

only competent directly to enact ordinances on state security in cases

of emergency, and that otherwise there was no legal basis herefor. As

a result, the Court decided to refer the case back to the Cantonal

Government which was requested to give a decision based on cantonal law

on the request to consult the files concerning state security. On the

other hand, the Court dismissed the appeal insofar as it concerned the

remaining police files, as the decision given had been an intermediary

one which could not be contested at that stage.

III.

In respect of the decision of the Administrative Court of

7 November 1990 the Swiss Confederation filed on 1 February 1991 a

public law action (staatsrechtliche Klage) against Basel-Landschaft

with the Federal Court, claiming that the Confederation was competent

to legislate in matters of state security, and that access to the files

had to be regulated by federal, not cantonal, authorities.

The applicant submitted further observations to the Federal Court

in which she also requested a hearing within the meaning of Article 6

of the Convention. The Administrative Court of Basel-Landschaft stated

in its observations that the public law action did not constitute a

remedy against cantonal decisions. The Government and the Parliament

of Basel-Landschaft also submitted observations on the public law

action.

On 29 May 1991 the Federal Court upheld the public law action and

declared null and void the Administrative Court's decision of

7 November 1990.

In its decision the Federal Court rejected the applicant's

request for a hearing as the object of the proceedings, the

delimitation of competence between the Confederation and the Cantons,

was not covered by Article 6 of the Convention.

The Court further found that the Confederation was competent to

deal with all matters of internal and external state security. It

noted that the files often contained information on pending

investigations and findings in the fields of terrorism, counter-

intelligence and organised crime, often stemming from foreign

intelligence agencies. The files were frequently of eminent importance

for internal and external security, for which reason only the

Confederation was competent to decide on the handling of these files.

The Federal Government, when issuing the Ordinance of 5 March 1990, had

acted within its competence. The Federal Court concluded that the

cantonal authorities were not competent to deal with these matters.

IV.

In her administrative law appeal of 5 July 1990 to the Federal

Court the applicant argued that there was no legal basis for a federal

political police dealing with matters of state security. Invoking

inter alia Articles 8 - 11 of the Convention she claimed that she was

entitled to inspect such files, and that there was no legal basis for

the interference with her rights. Under Article 6 para. 1 of the

Convention she was entitled to have her case heard by a tribunal within

a reasonable time.

The applicant repeated these issues in essence in her public law

appeal to the Federal Court dated 9 July 1990. She argued that there

was no basis for cooperation on matters of state security between the

Confederation and the Cantons.

On 23 October 1991 the applicant sent a letter to the Federal

Court, asking when the court would decide on her appeals. By letter

of 10 December 1991 the Federal Court informed her that a decision

would probably be given in winter or spring of 1992.

By judgment of 25 March 1992 the Federal Court dismissed both the

applicant's administrative law appeal and public law appeal. The

judgment was served on 1 May 1992.

In its judgment the Court considered that it had already decided

on 29 March 1991 that the Confederation had been competent to issue the

Ordinance of 5 March 1990. Insofar as the applicant requested access

to court within the meaning of Article 6 para. 1 of the Convention the

decision continued:

"The requests of the applicant to consult the case-files

concerning ... herself, have so far not been decided in

substance. According to the Ordinance on the handling of state

security files the federal authorities must now examine the

requests for consulting the files ... It is not at all excluded

that the applicant will in fact be granted access to the files.

If the reply is negative the applicant can apply to the Ombudsman

... Thereupon the applicant can file a complaint with the federal

agency concerned and put forward in these proceedings that the

Human Rights Convention requires a court to decide on her request

of consultation."

"Die Gesuche der Beschwerdeführerin um Einsicht in die sie

selbst ... betreffenden Akten konnten bisher materiell noch nicht

beurteilt werden. Entsprechend den Bestimmungen in der

Verordnung über die Behandlung von Staatsschutzakten wird die

Bundesbehörde die Einsichtsgesuche zu prüfen haben ... Es ist

keineswegs ausgeschlossen, dass der Beschwerdeführerin die

Akteneinsicht tatsächlich gewährt wird. Für den Fall eines

abschlägigen Entscheides kann die Beschwerdeführerin an den

Ombudsmann gelangen ... Daraufhin wird die Beschwerdeführerin bei

der entsprechenden Bundesinstanz Beschwerde erheben und alsdann

in diesem Verfahren vorbringen können, die Menschenrechts-

konvention erfordere für die Beurteilung ihres Einsichtsgesuches

eine richterliche Behörde."

COMPLAINTS

The applicant complains under Article 8 of the Convention of

a breach of her right to respect for her private life in that secret

files have been compiled containing information on her private and

family life.

Under Article 6 para. 1 of the Convention the applicant complains

that she did not have a hearing before the Federal Court in the

proceedings leading to the decision of 29 May 1991, and that the

proceedings leading to the decision of 25 March 1992 lasted unduly

long.

Under Article 10 of the Convention the applicant complains that

the police compile information which is passed on to other authorities

without her having had the opportunity to correct the information.

Moreover, the storing of information on the applicant's political

activities amounts in her view to a breach of her rights under Article

11 of the Convention.

