S.L.O. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 19822/92
by S. L. O.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 24 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 April 1992 by
S. L. O. against Switzerland and registered on 13 April 1992 under file
No. 19822/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a Swiss citizen and member of parliament, resides
at Allschwil in Switzerland. Before the Commission she is represented
by Mr. L.A. Minelli, a lawyer practising at Forch in Switzerland.
I.
In 1989 a Parliamentary Investigation Commission (Parlamentari-
sche Untersuchungskommission) was set up to examine certain occurrences
in the Federal Department of Justice and Police (Eidgenössisches
Justiz- und Polizeidepartement). In the ensuing report it transpired
that the Federal Police (Bundespolizei) had collected more than 900,000
files on various persons and organisations. As a result, thousands of
citizens requested access to their files.
On 11 December 1989 the applicant consulted her file at the
Federal Attorney's Office (Bundesanwaltschaft). When consulting her
card she noticed that in respect of a number of entries the Security
Service (Sicherheitsdienst) of Basel-Landschaft was mentioned as the
informer.
On 12 December 1989 the applicant wrote to the Government
(Regierungsrat) of Basel-Landschaft, requesting access to the cantonal
files.
On 18 December 1989 the Police Director (Polizeidirektor) of
Basel-Landschaft forwarded the request to the Federal Attorney's
Office, seeking information on how to deal with it.
On 5 March 1990 the Federal Government (Bundesrat) issued an
Ordinance on the handling of state security files of the Confederation
(Verordnung über die Behandlung von Staatsschutzakten des Bundes).
On 12 March 1990 the Cantonal Police (Kantonspolizei) of Basel-
Landschaft dismissed the applicant's request to consult the cantonal
files, and forwarded her request to the Special Delegate for state
security files (Sonderbeauftragter für die Behandlung der
Staatsschutzakten). It was also stated that the applicant's request
to consult files not relating to state security would be decided later.
Against this decision the applicant on 26 March 1990 filed an
appeal with the Government of Basel-Landschaft on 26 March 1990.
The Government dismissed the appeal on 12 June 1990. The
decision stated inter alia that matters of the Federal Police fell
within the jurisdiction of the Swiss Confederation; that the cantonal
authorities had acted on behalf of the federal authorities; and that
therefore the files, although kept in the Canton, were federal files.
The decision also stated that the Federal Government had been competent
to enact the Ordinance of 5 March 1990 by virtue of both the Swiss
Federal Constitution (Bundesverfassung) and the Federal Act on the
Organisation and Management of the Federal Government and the Federal
Administration (Bundesgesetz über die Organisation und Geschäftsführung
des Bundesrates und der Bundesverwaltung).
The applicant then filed three appeals, namely an appeal
(Beschwerde) with the Administrative Court (Verwaltungsgericht) of
Basel-Landschaft (see below, II.) and an administrative law appeal
(Verwaltungsgerichtsbeschwerde) and a public law appeal
(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht;
see below, IV.).
II.
In her appeal of 25 June 1990 to the Administrative Court of
Basel-Landschaft, the applicant argued that the Federal Police were not
competent to keep such files, and that she should be granted access to
the cantonal files concerning state security; in respect of files not
concerning state security she maintained that there was a right at any
time to consult them.
On 7 November 1990 the Administrative Court of Basel-Land partly
upheld the applicant's appeal.
In its decision the Court examined its jurisdiction to deal with
the appeal, in particular the lawfulness of the Ordinance of
5 March 1990. As a result, it found that the Federal Government was
only competent directly to enact ordinances on state security in cases
of emergency, and that otherwise there was no legal basis herefor. As
a result, the Court decided to refer the case back to the Cantonal
Government which was requested to give a decision based on cantonal law
on the request to consult the files concerning state security. On the
other hand, the Court dismissed the appeal insofar as it concerned the
remaining police files, as the decision given had been an intermediary
one which could not be contested at that stage.
III.
In respect of the decision of the Administrative Court of
7 November 1990 the Swiss Confederation filed on 1 February 1991 a
public law action (staatsrechtliche Klage) against Basel-Landschaft
with the Federal Court, claiming that the Confederation was competent
to legislate in matters of state security, and that access to the files
had to be regulated by federal, not cantonal, authorities.
The applicant submitted further observations to the Federal Court
in which she also requested a hearing within the meaning of Article 6
of the Convention. The Administrative Court of Basel-Landschaft stated
in its observations that the public law action did not constitute a
remedy against cantonal decisions. The Government and the Parliament
of Basel-Landschaft also submitted observations on the public law
action.
