CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 27798/95                       by H. A.                       against Switzerland          The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs   J. LIDDY, President            MM    S. TRECHSEL                 M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 M. VILA AMIGÓ            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 27 June 1995 by H. A. against Switzerland and registered on 6 July 1995 under file No. 27798/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      4 April 1997 and the observations in reply submitted by the      applicant on 22 May 1997;        Having deliberated;        Decides as follows:     THE FACTS        The applicant, a Swiss citizen born in 1940, is a businessman residing in Berikon in Switzerland.   Before the Commission he is represented by Mr L.A. Minelli, a lawyer practising in Forch in Switzerland.        The facts of the case, as submitted by the parties, may be summarised as follows.     A.    Particular circumstances of the case        In 1981 the applicant imported depilatory equipment to Switzerland which he advertised in women's magazines.        On 12 October 1981 a woman from the then Soviet Embassy in Bern ordered by telephone a depilatory apparatus "Perma Tweeze" from the applicant.        This telephone conversation was monitored by the Swiss Federal Attorney's Office (Bundesanwaltschaft).   According to the Government, judicial investigations were at that time being undertaken against a member of the Soviet Embassy.   The applicant contests that such judicial investigations were pending, claiming there is no evidence herefor.        The Swiss Federal Attorney's Office then requested the Intelligence Service (Nachrichtendienst) of the police of the Canton of Zürich to investigate particulars of the applicant.        In the report of the Zürich police, it was stated that the applicant did business with air-spray-systems and had an entry in the commercial registry.   The report explained that "Perma Tweeze" was a battery-operated depilatory apparatus.   The Report included a prospectus of the apparatus.        On 24 December 1981, the Federal Attorney's Office prepared a card ("fiche") for its card-index on State protection (Staatsschutzkartothek) containing the applicant's particulars.   The card which contained two deleted passages ("...") stated:   <Translation>        "<from the Zürich intelligence service>: The identity of (the      applicant) as a contact person with the Russian Embassy according      to (...).   (The applicant) does business of different sorts with      the Air-Spray-System company.   Annex: Extract <from the      Commercial Register> and prospectus. (...)"   <Original>        "v. ND ZH: Ident. des A. als Kontaktperson zur Russ. Botschaft      gemäss (...).   A. betreibt Handel verschiedenster Art mit der Fa.      Air-Spray-Systems.   Beilage: HR-Auszug und Prospekt. (...)"        The card contained the number (1153:0) 614.   The figure 1 referred to "communist governed countries".   153 referred to the then Soviet Union.   0 referred to established espionage.   614 meant "various contacts with the Eastern Block".        In 1990 it became known to the public that such a card-index on State protection had been prepared, and various persons requested consultation of their card.   As a result, the Federal Council (Bundesrat) enacted in 1990 an Ordinance on the Handling of State Protection Files of the Confederation (Verordnung des Bundesrates über die Behandlung von Staatsschutzakten des Bundes).   The post of Special Delegate for State Protection Files (Sonderbeauftragter für Staatsschutzakten) was created.   In 1992 a Federal Act on Consultation of the Files of the Federal Attorney's Office was enacted providing, inter alia, that files no longer necessary for state protection activities are sent to the Federal Archives where they remain inaccessible for consultation for 50 years.        Upon the applicant's request, in 1990 the Special Delegate for State Protection Files transmitted to the applicant a photocopy of his card.        The applicant requested the Ombudsman of the Federal Attorney's Office to disclose the deleted passages.   The Ombudsman replied on 9 October 1990 that the deleted passage at the end of the card correctly suppressed the initials of the names of officers of the Federal Police who had obtained information of the entry.   The deleted passage in the entry itself referred to a technical surveillance measure in respect of which he, the Ombudsman, would advise the Special Delegate to disclose the information.        On 19 April 1991 the Special Delegate found on the basis of the 1990 Federal Ordinance that the deleted passage at the end containing the initials of names should not be disclosed.   The deleted passage in the entry itself contained information as to counter-intelligence should not be disclosed either.   The only words originally deleted and now to be disclosed was "according to the report (...)."        On 26 October 1991 the applicant filed a request with the Federal Finance Department (Eidgenössisches Finanzdepartement) for compensation.   The Department refused the request on 28 January 1992.        