DISSENTING OPINION OF MR B. MARXER

JOINED BY MR A. WEITZEL, MRS J. LIDDY, MM B. CONFORTI,

I. BÉKÉS, G. RESS, A. PERENIČ AND MRS M. HION

I regret that I cannot agree with the conclusion of the majority that the measures at issue were not "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.

The point of departure in this respect is the Federal Court's judgment of 14 September 1994 which mentioned two sets of legal provisions.  It mentioned, on the one hand, S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office which authorises the authorities to monitor and prevent activities capable of endangering the interior or exterior security of the State; and, on the other, SS. 66 et seq. of the Federal Code on Criminal Procedure which permitted the monitoring of telephone and postal communications before criminal investigations are instituted (see the Report, para. 60).

I accept that these provisions served as a legal basis for the monitoring of the applicant's telephone conversation.

The issue then arises whether there was a legal basis for the preparation and storing of the card at issue.  In this respect, the Federal Court left open whether these provisions also served as a legal basis to prepare a card and store the information obtained, as the applicant's action appeared unfounded for other reasons.

However, according to the Commission's case-law, a legal provision laying down the circumstances, for instance, in which fingerprints, photographs and other information may be obtained on a person, will provide sufficient legal basis for the subsequent retention of such material (see McVeigh and others v. United Kingdom, Comm. Report 18.3.81, D.R. 25, p. 15, p. 50 at para. 228).

In my opinion, therefore, SS. 66 et seq. of the Federal Code on Criminal Procedure which permitted the monitoring of the applicant's telephone conversation, could also be considered as permitting, at least initially, the preparation and storing of information on the applicant.

In addition, the Directives on the Handling of Personal Data in the Federal Administration adopted by the Swiss Government on 16 March 1981 (see the Report, para. 42), concern the handling of such data.  For instance, the Directives list the conditions, upon request of the person concerned, for correcting any data which prove to be incorrect, and for communicating such data to other persons.  Data which have become useless should be destroyed, subject to their deposit in the archives of the Confederation.

It is recalled that the Federal Court, in its judgment of 14 September 1994, considered that the monitoring of the applicant's telephone conversation had a sufficient legal basis under domestic law. In the light of the Commission's case-law, it follows that this legal basis also sufficed for the continuing storage of the card prepared on the applicant.

The interferences were, therefore, "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.

As regards the remaining conditions to be examined under Article 8 para. 2 of the Convention, the Federal Court, in its judgment of 14 September 1994, found that offences against the State and national defence justified such interferences (see the Report, para. 31).  The interferences at issue were, therefore, undertaken "in the interests of national security" within the meaning of Article 8 para. 2 of the Convention.

In examining whether the measures were "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention, the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant's right to respect for his private life.  While the margin of appreciation available to a State in choosing the means for achieving the legitimate aim of protecting national security is in such cases a wide one, there must nevertheless exist adequate and effective guarantees against abuse (see Eur. Court HR, Leander v. Sweden judgment, loc. cit., p. 25, paras. 59-60).

In the present case, only one telephone conversation of the applicant was monitored, and that only limited information was stored on the applicant's card of 24 December 1981, namely that he was a contact person with the Russian Embassy and did business with a particular company.  As the Federal Court noted in its decision of 14 September 1994, there was no indication that the authorities considered the applicant to be a spy (see the Report, para. 34).

Moreover, various safeguards have been introduced in respect of such information stored.  Reference has just been made to the 1981 Directives on the Handling of Personal Data in the Federal Administration which list, inter alia , the conditions, upon request of the person concerned, for correcting any data which prove to be incorrect, and for communicating such data to other persons.  Therefore, under these directives upon request the individual has to be informed about the existence of the card and the information given thereon.  The individual can therefore ask for any corrections of this information.

In addition, in 1990, the Federal Council enacted an Ordinance on the Handling of State Protection Files of the Confederation, and  the post of Special Delegate for State Protection Files was created.  The latter was indeed able to be of assistance to the applicant (see the Report, para. 43).

In this respect, reference can be made to the Commission's case-law according to which the guarantees provided for in the 1990 Ordinance are sufficient to prevent potential abuses which may be engendered by such a system of secret surveillance (see Application No. 25099/94, Dec. 5.4.95, Martin v. Switzerland, D.R. 81-A, p. 136).

Finally, based on the 1992 Federal Act on Consultation of the Files of the Federal Attorney's Office, the applicant's card has meanwhile been removed from the central card-index and transferred to the Federal Archives where during 50 years there will be no access to it (see the Report, para. 43).

As a result, taking into account the margin of appreciation which is left to Contracting States in such cases (see Eur. Court HR, Leander judgment, op. cit.), the interferences to which the applicant was subjected cannot be said to have been disproportionate to the legitimate aim pursued.  The interferences could therefore reasonably be considered "necessary in a democratic society in the interests of national security" within the meaning of Article 8 para. 2 of the Convention.

As a result, there has been no violation of Article 8 of the Convention.