concurring OPINION OF JUDGE wildhaber, joined by judges loizou and baka

( Translation )

1. It is established that the Indictment Division of the Federal Court declared inadmissible the part of Mr Camenzind’s complaint concerning the search because the measure had ceased and he was no longer affected by it (see paragraph 54 of the judgment). On the basis of that finding, the Court considers that being able to lodge a complaint with the Indictment Division was not an “effective” remedy within the meaning of Article 13. It goes on to say that the other procedures relied on by the Government have not been shown to be effective, as no example was given of any case similar to the present one.

2. Yet the Government cited a Federal Court judgment (ATF 103 IV 115 at p. 118 (1977)) concerning unlawful detention as authority for saying that the courts would have been able to review the lawfulness of the search in an action for damages. The Court considered that that was not a “similar” case, although the principle laid down in the Federal Court’s judgment seems at first sight sufficiently broad to apply in the present case. However, it is a prerequisite in an action for damages of the type referred to that the court, independently of determining the issue of compensation, should review the lawfulness of the coercive measure.

3. Furthermore, in the Valsamis v. Greece case (see the judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2327, § 48) the Court held that a claim for compensation did not constitute an effective remedy since, under Greek law, a “judicial decision that the [relevant] measure ... was unlawful” – which could not have been obtained in that case – was “a prerequisite for submitting a claim for compensation”. Yet in the Camenzind case the Government rightly explained that it is not a prerequisite for an award of compensation under section 99 of the DPA that the damage in question should have resulted from an unlawful measure: it is sufficient that the measure was unjustified.

4. The Court holds, therefore, that it was not sufficient that the Indictment Division of the Federal Court had reviewed the lawfulness of the interception and recording of the telephone conversations, that the applicant could have sought redress under section 99 and that a court could have reviewed the lawfulness of a search in an action for damages.

5. Given “the limited scope of the search” (see paragraph 47 of the judgment) we might have contemplated following the Akdivar v. Turkey judgment (of 16 September 1996, Reports 1996-IV, p. 1213, § 77) by confining the case to its facts and holding that the powers of review provided by the Swiss legal order, while not extensive, could be considered adequate. The reason why we nonetheless chose to vote with the majority is that the Court’s decision on this point is based on its settled case-law and it is important that that case-law be adhered to if a minimum standard for an effective and genuine protection of human rights across Europe is to be established.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

( Translation )

In itself, the search could be considered justified in the circumstances of the case.

However, it was carried out without a court order being obtained beforehand.

In this respect there has, in my opinion, been a violation of the rights protected by Article 8 of the Convention.

Furthermore, there has been a violation of Article 6 and especially of Article 13 in that the lawfulness of the search was not even reviewed by the courts ex post facto [5] .

[1] 1. This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 136/1996/755/954. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.

[5] 1. See paragraphs 12, 22 and 53 of the judgment.