E.S.L. AND OTHERS v. SWITZERLAND
SUR LA RECEVABILITÉ
Application No. 17393/90
by E.S.L. and others
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 2 March 1994, the following members being present:
MM. A. WEITZEL, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, 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 28 June 1990 by
E.S.L. against Switzerland and registered on 5 November 1990 under file
No. 17393/90;
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 applicants may be
summarised as follows:
The first and second applicants are churches registered at
Lausanne in Switzerland and at Los Angeles in the United States,
respectively. The third applicant, N. I. is a non-profit organisation
based in Los Angeles. They are represented by Mr. Douwe Korff, a lawyer
practising in Cambridge in the United Kingdom.
In 1987 criminal investigations were instituted in Switzerland
and Italy against the first applicant on account of tax evasion. In
the course thereof the first applicant learned that the security police
(police de sûreté) of the Canton of Vaud possessed information on its
activities in a report drawn up in 1986 by Interpol Madrid and that it
had passed this information on to the Italian tax authorities.
On 28 April 1989 the first applicant filed a criminal complaint
with the investigating judge of the Canton of Vaud (le Juge
d'instruction du canton de Vaud) against the Vaud police, alleging that
they had breached confidentiality by passing on the report to a third
party. On 2 October 1989 the cantonal investigating judge dismissed
this complaint on the ground that the officer concerned had neither
been aware of disclosing secret information of which he had had
knowledge on account of his duties, nor had he intended to do so ("ni
conscience, ni volonté").
On 6 June 1989 the first applicant requested the judge of the
Canton of Vaud charged with the rectification of police files (le juge
cantonal chargé de la rectification des dossiers de la police
judiciaire) to rectify the Interpol report, which he alleged was
incorrect and damaging, and to grant the applicants access to it. The
other two applicants joined themselves into this request.
On 21 July 1989 the judge informed the applicants that the report
concerned was not to be found in the files of the security police and
that no file existed in the name of any of the applicants. The judge
also pointed out that information concerning the first applicant was
contained in a further file of criminal investigation concerning a
third party, though not relating to the applicants' request; this file
could not be made accessible as the proceedings were still pending.
On 8 September 1989, upon the applicants' renewed request, the cantonal
judge reiterated his conclusions in a further decision.
The applicants then filed a public law appeal (recours de droit
public) with the Federal Court (Tribunal fédéral), complaining that the
authorities had interfered with their right to respect for private life
under Article 8 of the Convention by collecting and storing data and
passing on the report in question to a third party. The applicants
also sought access to this report.
On 29 November 1989 the security police wrote to the cantonal
judge of the Canton of Vaud stating that "no copy whatsoever of the
Report of Interpol Madrid is in the possession of the Vaud judiciary
police" ("qu'aucun exemplaire quelconque du rapport d'Interpol Madrid
du 20 novembre 1986 n'est en possession de la police judiciare
vaudoise"). This letter was communicated to the applicants in the
proceedings before the Federal Court.
On 22 December 1989 the Federal Court dismissed the public law
appeal on the ground that the report was not in the possession of the
security police, and that the applicants had not shown that the
statements to this effect were incorrect.
COMPLAINTS
The applicants complain that, contrary to Articles 8, 9, 10 and
11 of the Convention, data concerning them were collected, stored and
passed on to a third party, and that there were only inadequate
safeguards against abuse.
Under Article 13 of the Convention the applicants complain that
they had no effective remedy available to them under Swiss law. Thus,
the cantonal judge could not inspect or rectify the files, and the
Federal Court failed to enter into the substantive issues raised.
Under Article 14 of the Convention the applicants complain of
discrimination on account of their religion and their opinions.
Considerations
THE LAW
1. Under Articles 8, 9, 10 and 11 (Art. 8, 9, 10, 11) of the
Convention the applicants complain that data concerning them was
collected, stored and passed on to a third party, and that there were
only inadequate safeguards against abuse.
According to the Convention organs' case-law, the storing and the
release of information relating to an individual's private life,
coupled with a refusal to allow any corrections, may raise an issue
under Article 8 (Art. 8) of the Convention (see Eur. Court H.R.,
Leander judgment of 26 March 1987, Series A No. 116, p. 22, para. 48).
The question arises whether the present complaint, which relates
to the disclosure of confidential data concerning the applicant
churches' activities, falls within the concept of "private life" within
the meaning of this provision.
The Commission does not need to resolve this question since, in
any event, even assuming that the answer to this question is in the
affirmative, this complaint is manifestly ill-founded for the following
reason:
The Commission notes that according to the decision of the
Federal Court of 22 December 1989 the report complained of was not in
the possession of the police. The applicants have not demonstrated
that the decision of the Federal Court was incorrect in that at that
time the authorities in fact possessed the report. The applicants have
also not provided any indication that, after the Federal Court gave its
judgment, the report again came into possession of the authorities.
In these circumstances the Commission considers that the
applicants failed to substantiate their allegation that the Swiss
authorities continue to maintain a file of information about them.
These complaints do not therefore disclose any appearance of a
violation of the rights set out in Article 8 (Art. 8) of the
Convention, and this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicants complain under Article 13 (Art. 13) of
the Convention that they had no effective remedy at their disposal, the
Commission notes that, even assuming that the applicants have an
arguable claim in this respect, they in fact filed a public law appeal
with the Federal Court. Other than complaining of the outcome of the
proceedings before the Federal Court, the applicants have not shown in
what respect their public law appeal was not an effective remedy within
the meaning of Article 13 (Art. 13) of the Convention. Thus this part
of the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. Insofar as the applicants complain under Article 14 (Art. 14) of
the Convention of discrimination against them, the Commission finds no
separate issue. The remainder of the application is therefore also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
Order
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)