Lexploria

.CE

AS TO THE ADMISSIBILITY OF

Application No. 12708/87

by Rudolf ROHR

against Switzerland

.NC

The European Commission of Human Rights sitting in private

on 7 October 1987, the following members being present:

MM. C.A.NØRGAARD, President

S. TRECHSEL

F. ERMACORA

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 30 January 1987 by

Rudolf ROHR against Switzerland and registered on 13 February 1987 under file

N° 12708/87;

Having regard to the report provided for in Rule 40 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 a follows:

The applicant, a Swiss citizen born in 1939, is a journalist

residing in Richterswil, Switzerland. Before the Commission he is

represented by Professor Nobel, a lawyer practising in Zurich.

I.

In 1982 altogether ten Soviet prisoners-of-war who had fought

in Afghanistan were brought to Switzerland where, upon request of the

International Committee of the Red Cross (ICRC), they were interned in

a camp which normally serves as a Swiss military prisoners' camp

(Militärstraflager). The camp is situated in a recreational area

which is popular among the residents of Zug and its vicinity. A

public road as well as generally accessible paths for pedestrians and

a cross country skiing track lead past part of the camp.

In 1983, one of the interned Russian soldiers fled from the

camp and left Switzerland. In 1984, after two years, the ICRC and the

Swiss Department of Foreign Affairs planned to repatriate to the

Soviet Union three more prisoners-of-war, whereupon a public

discussion commenced upon these occurrences.

II.

On 19 March 1984 the Swiss weekly magazine "Schweizer

Illustrierte" published, on pp. 14-20, interspersed with

advertisements, an article which had as title a quote from a renowned

British human rights' specialist, i.e.: " 'At home the chaps are

awaiting death' " (" 'Die Burschen erwartet zu Hause der Tod' "). The

cover page of the issue which depicted Donald Duck announced on the

top right hand corner the article with the lines: "Zugerberg-Russians-

Scandal for Switzerland?" ("Zugerberg-Russen-Skandal für die Schweiz?").

The article was written by the applicant and illustrated with

eight photographs which he had contributed together with three other

photographers. The article gave the particulars of the remaining nine

prisoners-of-war and generally explained their situation, their daily

routine as well as the precautions taken by the authorities to prevent

them from escaping. The article also cited a Soviet dissident and

other persons and organisations as to the future prospects of the

soldiers after their repatriation. The photographs disclosed as

follows:

- on page 14: the entrance of the camp with a watch tower and a

warning sign stating that the camp was a closed area (Sperrgebiet) and

that it was prohibited to take photographs;

- on page 15: three interned soldiers at work cutting timber.

The text to this photograph stated that it had been taken secretly

("heimlich fotografiert");

- on pages 16-17: interned soldiers setting out to work and

guarded by Swiss soldiers;

- on page 17: two unfocussed photos apparently depicting the

recreational area in the camp building as well as photos of the

soldier who escaped and of a Soviet dissident;

- on page 18: a view of the camp from the distance.

III.

On 16 February 1984 the Zug Cantonal Police reported the

applicant on the ground of a breach of military secrets according to

Article 329(1) of the Swiss Criminal Code. The applicant was charged

with having photographed and filmed since 26 January 1984 together

with other persons in the Zugerberg camp within a military closed

area. Section 329 states:

"Breach of Military Secrets

1. Whosoever unlawfully penetrates into institutions or

other localities access to which is prohibited by the military

authority, or depicts military institutions or objects, or

mimeographs or publishes such pictures, will be punished by

detention or a fine.

2. Attempt and abetment are punishable.

Verletzung militärischer Geheimnisse

1. Wer unrechtmässig in Anstalten oder andere Örtlichkeiten

eindringt, zu denen der Zutritt von der Militärbehörde

verboten ist, militärische Anstalten oder Gegenstände

abbildet, oder solche Abbildungen vervielfältigt oder

veröffentlicht, wird mit Haft oder mit Busse bestraft.

2. Versuch und Gehilfenschaft sind strafbar."

The Federal Attorney's Office (Bundesanwaltschaft) referred

the case in respect of the report of 16 February 1984 to the Zug

authorities and, after the article was published in the "Schweizer

Illustrierte", also in that respect.

On 2 May 1985 the Police Judge's Office (Polzeirichteramt) of

the Canton of Zug convicted the applicant of a breach of military

secrets according to Article 329(1) and imposed a fine of 300 SFr.

According to the Police Judge's Office, it had been established

that photographs had been published in the "Schweizer Illustrierte" of

the camp of Zugerberg and that the applicant was mentioned as

author of the article and as one of the photographers.

The purpose of Article 329 was to screen (abschirmen), inter

alia, preliminary areas of military secrets (Vorfeld militärischer

Geheimnisse), namely military areas and objects which, while not being

of a confidential character within the meaning of the Military

Criminal Code, nevertheless required in the interests of national

defence that their existence and outline etc. were not accessible to

everybody. The photographs at issue did not depict military secrets.

Nevertheless, the military authorities, in the interests of national

defence, attributed to the area and the objects concerned a certain

protection from mass publicity.

The applicant's appeal was dismissed by the Zug Criminal Court

(Strafgericht) on 18 November 1985. The court held on the one hand

that the military criminal camp in Zugerberg constituted a military

institution (Anstalt) though it did not directly serve the interests

of Swiss national defence within the meaning of the Federal Act on

military localities and was not therefore secret. For this reason,

the stricter provisions of the Military Criminal Code were not

applicable.

