CASE OF KOPP v. SWITZERLAND
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings
C. Russo
6. Mr Hans W. Kopp, a Swiss national born in 1931, was formerly a lawyer and lives in Zürich (Switzerland). 7. The applicant’s wife, Mrs Elisabeth Kopp, was a member of the Federal Council and head of the Federal Department of Justice and Police from 1984 until her resignation in January 1989. 8. On 28 February 1988 a Mr Hauser, a member of the law firm Kopp & Partners, was asked by a client to verify the legality of a request for judicial assistance sent to Switzerland by the United States authorities concerning a tax matter. After studying the file, Mr Hauser declined to accept the work, referring to a standing instruction to members of the applicant’s firm to refuse all cases concerning the Federal Department of Justice and Police, for which his wife was at that time responsible. The file was accordingly transferred to the law firm Niederer, Kraft & Frey in Zürich. 9. On 10 June 1988 Niederer, Kraft & Frey asked the Federal Office of Police if they could inspect the letter of request. On 23 August 1988 the Federal Office sent the firm an abridged (gestrippte) version of the document, withholding a confidential section which concerned organised crime. 10. In November 1988, in a separate development, the media reported allegations that a company, Shakarchi Trading AG, and Mr Kopp, who was at the relevant time the vice-chairman of its board of directors, were implicated in money laundering. At the end of 1988 Mr Kopp lodged a complaint against a newspaper. 11. At his wife’s request, the applicant had resigned as vice-chairman of the board in October 1988. His wife then came under suspicion of disclosing confidential information obtained in an official capacity. As her husband was also suspected of other offences, she was obliged to resign. 12. On 31 January 1989 the Swiss parliament set up a parliamentary commission of inquiry to look into the way Mrs Kopp had performed her duties, and the circumstances of her resignation. 13. In February 1989 the chairman of the parliamentary commission of inquiry, Mr Leuenberger, was informed that a Mr X, an American citizen, had obtained from the applicant a document which the Federal Office of Police and the Federal Court had refused to communicate to him, in exchange for a payment of 250,000 Swiss francs. Mr Leuenberger was given this information by a Mr Y, who had himself obtained it from the initial informant, a Mr Z. 14. It subsequently transpired that Mr X was named in the American letter of request, which contained confidential information about his role in organised crime. Suspicion therefore arose that a member of the Federal Department of Justice and Police might have passed on confidential documents relating to the request, thus breaching the duty not to disclose official secrets. 15. On 21 November 1989 the Federal Public Prosecutor opened an investigation against a person or persons unknown in order to question the informant Y and to identify the person working at the Federal Department of Justice and Police who might have disclosed official secrets. 16. He also ordered monitoring of the telephone lines of the informants Y and X, and of those of Mr Kopp and his wife. The applicant was monitored as a “third party”, not as a suspect. 17. The monitoring began on 21 November 1989 and ended on 11 December 1989. 18. On 23 November 1989 the President of the Indictment Division of the Federal Court allowed an application by the Federal Public Prosecutor for monitoring of thirteen telephone lines in total, including the applicant’s private and professional lines and those of his wife, and in particular a secret line allocated to her as a former member of the Federal Council. The order expressly mentioned that “the lawyers’ conversations [were] not to be taken into account”. 19. On 24 November 1989 the parliamentary commission of inquiry published its report. It concluded that Mrs Kopp had performed her duties with competence, diligence and circumspection, and that the rumours to the effect that she had allowed external influences to affect the way she performed her duties were unfounded. In February 1990 the Federal Court acquitted Mrs Kopp of disclosing official secrets. 20. On 1 December 1989 the Federal Public Prosecutor’s Office interviewed the informant Y, in the presence of the chairman of the parliamentary commission, Mr Leuenberger. 21. On 4 December 1989 Mr Leuenberger contacted the informant Z, who was interviewed by the Federal Public Prosecutor’s Office on 8 December. 22. On 12 December 1989, having concluded that the suspicions regarding the disclosure of official secrets were unfounded, the Federal Public Prosecutor’s Office discontinued monitoring of all Mr and Mrs Kopp’s telephone lines. 23. On 14 December 1989 the Federal Public Prosecutor’s Office submitted its final report on the investigation, which stated that in 1988 Mr Hauser had passed on to the firm of Niederer, Kraft & Frey a file relating to the letter of request (see paragraph 8 above) and that there was no evidence that the applicant and his wife had been directly involved in that case. 24. On 6 March 1990 the Federal Public Prosecutor’s Office decided to close the investigation, on the ground that there was no evidence to corroborate the suspicions that the applicant’s wife or a member of the Federal Department of Justice and Police had disclosed official secrets, namely certain passages of the letter of request which had been classified as confidential. 25. In a letter of 9 March 1990 the Federal Public Prosecutor’s Office informed Mr Kopp that a judicial investigation had been opened, pursuant to Articles 320 and 340 § 1 (7) of the Criminal Code (see paragraph 34 below), in connection with the suspected disclosure of official secrets, and that his private and professional telephone lines had been tapped, in accordance with sections 66 et seq. of the Federal Criminal Procedure Act (see paragraphs 35–38 below). The letter stated that the monitoring had lasted from 21 November to 11 December 1989 and that “conversations connected with his professional activities as a lawyer [had not been] monitored”. It also stated that, pursuant to section 66(1 ter) of the Federal Criminal Procedure Act, all the recordings had been destroyed. 