.CE
AS TO THE ADMISSIBILITY OF
Application No. 12708/87
by Rudolf ROHR
against Switzerland
.NC
The European Commission of Human Rights sitting in private
on 7 October 1987, the following members being present:
MM. C.A.NØRGAARD, President
S. TRECHSEL
F. ERMACORA
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 30 January 1987 by
Rudolf ROHR against Switzerland and registered on 13 February 1987 under file
N° 12708/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised a follows:
The applicant, a Swiss citizen born in 1939, is a journalist
residing in Richterswil, Switzerland. Before the Commission he is
represented by Professor Nobel, a lawyer practising in Zurich.
I.
In 1982 altogether ten Soviet prisoners-of-war who had fought
in Afghanistan were brought to Switzerland where, upon request of the
International Committee of the Red Cross (ICRC), they were interned in
a camp which normally serves as a Swiss military prisoners' camp
(Militärstraflager). The camp is situated in a recreational area
which is popular among the residents of Zug and its vicinity. A
public road as well as generally accessible paths for pedestrians and
a cross country skiing track lead past part of the camp.
In 1983, one of the interned Russian soldiers fled from the
camp and left Switzerland. In 1984, after two years, the ICRC and the
Swiss Department of Foreign Affairs planned to repatriate to the
Soviet Union three more prisoners-of-war, whereupon a public
discussion commenced upon these occurrences.
II.
On 19 March 1984 the Swiss weekly magazine "Schweizer
Illustrierte" published, on pp. 14-20, interspersed with
advertisements, an article which had as title a quote from a renowned
British human rights' specialist, i.e.: " 'At home the chaps are
awaiting death' " (" 'Die Burschen erwartet zu Hause der Tod' "). The
cover page of the issue which depicted Donald Duck announced on the
top right hand corner the article with the lines: "Zugerberg-Russians-
Scandal for Switzerland?" ("Zugerberg-Russen-Skandal für die Schweiz?").
The article was written by the applicant and illustrated with
eight photographs which he had contributed together with three other
photographers. The article gave the particulars of the remaining nine
prisoners-of-war and generally explained their situation, their daily
routine as well as the precautions taken by the authorities to prevent
them from escaping. The article also cited a Soviet dissident and
other persons and organisations as to the future prospects of the
soldiers after their repatriation. The photographs disclosed as
follows:
- on page 14: the entrance of the camp with a watch tower and a
warning sign stating that the camp was a closed area (Sperrgebiet) and
that it was prohibited to take photographs;
- on page 15: three interned soldiers at work cutting timber.
The text to this photograph stated that it had been taken secretly
("heimlich fotografiert");
- on pages 16-17: interned soldiers setting out to work and
guarded by Swiss soldiers;
- on page 17: two unfocussed photos apparently depicting the
recreational area in the camp building as well as photos of the
soldier who escaped and of a Soviet dissident;
- on page 18: a view of the camp from the distance.
III.
On 16 February 1984 the Zug Cantonal Police reported the
applicant on the ground of a breach of military secrets according to
Article 329(1) of the Swiss Criminal Code. The applicant was charged
with having photographed and filmed since 26 January 1984 together
with other persons in the Zugerberg camp within a military closed
area. Section 329 states:
"Breach of Military Secrets
1. Whosoever unlawfully penetrates into institutions or
other localities access to which is prohibited by the military
authority, or depicts military institutions or objects, or
mimeographs or publishes such pictures, will be punished by
detention or a fine.
2. Attempt and abetment are punishable.
Verletzung militärischer Geheimnisse
1. Wer unrechtmässig in Anstalten oder andere Örtlichkeiten
eindringt, zu denen der Zutritt von der Militärbehörde
verboten ist, militärische Anstalten oder Gegenstände
abbildet, oder solche Abbildungen vervielfältigt oder
veröffentlicht, wird mit Haft oder mit Busse bestraft.
2. Versuch und Gehilfenschaft sind strafbar."
The Federal Attorney's Office (Bundesanwaltschaft) referred
the case in respect of the report of 16 February 1984 to the Zug
authorities and, after the article was published in the "Schweizer
Illustrierte", also in that respect.
On 2 May 1985 the Police Judge's Office (Polzeirichteramt) of
the Canton of Zug convicted the applicant of a breach of military
secrets according to Article 329(1) and imposed a fine of 300 SFr.
According to the Police Judge's Office, it had been established
that photographs had been published in the "Schweizer Illustrierte" of
the camp of Zugerberg and that the applicant was mentioned as
author of the article and as one of the photographers.
The purpose of Article 329 was to screen (abschirmen), inter
alia, preliminary areas of military secrets (Vorfeld militärischer
Geheimnisse), namely military areas and objects which, while not being
of a confidential character within the meaning of the Military
Criminal Code, nevertheless required in the interests of national
defence that their existence and outline etc. were not accessible to
everybody. The photographs at issue did not depict military secrets.
Nevertheless, the military authorities, in the interests of national
defence, attributed to the area and the objects concerned a certain
protection from mass publicity.