On the other hand, the Court found that Article 329 of the

Swiss Criminal Code did not require that a secret institution be

depicted. It sufficed that the picture disclosed military

institutions and that there was an interest not to disclose them to

the broad public. The fact that the prisoners-of-war were being

guarded not only to prevent them from escaping but also to screen them

from the broader public demonstrated that there was a legitimate

interest in preventing pictures of the guarded objects and areas. The

latter had also been clearly marked as a closed area.

The applicant then filed a plea of nullity (Nichtigkeitsbe-

schwerde) with the Federal Court (Bundesgericht) which the latter

dismissed on 3 June 1986. In its decision which was served on 6

August 1986 the Court found in particular that Article 329 of the

Criminal Code did not require that military secrets which served the

interests of national defence had been breached. Since the facts of

the case were not at issue the plea of nullity was therefore

unfounded.

COMPLAINTS

The applicant now complains under Article 10 of the Convention

of a restriction of his right to express his opinion and to impart

information. He alleges in particular that the conditions in Article

10 para. 2 have not not been met, namely the sufficient legal basis,

the lawful grounds for justification of the restriction and the

necessity of the measure in a democratic society.

Thus, while Article 329(1) of the Criminal Code had, until

the present case, never been applied by a court, the doctrine is

unanimous in stating that the provision may only be referred to if

interests of Swiss national defence are involved. It is therefore

unclear what purpose Article 329 serves.

Moreover, it is doubtful whether in the present case one can

still speak of a military institution since the internment of the

prisoners-of-war occurred upon instructions of the International

Committee of the Red Cross which was therefore acting within the

framework of its good offices under international law.

In any event, there is no link between the measure and Swiss

national defence. There were no secrets of a military or other nature

in the camp. It was clearly for this reason that the soldiers were

placed in the camp in Zugerberg since the Soviet soldiers themselves

would most of all be observing their surroundings. On the other hand,

anybody could pass along the camp which is in a popular recreational

area. What every pedestrian and even foreign military person can see

must also be permitted to be published in a magazine.

THE LAW

The applicant complains under Article 10 (Art. 10) of the Convention of

a restriction of his right to express his opinion and impart information. He

submits that Article 329 para. 1 of the Criminal Code did not provide a

sufficient legal basis for this restriction under Article 10 para. 2 (Art.

10-2) . There was no legitimate aim under that provision since no link existed

between the prohibition to take photographs and Swiss national defence.

Article 10 states (Art. 10):

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and to

receive and impart information and ideas without

interference by public authority regardless of frontiers ...

2. The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime, for

the protection of health or morals, for the protection of the

reputation or rights of others, for preventing the disclosure of

information received in confidence, or for maintaining the

authority and impartiality of the judiciary."

The Commission notes that the applicant was punished by the

Swiss courts for having published photographs in a Swiss magazine.

The Commission finds that this punishment constituted an interference

by a public authority with the exercise of the applicant's rights

under Article 10 para. 1 (Art. 10-1). Its task is next to examine whether such

interference was justified under Article 10 para. 2 (Art. 10-2) of the

Convention.

The first question to be considered is whether the measure was

"prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2). In

particular, the interference must have had some basis in domestic law

which itself must be adequately accessible and be formulated with

sufficient precision to enable the individual to regulate his conduct

(see e.g. European Court H.R., Barthold judgment of 25 March 1985,

Series A no. 90, p. 21 para. 45).

In the present case the Commission observes that S.329(1) of

the Criminal Code clearly stated that whosoever "depicts military

institutions or objects ... or publishes such pictures" will be

punished by detention or a fine. The Commission finds therefore that

the interference at issue was "prescribed by law" within the meaning

of Article 10 para. 2 (Art. 10-2).

The next question is whether the interference also had an aim

which was legitimate under Article 10 para. 2 (Art. 10-2) and whether it was

"necessary in a democratic society" within the meaning of that

provision, in particular whether the measure was proportionate to the

aim pursued (see the Barthold judgment, ibid., p. 24 para.55).

The Commission notes that the Zugerberg camp serves

military functions and constitutes a restricted area within the

meaning of Article 329 of the Criminal Code.

The Commission further notes that the internment of the Soviet

soldiers occurred upon request of the ICRC and that as a basis for the

arrangement between the ICRC and the Swiss Government the soldiers

were granted the status of prisoners of war. This status implies,

under the 1949 Geneva Convention Relative to the Treatment of

Prisoners of War, particular responsiblities for the interning State.

In view thereof, and of the fact that the applicant was

punished only for publishing the photographs at issue and not

generally for being the author of the article, the Commission finds

that the interference complained of occurred "in the interests of

national security, territorial integrity (and) for the protection of

the ... rights of others" and that it was "necessary in a democratic society"

within the meaning of Article 10 para. 2 (Art. 10-2) in that the measure was

proportionate to the legitimate aim pursued.

In the light of these considerations the Commission finds that

the complaints at issue do not disclose any appearance of a violation

of the rights set out in Article 10 (Art. 10) of the Convention. It follows

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

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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ROHR v. SWITZERLAND

ROHR v. SWITZERLAND

LEXI