SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43874/98 by R. L. against Switzerland

The European Court of Human Rights (Second Section) , sitting on 25 November 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Wildhaber , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze, judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 28 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1979, is an apprentice residing in Wädenswil in Switzerland. Before the Court he is represented by Mr P.A. Schaerz, a lawyer practising in Forch in Switzerland.

A. The circumstances of the case

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

In 1997 a parcel was sent to the applicant from Germany containing altogether 4 CDs, 6 records (singles) and one book. By order of 23 September 1997, the Swiss Federal Police ( Schweizerische Bundespolizei ) informed the applicant that it had seized 2 CDs and 3 singles as they contained “extreme rightwing publicity materials”. The order stated, inter alia :

“... 2. The texts of certain CDs and records ( Tonträger ) advocate and support force. Some of the statements are furthermore characterised by radical nationalism and latent racism.

3. These publicity materials are to be seized as their sale and dissemination could endanger the interior security of Switzerland.

Based on S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State ( Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial ), it is decided:

1. The materials are seized according to the enclosed list. The remaining materials are released and left to the addressee ...”

The order also stated that the only remedy available was a hierarchical complaint ( Aufsichtsbeschwerde ) to the Federal Department of Justice and Police. An attached list mentioned the music group or author as well as the title of each item sent to the Federal Attorney's Office ( Bundesanwaltschaft ) for examination before they were either seized or handed over to the applicant:

“A) List of confiscated materials

CD Brutal sharks ( brutale Haie ): For ever free ( Für immer frei )

CD Chaos warriors ( Chaoskrieger ): Death riders ( Todesreiter )

Single Boot Party: Now and Then

Single Lager Lads: Rose City Boot Boys

Single System, The: Last stand

B) List of materials handed over

Book Richard Allen: Skinhead

CD Macc Lads, The: An orifice and a genital

CD Macc Lads, The: Bitter, fit crack

Single Limecell: Crack hooker

Single Limecell: Just plain pissed

Single Skirmish ( Scharmützel ): The first stroke ( der erste Streich )”

On 24 June 1998 the applicant complained to the Federal Department of Justice and Police of the seisure of these materials. He submitted that the statement of legal remedies in the order of 23 September 1997 had been incorrect; that the present case concerned his “civil rights and obligations” within the meaning of Article 6 of the Convention; and that he had not had access to a court. He further submitted that there was no sufficient legal basis for the interference with his rights, as the Federal Decree of 1948 amounted to emergency legislation. In the applicant's view, the confiscation was disproportionate and breached his right to respect for correspondence within the meaning of Article 8 of the Convention, as well as his right to receive information under Article 10 of the Convention. By seizing the materials, it was no longer possible to discuss the grounds mentioned by the Swiss Federal Police in their order of 23 September 1997.

Subsequently, the applicant learned that the Federal Prosecutor's Office had informed the Swiss Customs Directorate as well as the police of the Canton of Zürich of the confiscation, whereupon on 17 July 1998 he filed a further complaint of a breach of his right to respect for private life within the meaning of Article 8 of the Convention.

By decision of 26 June 1998, the Federal Council ( Bundesrat ) decided definitively to confiscate the materials seized. The applicant did not receive a copy of this decision.

On 31 August 1998 the Federal Department of Justice and Police informed the applicant as follows:

“On 26 June 1998 the Federal Council definitively confiscated ( eingezogen ) the applicant's propaganda materials. As a result, the preparatory order of seizure of 23 September 1997, constituting a provisional measure of protection and security in view of a possible later confiscation, has become obsolete. In these circumstances the present hierarchical proceedings have become irrelevant ( gegenstandslos ) and must be struck off the list of cases.

In view of the particular circumstances, no costs of proceedings will be imposed.

In respect of your supplementary observations of 17 July 1998 concerning a breach of the rights of personality (of the applicant) in that the police of the Canton of Zürich were informed of the confiscation, this matter will be assessed in separate proceedings from the point of view of a hierarchical complaint.”

By letter dated 4 September 1998, the Swiss Federal Police wrote to the applicant as follows:

“According to S. 1 § 2 of the Decree of the Federal Council of 29 December 1948 concerning propaganda materials endangering the State (Propaganda Decree ...) which Decree has been annulled as from 1 July 1998, the Federal Council was called upon to decide on the confiscation of the propaganda materials seized.

With the present letter we are informing you that on 26 June 1998 the Federal Council ordered, in accordance with the Propaganda Decree which was then still in force, the confiscation of your materials which had been seized by the Federal Attorney's Office/Federal Police on 23 September 1997. These materials which are now considered as having been definitively confiscated, will soon be destroyed.

Finally, we point out that no regular remedies can be filed against judicial decisions of the Federal Council - one of the three highest bodies of administrative justice of the Confederation.”

