H. W. K. v. SWITZERLAND

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, a Swiss citizen born in 1931, is a lawyer residing

at Zumikon in Switzerland. Before the Commission he is represented by

Messrs. B. Badertscher and Th. Poledna, lawyers practising in Zurich.

Particular circumstances of the case

I.

The applicant's wife was a member of the Federal Council

(Bundesrat) and Head of the Federal Department of Justice and Police

(Eidgenössisches Justiz- und Polizeidepartement). On

14 December 1988 the applicant's wife announced her resignation as

from 28 February 1989 in view of allegations, which she disputed, that

she had passed on secret information to the applicant in a telephone

conversation. On 31 January 1989 the Swiss Parliament instituted a

Parliamentary Commission of Enquiry (Parlamentarische

Untersuchungskommission) to examine the exercise of her office and her

resignation.

The Commission submitted its Report on 22 November 1989. While

identifying various issues in connection with the exercise of the

office of the applicant's wife, the Report also concluded that she had

dealt with her work carefully and prudently. In February 1990 the

Federal Court (Bundesgericht) acquitted the applicant's wife of the

charge of a breach of official secrets (Amtsgeheimnisverletzung).

II.

On 28 January 1988 a client asked the lawyer H., who worked in

the applicant's office, to examine the legality of certain letters

rogatory (Rechtshilfeverfahren) of the United States. H. undertook a

preliminary examination of the matter whereupon he refused to deal

with the matter, referring to an instruction in the applicant's office

not to take on any cases concerning the Federal Department of Justice

and Police, or the applicant's wife. The case was then passed on to

the law firm N.

On 10 June 1988 the law firm N. filed a request with the Federal

Office for the Police (Bundesamt für Polizeiwesen) to consult the

letters rogatory. On 23 August 1988 the Federal Office transmitted to

the law firm N. a shortened ("gestrippte") version of the letters

rogatory.

III.

Shortly after the Parliamentary Commission (above I.) was instit-

uted, its President L. obtained information that a certain X., a US

citizen, had apparently obtained a particular document from the

applicant which both the Federal Office for the Police and the Federal

Court had previously refused to make available. X. had allegedly

offered the applicant 250,000 SFr to obtain this document from the

Federal Department of Justice and Police. L. obtained this infor-

mation from a certain Y. who in turn had obtained the information from

the main informant Z.

It later transpired that X. was involved in letters rogatory from

the USA, containing secret information as to his role in organised

crime. The suspicion therefore arose that the document which the

applicant was allegedly asked to obtain concerned these letters

rogatory; and that a person at the Federal Department of Justice and

Police could, in breach of official secrets, have handed out documents

to unauthorised persons.

On 21 November 1989 the Federal Attorney (Bundesanwalt)

instituted judicial investigations (gerichtspolizeiliches

Ermittlungsverfahren) against unknown persons. The purpose thereof

was to address (ansprechen) the informant Y. and eventually to

identify the person in the Federal Department of Justice and Police

who might have breached official secrets.

IV.

In the course of the investigations it transpired that the

applicant's law firm, and later the law firm N. (see above II.) had

attempted to obtain documents from the Federal Office for the Police,

though the latter had refused to transmit those parts of the letters

rogatory which concerned X.'s involvement in organised crime.

The judicial investigations of 21 November 1989 (above III.)

included the surveillance of the telephone lines of X., Y., the

applicant and his wife. The applicant was involved as a "third

person" (see below, Relevant domestic law) rather than as a suspect.

On 23 November 1989 the President of the Indictment Chamber

(Anklagekammer) of the Federal Court granted the Federal Attorney's

request to monitor altogether 13 lines, including the applicant's

private telephone lines, the telephone lines of his office and his

wife's telephone lines, in particular a secret number granted to her

as a former Federal Councillor. The order contained the remark

"Lawyers' conversations must be disregarded" (Anwaltsgespräche sind

nicht zu erfassen").

Six of these lines were no longer monitored after

1 December 1989. On the other hand, the President of the Indictment

Chamber granted on 1 December 1989 the monitoring of a further

telephone line. The order again contained the remark "Lawyers'

conversations must be disregarded".

Also on 1 December 1989 a meeting took place between the Federal

police, the informant Y. and the President of the Parliamentary

Commission L.

On 4 December 1989 L. contacted the main informant Z. The latter

was questioned by the Federal Attorney's Office on

8 December 1989.

On 11 December 1989 the Federal Office for the Police, having

found that the suspicion of a breach of official secrets had been

invalidated, terminated the surveillance of all telephone lines of the

applicant and his wife.

