Lexploria

Information Note on the Court’s case-law 15

February 2000

Amann v. Switzerland [GC] - 27798/95

Judgment 16.2.2000 [GC]

Article 8

Article 8-1

Respect for correspondence

Interception and recording of telephone call: violation

Respect for private life

Storing of personal data in security card index: violation

(Extract from press release)

Facts : The applicant, Hermann Amann, a Swiss national, was born in 1940 and lives in Berikon (Switzerland). In the early 1980s the applicant, who is a businessman, imported depilatory appliances into Switzerland which he advertised in magazines. On 12 October 1981 a woman telephoned the applicant from the former Soviet embassy in Berne to order a “Perma Tweez” depilatory appliance. That telephone call was intercepted by the Federal Public Prosecutor’s Office (“the Public Prosecutor’s Office”), which then requested the Intelligence Service of the police of the Canton of Zürich t o carry out an investigation into the applicant. In December 1981 the Public Prosecutor’s Office filled in a card on the applicant for its national security card index on the basis of the report drawn up by the Zürich police. In particular, the card indica ted that the applicant had been “identified as a contact with the Russian embassy” and was a businessman. It was numbered (1153:0) 614, that code meaning “communist country” (1), “Soviet Union” (153), “espionage established” (0) and “various contacts with the Eastern block” (614). In 1990 the applicant learned of the existence of the card index kept by the Public Prosecutor’s Office and asked to consult his card. He was provided with a photocopy in September 1990, but two passages had been blue-pencilled. A fter trying in vain to obtain disclosure of the blue-pencilled passages, the applicant filed an administrative-law action with the Federal Court requesting, inter alia , 5,000 Swiss francs in compensation for the unlawful entry of his particulars in the car d index kept by the Public Prosecutor’s Office. In a judgment of 14 September 1994, which was served on 25 January 1995, the Federal Court dismissed his action on the ground that the applicant had not suffered a serious infringement of his personality righ ts.

The applicant complained that the interception of the telephone call on 12 October 1981 and the creation by the Public Prosecutor’s Office of a card on him and the storage of that card in the Confederation’s card index had violated Article 8 of the Eu ropean Convention on Human Rights. He also complained that he had not had an effective remedy within the meaning of Article 13 of the Convention to obtain redress for the alleged violations.

Law : Article 8 of the Convention

(a) as regards the telephone call

The Court considered that the measure in question, namely the interception by the Public Prosecutor’s Office of the telephone call of 12 October 1981, amounted to an interference with the applicant’s exercise of his right to respect for his private life and his correspondence. The Court pointed out that such interference breached Article 8 unless it was “in accordance with the law”, pursued one or more of the legitimate aims referred to in paragraph 2 of that provision and was, in addition, necessary in a democratic society to achieve those aims.

In determining the issue of lawfulness, the Court had to examine whether the impugned measure had a legal basis in domestic law and whether it was accessible and foreseeable to the person concerned. A rule was “foreseeable” if it was formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate their conduct. With regard to secret surveillance measures, the Court reiterated that the “law” had to be particularly detailed.

The Court noted in the instant case that Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office and section 17 § 3 of the Federal Criminal Procedure Act (“FCPA”), on which the Government relied and according to which the Public Prosecutor’s Office “shall provide an investigation and information service in the interests of the Confederation’s internal and external security”, were worded in terms too gen eral to satisfy the requirement of “foreseeability”. As regards sections 66 et seq. FCPA, which governed the monitoring of telephone communications, the Government were unable to establish that the conditions of application of those provisions had been com plied with. The Court went on to observe that, in the Government’s submission, the applicant had not been the subject of the impugned measure, but had been involved “fortuitously” in a telephone conversation recorded in the course of a surveillance measure taken against a third party. The primary object of sections 66 et seq. FCPA was the surveillance of persons suspected or accused of a crime or major offence or even third parties presumed to be receiving information from or sending it to such persons, but those provisions did not specifically regulate in detail the case of persons not falling into any of those categories. The Court concluded, in the light of the foregoing, that the interference had not been “in accordance with the law”. Accordingly, there had been a violation of Article 8 of the Convention.

Conclusion : violation (unanimous).

(b) as regards the card

The Court reiterated firstly that the storing of data relating to the “private life” of an individual fell within the application of Article 8 § 1 of the Convention. It pointed out in this connection that the term “private life” must not be interpreted res trictively.

In the present case the Court noted that a card had been filled in on the applicant on which it was stated, inter alia , that he was a businessman and a “contact with the Russian embassy”. The Court found that those details undeniably amounted t o data relating to the applicant’s “private life” and that, accordingly, Article 8 was applicable.

The Court then reiterated that the storing by a public authority of data relating to an individual amounted in itself to an interference within the meaning o f Article 8. The subsequent use of the stored information had no bearing on that finding and it was not for the Court to speculate as to whether the information gathered was sensitive or not or as to whether the person concerned had been inconvenienced in any way.

The Court noted that in the present case it had not been disputed that a card containing data on the applicant’s private life had been filled in by the Public Prosecutor’s Office and stored in the Confederation’s card index. There had therefore be en an interference with the applicant’s exercise of his right to respect for his private life.

Such interference breached Article 8 unless it was “in accordance with the law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was, i n addition, necessary in a democratic society to achieve those aims.

The Court observed that in the instant case the legal provisions relied on by the Government, in particular the Federal Council’s Decree of 29 April 1958 on the Police Service of the Fede ral Public Prosecutor’s Office, the Federal Criminal Procedure Act and the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration, did not contain specific and detailed provisions on the ga thering, recording and storing of information. It also pointed out that domestic law, particularly section 66(1 ter ) FCPA, expressly provided that documents which were no longer “necessary” or had become “purposeless” had to be destroyed; the authorities ha d failed to destroy the data they had gathered on the applicant after it had become apparent, as the Federal Court had pointed out in its judgment of 14 September 1994, that no criminal offence was being prepared. The Court concluded, in the light of the f oregoing, that there had been no legal basis for the creation of the card on the applicant and its storage in the Confederation’s card index. Accordingly, there had been a violation of Article 8 of the Convention.

Conclusion : violation (unanimous).

Article 13 of the Convention - The Court reiterated that Article 13 of the Convention requires that any individual who considers himself injured by a measure allegedly contrary to the Convention should have a remedy before a national authority in order both to ha ve his claim decided and, if appropriate, to obtain redress. That provision did not, however, require the certainty of a favourable outcome. The Court noted that in the instant case the applicant was able to consult his card as soon as he asked to do so in 1990. It also observed that the applicant had complained in his administrative-law action in the Federal Court that there had been no legal basis for the interception of the telephone call and the creation of his card and, secondly, that he had had no eff ective remedy against those measures. In that connection the Court reiterated that the Federal Court had had jurisdiction to rule on those complaints and had duly examined them. The Court concluded, in the light of the foregoing, that the applicant had the refore had an effective remedy under Swiss law. Accordingly, there had not been a violation of Article 13 of the Convention.

Conclusion : no violation (unanimous).

Article 41 of the Convention - The applicant did not allege any pecuniary damage. However, he claimed 1,000 Swiss francs (CHF) for non-pecuniary damage. The Court held that the non-pecuniary damage had been adequately compensated by the finding of violations of Article 8 of the Convention. The applicant also claimed CHF 7,082.15 in respect of his costs and expenses for the proceedings before the Convention institutions. The Court considered that the claim for costs and expenses was reasonable and that it should be allowed in full.

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