The applicant's appeal was dismissed by the Zug Criminal Court
(Strafgericht) on 18 November 1985. The court held on the one hand
that the military criminal camp in Zugerberg constituted a military
institution (Anstalt) though it did not directly serve the interests
of Swiss national defence within the meaning of the Federal Act on
military localities and was not therefore secret. For this reason,
the stricter provisions of the Military Criminal Code were not
applicable.
On the other hand, the Court found that Article 329 of the
Swiss Criminal Code did not require that a secret institution be
depicted. It sufficed that the picture disclosed military
institutions and that there was an interest not to disclose them to
the broad public. The fact that the prisoners-of-war were being
guarded not only to prevent them from escaping but also to screen them
from the broader public demonstrated that there was a legitimate
interest in preventing pictures of the guarded objects and areas. The
latter had also been clearly marked as a closed area.
The applicant then filed a plea of nullity (Nichtigkeitsbe-
schwerde) with the Federal Court (Bundesgericht) which the latter
dismissed on 3 June 1986. In its decision which was served on 6
August 1986 the Court found in particular that Article 329 of the
Criminal Code did not require that military secrets which served the
interests of national defence had been breached. Since the facts of
the case were not at issue the plea of nullity was therefore
unfounded.
COMPLAINTS
The applicant now complains under Article 10 of the Convention
of a restriction of his right to express his opinion and to impart
information. He alleges in particular that the conditions in Article
10 para. 2 have not not been met, namely the sufficient legal basis,
the lawful grounds for justification of the restriction and the
necessity of the measure in a democratic society.
Thus, while Article 329(1) of the Criminal Code had, until
the present case, never been applied by a court, the doctrine is
unanimous in stating that the provision may only be referred to if
interests of Swiss national defence are involved. It is therefore
unclear what purpose Article 329 serves.
Moreover, it is doubtful whether in the present case one can
still speak of a military institution since the internment of the
prisoners-of-war occurred upon instructions of the International
Committee of the Red Cross which was therefore acting within the
framework of its good offices under international law.
In any event, there is no link between the measure and Swiss
national defence. There were no secrets of a military or other nature
in the camp. It was clearly for this reason that the soldiers were
placed in the camp in Zugerberg since the Soviet soldiers themselves
would most of all be observing their surroundings. On the other hand,
anybody could pass along the camp which is in a popular recreational
area. What every pedestrian and even foreign military person can see
must also be permitted to be published in a magazine.
THE LAW
The applicant complains under Article 10 (Art. 10) of the Convention of
a restriction of his right to express his opinion and impart information. He
submits that Article 329 para. 1 of the Criminal Code did not provide a
sufficient legal basis for this restriction under Article 10 para. 2 (Art.
10-2) . There was no legitimate aim under that provision since no link existed
between the prohibition to take photographs and Swiss national defence.
Article 10 states (Art. 10):
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to
receive and impart information and ideas without
interference by public authority regardless of frontiers ...
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
The Commission notes that the applicant was punished by the
Swiss courts for having published photographs in a Swiss magazine.
The Commission finds that this punishment constituted an interference
by a public authority with the exercise of the applicant's rights
under Article 10 para. 1 (Art. 10-1). Its task is next to examine whether such
interference was justified under Article 10 para. 2 (Art. 10-2) of the
Convention.
The first question to be considered is whether the measure was
"prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2). In
particular, the interference must have had some basis in domestic law
which itself must be adequately accessible and be formulated with
sufficient precision to enable the individual to regulate his conduct
(see e.g. European Court H.R., Barthold judgment of 25 March 1985,
Series A no. 90, p. 21 para. 45).
In the present case the Commission observes that S.329(1) of
the Criminal Code clearly stated that whosoever "depicts military
institutions or objects ... or publishes such pictures" will be
punished by detention or a fine. The Commission finds therefore that
the interference at issue was "prescribed by law" within the meaning
of Article 10 para. 2 (Art. 10-2).
The next question is whether the interference also had an aim
which was legitimate under Article 10 para. 2 (Art. 10-2) and whether it was
"necessary in a democratic society" within the meaning of that
provision, in particular whether the measure was proportionate to the
aim pursued (see the Barthold judgment, ibid., p. 24 para.55).
The Commission notes that the Zugerberg camp serves
military functions and constitutes a restricted area within the
meaning of Article 329 of the Criminal Code.
The Commission further notes that the internment of the Soviet
soldiers occurred upon request of the ICRC and that as a basis for the
arrangement between the ICRC and the Swiss Government the soldiers
were granted the status of prisoners of war. This status implies,
under the 1949 Geneva Convention Relative to the Treatment of
Prisoners of War, particular responsiblities for the interning State.
In view thereof, and of the fact that the applicant was
punished only for publishing the photographs at issue and not
generally for being the author of the article, the Commission finds
that the interference complained of occurred "in the interests of
national security, territorial integrity (and) for the protection of
the ... rights of others" and that it was "necessary in a democratic society"
within the meaning of Article 10 para. 2 (Art. 10-2) in that the measure was
proportionate to the legitimate aim pursued.
In the light of these considerations the Commission finds that
the complaints at issue do not disclose any appearance of a violation
of the rights set out in Article 10 (Art. 10) of the Convention. It follows
that the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)