On 14 December 1989 the Federal Attorney's Office

(Bundesanwaltschaft) issued its final report in which it concluded

that no concrete suspicion had transpired as to a breach of official

secrets. The Report noted that in 1988 the lawyer H., who worked in

the applicant's office, had passed on a case, concerning the letters

rogatory, to the law firm N., and that there were no indications that

the applicant or his wife could have been directly involved in the

matter.

On 6 March 1990 the Federal Attorney's Office decided to close

the investigations as there was no confirmation of the suspicion that

the applicant's wife or a collaborator of the Federal Department of

Justice and Police had breached official secrets by passing on secret

parts of letters rogatory.

By letter of 9 March 1990 the applicant was informed that under

Sections 320 and 340 para. 1, subpara. 7 of the Penal Code

(Strafgesetzbuch, see below, Relevant domestic law) judicial inves-

tigations had been instituted on suspicion of a breach of official

secrets, and that under Sections 66 et seq. of the Federal Code of

Criminal Procedure (Bundesstrafprozessordnung, see below, Relevant

domestic law) his private and professional telephone lines had been

monitored. The letter stated that the surveillance had lasted from 21

November 1989 until 11 December 1989 and that "conversations conducted

in the function as a lawyer had been excluded from the surveillance"

("von der Überwachung ausgenommen waren die in anwaltschaftlicher

Eigenschaft geführten Gespräche"). It was also stated that in

application of Section 66 para. 1ter of the Federal Code of Criminal

Procedure (see below, Relevant domestic law) all recordings had been

destroyed.

V.

On 12 March 1990 the Parliamentary Commission (see above I.)

issued a communiqué stating inter alia:

<Translation>

"In the course (of the investigations of the Federal Attorney's

Office), which also included authorised telephone surveillance,

the Office found that Swiss representatives of a US citizen had

attempted, with the help (of the applicant), to obtain access to

a secret document. They hoped for an easier access to the

Federal Department of Justice and Police, as he was the husband

of the Federal Councillor concerned. A lawyer of (the

applicant's) office examined, for a fee, the possibility of taking

over the case, but then refused. As a result, there was an attempt to

obtain the secret part of the documents with the help of another

lawyer. The US letters rogatory were finally handed out, though the

crucial parts were censored. Based on this result the Federal

Attorney's Office closed its investigations ... The suspicion of a

breach of official secrets thus proved to be unfounded. The police

investigations demonstrate, however, how the rumour arose which led to

the indications and the suspicion."

<German>

"Im Rahmen (der Ermittlungen der Bundesanwaltschaft), zu welchen

auch bewilligte Telefonabhörungen eingesetzt wurden, eruierte

diese, dass die Schweizer Vertreter des amerikanischen

Staatsangehörigen versucht hatten, durch Einschaltung (des

Beschwerdeführers) zum geheimen Aktenstück zu gelangen. Sie

versprachen sich einen leichteren Zugang ins EJPD, weil er Gatte

der zuständigen Bundesrätin war. Ein Rechtsanwalt des Büros (des

Beschwerdeführers) prüfte gegen Honorar die allfällige

Mandatsübernahme, lehnte sie jedoch ab. In der Folge wurde mit

einem anderen Rechtsanwalt die Herausgabe des geheimen Teils der

Akten versucht. Schliesslich wurde zwar das amerikanische

Rechtshilfegesuch herausgegeben, die entscheidenden Passagen

jedoch abgedeckt. Gestützt auf dieses Ergebnis stellte die

Bundesanwaltschaft die Ermittlungen ein. ... Der Verdacht auf

Verletzung des Amtsgeheimnisses erwies sich als unbegründet. Die

polizeilichen Ermittlungen zeigen jedoch auf, wie das Gerücht,

das zu Hinweis und Verdacht führte, entstanden ist."

On 13 March 1990, various Swiss newspapers, including the Neue

Zürcher Zeitung and the Tages-Anzeiger, published articles on the

communiqué of the Parliamentary Commission. Therein, reference was

made to the applicant as one of the persons involved, and to telephone

surveillances which had been undertaken.

VI.

On 10 April 1990 the applicant filed a complaint (Beschwerde)

with the Federal Department of Justice and Police about a breach of

the provisions concerning telephone surveillance, and of Article 8 of

the Convention.

Following a further complaint about the delay in the proceedings

the Department dismissed the complaint on 2 November 1992. The

Department, which dealt with the complaint as a hierarchical complaint

(Aufsichtsbeschwerde), decided inter alia to refuse the applicant's

request for unrestricted access to the case-file.