Under Article 13 of the Convention the applicant complains that

she had no effective remedy at her disposal to raise the above

complaints. She sees a confirmation hereof in the fact that the

Federal Court in its decision of 25 March 1992 did not deal with her

appeals.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that secret files have been compiled containing information

on her private and family life. Under Article 10 (Art. 10) of the

Convention she complains that the police compile information which is

passed on to other authorities without her having had the opportunity

to correct the information. She also invokes Article 11 (Art. 11) of

the Convention.

However, under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law.

In the present case, the proceedings which the applicant

instituted in Switzerland originated in her request to consult the

cantonal file established on her person. This was refused on 12 March

1990 by the Cantonal Police and, upon appeal, on 12 June 1990 by the

Government, though her request was subsequently upheld by the

Administrative Court on 7 November 1990. However, upon the

Confederation's public law action the Federal Court on 29 May 1991

declared the Administrative Court's decision null and void.

In its subsequent decision of 25 March 1992 the Federal Court

pointed out that the applicant's request to consult her file had now

to be dealt with by the federal authorities, and that it was not at all

excluded that she would be granted access. It was also pointed out

that the applicant could in the ensuing proceedings raise complaints

under the Convention.

The Commission recalls that Article 26 (Art. 26) of the

Convention is intended to provide national authorities with the

possibility of remedying the violations alleged before them (see as the

most recent reference Eur. Court H.R., judgment of López Ostra of

9 December 1994, Series A no. 303-C, para. 38).

In the present case, the domestic authorities were not afforded

the opportunity of putting right the violations alleged by the

applicant before the Commission. As the Federal Court pointed out in

its decision of 25 March 1992, when requesting access to her file she

would have the opportunity to raise complaints under the Convention.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies, and this part of her

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant complains that she did not have a hearing before

the Federal Court in the proceedings leading to the decision of

29 May 1991, and that the proceedings resulting in the Federal Court's

decision of 25 March 1992 lasted unduly long.

The applicant relies on Article 6 para. 1 (Art. 6-1) of the

Convention according to which "in the determination of his civil rights

and obligations ..., everyone is entitled to a ... hearing within a

reasonable time ..."

Even assuming that the guarantees of this provision are

applicable to the present case, the complaints are inadmissible for the

following reasons.

a) The applicant complains, first, that in the proceedings leading

to the Federal Court's decision of 29 May 1991 the Court did not

conduct a hearing.

Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission may only deal with an application from a person "claiming

to be the victim of a violation ... of the rights set forth in this

Convention."

The Commission has just found that in respect of her complaint

under Articles 8, 10 and 11 (Art. 8, 10, 11) of the Convention the

applicant had not exhausted domestic remedies according to Article 26

(Art. 26) of the Convention and that the matter had not yet been

definitely decided. In respect of the present complaint the applicant

can therefore also not claim to be a victim within the meaning of

Article 25 para. 1 (Art. 25-1) of the Convention.

This part of the application is therefore manifestly ill-founded

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

b) The applicant complains, next, that the proceedings resulting in

the Federal Court's decision of 25 March 1992 lasted unduly long.

According to the Convention organs' case-law, the proceedings to

be examined under Article 6 para. 1 (Art. 6-1) of the Convention

commenced on the date when the applicant contested the relevant

administrative decision (see Eur. Court H.R., König judgment of

28 June 1978, Series A no. 27, p. 33, para. 98), i.e. on 26 March 1990

when the applicant filed an appeal against the decision of the Cantonal

Police of Basel-Landschaft of 12 March 1990. The proceedings ended on

1 May 1992 when the judgment of 25 March 1992 was served on the

applicant. The proceedings therefore lasted two years, one month and

six days.

When examining the reasonableness of the length of the

proceedings, the Commission will consider the circumstances of the case

in the light of the criteria laid down in the Convention organs' case-

law. In this respect, the complexity of the case, the attitude of the

applicant and the conduct of the case by the judicial authorities must

be taken into account (see, inter alia, Eur. Court H.R., Scopelliti

judgment of 23 November 1993, Series A no. 278, p. 8, para. 19).

In the present case the matter to be decided by the Federal

Court, concerning competences of the Federation and the Canton,

appeared relatively complex. While the applicant did not contribute

to the length of the proceedings, it transpires from the documents that

the Federal Court, before dealing with the applicant's administrative

law and public law appeals, was awaiting the outcome of the public law

action, which was also before the Federal Court and raised similar

issues.

In these circumstances the proceedings leading to the Federal

Court's decision of 25 March 1992 did not exceed a "reasonable time"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Under Article 13 (Art. 13) of the Convention the applicant

complains that she had no effective remedy at her disposal to raise the

above complaints.

The Commission finds that the applicant has not made out an

arguable claim under Articles 6, 8, 10 and 11 (Art. 6, 8, 10, 11) of

the Convention (cf. Eur. Court H.R., Plattform "Ärzte für das Leben"

judgment of 21 June 1988, Series A no. 139, p. 11 et seq., paras. 27

et seq.).

The remainder of the application is therefore manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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S.L.O. v. SWITZERLAND

S.L.O. v. SWITZERLAND

LEXI