CASE OF AMANN v. SWITZERLAND
Violation of Art. 8 with regard to interception of telephone call;Violation of Art. 8 with regard to creation and storing of information card;Preliminary objection dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
Elisabeth Palm;Gaukur Jörundsson
7. The applicant, who was born in 1940, is a businessman living in Switzerland. In the early 1980s he imported depilatory appliances into Switzerland which he advertised in magazines. 8. On 12 October 1981 a woman telephoned the applicant from the former Soviet embassy in Berne to order a “Perma Tweez” depilatory appliance. 9. That telephone call was intercepted by the Federal Public Prosecutor’s Office (Bundesanwaltschaft – “the Public Prosecutor’s Office”), which then requested the Intelligence Service of the police of the Canton of Zürich to carry out an investigation into the applicant and the goods he sold. 10. The report drawn up by the police of the Canton of Zürich in December 1981 stated that the applicant, who had been registered in the Commercial Registry since 1973, was in the aerosols business. It stated that “Perma Tweez” was a battery-operated depilatory appliance; a leaflet describing the appliance was appended to the report. 11. On 24 December 1981 the Public Prosecutor’s Office drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the Canton of Zürich. 12. In 1990 the public learned of the existence of the card index being kept by the Public Prosecutor’s Office and many people, including the applicant, asked to consult their card. 13. Various laws on accessing and processing the Confederation’s documents were then enacted. 14. On 12 September 1990 the special officer in charge of the Confederation’s national security documents (“the special officer”) sent the applicant, at his request, a photocopy of his card. 15. The applicant’s card, which was numbered (1153 : 0) 614 and on which two passages had been blue-pencilled ..., contained the following information: “from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to ... . A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...” 16. As soon as he received his card, the applicant asked the Ombudsman at the Public Prosecutor’s Office to disclose the blue-pencilled passages. 17. On 9 October 1990 the Ombudsman replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card. The other censored passage related to a technical surveillance measure ordered against a third party; the Ombudsman stated that he would be recommending that the special officer disclose that information, since – in his view – the applicant’s interest prevailed over the public interest in keeping it secret. 18. On 19 April 1991 the special officer decided, on the basis of Article 5 § 1 of the Order of 5 March 1990 on the Processing of Federal National Security Documents, that the initials at the end of the card could not be disclosed. He also considered that the other censored passage contained counter-intelligence which, pursuant to Article 5 § 3 (a) of the Order, should not be disclosed. On the basis of those considerations, the disclosure of the applicant’s card was extended to one word (“report”): “from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to report ... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...” 19. On 26 October 1991 the applicant filed a request for compensation with the Federal Department of Finance. His request was refused on 28 January 1992. 20. On 9 March 1992 the applicant filed an administrative-law action with the Federal Court claiming compensation from the Confederation of 5,000 Swiss francs for the unlawful entry of his particulars in the card index kept by the Public Prosecutor’s Office. He also requested that his file and card be sent immediately to the Federal Archives with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement. 21. On being invited to submit its written observations, the Confederation stated, in its memorial of 26 May 1992, that according to the information provided by the Public Prosecutor’s Office and the special officer the record of the surveillance was no longer in the federal police’s files. It pointed out in that connection that, pursuant to section 66(1 ter) of the Federal Criminal Procedure Act (“FCPA”), documents which were no longer necessary had to be destroyed (“Das Protokoll der technischen Ueberwachung ist gemäss Auskunft der Bundesanwaltschaft und des Sonderbeauftragten ... in den Akten der Bundespolizei nicht mehr vorhanden. In diesem Zusammenhang ist anzumerken, dass nicht mehr benötigte Akten gemäss Art. 66 Abs. 1ter BStP ... vernichtet werden müssen”). 22. The Federal Court held hearings on 27 October 1993 and 14 September 1994. The applicant’s lawyer pointed out that the case number of the card, namely (1153 : 0) 614, was a code meaning “communist country” (1), “Soviet Union” (153), “espionage established” (0) and “various contacts with the Eastern bloc” (614). The Confederation’s representative stated that where someone (jemand) at the former Soviet embassy was under surveillance, on every telephone call both parties to the conversation were identified, a card drawn up on them and a telephone monitoring report (Telefon-Abhör-Bericht) made. In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags; the intention had been to destroy them as well, but when the post of special officer had been instituted everything had had to be maintained “in its present state”. She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed. According to information she had received from the special officer, the reports had not been sorted and it would require about five people and one year’s work to examine the contents of all the bags still in existence. 23. In a judgment of 14 September 1994, which was served on 25 January 1995, the Federal Court dismissed all the applicant’s claims. 