26. On 12 March 1990 the parliamentary commission of inquiry issued a communiqué concerning the monitoring of Mr Kopp’s telephone lines in connection with the judicial investigation concerning him. It stated in particular: “In the course of its inquiries, in connection with which it obtained authorisation to intercept telephone communications, the [Federal] Public Prosecutor’s Office discovered that the American citizen’s Swiss representatives had tried to obtain the confidential document in the file by applying to [the applicant]. They were hoping for privileged access to the Federal Department of Justice and Police on account of the fact that he was the husband of the Federal Councillor then responsible for that Department. For a fee, a lawyer from [the applicant]’s law firm studied the file in order to decide whether to take on the case, but turned it down. An attempt was then made to obtain the confidential part of the file through another lawyer. The American letter of request was in the end disclosed, but only after the confidential passages had been blotted out. On the basis of these findings, the Federal Public Prosecutor’s Office discontinued the investigation… The suspicion that there had been a disclosure of official secrets thus proved to be unfounded. The police investigation did, however, reveal how the rumour that led to the information and the suspicion arose.” 27. On 13 March 1990 a number of Swiss newspapers commented on the above communiqué. They mentioned the applicant among the persons implicated and mentioned that telephones had been tapped. 28. On 10 April, 3 September and 10 October 1990 Mr Kopp lodged complaints with the Federal Department of Justice and Police about breaches of the legislation on telephone tapping and of Article 8 of the Convention. 29. On 2 November 1992 the Federal Department dismissed the applicant’s complaints. Considering that they were to be classified as complaints to a higher authority, it refused him unrestricted access to his file. 30. On 2 December 1992 Mr Kopp lodged an administrative appeal with the Federal Council against the decision taken on 2 November 1992 by the Federal Department of Justice and Police. He complained, among other matters, of unlawful telephone tapping and of the refusal to give him free access to the file. Under the heading “Violation of Article 8 of the Convention”, he made the following submission in particular: “In that context, it should also be noted that the telephone lines of [the applicant]’s law firm, which included a number of partners, were tapped. Section 66(1 bis) of the Federal Criminal Procedure Act expressly prohibits the interception of such telephone conversations. Interception of telephone conversations with [the applicant]’s law firm was therefore likewise illegal under the above-mentioned provision of Swiss law.” 31. On 30 June 1993 the Federal Council dismissed the administrative appeal. It observed that, where telephone tapping was concerned, a complaint to a higher authority, even one which had no basis in law, was to be treated as a normal administrative appeal. It held that it had jurisdiction to determine whether monitoring of the applicant’s telephone lines had been unlawful, whether that measure had been in breach of the Convention and whether the applicant’s right to inspect his file had been infringed. If his personal rights had been infringed, the applicant could claim damages. He could also rely on the Federal Council’s decision in order to seek redress (Genugtuung) from the Federal Court. The Federal Council considered that the applicant should have access only to those documents in the file which were directly relevant to the fact that he had had his telephone tapped as a “third party”. It noted that he had had restricted access to the documents, some of which had been censored, particularly as regards the informants’ names. Others, which concerned, for instance, the telephone tapping, had not been made available to him, but he had been orally informed of their existence and content. Several documents concerning third parties had not been handed over to him because their interests prevailed over his. According to the Federal Council, section 66 of the Federal Criminal Procedure Act authorised monitoring the telephones of third parties, such as the applicant, if there was evidence giving rise to a presumption that they were receiving information from an offender or imparting information to him. It considered that in the period of general uncertainty due to rumours of subversion which had then obtained (eine durch Unterwanderungsgerüchte verunsicherte Zeit) there had been specific evidence pointing to a disclosure of official secrets by someone within the Federal Department of Justice and Police. The document in question contained confidential information about which guarantees had been given to the United States. The credibility of Switzerland had therefore been at stake. An apparent risk had been identified when the name of the applicant, who was the husband of the former head of the Department of Justice and Police, was mentioned. According to the Federal Council, it had been necessary to tap the telephone lines at the beginning of the investigation, before contacts were established with Mr Y and Mr Z. The civil servants concerned had therefore not immediately looked into the informants’ credibility, considering that any further contact would have compromised the investigation. The Federal Council observed that the applicant had had his telephone tapped not as a suspect but as a “third party” within the meaning of section 66(1 bis) of the Federal Criminal Procedure Act. The conversations he had