CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 février 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                       Application No. 21353/93                     by B. C.                     against Switzerland        The European Commission of Human Rights sitting in private on 27 February 1995, the following members being present:             MM.   C.A. NØRGAARD, President                H. DANELIUS                C.L. ROZAKIS                G. JÖRUNDSSON                S. TRECHSEL                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                E. KONSTANTINOV                G. RESS             Mr.   H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 2 October 1992 by B. C. against Switzerland and registered on 9 February 1993 under file No. 21353/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS   I.    The particular circumstances of the case        The applicant is a Swiss citizen born in 1930.   He is a lawyer and resides in Fribourg.   Before the Commission he is represented by Mr. Martin Portmann, a lawyer practising in Fribourg.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 5 December 1991 the radio communications surveillance unit of the Swiss Post, Telephone and Telegraph Company (Sektion Funküberwachung der Generaldirektion PTT) located a private telephone conversation being held by means of an unauthorised wireless telephone. The conversation was located on a wave-band reserved for civil and military aviation.   The surveillance unit recorded the conversation and established that it was carried out through the line to which the applicant was subscriber.   The surveillance unit informed the competent PTT authority about this fact under Section 19 of the 1974 Administrative Criminal Law Act (Bundesgesetz über das Verwaltungsstrafrecht).        On 11 December 1991 the local PTT telecommunications administration (Fernmeldekreisdirektion) in Bern instituted criminal proceedings (Strafuntersuchung) against the applicant in application of Section 37 of the Administrative Criminal Law Act.   Pursuant to Section 42 of the 1922 Telegraph and Telephone Communications Act (Bundesgesetz betreffend den Telegrafen- und Telefonverkehr) the applicant was suspected of a contravention (Widerhandlung).        On 13 December 1991 the head of the telecommunications administration in Bern issued a warrant to search the applicant's house pursuant to Sections 48-50 of the Administrative Criminal Law Act.        The search was carried out on 21 January 1992.   In accordance with Section 49 para. 2 of the Administrative Criminal Law Act an officer of the cantonal police accompanied two PTT officials to the applicant's house.   The search was carried out by a single PTT official in the applicant's presence.   The official restricted himself to checking whether the telephones and TV sets in the applicant's house complied with the PTT standards.   He did not touch any objects, open any drawers or consult any documents. Though the wireless telephone was not found, the applicant admitted that he had once tested such a phone in the past.        On 24 January 1992 the applicant introduced a complaint with the Federal Court (Bundesgericht).   He claimed that the surveillance of his telephone conversations and the search of his house by the PTT officials were unlawful and that they should therefore be declared null and void.        On 27 March 1992 the Federal Court rejected the complaint about the search.   It held that since the search no longer infringed the applicant's rights, there was no further legal interest in his protection in this respect as required by law.        On the other hand, the Federal Court decided, exceptionally, to examine the complaint about the surveillance and recording of the applicant's conversations.        The Federal Court held that the applicant had exposed himself to the risk of having his telephone conversations intercepted by using an unauthorised telephone.   The   Court noted that the conversations had been intercepted in the course of surveillance of a wave-band which was reserved for other purposes and that the surveillance had not been aimed at the applicant's line as such.        It also considered well-founded and lawful the PTT administration's suspicion that the applicant had by the above acts committed a contravention pursuant to Section 42 of the Telegraph and Telephone Communications Act.        The Federal Court found that the surveillance and recording of the conversations were lawful since domestic law entitled the PTT to locate and eliminate installations disturbing the proper functioning of telecommunications or endangering persons or objects.   The Court considered that the interference with the applicant's communications was also justified because of the potential danger of using telephones operating on a wave-length reserved for other purposes.        Finally, the Federal Court found no breach of the principle of confidentiality of telecommunications since the recording of the conversations was of a purely technical character and served the sole purpose of gathering evidence about communications on a non-public wave-length.   The contents of the conversations remained confidential within the PTT.   The Federal Court noted that in the present case there was even no necessity to place the recordings at the disposal of the court since the applicant did not deny having used such a telephone. The Federal Court dismissed the complaint.        By letter of 9 June 1992 the PTT telecommunications administration in Bern summoned the applicant to be questioned about an alleged contravention of the telecommunications laws.   The applicant was informed that if he failed to appear he could be brought by the police.        On 5 July 1992 the applicant filed a complaint (Aufsichtsbeschwerde) with the Federal Department of Transport and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement) in which he claimed that the summons and threat of a police escort were unnecessary and inappropriate.   On 10 August 1992 the Director of the PTT telecommunications administration in Bern, to whom the complaint was transmitted, rejected it and set a new time limit for the applicant's appearance before the investigating official.   II.   Relevant domestic law        House searches in the context of administrative criminal proceedings are governed by Sections 48-50 of the 1974 Administrative Criminal Law Act.   The relevant provisions stipulate as follows:        [Translation]        Section 48        "1.   Dwellings and other premises including adjoining enclosed      pieces of land can only be searched when it is probable that the      accused is hiding therein or if objects or valuables liable to      sequestration or traces of an offence can be found therein.   ...        3.    The search is carried out by virtue of a written order      issued by the director or head of the administrative authority      or, if the investigation is within his or her competence, by the      director of the customs district or the PTT district director."      ...        Section 50        "1.   Papers shall be searched with maximum respect for private      secrets; in particular, papers shall only be searched if they      appear to contain written documents which are of importance for      the investigation.        2.    The search shall not infringe the confidentiality of office      or the confidentiality afforded to ecclesiastics, notaries,      doctors, pharmacists, midwives and their auxiliaries by virtue      of their calling or profession.        3.    Before the search the holder of documents shall be given      the opportunity, where possible, to indicate the contents      thereof.   If he is opposed to the search, the documents shall be      sealed and deposited at a safe place; the Accusations Chamber of      the Federal Court shall give a ruling on the admissibility of the      search (Article 25 para. 1)."   COMPLAINTS        The applicant complains under Article 8 of the Convention that the surveillance, search and summons to be questioned were unlawful, groundless and disproportionate.        He further alleges that his case was dealt with unfairly by an administrative authority instead of a court which alone was competent to decide about the surveillance and search.   He invokes Article 6 of the Convention in this respect.        Finally, the applicant complains that the PTT officials violated his rights guaranteed by Article 13 of the Convention by controlling and recording his telephone conversations and searching his house without approval by a judge and also by threatening him with a police escort should he fail to appear before the PTT investigating official.   THE LAW   1.    The applicant alleges a violation of his right to respect for his private life and his home guaranteed by Article 8 (Art. 8) of the Convention which, inasmuch as relevant, reads as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.    There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society ... for the      prevention of disorder or crime ... or for the protection of the      rights and freedoms of others."        As to the complaint about the surveillance and recording of the telephone conversations, the Commission recalls the Convention organs' case-law pursuant to which Article 8 (Art. 8) protects the confidentiality of private communications (cf. Eur. Court H.R., Malone judgment of 2 August 1984, Series A no. 82, with further references).        The Commission notes that in the present case the telephone conversations which were subjected to surveillance and recording were carried out by means of an unauthorised telephone operating on a wave- length reserved for purposes other than private telephone communications.   The conversations were thus accessible to other users of telecommunication facilities and so can scarcely be classified as the "private" communications to which the European Court of Human Rights referred in the Malone case.   By using such a telephone the applicant exposed himself to the risk of having the contents of the conversations revealed to others.        The Commission considers that the interception of the applicant's telephone communications on a wave-band reserved for aviation services does not disclose an interference with his rights under Article 8 (Art. 8) of the Convention.   Moreover, the Commission observes that the contents of the recorded conversations were not revealed in the subsequent proceedings.   This complaint must therefore be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further alleges that by the summons to appear before the PTT investigating official his right to respect for his private life under Article 8 para. 1 (Art. 8-1) was violated.        To the extent that the summons for interrogation within administrative criminal law proceedings constituted an interference with the applicant's right to respect for private life, this interference was justified as being necessary for the prevention of crime which was the principal aim of the aforesaid proceedings.   In any event, it does not appear from the applicant's submissions that he was actually brought before the investigating official by the police.        It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 6 (Art. 6) of the Convention that his case was dealt with unfairly by an administrative authority while only a court was competent to decide on the surveillance and the search.        Article 6 (Art. 6) of the Convention, as far as relevant, guarantees the right of everyone, in the determination of his civil rights and obligations or of any criminal charge against him, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.        The Commission notes that the Federal Court considered the question of the surveillance of the applicant's telephone communications in depth, but did not examine the applicant's complaint about the search as it considered that he had no legal interest in the matter.        However, the Commission considers that the Federal Court's decision as to the search determined neither the applicant's civil rights and obligations nor a criminal charge against him.   As far as the administrative criminal proceedings brought against the applicant are concerned, the applicant makes no submissions as to their subsequent course.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant complains that by controlling his telephone conversations and summoning him to an interrogation the PTT officials violated his rights under Article 13 (Art. 13) of the Convention which reads as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no.   172, p.   14 para. 31, with further references).   In the present case, the Commission has rejected substantive claims concerning part of this application as disclosing no appearance of a violation of the Convention.   For similar reasons, such claims cannot be regarded as "arguable".        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    Finally, the applicant complains that the search of his house interfered with his right to respect for his private life and his home guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.   He further alleges a violation of his right under Article 13 (Art. 13) of the Convention referring, in substance, to the Federal Court's refusal to examine his complaint about the search.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.        For these reasons, the Commission by a majority        DECIDES TO ADJOURN its examination of the complaints under      Articles 8 and 13 (Art. 8, 13) of the Convention concerning the      search of the applicant's house;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                           (C.A. NØRGAARD)