24. Regarding the issue whether there was a legal basis for the measures complained of, the Federal Court referred first to section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office. However, it considered it unnecessary to examine whether those provisions could have provided a lawful basis for the alleged infringement of the applicant’s personality rights, since one of the conditions for awarding compensation had not been met. 25. The court then referred to sections 66 et seq., and particularly section 72 FCPA on the monitoring of telephone communications and postal correspondence, and to Articles 265 et seq. of the Criminal Code, which govern “crimes or major offences against the State,” and reiterated that information could lawfully be gathered – even before a prosecution was brought – in order to prevent an offence being committed against the State or national security if there was evidence that such an offence was being prepared. 26. In that connection the Federal Court found: “... a card was drawn up on the plaintiff in connection with the then monitoring of telephone communications with the Soviet embassy for counter-intelligence reasons. As he had contacts with a male or female employee of the Soviet embassy and it was not immediately clear that the ‘Perma Tweez’ appliance which he sold was a harmless depilatory instrument, the authorities acted correctly in investigating his identity, his circumstances and the ‘Perma Tweez’ appliance in question and recording the result.” 27. The Federal Court held, however, that it did not have to rule on whether those provisions, particularly section 66(1 ter) FCPA, allowed the information thus obtained to be kept after it had become apparent that no criminal offence was being prepared (“Fraglich ist, ob die Aufzeichnungen weiter aufbewahrt werden durften, nachdem sich offenbar herausgestellt hatte, dass keine strafbare Handlung vorbereitet wurde”), since the applicant had not suffered a serious infringement of his personality rights. 28 29. Lastly, the Federal Court held that the applicant’s administrative-law action, which he had filed with it on 9 March 1992, was an “effective remedy” within the meaning of Article 13 of the Convention. It also pointed out that the applicant could have instituted proceedings challenging certain data in the Public Prosecutor’s card index and requesting that they be amended. In that connection the Federal Court referred to, inter alia, the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration (section 44), to the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 7 § 1) and to the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 11 § 1). 30. In 1996 the applicant’s card was removed from the card index and transferred to the Federal Archives where it cannot be consulted for fifty years. 31. The relevant provisions of the Federal Constitution in force at the material time were worded as follows: “The powers and duties of the Federal Council, as referred to in the present Constitution, are the following, among others: ... 9. It shall ensure that Switzerland’s external security is protected and its independence and neutrality maintained; 10. It shall ensure that the Confederation’s internal security is protected and that peace and order are maintained; ...” 32. The relevant provisions of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office are worded as follows: “The Police Service of the Federal Public Prosecutor’s Office (Federal Police) shall provide an investigation and information service in the interests of the Confederation’s internal and external security. That service shall comprise: 1. The surveillance and prevention of acts liable to endanger the Confederation’s internal or external security (police politique); 2. Police investigations in the prosecution of offences against the internal or external security of the Confederation (police judiciaire).” 33. The relevant provisions of the Federal Criminal Procedure Act in force at the material time were worded as follows: “… 3. The Federal Public Prosecutor’s Office shall be provided with the personnel necessary to enable it to run a uniform investigation and information service in the interests of the Confederation’s internal and external security. The Public Prosecutor’s Office shall, as a general rule, act in concert with the relevant police authorities of the cantons. It shall in each case inform those police authorities of the results of its investigations as soon as the aim of and stage reached in the proceedings make it possible to do so.” “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telephone and telegraphic telecommunications if (a) the criminal proceedings concern a crime or major offence whose seriousness or particular nature justifies intervention or a punishable offence committed by means of the telephone; and if (b) specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if (c) without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results. 1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him ... The telephone connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused. 1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings.” “1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division. 2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division. 3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.” “1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision. 2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.” “1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began or, where the period of validity has been extended, before the further period begins. 2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.” “1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telephone and telegraphic communications and prescribe the use of technical appliances... 2. He may also order those measures in order to prevent the commission of a punishable offence justifying such intervention where particular circumstances give rise to the presumption that such an offence is being prepared. 3. Sections 66 to 66 quater shall be applicable by analogy.” 34. The relevant provisions of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration are worded as follows: “411. There must be a legal basis for the processing of personal data. 412. Personal data may be processed only for very specific purposes. The data and technique used to process them must be appropriate and necessary to the performance of the task to be carried out. 413. Inaccurate or incomplete data must be rectified having regard to the purpose of the processing. 