On 9 March 1992 the applicant filed an administrative action (verwaltungsrechtliche Klage) with the Federal Court, claiming compensation from the Swiss Confederation to the amount of 5,000 Swiss Francs (CHF) for the unlawful entry in the card-index of the Federal Attorney's Office.   The applicant also requested that his file and the card-index on his person should immediately be transmitted to the Federal Archives (Bundesarchiv) which were to be prohibited from preparing any copies thereof.   The Federal Archives were moreover to be ordered to store the material under lock and key and not to hand out any information without the applicant's consent.        On 14 September 1994 the Federal Court held a hearing at which the applicant spoke.   Following deliberations conducted in public, it dismissed the applicant's action on the same day.   The decision was served on 25 January 1995.        With regard to the issue of a legal basis for the information stored on the applicant, the Court referred first to SS. 66 et seq. of the Federal Code on Criminal Procedure which permitted the monitoring of telephone and postal communications and, as a result, its storing (see below, Relevant domestic law.)   The Court also noted that such interferences were justified in the case of offences against the State and State defense within the meaning of SS. 265 et seq. of the Swiss Penal Code.        As a further possible legal basis the Court referred to S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office (Bundesratsbeschluss betreffend den Polizeidienst der Bundesanwaltschaft; see below, Relevant domestic law). However, the Federal Court found it unnecessary to examine whether this provision sufficed as a legal basis since other grounds for granting compensation had not been met.   The decision continued:   <Translation>        "The plaintiff was registered in connection with the then      monitoring of telephone communications with the Soviet Embassy      for reasons of counter-intelligence.   As he had contact with a      male or female employee of the Soviet Embassy and as it was not      immediately clear that the 'Perma Tweeze Apparatus' which he sold      was a harmless depilatory instrument, the authorities correctly      undertook investigations as to his identity, his circumstances      and the 'Perma Tweeze Apparatus', and registered the result.   The      question arises whether the information may continue to be stored      after it apparently transpired that no criminal offence was being      prepared ...   The question need not be resolved since in any      event - as shall be demonstrated - no serious breach of      personality has resulted and no damage has been demonstrated."   <German>        "Der Kläger wurde im Zusammenhang mit der Spionageabwehr      dienenden damaligen Überwachung des Telefonverkehrs der      sowjetischen Botschaft erfasst.   Nachdem er mit einem oder einer      Angestellten der sowjetischen Botschaft Kontakt hatte und nicht      sogleich feststand, dass es sich bei dem von ihm vertriebenen      'Perma Tweez Gerät' um ein harmloses Epiliergerät handelte,      durften die Behörden über seine Identität, sein Umfeld und das      'Perma Tweez Gerät' nähere Abklärungen treffen und das Ergebnis      aufzeichnen.   Fraglich ist, ob die Aufzeichnungen weiter      aufbewahrt werden durften, nachdem sich offenbar herausgestellt      hatte, dass keine strafbare Handlung vorbereitet wurde ... Die      Frage braucht nicht beantwortet zu werden, da sich daraus - wie      sich zeigen wird - jedenfalls keine schwere Verletzung der      Persönlichkeit ergibt und kein Schaden geltend gemacht wird."        The Court further noted that the applicant had had the possibility of instituting proceedings in which he had contested certain data in the files of the Federal Attorney's Office or requested their amendment.        The Court then examined whether the seriousness of the violation warranted compensation.   It found that the mere circumstance that the applicant had been referred to as a "contact person with the Russian Embassy" could hardly imply a breach of his personality.   Indeed, there was no indication that the authorities considered the applicant to be a spy.   While the term "contact person with the Russian Embassy" could possibly imply that he had actually had regular contacts, this card, rather than being viewed on its own, had to be seen in the wider context of the whole case-file and the other circumstances of the case. The fact that no further entries were made permitted the conclusion that the authorities did not suspect the applicant of having unlawful contacts with the Soviet Embassy.   It could not be assumed either that the applicant had been observed on other occasions, or that the information stored had been passed on to other persons.   The judgment concluded that there was no serious breach of personality:   <Translation>        "on the whole the case-file on the plaintiff appears to have been      of little relevance, and there is nothing which would indicate      that his file specifically was in any way further handled or      unlawfully passed on."   <German>        "Insgesamt scheint das Dossier über den Kläger von geringer      Relevanz zu sein, und es weist nichts darauf hin, dass gerade      sein Dossier je in irgendeiner Weise weiterbearbeitet oder      unbefugterweise weiterverbreitet wurde."        In 1996 the applicant's card was removed from the central card- index and transferred to the Federal Archives where during 50 years there will be no access to it.     