CEDH · CASELAW;REPORTS;ENG — 16 octobre 1996

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 23224/94                              H. W. K.                               against                             Switzerland                      REPORT OF THE COMMISSION                    (adopted on 16 October 1996)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-55) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-50). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 51-55). . . . . . . . . . . . . . . . . . .8   III. OPINION OF THE COMMISSION      (paras. 56-105). . . . . . . . . . . . . . . . . . . . 10        A.    Complaints declared admissible           (para. 56). . . . . . . . . . . . . . . . . . . . 10        B.    Points at issue           (para. 57). . . . . . . . . . . . . . . . . . . . 10        C.    As regards Article 8 of the Convention           (paras. 58-82). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 83). . . . . . . . . . . . . . . . . . . . 13        D.    As regards Article 13 of the Convention           (paras. 84-102) . . . . . . . . . . . . . . . . . 13             CONCLUSION           (para. 103) . . . . . . . . . . . . . . . . . . . 16        E.    Recapitulation           (paras. 104-105). . . . . . . . . . . . . . . . . 16   APPENDIX:       DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 17   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant, a Swiss citizen born in 1931, is a lawyer residing in Zurich in Switzerland.   He is represented before the Commission by Messrs B. Badertscher and Th. Poledna, lawyers practising in Zurich.   3.    The application is directed against Switzerland.   The respondent Government are represented by Mr Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.   4.    The case concerns the applicant's complaints about the monitoring of his telephone lines and that he did not have an effective remedy at his disposal to complain thereof.   The applicant invokes Articles 8 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 15 December 1993 and registered on 10 January 1994.   6.    On 31 August 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 23 December 1994. The applicant replied on 10 April 1995.   8.    On 12 April 1996 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 18 April 1996 and they were invited to submit such further information or observations on the merits as they wished.   No further information or observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   S. TRECHSEL                M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ   12.   The text of this Report was adopted on 16 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   a.    Parliamentary Commission of Enquiry   16.   The applicant's wife was a member of the Federal Council (Bundesrat) and Head of the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement).   On 14 December 1988 the applicant's wife announced her resignation as from 28 February 1989 in view of allegations, which she disputed, that she had passed on secret information to the applicant in a telephone conversation.   On 31 January 1989 the Swiss Parliament established a Parliamentary Commission of Enquiry (Parlamentarische Untersuchungskommission) to examine the exercise of her office and her resignation.   17.   The Commission submitted its Report on 22 November 1989.   While identifying various issues in connection with the exercise of the office of the applicant's wife, the Report also concluded that she had dealt with her work carefully and prudently.   In February 1990 the Federal Court (Bundesgericht) acquitted the applicant's wife of the charge of a breach of official secrets (Amtsgeheimnisverletzung).   b.    Requests for letters rogatory   18.   On 28 January 1988 a client asked the lawyer H., who worked in the applicant's office, to examine the legality of certain letters rogatory (Rechtshilfeersuchen) of the United States.   H. undertook a preliminary examination of the matter whereupon he refused to deal with the matter, referring to an instruction in the applicant's office not to take on any cases concerning the Federal Department of Justice and Police, or the applicant's wife.   The case was then passed on to the law firm N.   19.   On 10 June 1988 the law firm N. filed a request with the Federal Office for the Police (Bundesamt für Polizeiwesen) to consult the letters rogatory.   On 23 August 1988 the Federal Office transmitted to the law firm N. a shortened ("gestrippte") version of the letters rogatory.   c.    Document of the Federal Department of Justice and Police   20.   Shortly after the Parliamentary Commission (see above, para. 16) was established, its President L. obtained information that a certain X., a US citizen, had apparently obtained a particular document from the applicant which both the Federal Office for the Police and the Federal Court had previously refused to make available.   X. had allegedly offered the applicant CHF 250,000 to obtain this document from the Federal Department of Justice and Police.   L. obtained this information from a certain Y. who in turn had obtained the information from the main informant Z.   21.   It later transpired that X. was involved in letters rogatory from the USA, containing secret information as to his role in organised crime.   The suspicion therefore arose that the document which the applicant had allegedly been asked to obtain concerned these letters rogatory; and that a person at the Federal Department of Justice and Police could, in breach of official secrets, have handed out documents to unauthorised persons.   22.   On 21 November 1989 the Federal Attorney (Bundesanwalt) instituted judicial investigations (gerichtspolizeiliches Ermittlungs- verfahren) against unknown persons.   The purpose thereof was to interview (ansprechen) the informant Y. and eventually to identify the person in the Federal Department of Justice and Police who might have breached official secrets.   d.    Monitoring of the applicant's telephone lines   23.   In the course of the investigations it transpired that the applicant's law firm, and later the law firm N. (see above, para. 18) had attempted to obtain documents from the Federal Office for the Police, though the latter had refused to transmit those parts of the letters rogatory which concerned X.'s involvement in organised crime.   24.   The judicial investigations of 21 November 1989 (see above, para. 22) included the monitoring of the telephone lines of X., Y., the applicant and his wife.   The applicant was involved as a "third person" (see below, para. 53) and not as a suspect.   25.   On 23 November 1989 the President of the Indictment Chamber (Anklagekammer) of the Federal Court granted the Federal Attorney's request to monitor altogether 13 lines, including the applicant's private telephone lines, the telephone lines of his office and his wife's telephone lines, in particular a secret number granted to her as a former Federal Councillor.   The order contained the remark "Lawyers' conversations must be disregarded" ("Anwaltsgespräche sind nicht zu erfassen").   26.   Six of these lines were no longer monitored after 1 December 1989.   On the other hand, the President of the Indictment Chamber granted on 1 December 1989 permission for the monitoring of a further telephone line.   The order again contained the remark "Lawyers' conversations must be disregarded".   27.   Also on 1 December 1989 a meeting took place between the Federal police, the informant Y. and the President of the Parliamentary Commission L.   28.   On 4 December 1989 L. contacted the main informant Z.   The latter was questioned by the Federal Attorney's Office on 8 December 1989.   29.   On 11 December 1989 the Federal Office for the Police, having found that the suspicion of a breach of official secrets had been unfounded, terminated the monitoring of all telephone lines of the applicant and his wife.   30.   On 14 December 1989 the Federal Attorney's Office (Bundesanwalt- schaft) issued its final report in which it concluded that there was no solid evidence to support the suspicion of a breach of official secrets.   The Report noted that in 1988 the lawyer H., who worked in the applicant's office, had passed on a case, concerning the letters rogatory, to the law firm N., and that there were no indications that the applicant or his wife could have been directly involved in the matter.   31.   On 6 March 1990 the Federal Attorney's Office decided to close the investigations as there was nothing to confirm the suspicion that the applicant's wife or a collaborator of the Federal Department of Justice and Police had breached official secrets by passing on secret parts of letters rogatory.   32.   By letter of 9 March 1990 the applicant was informed that under SS. 320 and 340 para. 1, subpara. 7 of the Penal Code (Straf- gesetzbuch, see below, para. 51) judicial investigations had been instituted on suspicion of a breach of official secrets, and that under SS. 66 et seq. of the Federal Code of Criminal Procedure (Bundesstrafprozessordnung, see below, paras. 52 et seq.) his private and professional telephone lines had been monitored.   The letter stated that the monitoring had lasted from 21 November 1989 until 11 December 1989 and that "conversations conducted as part of his function as a lawyer had been excluded from the monitoring" ("von der Überwachung ausgenommen waren die in anwaltschaftlicher Eigenschaft geführten Gespräche").   It was also stated that in application of S. 66 para. 1ter of the Federal Code of Criminal Procedure (see below, para. 54) all recordings had been destroyed.   e.    Communiqué of the Parliamentary Commission of Enquiry   33.   On 12 March 1990 the Parliamentary Commission (see above, para. 16) issued a communiqué stating inter alia:   <Translation>        "In the course (of the investigations of the Federal Attorney's      Office), which also included authorised telephone monitoring, the      Office found that Swiss representatives of a US citizen had      attempted, with the help (of the applicant), to obtain access to      a secret document.   They hoped for an easier access to the      Federal Department of Justice and Police, as he was the husband      of the Federal Councillor concerned.   A lawyer of (the      applicant's) office examined, for a fee, the possibility of      taking over the case, but then refused.   As a result, there was      an attempt to obtain the secret part of the documents with the      help of another lawyer.   The US letters rogatory were finally      handed out, though the crucial parts were censored.   Based on      this result the Federal Attorney's Office closed its      investigations ...   The suspicion of a breach of official secrets      thus proved to be unfounded.   The police investigations      demonstrate, however, how the rumour arose which led to the      indications and the suspicion."   <German>        "Im Rahmen (der Ermittlungen der Bundesanwaltschaft), zu welchen      auch bewilligte Telefonabhörungen eingesetzt wurden, eruierte      diese, dass die Schweizer Vertreter des amerikanischen      Staatsangehörigen versucht hatten, durch Einschaltung (des      Beschwerdeführers) zum geheimen Aktenstück zu gelangen.   Sie      versprachen sich einen leichteren Zugang ins EJPD, weil er Gatte      der zuständigen Bundesrätin war.   Ein Rechtsanwalt des Büros (des      Beschwerdeführers) prüfte gegen Honorar die allfällige      Mandatsübernahme, lehnte sie jedoch ab.   In der Folge wurde mit      einem anderen Rechtsanwalt die Herausgabe des geheimen Teils der      Akten versucht.   Schliesslich wurde zwar das amerikanische      Rechtshilfegesuch herausgegeben, die entscheidenden Passagen      jedoch abgedeckt.   Gestützt auf dieses Ergebnis stellte die      Bundesanwaltschaft die Ermittlungen ein. ... Der Verdacht auf      Verletzung des Amtsgeheimnisses erwies sich als unbegründet.   Die      polizeilichen Ermittlungen zeigen jedoch auf, wie das Gerücht,      das zu Hinweis und Verdacht führte, entstanden ist."   34.   On 13 March 1990, various Swiss newspapers published articles on the communiqué of the Parliamentary Commission.   Therein, reference was made to the applicant as one of the persons involved, and to telephone monitoring which had been undertaken.   f.    Complaint to the Federal Department of Justice and Police   35.   On 10 April 1990 the applicant filed a complaint (Beschwerde) with the Federal Department of Justice and Police about a breach of the provisions concerning telephone monitoring, and of Article 8 of the Convention.   36.   Following a further complaint about the delay in the proceedings the Department dismissed the complaint on 2 November 1992.   The Department, which dealt with the complaint as a hierarchical complaint (Aufsichtsbeschwerde), decided inter alia to refuse the applicant's request for unrestricted access to the case-file.   g.    Administrative Appeal to the Federal Council   37.   On 2 December 1992 the applicant filed an administrative appeal (Verwaltungsbeschwerde) with the Federal Council against the decision of the Federal Department of Justice and Police of 2 November 1992. In his appeal he complained inter alia that the telephone monitoring had been unlawful and that he had been refused unrestricted access to the case-file.   38.   In his appeal the applicant stated inter alia that S. 66 para. 1bis of the Federal Code of Criminal Procedure expressly prohibited the tapping of a lawyer's telephone calls.   The tapping of the telephone conversations with the applicant's law firm was therefore unlawful under Swiss law.   39.   The Federal Council dismissed the administrative appeal on 30 June 1993.   40.   In its decision the Federal Council recalled that, even without a legal basis, hierarchical complaints in cases of telephone monitoring were treated as formal administrative appeals.   The Federal Council found that it was competent to examine, inter alia, whether the monitoring of the applicant's telephone lines was unlawful; whether it contradicted the Convention; and whether the applicant's right of access to his case-file had been breached.   Where the applicant's personality rights had been breached, he could file a request for damages.   On the basis of the Federal Council's decision he could also file with the Federal Court (Bundesgericht) a request for satisfaction (Genugtuung).   41.   The Federal Council found that the applicant should have access to the case-file only to the extent that the documents directly related to his telephone monitoring as a "third person".   The Federal Council noted that the applicant had had restricted access to documents some of which had been censored in particular in respect of names of informants.   Other documents, concerning for instance telephone monitoring, had not been supplied, though the applicant had been orally informed of their existence and content.   Insofar as documents concerning third persons had not been supplied, the interests of the latter outweighed the applicant's interest therein.   42.   The Federal Council considered that S. 66 of the Federal Code of Criminal Procedure permitted the telephone monitoring of third persons such as the applicant if there were indications that the latter would receive information from, or pass it on to, the perpetrator of an offence.   43.   The Federal Council found that at a time of general insecurity following rumours of subversion (eine durch Unterwanderungsgerüchte verunsicherte Zeit) there had been concrete indications of a breach of official secrets within the Federal Department of Justice and Police. The document at issue concerned secret information in respect of which assurances had been given to the United States; thus, Switzerland's credibility was at stake.   A risk arose as the applicant, the husband of the former Head of the Department of Justice and Police, had been mentioned.   44.   In the Federal Council's view, the telephone monitoring had to occur at the beginning of the investigations before contacts were established with Y. and Z.   Thus, the civil servants concerned had not immediately examined the credibility of the informants as any further contact would have jeopardised the investigations.   45.   The Federal Council found that the applicant's phones had been monitored, not as those of a suspect, but as those of a "third person" within the meaning of S. 66 para. 1bis of the Federal Code of Criminal Procedure; conversations which he conducted as a lawyer had expressly been excluded.   