On 29 May 1991 the Federal Court upheld the public law action and
declared null and void the Administrative Court's decision of
7 November 1990.
In its decision the Federal Court rejected the applicant's
request for a hearing as the object of the proceedings, the
delimitation of competence between the Confederation and the Cantons,
was not covered by Article 6 of the Convention.
The Court further found that the Confederation was competent to
deal with all matters of internal and external state security. It
noted that the files often contained information on pending
investigations and findings in the fields of terrorism, counter-
intelligence and organised crime, often stemming from foreign
intelligence agencies. The files were frequently of eminent importance
for internal and external security, for which reason only the
Confederation was competent to decide on the handling of these files.
The Federal Government, when issuing the Ordinance of 5 March 1990, had
acted within its competence. The Federal Court concluded that the
cantonal authorities were not competent to deal with these matters.
IV.
In her administrative law appeal of 5 July 1990 to the Federal
Court the applicant argued that there was no legal basis for a federal
political police dealing with matters of state security. Invoking
inter alia Articles 8 - 11 of the Convention she claimed that she was
entitled to inspect such files, and that there was no legal basis for
the interference with her rights. Under Article 6 para. 1 of the
Convention she was entitled to have her case heard by a tribunal within
a reasonable time.
The applicant repeated these issues in essence in her public law
appeal to the Federal Court dated 9 July 1990. She argued that there
was no basis for cooperation on matters of state security between the
Confederation and the Cantons.
On 23 October 1991 the applicant sent a letter to the Federal
Court, asking when the court would decide on her appeals. By letter
of 10 December 1991 the Federal Court informed her that a decision
would probably be given in winter or spring of 1992.
By judgment of 25 March 1992 the Federal Court dismissed both the
applicant's administrative law appeal and public law appeal. The
judgment was served on 1 May 1992.
In its judgment the Court considered that it had already decided
on 29 March 1991 that the Confederation had been competent to issue the
Ordinance of 5 March 1990. Insofar as the applicant requested access
to court within the meaning of Article 6 para. 1 of the Convention the
decision continued:
<Translation>
"The requests of the applicant to consult the case-files
concerning ... herself, have so far not been decided in
substance. According to the Ordinance on the handling of state
security files the federal authorities must now examine the
requests for consulting the files ... It is not at all excluded
that the applicant will in fact be granted access to the files.
If the reply is negative the applicant can apply to the Ombudsman
... Thereupon the applicant can file a complaint with the federal
agency concerned and put forward in these proceedings that the
Human Rights Convention requires a court to decide on her request
of consultation."
<German>
"Die Gesuche der Beschwerdeführerin um Einsicht in die sie
selbst ... betreffenden Akten konnten bisher materiell noch nicht
beurteilt werden. Entsprechend den Bestimmungen in der
Verordnung über die Behandlung von Staatsschutzakten wird die
Bundesbehörde die Einsichtsgesuche zu prüfen haben ... Es ist
keineswegs ausgeschlossen, dass der Beschwerdeführerin die
Akteneinsicht tatsächlich gewährt wird. Für den Fall eines
abschlägigen Entscheides kann die Beschwerdeführerin an den
Ombudsmann gelangen ... Daraufhin wird die Beschwerdeführerin bei
der entsprechenden Bundesinstanz Beschwerde erheben und alsdann
in diesem Verfahren vorbringen können, die Menschenrechts-
konvention erfordere für die Beurteilung ihres Einsichtsgesuches
eine richterliche Behörde."
COMPLAINTS
The applicant complains under Article 8 of the Convention of
a breach of her right to respect for her private life in that secret
files have been compiled containing information on her private and
family life.
Under Article 6 para. 1 of the Convention the applicant complains
that she did not have a hearing before the Federal Court in the
proceedings leading to the decision of 29 May 1991, and that the
proceedings leading to the decision of 25 March 1992 lasted unduly
long.
Under Article 10 of the Convention the applicant complains that
the police compile information which is passed on to other authorities
without her having had the opportunity to correct the information.
Moreover, the storing of information on the applicant's political
activities amounts in her view to a breach of her rights under Article
11 of the Convention.
Under Article 13 of the Convention the applicant complains that
she had no effective remedy at her disposal to raise the above
complaints. She sees a confirmation hereof in the fact that the
Federal Court in its decision of 25 March 1992 did not deal with her
appeals.
Considerations
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that secret files have been compiled containing information
on her private and family life. Under Article 10 (Art. 10) of the
Convention she complains that the police compile information which is
passed on to other authorities without her having had the opportunity
to correct the information. She also invokes Article 11 (Art. 11) of
the Convention.