In letters dated 9 and 11 September 1998, to the Swiss Federal Police and the Federal Department of Justice and Police, respectively, the applicant requested, inter alia , a copy of the decision of the Federal Council of 26 June 1998 as well as the possibility to consult the case-file.

By letter dated 14 September 1998, the Swiss Federal Police informed the applicant:

“Decisions of the Federal Council are confidential and cannot therefore be handed out. However, we are ready to transmit to you an excerpt of the grounds for confiscation: The Federal Council in its decision confirmed in substance the preparatory seizure and confiscation of the materials in question as they propagated and supported force and as their content was partly characterised by radical nationalism and racism. Such materials may serve to radicalise extremist groups among foreigners and the Swiss. Against this background they endanger the peaceful cohabitation within our borders and impair the internal security of Switzerland within the meaning of the Decree of the Federal Council concerning propaganda material endangering the State ...”

By letter dated 10 November 1998, the Federal Department of Justice and Police informed the applicant that it was only possible to consult the case-file of proceedings which had already been closed if there was a particular interest worthy of protection. It was pointed out that the applicant's case-file, insofar as it related to the actual confiscation proceedings, contained no other documents than his submissions and the correspondence of the Federal Department of Justice and Police.

On 15 December 1999 the Federal Department of Justice and Police dismissed the applicant's complaint of 17 July 1998, which it qualified as a hierarchical complaint. The Department considered that the legal basis for any breach of the applicant's personality rights could be found in the then applicable Article 24 of the Data Protection Act which enabled the processing of personal data in matters related to the fight against criminality; and that certain groups of the skinhead-movement could be considered as pertaining to violent extremism within the meaning of this provision. The information at issue had been transmitted to the police of the Canton of Zürich as the latter was called upon to maintain public law and order, and also in view of the possible breaches of criminal law.

B. Relevant domestic law

S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State ( Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial ) of 29 December 1948, in force at the relevant time, states:

“The Federal Attorney's Office is instructed, together with the Federal customs and postal authorities, to seize propaganda materials which serve to endanger the internal or external security of the Confederation, in particular its independence, its neutrality, its relations with foreign States, the political and, namely, the democratic institutions of Switzerland or the interests of the defence of the country, as well as anti-religious texts or objects.

The Federal Council shall decide on the confiscation.”

As regards the remedies available before the Federal Court ( Bundesgericht ), the latter has confirmed in a decision of 26 June 1999 (see Arrêts du Tribunal Fédéral [ATF] 125 II 417) that the Federal Organisation of Justice Act ( Organisationsgesetz ) excludes in principle the possibility of filing an administrative law appeal ( Verwaltungsgerichtsbeschwerde ) in such cases against decisions of the Federal Council. However, in ATF 125 II 417, leading to the similar case before the Court of Kaptan v. Switzerland (no. 55641/00, 12 April 2001, unreported), the Federal Court also found that the Federal Court's jurisdiction may nevertheless be founded on Article 6 § 1 of the Convention in order to ensure, in a given case, an examination by a court. In three earlier cases, the Federal Court held that international law may have priority over contradictory Swiss federal laws, in particular ATF 117 (1991) Ib 367 (concerning Article 6 § 2 of the Convention and the criminal culpability of heirs); ATF 118 (1992) Ib 281(concerning Article 8 of the Convention and the right to examine police files); and ATF 122 (1996) II 485 (concerning the impact of international law on extradition).

COMPLAINTS

1. Under Article 6 § 1 of the Convention, the applicant complains that he did not have access to a court which could determine in public proceedings his civil rights, namely his property rights.

2. The applicant also raises complaints under Articles 8 and 10 of the Convention. He submits that the interferences with the rights protected by these provisions were unnecessary, particularly as the goods ordered were only meant for his personal use and did not serve any commercial purpose.

3. Under Article 13 of the Convention, the applicant complains that the only remedy at his disposal, the hierarchical complaint, was an inadequate remedy in view of the severity of the breach of his rights. By treating his grievance as a hierarchical complaint, he was not even granted locus standi .

THE LAW

1. The applicant complains that he did not have access to a court which could determine his civil rights, namely his property rights. He relies on Article 6 § 1 of the Convention which states, insofar as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to ... an independent and impartial tribunal established by law.”

The respondent Government submit that the applicant failed to raise his complaint before the Federal Court by means of an administrative law appeal and has not, therefore, exhausted domestic remedies as required by Article 35 § 1 of the Convention. By way of confirmation, the Government recall the case of Kaptan v. Switzerland (no. 55641/00, 12 April 2001, unreported) in which the Federal Council took a similar decision on the same date as the present case: that applicant had subsequently filed an administrative law appeal which was entertained by the Federal Court. The latter did so by virtue of the overriding position of Article 6 § 1 of the Convention in Swiss domestic law. The Government submitted that, as in the Kaptan case , the Federal Court would indubitably also have examined the present applicant's complaints.