VII.

On 2 December 1992 the applicant filed an administrative appeal

(Verwaltungsbeschwerde) with the Federal Council against the decision

of the Federal Department of Justice and Police of

2 November 1992. In his appeal he complained inter alia that the

telephone surveillance had been unlawful and that he had been refused

unrestricted access to the case-file.

In his appeal the applicant stated inter alia that it was

irrelevant whether the European Court of Human Rights had regarded

Sections 66 et seq. of the Federal Code of Criminal Procedure as

conforming with the Convention, as long as the application of these

norms was not in conformity with the Convention; the incorrect or

arbitrary application of a norm that conformed with the Convention

could also breach the Convention. Under the headline "Breach of

Article 8 of the Convention", the appeal continued:

<Translation>

"In this connection it must not be overlooked that the telephone

lines belonging to the applicant's legal practice, which was

shared by a number of other lawyers, were tapped. However,

Section 66 para. 1bis of the Federal Code of Criminal Procedure

expressly prohibits the tapping of such telephone calls. The

tapping of the telephone conversations with the applicant's law

firm was therefore unlawful under the aforementioned provision of

domestic law."

<German>

"In diesem Zusammenhang darf auch nicht übersehen werden, dass

die Telefonanschlüsse der Anwaltskanzlei des Beschwerdeführers

abgehört wurden, an der eine Reihe von Anwälten beteiligt war.

Art. 66 Abs. 1bis BStP schliesst aber das Abhören solcher

Telefongespräche ausdrücklich aus. Das Abhören der

Telefongespräche der Anwaltskanzlei des Beschwerdeführers war

somit auch unter der vorgenannten innerstaatlichen Gesetzes-

bestimmung widerrechtlich."

The Federal Council dismissed the administrative appeal on

30 June 1993 in a decision numbering 26 pages.

In its decision the Federal Council recalled that, even without a

legal basis, hierarchical complaints in cases of telephone

surveillance were treated as formal administrative appeals.

The Federal Council found that the applicant should have access

to the case-file only to the extent that the documents directly

related to his telephone surveillance as a "third person". The

Federal Council noted that the applicant had had restricted access to

documents some of which had been censored in particular in respect of

names of informants. Other documents, concerning for instance

telephone surveillances, had not been handed out, though the applicant

had been orally informed of their existence and content. The Federal

Council found that the Federal Department of Justice and Police had

acted in an exemplary and generous manner. Insofar as documents

concerning third persons had not been handed out, the interests of the

latter outweighed the applicant's interest therein.

The Federal Council further found that Section 66 of the Federal

Code of Criminal Procedure permitted the telephone surveillance of

third persons such as the applicant if there were indications that the

latter would receive information from, or pass it on to, the

perpetrator of an offence. The Federal Council considered that the

applicant had not contested the conformity of Sections 66 et seq. of

the Federal Code of Criminal Procedure with Article 8 of the

Convention, though he claimed that the authorities had incorrectly

applied the pertinent rules. The Federal Council then examined

whether or not Federal civil servants had breached their duties in

connection with the applicant's telephone surveillance.

The Federal Council considered that at a time of general

insecurity following rumours of subversion (eine durch Unterwande-

rungsgerüchte verunsicherte Zeit) there had been concrete indications

of a breach of official secrets within the Federal Department of

Justice and Police. The document at issue concerned secret

information in respect of which assurances had been given to the

United States; thus, Switzerland's credibility was at stake. A risk

arose as the applicant, the husband of the former Head of the

Department of Justice and Police, had been mentioned. The civil

servants concerned could justifiably have been criticised if in such

circumstances they had not undertaken the necessary investigations.

Furthermore, the telephone surveillance had to occur at the

beginning of the investigations before contacts were established with

Y. and Z. Thus, the civil servants concerned had not immediately

examined the credibility of the informants as any further contact

would have jeopardised the investigations.

The applicant's phones had been monitored, not as those of a

suspect, but as those of a "third person" within the meaning of

Section 66 para. 1bis of the Federal Code of Criminal Procedure;

conversations which he conducted as a lawyer had expressly been

excluded. As the applicant was not a civil servant, he could not have

been the perpetrator of the offence. His wife had been included in

the theoretical circle of suspects, but there were no concrete

suspicions either against her or against other persons. The

applicant's telephone surveillance thus neither amounted to a

suspicion in the criminal sense nor was it conducted against unknown

persons merely for the sake of appearances. There were also no

political motives, and the President of the Parliamentary Commission

had not been in a position to influence the police investigations.