B.    Relevant domestic law        S. 2 of the Federal Council's Ordinance of 1958 on Police Services of the Federal Attorney's Office (Bundesratsbeschluss betreffend den Polizeidienst der Bundesanwaltschaft) provides that the police are competent to survey and prevent activities endangering the interior or exterior security of the Confederation.        S. 17 para. 3 of the Federal Code of Criminal Procedure (Bundesstrafprozessordnung), in force since 1945, grants the Federal Attorney's Office the necessary staff to obtain information necessary for the security of the Confederation.        According to S. 66 of the Federal Code, in force since 1975, postal and telephone communications of an accused or suspected person, or other persons standing in connection with them, may be monitored in order to investigate an offence against the State and State defence.        S. 66 para. 1 bis of the Federal Code, in force since 1992, postal and telephone communications of third persons may be monitored if the accused or suspected person would also meet the conditions herefor.   Moreover, the telephone of the third person may always be monitored if there is a suspicion that it would be used by the accused.        SS. 66 bis, ter and quater, in force since 1979, determine the procedure for the monitoring of such communications.   Thus, the investigating judge transmits his decision to monitor postal or telephone communications within 24 hours for approval to the President of the Indictment Chamber of the Federal Court.   After examining the decision, the President may approve or annul the decision.        On 16 March 1981 the Swiss Government adopted Directives on the Handling of Personal Data in the Federal Administration of 16 March 1981 (published in Official Journal <Feuille fédérale> 1981 vol. I, p. 1314).   These Directives 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.     COMPLAINTS   1.    The applicant complains of an interference with his right to respect for his private life under Article 8 of the Convention.   He submits that there was no legal basis either for the monitoring of his telephone conversation with the Soviet Embassy or for the preparation and storing of a card.   It was also disproportionate within the meaning of Article 8 para. 2 of the Convention to store such information about him on a card.   2.    The applicant further complains that he did not have an effective remedy at his disposal within the meaning of Article 13 of the Convention in that the Federal Court refused to grant compensation and even to state the unlawfulness of the measure.   It does not suffice, in the applicant's opinion, that he could institute proceedings in which he requested the amendment of certain facts mentioned on the card.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 June 1995 and registered on 6 July 1995.        On 17 January 1997 the Commission decided to communicate the applicant's complaints concerning Article 8 of the Convention to the respondent Government.        The Government's written observations were submitted on 4 April 1997.   The applicant replied on 22 May 1997.     THE LAW   1.    The applicant complains of an interference with his right to respect for his private life under Article 8 (Art. 8) of the Convention.   He submits that there was no legal basis either for the monitoring of his telephone conversation with the Soviet Embassy or for the preparation and storing of a card.   It was also disproportionate within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention to store such information about him on a card.        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."   a)    The Government contend that the applicant did not file his application with the Commission within six months as from the final decision, as required by Article 26 (Art. 26) of the Convention.   Thus, after the hearing on 14 September 1994 before the Federal Court, the judges deliberated in public and the tenor of the judgment was read out.   As the applicant only filed his application on 27 June 1995, he has not complied with the requirements under Article 26 (Art. 26) of the Convention.        The applicant replies that he could not follow the deliberations of the Federal Court in detail.   Thus, his hearing is reduced; moreover, while his knowledge of the French language is limited, two of the Federal Court judges sitting spoke in French.   Moreover, in the present case the actual reasons of the decision were only prepared many months after the oral deliberations of the judges.   The period to be considered under Article 26 (Art. 26) of the Convention therefore commenced on 25 January 1995 when the Federal Court's decision was served on the applicant.        Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter "within a period of six months from the date on which the final decision was taken."        According to the Convention organs' case-law, the object and purpose of Article 26 (Art. 26) of the Convention are best served by counting the six-month period as running from the date of service of the written judgment where there is an entitlement to be served ex officio under national law (see Eur. Court HR, Worm v. Austria judgment of 29 August 1997, to be published in Reports of Judgments and Decisions 1997, para. 33).        