As the applicant was not a civil servant, he could not have been the perpetrator of the offence.   His wife had been included in the theoretical circle of suspects, but there were no concrete suspicions either against her or against other persons.   The applicant's telephone monitoring thus neither amounted to a suspicion in the criminal sense nor was it conducted against unknown persons merely for the sake of appearances.   There were also no political motives, and the President of the Parliamentary Commission had not been in a position to influence the police investigations.   46.   The decision concluded that the conversations monitored had been irrelevant for the investigations, and no written record had been prepared.   In any event, even if such a record had been given to the Parliamentary Commission, it could not have been abused, as the Commission members were bound by the secret of office (Amtsgeheimnis).   h.    Administrative Law Appeal to the Federal Court   47.   Against the decision of the Federal Department of Justice and Police of 2 November 1992 (see above, para. 36), the applicant also filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court.   In his appeal he requested the Court to conclude that the telephone monitoring had been unlawful, and that for this reason criminal proceedings should be instituted against the persons concerned.   48.   On 8 March 1994 the Federal Court dismissed the applicant's administrative law appeal.   49.   The Court first dealt with the issue whether the applicant should have been permitted to consult the entire case-file during the proceedings before the Federal Department of Justice and Police.   The Court found that those parts of the document which had been essential for the decision (entscheidungswesentlich) had been shown to the applicant, and that it had been correct not to disclose the names of the informants; in the Court's opinion, this conclusion also corresponded with a decision of the Parliamentary Commission of Enquiry (see above, para. 16) to keep informants' names confidential.   Indeed, the applicant had been sufficiently able to file complaints on the basis of a partial consultation of the case-file (gestützt auf die ihm zugestellten "gestrippten" Akten).   50.   The Court then examined the issue whether criminal proceedings should be instituted in view of the monitoring of the applicant's telephones.   It found that it was not required conclusively (abschliessend) to examine the issue whether or not the telephone monitoring breached Article 8 of the Convention, inter alia, as the applicant had already filed a complaint with the Federal Council.   The Court considered that, based on information received from the President of the Parliamentary Commission of Enquiry, proceedings had been instituted on suspicion of a breach of official secrets.   There was a connection with the applicant's office in that a partner of his office had examined whether or not to take over the case.   The supposition of the Federal Attorney's Office, namely that the original informant or the disloyal civil servant would contact the applicant did not appear incorrect.   B.    Relevant domestic law   a.    Swiss Penal Code   51.   According to S. 320 para. 1 of the Penal Code (Strafgesetzbuch), whoever discloses a secret entrusted to him in his function as a civil servant is punishable with imprisonment or a fine.   S. 340 para. 1 (7) of the Penal Code determines the jurisdiction of the Federal Court (Bundesgericht) in respect of this offence.   b.    Federal Code of Criminal Procedure   52.   S. 66 para. 1 of the Federal Code of Criminal Procedure (Bundesstrafprozessordnung) envisages telephone monitoring if a person is suspected of a criminal offence.   53.   S. 66 para. 1bis of the Federal Code of Criminal Procedure states as follows:   <Translation>        "If the conditions concerning the accused or the suspect have      been met, third persons may also be monitored if it must be      assumed on the basis of certain facts that they will receive      certain messages from, or transmit such messages to, him.      Persons who according to S. 77 can refuse to give evidence shall      be excluded.   The telephone of third persons may always be      monitored if there is a well-founded suspicion that the accused      uses it."   <German>        "Sind die Voraussetzungen beim Beschuldigten oder Verdächtigen      erfüllt, so können Drittpersonen überwacht werden, wenn aufgrund      bestimmter Tatsachen angenommen werden muss, dass sie für ihn      bestimmte oder von ihm herrührende Mitteilungen entgegennehmen      oder weitergeben.   Ausgenommen sind Personen, die nach Art. 77      das Zeugnis verweigern dürfen.   Der Telefonanschluss von      Drittpersonen kann stets überwacht werden, wenn der Verdacht      begründet ist, dass der Beschuldigte ihn benutzt."   54.   According to S. 66 para. 1ter of the Federal Code of Criminal Procedure telephone recordings which are not necessary for the investigations are kept under lock and key (unter Verschluss) and are destroyed after the termination of the proceedings.   55.   S. 77 of the Federal Code of Criminal Procedure states:   <Translation>        "Clergy, lawyers, notaries, doctors, pharmacists, midwives and      their professional assistants shall not be ordered to give      evidence in respect of secrets which have been entrusted to them      officially or professionally."   <German>        "Geistliche, Rechtsanwälte, Notare, Ärzte, Apotheker, Hebammen      und ihre beruflichen Gehilfen dürfen über Geheimnisse, die ihnen      in ihrem Amte oder Berufe anvertraut worden sind, nicht zum      Zeugnis angehalten werden."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   56.   The Commission has declared admissible the applicant's complaints under Article 8 (Art. 8) of the Convention that his telephones were monitored; and under Article 13 (Art. 13) of the Convention that he had no effective remedy at his disposal to complain thereof.   B.    Points at issue   57.   Accordingly, the issues to be determined are:   -     whether there has been a violation of Article 8 (Art. 8) of the Convention; and   -     whether there has been a violation of Article 13 (Art. 13) of the Convention.   C.    As regards Article 8 (Art. 8) of the Convention   58.   Under Article 8 (Art. 8) of the Convention the applicant complains of the telephone monitoring which did not serve to clarify an alleged criminal offence, but to check on the behaviour of him and his wife in the course of the proceedings of the Parliamentary Commission of Enquiry.   59.   The applicant submits that the authorities only insufficiently examined the credibility of the information as to a breach of official secrets.   There were no indications as to the applicant's participation therein.   The duration of the monitoring was disproportionate, having commenced before it had been authorised by the President of the Indictment Chamber of the Federal Court and before the main informant Z. had been questioned.   The monitoring of all private and official telephone lines - even the secret line of his wife - and the disclosure by the Parliamentary Commission thereof to the public severely damaged the confidence placed in him by his partners, employees and clients.   60.   In the Government's submissions, due regard must be had to the political and legal framework of the case.   Reference is made in particular to the Parliamentary Commission of Enquiry.   It is further recalled that the US citizen X. tried all possible legal means to obtain the document of the Federal Department of Justice and Police; that the confidentiality of the proceedings had in fact been requested by US authorities; and that the President of the Parliamentary Commission of Enquiry had himself confirmed the credibility of the informants.   61.   Article 8 (Art. 8) of the Convention states, insofar as relevant:        "1.   Everyone has the right to respect for his private ... life      ... 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 in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."   62.   The Commission observes that altogether fourteen telephone lines of the applicant and his wife were monitored (see above, paras. 25 et seq.), among them the applicant's private telephone lines and the telephone lines of his law office and of his law partners.   63.   According to the Convention organs' case-law, telephone conversations are in principle covered by the notions of "private life" and "correspondence" within the meaning of Article 8 (Art. 8) of the Convention.   The right to respect for private life can furthermore be invoked in relation to telephone conversations conducted over office telephones (see Eur. Court HR, Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 52, para. 25;   Halford v. United Kingdom, Comm. Report 18.4.96, paras. 56 et seq.).   64.   Thus, the monitoring of the applicant's various telephone lines amounted to an interference with "right to respect for his private ... life ... and his correspondence" within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.   65.   The Commission must now examine whether the measure complained of was justified under Article 8 para. 2 (Art. 8-2) of the Convention. The question arises in particular whether the measure at issue was "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   66.   The applicant submits that the measure was not "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   According to SS. 66 para. 1bis and 77 of the Federal Code of Criminal Procedure, a lawyer may assume that his telephone and the telephones of his partners and other lawyers in his office are not monitored.   Article 8 (Art. 8) of the Convention prohibits telephone monitoring regardless of whether a written record is prepared.   The aim of the Federal Attorney's Office was to monitor a particular discussion between client and lawyer as well as all telephone conversations of a legal nature.   67.   The applicant contends that the Government's reference to the Swiss interception procedures does not alter the fact that when officials of the Swiss Postal Services listen in to telephone conversations, this constitutes an interference within the meaning of Article 8 (Art. 8) of the Convention.   In this respect it is irrelevant whether transcripts have been prepared, whether these transcripts still exist or whether they have been destroyed.   It is equally irrelevant whether the officials were instructed not to record conversations with lawyers, since they have first to be listened to before a decision is taken on their suitability for use as evidence.   In any event, the files given to the applicant for consultation in no way indicate that no transcripts were made or that they were destroyed.   68.   The Government contend that the interference at issue was justified under Article 8 para. 2 (Art. 8-2) of the Convention.   The lawfulness of the measure could not be called in question by the fact that the telephone monitoring did not confirm the original suspicions.   69.   The Government recall the practice of the Swiss authorities in such matters.   Thus, the decision of the Federal Attorney's Office to monitor a person's telephone is transmitted to the President of the Indictment Chamber of the Federal Court as well as to the Law Department of the General Directorate of the Swiss Federal Postal, Telephone and Telegraph Services.   The latter will then record the telephone conversations.   Specialised staff will listen to the tapes to determine any pertinent conversation in respect of the proceedings at issue.   If no pertinent conversations are conducted, no transcripts will be prepared, and no information on the conversation will be transmitted to the prosecuting authorities.   The recorded tapes are simply kept for ten days in case the authorities put further questions; if not, the recordings are deleted.   70.   The Government point out that in the present case the control of the monitored telephone conversations was personally entrusted to the head of the service concerned in Zurich.   Moreover, no recording was held back and transmitted to the Federal Attorney's Office; all recordings of the applicant's telephone conversations were deleted. The telephone monitoring of the applicant and his family thus remained within the legal framework of secrecy of the Swiss Postal, Telephone and Telegraph Services.   The rules at issue thus protected the applicant, as the Swiss authorities were prevented from learning, even by coincidence, of information which he was not obliged to give in view of this right to refuse to give evidence.   71.   The Government state that they are aware of the difficulties of distinguishing between telephone conversations conducted "with a lawyer" and those which are not.   However, this distinction is irrelevant in the present case as the applicant's telephone conversations were not transmitted to the Federal Attorney's Office.   72.   According to the Convention organs' case-law, the term "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention requires in particular that the contested measure should have some basis in domestic law (see Eur. Court HR, Kruslin v. France judgment, loc. cit., pp. 20 and 23, paras. 27 and 30, respectively).   Nevertheless, the scope of the Convention organs' power to review compliance with the relevant domestic legislation is limited under the Convention.   It is in the first place for the national authorities, notably the courts, to interpret and to apply the domestic law (see Eur. Court HR, Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 22, para. 48).   73.   In the present case, the applicant was not himself regarded as the possible perpetrator of a breach of official secrets.   Rather, it transpires from the Federal Council's decision of 30 June 1993 (see above, para. 45) that the telephone lines of the applicant were monitored as those of a "third person" within the meaning of S. 66 para. 1bis of the Federal Code of Criminal Procedure.   74.   However, in respect of "third persons" S. 66 para. 1bis of the Federal Code of Criminal Procedure expressly excludes the telephone monitoring of the persons referred to in S. 77 of that Code, in particular of "lawyers ... in respect of secrets which have been entrusted to them ... professionally" (see above, paras. 53 and 55).   75.   The question arises as to whether SS. 66 para. 1bis and 77 of the Federal Code of Criminal Procedure permitted in the applicant's case the monitoring of his telephone lines.   76.   The President of the Indictment Chamber who ordered the monitoring of the applicant's telephone lines, stated that "lawyers' conversations must be disregarded" (see above, para. 25).   The Federal Council, in its decision of 30 June 1993, interpreted this instruction to mean that conversations which the applicant had conducted as a lawyer were excluded from monitoring (see above, para. 45).   77.   Before the Commission the Government have explained the practice of the Swiss authorities in this respect.   Thus, the Swiss Postal Services will record the telephone conversations.   Specialised staff then listen to the tapes to determine any pertinent conversation in respect of the proceedings at issue.   If no pertinent conversations are conducted, no transcripts will be prepared, and no information on the conversation will be transmitted to the prosecuting authorities.   The recorded tapes are kept for ten days in case the authorities put further questions; if not, the recordings are deleted.   78.   The Government have emphasised that in the present case no recording of the applicant's telephone conversations was held back and transmitted to the Federal Attorney's Office; all recordings were deleted.   79.   In the Commission's opinion, the purpose of SS. 66 para. 1bis and 77 of the Federal Code of Criminal Procedure is to protect the professional relationship between, inter alia, the lawyer and his clients.   For an effective respect of this privileged relationship, it must be assumed that all telephone conversations from a lawyer's office are of a professional nature.   80.   The Commission cannot accept the interpretation by the authorities that SS. 66 para. 1bis and 77 of the Federal Code of Criminal Procedure permits them first to record, and listen to, a lawyer's telephone conversations and then to assess whether the conversations listened to are covered by professional secrecy.   