INTERIM resolution DH (99) 677

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 8 October 1999 at the 680th meeting of the Ministers’ Deputies)

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

Having regard to the judgment of the European Court of Human Rights in the Kopp case delivered on 25 March 1998 and transmitted the same day to the Committee of Ministers;

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 Article 25 of the Co n vention by Mr Hans W. Kopp , a Swiss national, and that the Commission declared admissible the complaints relating, first, to the lack of protection the applicant should have enjoyed while his law firm’s telephone lines were monitored, in particular since he enjoyed a professional privilege in this respect and was monitored as a "third party" and not as a suspect, and secondly, to the lack of any effective remedy in this respect;

Recalling that the case was brought before the Court by the applicant on 20 January 1997, by the Commission on 22 January 1997 and by the Government on 27 February 1997;

Whereas in its judgment of 25 March 1998 the Court unanimously:

- dismissed the government’s preliminary objection;

- held that there had been a violation of Article 8 of the Convention;

- held that it was not necessary for the Court to consider of its own motion the complaint relating to Article 13 of the Convention;

- held that the present judgment in itself constituted sufficient just satisfaction for non-pecuniary damage;

- held that the Government of the respondent State was to pay to the applicant, within three months, 15 000 Swiss francs for costs and expenses and that simple interest at an annual rate of 5% should be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of the judgment of 25 March 1998, having regard to Switzerland’s obligation under Article 53 of the Conve n tion to abide by it;

Considering that High Contracting Parties are required to take the necessary measures to conform herewith, notably by preventing new violations of the Convention similar to those found in the Court's judgments

Whereas the Government of the respondent State provided the Committee of Ministers with information about the measures taken so far to this effect (this information appears in the appendix to this resolution);

Having satisfied itself that on 8 June 1998, within the time-limit set, the Government of the respondent State paid the a p plicant the sum provided for in the judgment of 25 March 1998,

Declares, after having taken note of the information supplied by the Government of Switzerland, that it has provisionally exe r cised its functions under Article 54 of the Convention in this case,

Decides to resume consideration of this case as far as general measures are concerned when the legislative reforms have been carried out or, at the latest, at one of its meetings at the end of 2001.

Appendix to Interim Resolution DH (99) 677

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

by the Committee of Ministers

The Government of Switzerland recalls that the European Convention on Human Rights and the judgments of the European Court of Human Rights have direct effect in Swiss law (see notably Resolution DH (94) 77 in the case of  F. against Switzerland).  The competent authorities (notably examining judges and the President of the Indictment Division of the Federal Court) will therefore, by basing themselves directly on the present judgment, ensure that the monitoring telephone lines of the person who enjoys professional privilege is surrounded by sufficient guarantees.

In order to ensure the direct application of the present judgment, it has been sent to the Federal Court, the cantonal departments of justice and the cantonal courts, as well as to the Federal Prosecutor's Office and the Etat-Major BASIS of the Federal department of justice and the police (responsible for the revision of the legal provisions on telephone tapping).  The judgment has also been published in the review Jurisprudence des autorités administratives de la Conféderation (JAAC, 1998, No. 114).  In addition, the report of the Federal Council to Parliament on the activities of Switzerland within the Council of Europe ( Feuille Fédérale 1998, p. 8) mentions the judgment.

Furthermore, the Federal Council has taken the Court's judgment into account in the context of the preparation of a draft Federal Law on the monitoring of postal correspondence and telecommunications and a draft Federal Law on secret investigation. In respect of persons enjoying professional privilege, the Federal Council's opinion ( message ), published on 1 July 1998, makes direct reference to the Court's judgment and states that the Bill on the monitoring of postal correspondence and telecommunications meets the requirements of the Court's judgment.  According to the bill, the monitoring of a person enjoying professional privilege can only be ordered if there are exceptionally strong reasons to suspect the person or if the facts found lead to the conclusion that the suspect uses the postal address or the telephone connection of this person.  Furthermore, this bill foresees that if telephone tapping relates to professional privilege, a distinction should be drawn between records which are pertinent for the investigation and those which are not.  This distinction should be drawn, if possible, by a law officer or, if need be, by someone who is responsible to a judicial authority and not subject to the authority of the person conducting investigation.

In the light of the above, the Government of Switzerland considers that there is no risk that the violation will recur. It proposes that the Committee of Ministers resume consideration of the implementation of the judgment when the legislative reforms have been carried out or, at the latest, at one of its meetings at the end of 2001.