414. Data which are of no foreseeable further use or which have evidently been processed illegally must be destroyed. The obligation to store them in the Federal Archives is reserved. ...” “431. As regards personal data files the federal offices and other administrative units having the same status must take the necessary measures to ensure that they can supply information on the legal basis and aim of the files, the nature of the processed data and the lawful recipients thereof to anyone requesting the same. 432. On request, they must indicate in a comprehensible manner to anyone who has disclosed his identity whether – and which – data on him from a particular file have been processed. ...” “If it emerges, on a request, that the data on the person making the request are inaccurate or incomplete, or inappropriate to the purpose for which they have been recorded, or that processing is illegal for another reason, the organ in question must rectify or destroy such data immediately, and at the latest when the file is next accessed.” 35. The relevant provisions of the Federal Council’s Order of 5 March 1990 on the Processing of Federal National Security Documents are worded as follows: “1. The present Order shall guarantee that persons in respect of whom the federal police possess documents compiled on grounds of national security can defend their personality rights without hindering the performance of national security tasks. 2. Federal documents compiled on grounds of national security shall be placed in the custody of a special officer...” “1. The special officer shall have custody of all documents belonging to the Police Service of the Federal Public Prosecutor’s Office. 2. He shall then sort the documents and withdraw those which serve no further purpose...” “1. The special officer shall allow applicants to consult their cards by sending them a photocopy thereof. 2. He shall conceal data relating to persons who have processed the cards and to foreign intelligence and security services. 3. Furthermore, he may refuse or restrict the consultation if it (a) reveals details of investigative procedures in progress or of knowledge relating to the fight against terrorism, counter-intelligence or the fight against organised crime; ...” “1. The ombudsman appointed by the Federal Council shall examine, at the request of the person concerned, whether the present Order has been complied with. …” “1. Anyone claiming that his request to consult his card has not been dealt with in accordance with the present Order may contact the ombudsman within thirty days. 2. If the ombudsman considers that the Order has been complied with, he shall inform the applicant accordingly. The applicant may lodge an appeal with the Federal Council within thirty days of receiving the ombudsman’s decision. 3. If the ombudsman considers that the Order has not been complied with, he shall inform the special officer and the applicant accordingly. The special officer shall then give a fresh decision, which is subject to appeal.” 36. The relevant provisions of the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office provide: “1. Authorisation to consult documents shall be granted to persons who submit a prima facie case that they have sustained pecuniary or non-pecuniary damage in connection with information transpiring from documents held by the Police Service or with acts by officers of the Federal Public Prosecutor’s Office. …” “1. The special officer shall sort the documents placed in his custody and eliminate those which are no longer necessary for national security and are no longer the subject of a consultation process. 2. Documents relating to criminal proceedings shall be eliminated if (a) the time-limit for prosecuting the offence has expired following a stay of the proceedings; (b) the proceedings have been closed by an enforceable judgment. 3. The eliminated documents shall be stored in the Federal Archives. They can no longer be consulted by the authorities and access to them shall be prohibited for fifty years.” 37. The relevant provisions of the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office are worded as follows: “1. A person who contests the accuracy of certain data may request that an appropriate annotation be marked on the documents or appended thereto. 2. Documents which are manifestly erroneous shall be rectified at the request of the person concerned. ...” 38. A Parliamentary Commission of Inquiry (“PCI”) was set up to investigate the so-called “card index” affair. In its report published in the Federal Gazette (Feuille fédérale (FF) 1990, I, pp. 593 et seq.) it noted, among other things, in connection with the monitoring of telephone conversations (pp. 759 and 760): “According to various sources, a number of people feared that their telephone conversations were being monitored for political reasons. The PCI has conducted a thorough examination of the technical surveillance measures ordered by the Federal Public Prosecutor’s Office. In the course of that examination it requested from the Federal Public Prosecutor’s Office a full and detailed list of the persons whose telephones were tapped and the telephone connections which were monitored; that list was then compared with the list requested independently from the Post, Telecommunications and Telegraph Office. The PCI was then able to satisfy itself, partly with the help of certain documents and also following an interview with the President of the Indictment Division of the Federal Court, that there were no differences between the lists drawn up by the authorities ordering the telephone tapping and the authorities implementing those orders. ... The federal investigating judge and, before the preliminary investigation begins, the Federal Public Prosecutor have power to order a surveillance measure. A decision taken to this effect is valid for no more than six months but may be extended if necessary. It requires in all cases the approval of the President of the Indictment Division of the Federal Court. That approval procedure has been considerably formalised over recent years and is now applied by means of a pre-printed form. The PCI noted that all decisions had been submitted to the President of the Indictment Division and that he had approved all of them without exception...”