Case of European Court of Human Rights, February 16, 2000 (case CASE OF AMANN v. SWITZERLAND)

President:Mrs E. Palm
Defense:Switzerland
Resolution Date:February 16, 2000
 
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CASE OF AMANN v. SWITZERLAND

(Application no. 27798/95)

JUDGMENT

STRASBOURG

16 February 2000

In the case of Amann v. Switzerland,

The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), as amended by Proto-col No. 11[1], and the relevant provisions of the Rules of Court[2], as a Grand Chamber composed of the following judges:

Mrs E. Palm, President,

Mr L. Wildhaber,

Mr L. Ferrari Bravo,

Mr Gaukur Jˆrundsson,

Mr L. Caflisch,

Mr I. Cabral Barreto,

Mr J.-P. Costa,

Mr W. Fuhrmann,

Mr K. Jungwiert,

Mr M. Fischbach,

Mr B. Zupančič,

Mrs N. Vajić,

Mr J. Hedigan,

Mrs W. Thomassen,

Mrs M. Tsatsa-Nikolovska,

Mr E. Levits,

Mr K. Traja,

and also of Mr M. de Salvia, Registrar,

Having deliberated in private on 30 September 1999 and 12 January 2000,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 2 November 1998, within the three-month period laid down by former Articles 32 ß 1 and 47 of the Convention. It originated in an application (no. 27798/95) against the Swiss Confederation lodged with the Commission under former Article 25 by a Swiss national, Mr Hermann Amann, on 27 June 1995. Having been designated before the Commission by the initials H.A., the applicant subsequently agreed to the disclosure of his name.

The Commission's request referred to former Articles 44 and 48 and to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 13 of the Convention.

2. In accordance with the provisions of Article 5 ß 4 of Protocol No. 11 taken together with Rules 100 ß 1 and 24 ß 6 of the Rules of Court, a panel of the Grand Chamber decided on 14 January 1999 that the case would be examined by the Grand Chamber of the Court. The Grand Chamber included ex officio Mr L. Wildhaber, the judge elected in respect of Switzerland and President of the Court (Articles 27 ßß 2 and 3 of the Convention and Rule 24 ß 3), Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 ß 3 of the Convention and Rule 24 ßß 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr Gaukur Jˆrundsson, Mr I. Cabral Barreto, Mr W. Fuhrmann, Mr K. Jungwiert, Mr B. Zupančič, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. PanţÓru, Mr E. Levits and Mr K. Traja (Rule 24 ß 3).

3. Before the Court the applicant was represented by Mr L.A. Minelli, of the Z¸rich Bar, who was given leave by the President of the Grand Chamber, Mrs Palm, to use the German language (Rule 34 ß 3). The Swiss Government ("the Government") were represented by their Agent, Mr P. Boillat, Head of the International Affairs Division, Federal Office of Justice.

4. After consulting the Agent of the Government and the applicant's lawyer, the Grand Chamber decided that it was not necessary to hold a hearing.

5. The Registrar received the Government's memorial and documents on 15 and 22 April and the applicant's memorial and documents on 11 May 1999, and the Government's and applicant's memorials and observations in reply on 10 and 14 June 1999 respectively.

6. As Mr PanţÓru was unable to attend deliberations on 12 January 2000, Mr L. Caflisch, substitute judge, replaced him as a member of the Grand Chamber (Rule 24 ß 5 (b)).

THE FACTS

  1. THE CIRCUMSTANCES OF THE CASE

    7. The applicant, who was born in 1940, is a businessman living in Switzerland. In the early 1980s he imported depilatory appliances into Switzerland which he advertised in magazines.

    8. On 12 October 1981 a woman telephoned the applicant from the former Soviet embassy in Berne to order a "Perma Tweez" depilatory appliance.

    9. That telephone call was intercepted by the Federal Public Prosecutor's Office (Bundesanwaltschaft - "the Public Prosecutor's Office"), which then requested the Intelligence Service of the police of the Canton of Z¸rich to carry out an investigation into the applicant and the goods he sold.