In the present case, the Federal Court's judgment of 14 September 1994 was served on the applicant on 25 January 1995.   His application was introduced within six months as from this date, i.e. on 27 June 1995.        The applicant's complaints cannot therefore be rejected for non- compliance with the time-limit stated in Article 26 (Art. 26) of the Convention.   b)    The Government contend that the application would in any event also be manifestly ill-founded.   On the one hand, the storing of the applicant's card does not amount to an interference with his rights under Article 8 para. 1 (Art. 8-1) of the Convention, as in 1996 it was removed from the central card index and transferred to the Federal Archives where it may not be consulted and there will not be any access to it for the next 50 years.        On the other hand, even if there had been an interference, the measure would in the Government's opinion be justified under Article 8 para. 2 (Art. 8-2) of the Convention.   The interference was "in accordance with the law" in that, before 1990, the situation was governed by   S. 17 para. 3 and SS. 66 et seq. of the Federal Code of Criminal Procedure, and by the Directives on the Handling of Personal Data in the Federal Administration of 16 March 1981.   After 1990, the situation was governed by the Ordinances on the Handling of State Protection Files of the Confederation and on the Consultation of Documents of the Public Prosecutor's Office and by the Federal Act on the Protection of Personal Data.        The Government moreover submit that the measure served the purpose   of national security within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, and could be considered "necessary in a democratic society" in view of the margin of appreciation left to the authorities. In particular, the applicant suffered no disadvantage whatsoever from the storing of the card.   The latter contained no sensitive information concerning his private life.   Moreover, the card- index in which the applicant's card was stored, was only consulted twice; in all probability, the applicant's card was never consulted.        The applicant replies that there is no guarantee that the waiting period of 50 years will actually be observed, since the legislator is quite free to abolish it wholly or in part.   He also contests that the card contained no sensitive information.   The fact the he was labelled a "Russian Embassy contact" actually amounted to a substantial threat for him.   Anybody who knows of this and for this reason does not establish business relations with him, will not tell him so.   Nowhere is it stated that every consultation of his card has been recorded, and it cannot be excluded that the Zürich cantonal police still have documents available that mention this alleged contact with the Embassy. In fact, the applicant is also complaining that a card was made out at all, which is in breach of Article 8 (Art. 8) of the Convention.        The applicant points out that the collecting of data was unlawful in itself.   S. 17 para. 3 of the Federal Code of Criminal Procedure, which only refers to offences that come under the jurisdiction of Federal criminal courts, does not contain a reference to the conditions for monitoring telephones and does not provide for sufficient measures to protect against abuse.   The Directives on the Handling of Personal Data in the Federal Administration of 16 March 1981, referred to by the Government, do not mention the actual conditions that would allow the authorities extensively to monitor telephone calls.   On the whole, there is no legal basis for the Government's interference with the applicant's private life.   As a result, it was a totalitarian practice to record and store trifling matters for decades.        The applicant fails to see why the ordering and delivery of a battery-operated depilatory device could adversely affect national security, as claimed by the Government.   Moreover, it cannot be said that the card contained no sensitive elements and did not cause any disadvantages.   It is only clear that no detrimental effects of the storing of the card have become known on the applicant's business or military circumstances.   The sole decisive factor is the principle of the informational right of self-determination, which prohibits government authorities from making recordings on any conversations between private individuals.        The Commission finds that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This aspect of the case cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   2.    The applicant complains that he did not have an effective remedy at his disposal within the meaning of Article 13 (Art. 13) of the Convention in that the Federal Court refused to grant compensation and even to state the unlawfulness of the measure.   It does not suffice, in the applicant's opinion, that he could institute proceedings in which he requested the amendment of certain facts mentioned on the card.        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."        The Commission finds that this complaint, which is closely related to the applicant's complaint under Article 8 (Art. 8) of the Convention, raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This aspect of the case cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.       M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber