Lexploria

SUR LA RECEVABILITÉ

Application No. 17393/90

by E.S.L. and others

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 2 March 1994, the following members being present:

MM. A. WEITZEL, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 28 June 1990 by

E.S.L. against Switzerland and registered on 5 November 1990 under file

No. 17393/90;

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 applicants may be

summarised as follows:

The first and second applicants are churches registered at

Lausanne in Switzerland and at Los Angeles in the United States,

respectively. The third applicant, N. I. is a non-profit organisation

based in Los Angeles. They are represented by Mr. Douwe Korff, a lawyer

practising in Cambridge in the United Kingdom.

In 1987 criminal investigations were instituted in Switzerland

and Italy against the first applicant on account of tax evasion. In

the course thereof the first applicant learned that the security police

(police de sûreté) of the Canton of Vaud possessed information on its

activities in a report drawn up in 1986 by Interpol Madrid and that it

had passed this information on to the Italian tax authorities.

On 28 April 1989 the first applicant filed a criminal complaint

with the investigating judge of the Canton of Vaud (le Juge

d'instruction du canton de Vaud) against the Vaud police, alleging that

they had breached confidentiality by passing on the report to a third

party. On 2 October 1989 the cantonal investigating judge dismissed

this complaint on the ground that the officer concerned had neither

been aware of disclosing secret information of which he had had

knowledge on account of his duties, nor had he intended to do so ("ni

conscience, ni volonté").

On 6 June 1989 the first applicant requested the judge of the

Canton of Vaud charged with the rectification of police files (le juge

cantonal chargé de la rectification des dossiers de la police

judiciaire) to rectify the Interpol report, which he alleged was

incorrect and damaging, and to grant the applicants access to it. The

other two applicants joined themselves into this request.

On 21 July 1989 the judge informed the applicants that the report

concerned was not to be found in the files of the security police and

that no file existed in the name of any of the applicants. The judge

also pointed out that information concerning the first applicant was

contained in a further file of criminal investigation concerning a

third party, though not relating to the applicants' request; this file

could not be made accessible as the proceedings were still pending.

On 8 September 1989, upon the applicants' renewed request, the cantonal

judge reiterated his conclusions in a further decision.

The applicants then filed a public law appeal (recours de droit

public) with the Federal Court (Tribunal fédéral), complaining that the

authorities had interfered with their right to respect for private life

under Article 8 of the Convention by collecting and storing data and

passing on the report in question to a third party. The applicants

also sought access to this report.

On 29 November 1989 the security police wrote to the cantonal

judge of the Canton of Vaud stating that "no copy whatsoever of the

Report of Interpol Madrid is in the possession of the Vaud judiciary

police" ("qu'aucun exemplaire quelconque du rapport d'Interpol Madrid

du 20 novembre 1986 n'est en possession de la police judiciare

vaudoise"). This letter was communicated to the applicants in the

proceedings before the Federal Court.

On 22 December 1989 the Federal Court dismissed the public law

appeal on the ground that the report was not in the possession of the

security police, and that the applicants had not shown that the

statements to this effect were incorrect.

COMPLAINTS

The applicants complain that, contrary to Articles 8, 9, 10 and

11 of the Convention, data concerning them were collected, stored and

passed on to a third party, and that there were only inadequate

safeguards against abuse.

Under Article 13 of the Convention the applicants complain that

they had no effective remedy available to them under Swiss law. Thus,

the cantonal judge could not inspect or rectify the files, and the

Federal Court failed to enter into the substantive issues raised.

Under Article 14 of the Convention the applicants complain of

discrimination on account of their religion and their opinions.

THE LAW

1. Under Articles 8, 9, 10 and 11 (Art. 8, 9, 10, 11) of the

Convention the applicants complain that data concerning them was

collected, stored and passed on to a third party, and that there were

only inadequate safeguards against abuse.

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

release of information relating to an individual's private life,

coupled with a refusal to allow any corrections, may raise an issue

under Article 8 (Art. 8) of the Convention (see Eur. Court H.R.,

Leander judgment of 26 March 1987, Series A No. 116, p. 22, para. 48).

The question arises whether the present complaint, which relates

to the disclosure of confidential data concerning the applicant

churches' activities, falls within the concept of "private life" within

the meaning of this provision.

The Commission does not need to resolve this question since, in

any event, even assuming that the answer to this question is in the

affirmative, this complaint is manifestly ill-founded for the following

reason:

The Commission notes that according to the decision of the

Federal Court of 22 December 1989 the report complained of was not in

the possession of the police. The applicants have not demonstrated

that the decision of the Federal Court was incorrect in that at that

time the authorities in fact possessed the report. The applicants have

also not provided any indication that, after the Federal Court gave its

judgment, the report again came into possession of the authorities.

In these circumstances the Commission considers that the

applicants failed to substantiate their allegation that the Swiss

authorities continue to maintain a file of information about them.

These complaints do not therefore disclose any appearance of a

violation of the rights set out in Article 8 (Art. 8) of the

Convention, and this part of the application is manifestly ill-founded

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

2. Insofar as the applicants complain under Article 13 (Art. 13) of

the Convention that they had no effective remedy at their disposal, the

Commission notes that, even assuming that the applicants have an

arguable claim in this respect, they in fact filed a public law appeal

with the Federal Court. Other than complaining of the outcome of the

proceedings before the Federal Court, the applicants have not shown in

what respect their public law appeal was not an effective remedy within

the meaning of Article 13 (Art. 13) of the Convention. Thus this part

of the application is manifestly ill-founded within the meaning of

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

3. Insofar as the applicants complain under Article 14 (Art. 14) of

the Convention of discrimination against them, the Commission finds no

separate issue. The remainder of the application is therefore also

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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E.S.L. AND OTHERS v. SWITZERLAND

E.S.L. AND OTHERS v. SWITZERLAND