had in the capacity of lawyer had been expressly excluded. As he was not a civil servant, he could not have been guilty of the offence concerned. His wife had been one of the theoretically possible suspects, but there was no real evidence implicating her or anyone else. The fact that the applicant’s telephone lines had been monitored did not mean, therefore, that he had been under suspicion in the criminal sense. Moreover, the fact that the police investigation had been initiated in respect of “a person or persons unknown” was not simply a ploy to preserve appearances. Lastly, the investigation had not been ordered for political reasons and the chairman of the parliamentary commission had not been in a position to influence it. In conclusion, the Federal Council observed that the conversations recorded had been of no interest to the investigators and no report on them had been made. Be that as it may, even if such a report had been sent to the parliamentary commission, it could not have been used improperly because its members were bound by the duty not to disclose official secrets. 32. The applicant also lodged with the Federal Court an administrative-law appeal against the decision taken on 2 November 1992 by the Federal Department of Justice and Police (see paragraph 29 above). He asked the Federal Court to rule that the telephone tapping had been unlawful and accordingly to order the institution of criminal proceedings against those responsible. 33. On 8 March 1994 the Federal Court gave judgment against the applicant. It first considered whether he should have been permitted to inspect the whole of the file when the case had been brought before the Federal Department of Justice and Police. It noted that he had been able to inspect those passages in the document which had determined the decision (entscheidungswesentlich) and that the decision not to disclose the informants’ names had been justified. It held that the above conclusion was also consistent with the parliamentary commission of inquiry’s decision to guarantee the informants’ anonymity. Moreover, on the basis of even a partial inspection of the file (gestützt auf die ihm zugestellten “gestrippten” Akten), the applicant had been able to lodge appeals. The Federal Court then considered whether criminal proceedings should be brought in connection with the monitoring of the applicant’s telephone lines. It held that it was not required to provide a conclusive (abschliessend) answer to the question whether the telephone tapping constituted a violation of Article 8 of the Convention, having regard in particular to the fact that the applicant had already appealed to the Federal Council. It noted that criminal proceedings had been instituted for a presumed disclosure of official secrets on the basis of information passed on by the chairman of the parliamentary commission of inquiry. The applicant’s firm was involved inasmuch as one of his partners had looked into the case in order to decide whether he should take it on. The presumption by the Federal Public Prosecutor’s Office that the first informant or the disloyal civil servant would contact the applicant did not seem to have been wholly unjustified. 34. Under Article 320 § 1 of the Swiss Criminal Code, any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine. Under Article 340 § 1 (7), the offence comes under the jurisdiction of the Federal Court. 35. The relevant provisions of the Federal Criminal Procedure Act (“the FCPA”), in the version of 23 March 1979, which was in force at the material time, were worded as follows: “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications… 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. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt. … 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 telecommunications…” “Clergymen, lawyers, notaries, doctors, pharmacists, midwives, and their auxiliaries, cannot be required to give evidence about secrets confided to them on account of their ministry or profession.” 36. By the Telecommunications Act of 21 June 1991, which has been in force since 1 May 1992, the following relevant provisions were supplemented as follows (new text shown in italics): “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications if (a) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention; 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. … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused. …” 37. By the Federal Law of 4 October 1991, which has been in force since 15 February 1992, the following relevant provisions were amended as follows: “1. The investigating judge shall inform the person concerned, within thirty days of the close of the proceedings, of the reasons for the monitoring carried out, the means employed and its duration. …” “… 3. Sections 66 to 66 quinquies shall be applicable by analogy.” 38. In the opinion of academic writers, information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege (see, for example, G. Piquerez, Précis de procédure pénale suisse, Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “Le secret professionnel de l’avocat selon l’article 321 CP”, Semaine judiciaire, Geneva, 1993, pp. 85–87). 39. Thus, in a judgment of 29 December 1986 (see ATF [Judgments of the Swiss Federal Court] 112 lb 606), the Federal Court held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds. In another judgment, of 16 October 1989, the Federal Court similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence (ATF 115 la 197). In a case where a lawyer had complained of a seizure of documents, the Federal Court, after considering the complaint in the particular light of Article 8 of the Convention, once again upheld that case-law on 11 September 1991 (ATF 117 la 341). Similarly, in connection with medical confidentiality, the Federal Court has held that information imparted to a doctor in his private capacity is not protected by professional privilege (ATF 101 la 10, judgment of 5 February 1975).