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 February 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

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 report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

I. The particular circumstances of the case

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 applicant, may be

summarised as follows.

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 an unauthorised wireless telephone.

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 through the line to which the

applicant was subscriber. The surveillance unit informed the competent

PTT authority about this fact under Section 19 of the 1974

Administrative Criminal Law Act (Bundesgesetz über das

Verwaltungsstrafrecht).

On 11 December 1991 the local PTT telecommunications

administration (Fernmeldekreisdirektion) in Bern instituted criminal

proceedings (Strafuntersuchung) against the applicant in application

of Section 37 of the Administrative Criminal Law Act. Pursuant to

Section 42 of the 1922 Telegraph and Telephone Communications Act

(Bundesgesetz betreffend den Telegrafen- und Telefonverkehr) the

applicant was suspected of a contravention (Widerhandlung).

On 13 December 1991 the head of the telecommunications

administration in Bern issued a warrant to search the applicant's house

pursuant to Sections 48-50 of the Administrative Criminal Law Act.

The search was carried out on 21 January 1992. In accordance

with Section 49 para. 2 of the Administrative Criminal Law Act an

officer of the cantonal police accompanied two PTT officials to the

applicant's house. The search was carried out by a single PTT official

in the applicant's presence. The official 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. Though the wireless telephone was

not found, the applicant admitted that he had once tested such a phone

in the past.

On 24 January 1992 the applicant introduced a complaint with the

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

telephone conversations and the search of his house by the PTT

officials were unlawful and that they should therefore be declared null

and void.

On 27 March 1992 the Federal Court rejected the complaint about

the search. 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.

On the other hand, the Federal Court decided, exceptionally, to

examine the complaint about the surveillance and recording of the

applicant's conversations.

The Federal Court held that the applicant had exposed himself to

the risk of having his telephone conversations intercepted by using an

unauthorised telephone. The Court noted that the conversations had

been intercepted in the course of surveillance of a wave-band which was

reserved for other purposes and that the surveillance had not been

aimed at the applicant's line as such.

It also considered well-founded and lawful the PTT

administration's suspicion that the applicant had by the above acts

committed a contravention pursuant to Section 42 of the Telegraph and

Telephone Communications Act.

The Federal Court found that the surveillance and recording of

the conversations were lawful since domestic law entitled the PTT to

locate and eliminate installations disturbing the proper functioning

of telecommunications or endangering persons or objects. The Court

considered that the interference with the applicant's communications

was also justified because of the potential danger of using telephones

operating on a wave-length reserved for other purposes.

Finally, the Federal Court found no breach of the principle of

confidentiality of telecommunications since the recording of the

conversations was of a purely technical character and served the sole

purpose of gathering evidence about communications on a non-public

wave-length. The contents of the conversations remained confidential

within the PTT. The Federal Court noted that in the present case there

was even no necessity to place the recordings at the disposal of the

court since the applicant did not deny having used such a telephone.

The Federal Court dismissed the complaint.

By letter of 9 June 1992 the PTT telecommunications

administration in Bern summoned the applicant to be questioned about

an alleged contravention of the telecommunications laws. The applicant

was informed that if he failed to appear he could be brought by the

police.

On 5 July 1992 the applicant filed a complaint

(Aufsichtsbeschwerde) with the Federal Department of Transport and

Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement)

in which he claimed that the summons and threat of a police escort were

unnecessary and inappropriate. On 10 August 1992 the Director of the

PTT telecommunications administration in Bern, to whom the complaint

was transmitted, rejected it and set a new time limit for the

applicant's appearance before the investigating official.

II. Relevant domestic law

House searches in the context of administrative criminal

proceedings are governed by Sections 48-50 of the 1974 Administrative

Criminal Law Act. The relevant provisions stipulate as follows:

[Translation]

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 50

"1. Papers shall be searched with maximum respect for private

secrets; in particular, papers shall only be searched if they

appear to contain written documents which are of importance for

the investigation.

2. The search shall not infringe the confidentiality of office

or the confidentiality afforded to ecclesiastics, notaries,

doctors, pharmacists, midwives and their auxiliaries by virtue

of their calling or profession.

3. Before the search the holder of documents shall be given

the opportunity, where possible, to indicate the contents

thereof. If he is opposed to the search, the documents shall be

sealed and deposited at a safe place; the Accusations Chamber of

the Federal Court shall give a ruling on the admissibility of the

search (Article 25 para. 1)."

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the surveillance, search and summons to be questioned were unlawful,

groundless and disproportionate.

He further alleges that his case was dealt with unfairly by an

administrative authority instead of a court which alone was competent

to decide about the surveillance and search. He invokes Article 6 of

the Convention in this respect.

Finally, the applicant complains that the PTT officials violated

his rights guaranteed by Article 13 of the Convention by controlling

and recording his telephone conversations and searching his house

without approval by a judge and also by threatening him with a police

escort should he fail to appear before the PTT investigating official.

THE LAW

1. The applicant alleges a violation of his right to respect for his

private life and his home guaranteed by Article 8 (Art. 8) of the

Convention which, inasmuch as relevant, reads as follows:

"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 ... or for the protection of the

rights and freedoms of others."

As to the complaint about the surveillance and recording of the

telephone conversations, the Commission recalls the Convention organs'

case-law pursuant to which Article 8 (Art. 8) protects the

confidentiality of private communications (cf. Eur. Court H.R., Malone

judgment of 2 August 1984, Series A no. 82, with further references).

The Commission notes that in the present case the telephone

conversations which were subjected to surveillance and recording were

carried out by means of an unauthorised telephone operating on a wave-

length reserved for purposes other than private telephone

communications. The conversations were thus accessible to other users

of telecommunication facilities and so can scarcely be classified as

the "private" communications to which the European Court of Human

Rights referred in the Malone case. By using such a telephone the

applicant exposed himself to the risk of having the contents of the

conversations revealed to others.

The Commission considers that the interception of the applicant's

telephone communications on a wave-band reserved for aviation services

does not disclose an interference with his rights under Article 8

(Art. 8) of the Convention. Moreover, the Commission observes that the

contents of the recorded conversations were not revealed in the

subsequent proceedings. This complaint must therefore be rejected as

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

(Art. 27-2) of the Convention.

2. The applicant further alleges that by the summons to appear

before the PTT investigating official his right to respect for his

private life under Article 8 para. 1 (Art. 8-1) was violated.

To the extent that the summons for interrogation within

administrative criminal law proceedings constituted an interference

with the applicant's right to respect for private life, this

interference was justified as being necessary for the prevention of

crime which was the principal aim of the aforesaid proceedings. In any

event, it does not appear from the applicant's submissions that he was

actually brought before the investigating official by the police.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

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

3. The applicant complains under Article 6 (Art. 6) of the

Convention that his case was dealt with unfairly by an administrative

authority while only a court was competent to decide on the

surveillance and the search.

Article 6 (Art. 6) of the Convention, as far as relevant,

guarantees the right of everyone, in the determination of his civil

rights and obligations or of any criminal charge against him, to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law.

The Commission notes that the Federal Court considered the

question of the surveillance of the applicant's telephone

communications in depth, but did not examine the applicant's complaint

about the search as it considered that he had no legal interest in the

matter.

However, the Commission considers that the Federal Court's

decision as to the search determined neither the applicant's civil

rights and obligations nor a criminal charge against him. As far as

the administrative criminal proceedings brought against the applicant

are concerned, the applicant makes no submissions as to their

subsequent course.

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.

4. The applicant complains that by controlling his telephone

conversations and summoning him to an interrogation the PTT officials

violated his rights under Article 13 (Art. 13) of the Convention which

reads as follows:

"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 recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court H.R., Powell and Rayner judgment of 21 February 1990,

Series A no. 172, p. 14 para. 31, with further references). In the

present case, the Commission has rejected substantive claims concerning

part of this application as disclosing no appearance of a violation of

the Convention. For similar reasons, such claims cannot be regarded

as "arguable".

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.

5. Finally, the applicant complains that the search of his house

interfered with his right to respect for his private life and his home

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. He

further alleges a violation of his right under Article 13 (Art. 13) of

the Convention referring, in substance, to the Federal Court's refusal

to examine his complaint about the search.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this part of the application to

the respondent Government.

For these reasons, the Commission by a majority

DECIDES TO ADJOURN its examination of the complaints under

Articles 8 and 13 (Art. 8, 13) of the Convention concerning the

search of the applicant's house;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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B.C. v. SWITZERLAND

B.C. v. SWITZERLAND