However, under Article 26 (Art. 26) of the Convention the
Commission may only deal with a matter after all domestic remedies have
been exhausted according to the generally recognised rules of
international law.
In the present case, the proceedings which the applicant
instituted in Switzerland originated in her request to consult the
cantonal file established on her person. This was refused on 12 March
1990 by the Cantonal Police and, upon appeal, on 12 June 1990 by the
Government, though her request was subsequently upheld by the
Administrative Court on 7 November 1990. However, upon the
Confederation's public law action the Federal Court on 29 May 1991
declared the Administrative Court's decision null and void.
In its subsequent decision of 25 March 1992 the Federal Court
pointed out that the applicant's request to consult her file had now
to be dealt with by the federal authorities, and that it was not at all
excluded that she would be granted access. It was also pointed out
that the applicant could in the ensuing proceedings raise complaints
under the Convention.
The Commission recalls that Article 26 (Art. 26) of the
Convention is intended to provide national authorities with the
possibility of remedying the violations alleged before them (see as the
most recent reference Eur. Court H.R., judgment of López Ostra of
9 December 1994, Series A no. 303-C, para. 38).
In the present case, the domestic authorities were not afforded
the opportunity of putting right the violations alleged by the
applicant before the Commission. As the Federal Court pointed out in
its decision of 25 March 1992, when requesting access to her file she
would have the opportunity to raise complaints under the Convention.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies, and this part of her
application must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant complains that she did not have a hearing before
the Federal Court in the proceedings leading to the decision of
29 May 1991, and that the proceedings resulting in the Federal Court's
decision of 25 March 1992 lasted unduly long.
The applicant relies on Article 6 para. 1 (Art. 6-1) of the
Convention according to which "in the determination of his civil rights
and obligations ..., everyone is entitled to a ... hearing within a
reasonable time ..."
Even assuming that the guarantees of this provision are
applicable to the present case, the complaints are inadmissible for the
following reasons.
a) The applicant complains, first, that in the proceedings leading
to the Federal Court's decision of 29 May 1991 the Court did not
conduct a hearing.
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission may only deal with an application from a person "claiming
to be the victim of a violation ... of the rights set forth in this
Convention."
The Commission has just found that in respect of her complaint
under Articles 8, 10 and 11 (Art. 8, 10, 11) of the Convention the
applicant had not exhausted domestic remedies according to Article 26
(Art. 26) of the Convention and that the matter had not yet been
definitely decided. In respect of the present complaint the applicant
can therefore also not claim to be a victim within the meaning of
Article 25 para. 1 (Art. 25-1) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) The applicant complains, next, that the proceedings resulting in
the Federal Court's decision of 25 March 1992 lasted unduly long.
According to the Convention organs' case-law, the proceedings to
be examined under Article 6 para. 1 (Art. 6-1) of the Convention
commenced on the date when the applicant contested the relevant
administrative decision (see Eur. Court H.R., König judgment of
28 June 1978, Series A no. 27, p. 33, para. 98), i.e. on 26 March 1990
when the applicant filed an appeal against the decision of the Cantonal
Police of Basel-Landschaft of 12 March 1990. The proceedings ended on
1 May 1992 when the judgment of 25 March 1992 was served on the
applicant. The proceedings therefore lasted two years, one month and
six days.
When examining the reasonableness of the length of the
proceedings, the Commission will consider the circumstances of the case
in the light of the criteria laid down in the Convention organs' case-
law. In this respect, the complexity of the case, the attitude of the
applicant and the conduct of the case by the judicial authorities must
be taken into account (see, inter alia, Eur. Court H.R., Scopelliti
judgment of 23 November 1993, Series A no. 278, p. 8, para. 19).
In the present case the matter to be decided by the Federal
Court, concerning competences of the Federation and the Canton,
appeared relatively complex. While the applicant did not contribute
to the length of the proceedings, it transpires from the documents that
the Federal Court, before dealing with the applicant's administrative
law and public law appeals, was awaiting the outcome of the public law
action, which was also before the Federal Court and raised similar
issues.
In these circumstances the proceedings leading to the Federal
Court's decision of 25 March 1992 did not exceed a "reasonable time"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
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.
3. Under Article 13 (Art. 13) of the Convention the applicant
complains that she had no effective remedy at her disposal to raise the
above complaints.
The Commission finds that the applicant has not made out an
arguable claim under Articles 6, 8, 10 and 11 (Art. 6, 8, 10, 11) of
the Convention (cf. Eur. Court H.R., Plattform "Ärzte für das Leben"
judgment of 21 June 1988, Series A no. 139, p. 11 et seq., paras. 27
et seq.).
The remainder of the application is therefore manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Order
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)