    10. The report drawn up by the police of the Canton of Z¸rich in December 1981 stated that the applicant, who had been registered in the Commercial Registry since 1973, was in the aerosols business. It stated that "Perma Tweez" was a battery-operated depilatory appliance; a leaflet describing the appliance was appended to the report.

    11. On 24 December 1981 the Public Prosecutor's Office drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the Canton of Z¸rich.

    12. In 1990 the public learned of the existence of the card index being kept by the Public Prosecutor's Office and many people, including the applicant, asked to consult their card.

    13. Various laws on accessing and processing the Confederation's documents were then enacted.

    14. On 12 September 1990 the special officer in charge of the Confederation's national security documents ("the special officer") sent the applicant, at his request, a photocopy of his card.

    15. The applicant's card, which was numbered (1153 : 0) 614 and on which two passages had been blue-pencilled ..., contained the following information:

    "from the Z¸rich Intelligence Service: A. identified as a contact with the Russian embassy according to ... . A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ..."

    16. As soon as he received his card, the applicant asked the Ombudsman at the Public Prosecutor's Office to disclose the blue-pencilled passages.

    17. On 9 October 1990 the Ombudsman replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card. The other censored passage related to a technical surveillance measure ordered against a third party; the Ombudsman stated that he would be recommending that the special officer disclose that information, since - in his view - the applicant's interest prevailed over the public interest in keeping it secret.

    18. On 19 April 1991 the special officer decided, on the basis of Article 5 ß 1 of the Order of 5 March 1990 on the Processing of Federal National Security Documents, that the initials at the end of the card could not be disclosed. He also considered that the other censored passage contained counter-intelligence which, pursuant to Article 5 ß 3 (a) of the Order, should not be disclosed. On the basis of those considerations, the disclosure of the applicant's card was extended to one word ("report"):

    "from the Z¸rich Intelligence Service: A. identified as a contact with the Russian embassy according to report ... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ..."

    19. On 26 October 1991 the applicant filed a request for compensation with the Federal Department of Finance. His request was refused on 28 January 1992.

    20. On 9 March 1992 the applicant filed an administrative-law action with the Federal Court claiming compensation from the Confederation of 5,000 Swiss francs for the unlawful entry of his particulars in the card index kept by the Public Prosecutor's Office. He also requested that his file and card be sent immediately to the Federal Archives with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement.

    21. On being invited to submit its written observations, the Confederation stated, in its memorial of 26 May 1992, that according to the information provided by the Public Prosecutor's Office and the special officer the record of the surveillance was no longer in the federal police's files. It pointed out in that connection that, pursuant to section 66(1 ter) of the Federal Criminal Procedure Act ("FCPA"), documents which were no longer necessary had to be destroyed ("Das Protokoll der technischen Ueberwachung ist gem‰ss Auskunft der Bundesanwaltschaft und des Sonderbeauftragten ... in den Akten der Bundespolizei nicht mehr vorhanden. In diesem Zusammenhang ist anzumerken, dass nicht mehr benˆtigte Akten gem‰ss Art. 66 Abs. 1ter BStP ... vernichtet werden m¸ssen").

    22. The Federal Court held hearings on 27 October 1993 and 14 September 1994.

    The applicant's lawyer pointed out that the case number of the card, namely (1153 : 0) 614, was a code meaning "communist country" (1), "Soviet Union" (153), "espionage established" (0) and "various contacts with the Eastern bloc" (614).

    The Confederation's representative stated that where someone (jemand) at the former Soviet embassy was under surveillance, on every telephone call both parties to the conversation were identified, a card drawn up on them and a telephone monitoring report (Telefon-Abhˆr-Bericht) made. In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags; the intention had been to destroy them as well, but when the post of special officer had been instituted everything had had to be maintained "in its present state". She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed. According to information she had received from the special officer, the reports had not been sorted and it would require about five people and one year's work to examine the contents of all the bags still in existence.

    23. In a judgment of 14 September 1994, which was served on 25 January 1995, the Federal Court dismissed all the...

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