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