81.   It follows that the measure was not "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   82.   It is therefore unnecessary further to examine whether or not the interference at issue was justified for other reasons within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        CONCLUSION   83.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 (Art. 8) of the Convention.     D.    As regards Article 13 (Art. 13) of the Convention   84.   The applicant complains under Article 13 (Art. 13) of the Convention that for two different reasons he had no effective remedy at his disposal to complain of the telephone surveillance.   85.   The applicant submits, first, that the Federal Department of Justice and Police and the Federal Council treated his complaint as a hierarchical complaint in respect of which they had no full powers of examination.   No authority examined his complaint in substance.   The Federal Council examined neither the legality nor the proportionality of the measure.   It has also not been examined whether the suspicion of a breach of official secrets could justifiably have been assumed, or continued to exist.   86.   In the applicant's view, the Federal Court's judgment of 8 March 1994 is irrelevant as those proceedings concerned the institution of criminal proceedings.   They did not concern the issue whether the administrative appeal before the Federal Council was an effective remedy within the meaning of Article 13 (Art. 13) of the Convention. The President of the Indictment Chamber of the Federal Court, on the other hand, when he authorised the telephone surveillance, only undertook a cursory examination of the matter.   87.   The applicant complains, secondly, that he could only consult certain documents of the case-file in part, and other documents not at all.   He refers inter alia to the letters rogatory, to various documents, including written records of the telephone surveillance, concerning X. and Y. and to the written records of the surveillance of his own telephones.   If the suspicion directed against him stemmed from third persons, he should have had the possibility of commenting on the credibility of the statements and the persons themselves.   As he could not do so, the remedy was ineffective.   It was irrelevant that the Federal Department of Justice and Police in its decision of 2 November 1992 did not rely on these documents as he had been deprived of the possibility to inform himself fully of the legality of the measure.   88.   The applicant submits that the documents which he could not consult constituted very important files which had to be consulted in order to lodge an effective remedy.   In particular, they would have helped in an assessment of the question whether it was necessary to order the telephone surveillance; whether the surveillance was properly carried out; and whether the applicant had sufficient opportunity to put forward his case.   Partial consultation did not suffice in his case.   The Government have admitted that they did not have the full file at their disposal; the applicant submits that the Federal Court was also not in possession of the full file.   89.   The Government refer to the Commission's case-law according to which the administrative appeal to the Federal Department of Justice and Police met the requirements of Article 13 (Art. 13) of the Convention (see No. 11811/85, Spillmann v. Switzerland, Dec. 8.3.88, D.R. 55 p. 182).   In any event, the procedure has to be considered as a whole.   In the present case the President of the Indictment Chamber of the Federal Court as well as the Federal Court in its judgment of 8 March 1994 examined the justification of the telephone surveillance.   90.   The Government further submit that the applicant was considered a "third person" for purposes of the criminal investigation and could not, therefore, have access to the entire case-file.   Indeed, the Parliamentary Commission of Enquiry aimed at protecting the informants. In the present case the applicant had access to all the documents enabling him effectively to file an appeal.   While the Government admit that they have not consulted all documents mentioned by the applicant, it is submitted that the applicant could consult all files directly relating to the telephone surveillance and even other documents. Finally, the Federal Court, which possessed the entire case-file, was able to conclude in its judgment of 8 March 1994, on the one hand, that the applicant had had access to all the pertinent documents in order effectively to file an appeal: and on the other that it appeared justified that informants' names remained confidential.   91.   Article 13 (Art. 13) of the Convention states:        "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."   92.   According to the Convention organs' case-law, where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress.   The authority referred to in this provision may not necessarily be a judicial authority but, if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (see Eur. Court HR, Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 42, para. 113).   93.   The Commission recalls its conclusion above that there has been a breach of Article 8 (Art. 8) of the Convention as regards the monitoring of the applicant's telephone lines (see above, para. 83).   94.   The Commission further notes