Resolution ResDH(2005) 96

concerning the judgment of the European Court of Human Rights of 25 March 1998 in the case of Kopp against Switzerland

(Adopted by the Committee of Ministers on 26 October 2005 at the 940th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Recalling that the case originated in an application (No. 23224/94) against Switzerland , lodged with the European Commission of Human Rights on 15 December 1993 under former Article 25 of the Convention by Mr Hans W. Kopp , a Swiss national, and that the case was brought before the Court by the applicant under P rotocol No. 9, on 20 January 1997, by the Commission on 22 January 1997 and by the Government of Switzerland on 27 February 1997;

Having regard to the judgment of the European Court of Human Rights, delivered on 25 March 1998, in which the Court found in particular a violation of Article 8 of the Convention on account of the lack of predictability of the Swiss legislation regarding the monitoring of the telephone lines of the applicant, a lawyer, in the context of criminal proceedings to which he was a third party;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 25 March 1998, having regard to Switzerland ' s obligation under former Article 53 of the Convention to abide by it;

Having regard to Interim Resolution DH(99)677 adopted by the Committee of Ministers on 8 October 1999, at the 680th meeting of the Ministers ' Deputies, in which it declared having provisionally exercised its functions under Article 54 of the Convention in the light of the information provided by the respondent government on the general measures already adopted or under way to prevent violations of the same kind as that found in the present judgment, and took note of the payment, within the time-limit set, of the sum awarded in the judgment of 25 March 1998 in respect of just satisfaction;

Whereas the government of the respondent state subsequently gave the Committee additional information about the measures taken to give full effect to the Court ' s judgment; this information appears in the appendix to this resolution;

Whereas the government of the respondent state also gave information about the individual measures taken to erase, as far as possible, the consequences of the violation for the applicant; this information appears in the appendix to this resolution;

Declares, after having examined the information supplied by the Government of Switzerland, that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Final Resolution ResDH(2005)96

Information provided by the Government of Switzerland during the examination of the Kopp case

by the Committee of Ministers

Individual measures :

First of all, it should be pointed out that the recordings at issue were destroyed shortly following the facts which were the subject of the application (paragraph 25 of the judgment Court of the European Court of Human Rights).

Furthermore, the applicant availed himself of the opportunity to request a re-opening of the national proceedings once the Federal Office of Justice had forwarded to him the Court judgment in pursuance of Section 66.1b of the Federal Law on Administrative Procedure (review of a decision of the Federal Council following the finding of a violation of the Convention by the European Court).

In a decision dated 19 March 1999 , the Federal Council rejected his request, holding that the legal conditions for such a review had not been satisfied in the case in question. First, the telephone tapping at issue had been of limited duration, and secondly, the European Court had already found the said interceptions to be unlawful and had ruled on the matter of the applicant ' s pecuniary claims in considering the application of former Article 50 of the Convention.

General measures :

In finding that there had been a violation of Article 8, the Court had discerned “a contradiction between the clear text of legislation which protects legal professional privilege when a lawyer is being monitored as a third party and the practice followed in the present case. Even though the case-law has established the principle, which is moreover generally accepted, that legal professional privilege covers only the relationship between a lawyer and his clients, the law does not clearly state how, under what conditions and by whom the distinction is to be drawn between matters specifically connected with a lawyer ' s work under instructions from a party to proceedings and those relating to activity other than that of counsel.

Above all, in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office ' s legal department, who is a member of the executive, without supervision by an independent judge” (paragraphs 73 and 74 of the judgment) .

1. Publication and dissemination measures

The Kopp judgment was quickly published and forwarded to the federal and canton authorities responsible for the monitoring of postal correspondence and telecommunications, so that the latter could take all the necessary measures to avoid any similar violations in future. For example, the judgment was published in the journal Jurisprudence des autorités administratives de la Confédération ( JAAC 1998 No. 114); and the report by the Federal Council to parliament on Switzerland ' s activities at the Council of Europe also mentioned this judgment ( Feuille Fédérale 1998, p.8). In addition, the judgment was sent to the Federal Court, the Cantonal Departments of Justice, the cantonal courts, the Federal Prosecutor ' s Office and the BASIS Staff HQ of the Federal Department of Justice and the Police (responsible for reviewing the legal provisions on telephone tapping).

2. Legislative measures

Switzerland has adopted new legislative rules regarding telephone tapping. The Federal Council took the judgment into consideration, making specific reference to it in the procedure leading to the passage of the Federal Law on the monitoring of postal correspondence and telecommunications of 6 January 2000 , which entered into force on 1 January 2002 .

This law sets out clearly the conditions under which telephone calls may be intercepted and general monitoring measures applied.

It details the scope and organisation of “monitoring” and the procedures to be complied with (including the circumstances in which monitoring of a person may be ordered, the particular forms of monitoring, the authorities entitled to order a monitoring measure, use of fortuitous information discovered in the course of the monitoring, etc).

The main changes brought about by this new law in order to solve the problems highlighted by the Court in the Kopp judgment are as follows :

a. Inclusion in the law of exceptions for which authorisation may be given to monitor persons bound by professional confidentiality, including lawyers, particularly when they are not themselves suspects or charged with any offence.

The Federal Law of 6 January 2000 provides that in principle, no monitoring may be ordered of persons (including lawyers) who are bound by professional confidentiality and who, under the applicable criminal procedure, may refuse to testify (Section 4.3 of the Law).

However, by way of exception, monitoring of a person falling into this category may be ordered, if there are exceptionally strong reasons to suspect the person in question or if there is evidence indicating that the suspect uses the postal address or the telephone line of this person (Section 4.3 of the Law).

b. Stronger legal guarantees when a lawyer against whom a monitoring measure has been taken is not himself or herself a suspect or accused of an offence, regarding the distinction between information relating specifically to the lawyer ' s role and information relating to a different activity.

Section 4.5 of the Federal Law of 6 January 2000 lays down a requirement to ensure that the authorities conducting the investigation do not become aware of information having no bearing on the purpose of the investigation.

With regard more specifically to monitoring of a person bound by professional confidentiality, the distinction between information deriving from professional privilege and other information must be made under the supervision of a judicial authority not handling the investigation. In addition, steps must be taken to ensure that the authorities in charge of the investigation do not become aware of any matter falling under professional privilege (Section 4.6 of the Law).

If the monitoring reveals information which turn out to fall under professional privilege, the relevant documents must be immediately removed from the file. They cannot be used in the criminal proceedings and must be immediately destroyed (Section 8.3 of the Law).

In the light of the above, the Swiss Government considers that it has fulfilled its obligations under the former Article 54 of the Convention.