ROHR v. SWITZERLAND

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:

<Translation>

"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.

<Original text>

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.