The decision concluded that the conversations monitored had been

irrelevant for the investigations, and no written record had been

prepared. In any event, even if such a record had been given to the

Parliamentary Commission, it could not have been abused, as the

Commission members were bound by the secret of office (Amtsgeheimnis).

VIII.

Against the decision of the Federal Department of Justice and

Police of 2 November 1992 (see above, VI.), the applicant also filed

an administrative law appeal (Verwaltungsgerichtsbeschwerde). In his

appeal he requested the Court to conclude that the telephone

monitoring had been unlawful, and that for this reason criminal

proceedings should be instituted against the persons concerned.

On 8 March 1994 the Federal Court dismissed the applicant's

administrative law appeal.

The Court first dealt with the issue whether the applicant should

have been permitted to consult the entire case-file during the

proceedings before the Federal Department of Justice Police. The

Court found that those parts of the document which had been pertinent

for the decision (entscheidungswesentlich) had been shown to the

applicant, and that it had been correct not to disclose the names of

the informants; in the Court's opinion, this conclusion also

corresponded with a decision of the Parliamentary Commission of

Enquiry (see above, I.) to keep informants' names confidential.

Indeed, the applicant had been sufficiently able to file complaints on

the basis of a partial consultation of the case-file (gestützt auf die

ihm zugestellten "gestrippten" Akten).

The Court further found that the applicant's appeal to the

Federal Department of Justice and Police satisfied the requirements of

Article 13 of the Convention.

The Court then examined the issue whether criminal proceedings

should be instituted in view of the surveillance of the applicant's

telephones. It found that it need not completely (abschliessend)

examine the issue whether or not the telephone surveillance breached

Article 8 of the Convention, inter alia as the applicant had already

filed a complaint with the Federal Department of Justice and Police.

<Translation>

"Based on information received by the Federal Attorney's Office

from the President of the Parliamentary Commission of Enquiry,

the Office instituted proceedings on suspicion of a possible

breach of official secrets. Suspects were Federal civil servants

who had dealt with the letters rogatory and the confidential

document. There was at least a connection with the applicant's

office and the letters rogatory in that a partner of his office

had examined whether or not to take over the case for a fee of

6'000 SFr - and not free of costs as the applicant maintains. As

it turned out, the partner finally refused to take on the case,

apparently because it concerned the Federal Department of Justice

and Police, of which the applicant's wife was at that time the

head. The supposition of the Federal Attorney's Office, namely

that the original informant or the unfaithful civil servant would

contact the applicant, and that this would lead to the resolution

of the offence, did not therefore in view of the entire

circumstances of the case appear incorrect."

<German>

"Aufgrund der Informationen, welche die Bundesanwaltschaft vom

PUK-Präsidenten erhalten hatte, ermittelte sie wegen allfälliger

Amtsgeheimnisverletzung. Als Verdächtige kamen Bundesbeamte in

Frage, die sich mit dem fraglichen Rechtshilfeverfahren und dem

geheim zu haltenden Dokument befasst hatten. Mit dem Anwaltsbüro

des Beschwerdeführers und dem Rechtshilfeverfahren bestand

immerhin insofern ein Zusammenhang, als ein Partner seines Büros

die Mandatsübernahme gegen ein Honorar von Fr. 6'000.-- - und

nicht unentgeltlich, wie der Beschwerdeführer behauptet -

geprüft, schliesslich aber, wie sich herausstellte, offenbar

deshalb abgelehnt hatte, weil das EJPD betroffen war, dem damals

die Ehefrau des Beschwerdeführers vorstand. Die Vermutung der

Bundesanwaltschaft, der Erstinformant oder der ungetreue Beamte

werde sich mit dem Beschwerdeführer in Verbindung setzen, was zur

Aufklärung der Tat führen könnte, erscheint aufgrund der gesamten

Umstände des Falles nicht als abwegig."

Relevant domestic law

I.

According to Section 320 para. 1 of the Penal Code (Strafgesetz-

buch), whoever discloses a secret entrusted to him in his function as

a civil servant will be punished with imprisonment or a fine. Section

340 para. 1 (7) of the Penal Code determines the jurisdiction of the

Federal Court (Bundesgericht) in respect of this offence.

II.

Section 66 para. 1 the Federal Code of Criminal Procedure

(Bundesstrafprozessordnung) envisages telephone surveillance if a

person is suspected of a criminal offence.