The Government point out that the Federal Court had previously resolved conflicts between domestic and international law in favour of the latter. Reference is made to various decisions of the Federal Court, cited above (see Relevant domestic law and practice). The Federal Court has, where necessary, also given effect to the Court's judgments by not applying domestic law in order to prevent a breach of the Convention. The applicant himself in his complaint of 24 June 1998 to the Federal Department of Justice and Police referred to one such case, namely ATF 118 Ib 277. Based on this case-law, the applicant could and should have filed an appeal with the Federal Court, after having been informed on 4 September 1998 of the reasons in the Federal Council's decision. The Government refer in this context to the case of Akdivar and Others v. Turkey according to which “the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies” (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1212, § 71).

In the applicant's submissions, the proceedings before the Federal Department of Justice and the Federal Council concerning the confiscation, as well as his complaint about a breach of his privacy, were not of a judicial nature and did not comply with the requirements of Article 6 § 1 of the Convention. Moreover, he was unable to consult the case-file and, in particular, to see the decision of the Federal Council of 26 June 1998. He was thus not informed of the reasons for the Federal Council's decision, as a result of which he was not in a position to lodge an administrative law appeal before the Federal Court in due form. Indeed, to this day, the applicant is not in possession of the facts on which the State's actions, in particular the seizure and confiscation of the material in question, were based. Moreover, the applicant was not informed that the remedy of an administrative law appeal was available to him. The Government knowingly left him in ignorance and should, therefore, take responsibility for their lack of good faith.

The Court considers that the question whether the applicant could and should have filed an administrative law appeal with the Federal Court is closely related to the merits of the complaint and cannot be decided at this stage of the proceedings.

After an examination of this part of the case in the light of the parties' submissions, the Court considers that it raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant also raises complaints under Articles 8 and 10 of the Convention. He submits that the interferences with his rights guaranteed by these provisions were unnecessary, particularly as the goods ordered were only meant for his personal use, and did not serve any commercial purpose.

Article 8 of the Convention states, insofar as relevant:

“1. Everyone has the right to respect for his private ... life ... 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 10 of the Convention states, insofar as relevant:

“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 ...

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 respondent Government submit that the applicant did not raise these complaints before the Federal Court and has not, therefore, exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. In any event, the Government submit that these complaints are manifestly ill-founded. The interferences were particularly justified as the materials seized were of a racist nature.

The applicant submits that the interferences in fact amounted to censorship by the Government. The applicant wished to find out about the skinhead ideology in connection with a seminar paper, and the goods at issue were intended to provide the required information. In particular, the CDs were to be used for an oral presentation at an adult vocational school, though the applicant no longer has any documentation which would confirm this.

The Court has first examined the complaint under Article 10 of the Convention. The interference with the applicant's rights under this provision was “prescribed by law” within the meaning of Article 10 § 2 of the Convention in that it was based on S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State. Furthermore, the Court notes the Swiss Federal Police's letter of 14 September 1998, according to which the materials at issue propagated and supported force, and were partly characterised by racism which could serve to radicalise extremist groups among foreigners and the Swiss, and thus endanger peaceful cohabitation in Switzerland. In the Court's opinion, such materials were directed against the Convention's underlying values (see the Lehideux and Isorni v. France judgment of 23 September 1998, Reports 1998-VII, p. 2886, § 53). The interference at issue was, therefore, “necessary in a democractic society ... for the prevention of disorder (and) crime (and) for the protection of the rights and freedoms of others” within the meaning of Article 10 § 2 of the Convention.

Insofar as the applicant also raises complaints under Article 8 of the Convention, the Court finds no separate issue under this provision.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. Under Article 13 of the Convention (the right to an effective remedy for a Convention breach), the applicant complains that the only remedy at his disposal, the hierarchical complaint, was inadequate in view of the severity of the breach of his rights.

However, having regard to its decision under Article 6 of the Convention, the Court is not required to examine the issues again under Article 13, as its requirements are less strict than, and are here absorbed by, those of Article 6 (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 23 § 67). It follows that this complaint is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court,

Joins to the merits of the complaint under Article 6 § 1 of the Convention the Government's preliminary objection based on the non-exhaustion of domestic remedies, unanimously;

Declares admissible, without prejudging the merits, the applicant's complaint under Article 6 § 1 of the Convention that he did not have access to a court, unanimously;

Declares inadmissible the remainder of the application, by a majority.

T.L. Early J.-P. Costa

Deputy Registrar   President