Section 66 para. 1bis of the Federal Code states as follows:

<Translation>

"If the conditions concerning the accused or the suspect have

been met, third persons may also be monitored if it must be

assumed on the basis of certain facts that they will receive

certain messages from, or transmit such messages to, him.

Persons who according to Section 77 can refuse to give evidence

shall be excluded. The telephone of third persons may always be

monitored if there is a well-founded suspicion that the accused

uses it."

<German>

"Sind die Voraussetzungen beim Beschuldigten oder Verdächtigen

erfüllt, so können Drittpersonen überwacht werden, wenn aufgrund

bestimmter Tatsachen angenommen werden muss, dass sie für ihn

bestimmte oder von ihm herrührende Mitteilungen entgegennehmen

oder weitergeben. Ausgenommen sind Personen, die nach Art. 77

das Zeugnis verweigern dürfen. Der Telefonanschluss von

Drittpersonen kann stets überwacht werden, wenn der Verdacht

begründet ist, dass der Beschuldigte ihn benutzt."

According to Section 66 para. 1ter of the Federal Code of

Criminal Procedure telephone recordings which are not necessary for

the investigations are kept under lock and key (unter Verschluss) and

are destroyed after the termination of the proceedings.

Section 77 of the Federal Code of Criminal Procedure states:

<Translation>

"Clergy, lawyers, notaries, doctors, pharmacists, midwives and

their professional assistants shall not be ordered to give

evidence in respect of secrets which have been entrusted to them

officially or professionally."

<German>

"Geistliche, Rechtsanwälte, Notare, Ärzte, Apotheker, Hebammen

und ihre beruflichen Gehilfen dürfen über Geheimnisse, die ihnen

in ihrem Amte oder Berufe anvertraut worden sind, nicht zum

Zeugnis angehalten werden."

COMPLAINTS

1. Under Article 8 of the Convention the applicant complains of the

telephone surveillance.

He submits, first, that the measure was not "in accordance with

the law" within the meaning of Article 8 para. 2 of the Convention.

Thus, according to Sections 66 para. 1bis and 77 of the Federal Code

of Criminal Procedure, a lawyer may assume that his telephone and the

telephones of his partners and other lawyers in his office are not

monitored. Article 8 of the Convention prohibits telephone

surveillance regardless of whether a written record is prepared. It

is thus irrelevant if the Federal District Attorney's Office gave

instructions not to prepare a written record of the surveillance of

the applicant's office telephones. The aim of the Federal Attorney's

Office was to monitor a particular discussion between client and

lawyer as well as all legal telephone conversations.

He submits, secondly, that the measure was disproportionate in

that it was unnecessary. The authorities only insufficiently examined

the credibility of the information as to a breach of official secrets.

There were also no indications at all as to the applicant's

participation therein. Moreover, the duration of the telephone

surveillance was also disproportionate, having commenced before it had

been authorised by the President of the Indictment Chamber of the

Federal Court and before the main informant Z. had been questioned.

Finally, the surveillance of all private and official telephone lines

- even the secret line of his wife - and the disclosure by the

Parliamentary Commission thereof to the public severely damaged the

confidence placed in him by his partners, employees and clients.

2. The applicant further complains under Article 13 of the

Convention that for two different reasons he had no effective remedy

at his disposal to complain of the telephone surveillance.

He submits, first, that the authorities treated his complaint as

a hierarchical complaint in respect of which they had no full powers

of examination, even if they stated that they were in fact dealing

with it as an administrative appeal. No authority examined his

complaint in substance. The Federal Council examined neither the

legality nor the proportionality of the measure. It was also not

examined whether the suspicion of a breach of official secrets could

justifiably have been assumed, or continued to exist.

He complains, secondly, that he could only consult certain

documents in part, and other documents not at all. He refers inter

alia to the letters rogatory, to various documents, including written

records of the telephone surveillance, concerning X. and Y. and to the

written records of the surveillance of his own telephones. If the

suspicion directed against him stemmed from third persons, he should

have had the possibility of commenting on the credibility of the

statements and the persons themselves. As he could not do so, the

remedy was ineffective. It is irrelevant if the Federal Department of

Justice and Police in its decision of 2 November 1992 did not rely on

these documents as he was deprived of the possibility exhaustively to

inform himself of the legality of the measure.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 December 1993 and registered

on 10 January 1994.

On 31 August 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

23 December 1994, after an extension of the time-limit fixed for that

purpose. The applicant replied on 10 April 1995, also after an

extension of the time-limit.