Interception of communications, phone tapping and secret surveillance
II. RELEVANT DOMESTIC LAW A. The Swiss Criminal Code 34. Under Article 320 § 1 of the Swiss Criminal Code, any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine. Under Article 340 § 1 (7), the offence comes under the jurisdiction of the Federal Court. B. The Federal Criminal Procedure Act 35. The relevant provisions of the Federal Criminal Procedure Act (“the FCPA”), in the version of 23 March 1979, which was in force at the material time, were worded as follows: Section 66 “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications… 1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt. … 1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings…” Section 66 bis “1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division. 2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division. 3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.” Section 66 ter “1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision. 2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.” Section 66 quater “1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began, or, where the period of validity has been extended, before the further period begins. 2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.” Section 72 “1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telecommunications…” Section 77 “Clergymen, lawyers, notaries, doctors, pharmacists, midwives, and their auxiliaries, cannot be required to give evidence about secrets confided to them on account of their ministry or profession.” 36. By the Telecommunications Act of 21 June 1991, which has been in force since 1 May 1992, the following relevant provisions were supplemented as follows (new text shown in italics): Section 66 “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications if (a) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention; and if (b) Specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if (c) Without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results. 1 bis. … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused. …” 37. By the Federal Law of 4 October 1991, which has been in force since 15 February 1992, the following relevant provisions were amended as follows: Section 66 quinquies “1. The investigating judge shall inform the person concerned, within thirty days of the close of the proceedings, of the reasons for the monitoring carried out, the means employed and its duration. …” Section 72 “… 3. Sections 66 to 66 quinquies shall be applicable by analogy .” C. Legal literature and case-law on the scope of professional privilege 38. In the opinion of academic writers, information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege (see, for example, G. Piquerez, Précis de procédure pénale suisse, Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “ Le secret professionnel de l’avocat selon l’article 321 CP ”, Semaine judiciaire, Geneva, 1993, pp. 85–87). 39. Thus, in a judgment of 29 December 1986 (see ATF [Judgments of the Swiss Federal Court] 112 lb 606), the Federal Court held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds. In another judgment, of 16 October 1989, the Federal Court similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence ( ATF 115 la 197). In a case where a lawyer had complained of a seizure of documents, the Federal Court, after considering the complaint in the particular light of Article 8 of the Convention, once again upheld that case-law on 11 September 1991 ( ATF 117 la 341). Similarly, in connection with medical confidentiality, the Federal Court has held that information imparted to a doctor in his private capacity is not protected by professional privilege ( ATF 101 la 10, judgment of 5 February 1975). PROCEEDINGS BEFORE THE COMMISSION 40. Mr Kopp applied to the Commission on 15 December 1993. Relying on Articles 8 and 13 of the Convention, he complained of the monitoring of his telephone lines and of the lack of an effective remedy in that connection. 41. The Commission (First Chamber) declared the application (23224/94) admissible on 12 April 1996. In its report of 16 October 1996 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 8 but no breach of Article 13. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE court 42. In their memorial the Government asked the Court “to declare that there has been no violation of the Convention on the part of the Swiss authorities by virtue of the facts which gave rise to the application introduced by Mr Kopp against Switzerland”. 43. The applicant asked the Court to uphold his application. AS TO THE LAW I. Alleged violation of Article 8 of the Convention 44. Mr Kopp submitted that the interception of his telephone communications had breached Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Government’s preliminary objection 45. The Government submitted as their principal argument, as they had done before the Commission, that the applicant had not exhausted domestic remedies (Article 26 of the Convention), not having raised his complaint in substance before the national authorities. Before the Federal Council he had argued that it was only the application of section 66(1 bis ) of the Federal Criminal Procedure Act (“the FCPA” – see paragraph 35 above) which had been contrary to Article 8 of the Convention, without contesting the lawfulness as such of the tapping of his telephone lines. 46. The applicant, on the other hand, asserted that he had complied with all the requirements of Article 26 of the Convention in so far as he had contended that the monitoring of his law firm’s telephone lines had no legal basis in Swiss law. 47. The Court reiterates that the purpose of Article 26 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Convention institutions. Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. However, Article 26 must be applied with some degree of flexibility and without excessive formalism (see, for example, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1565, § 34, and the K.-F. v. Germany judgment of 27 November 1997, Reports 1997-VII, pp. 2670–71, § 46). 48. In the present case, the Court notes that in Mr Kopp’s administrative appeal to the Federal Council of 2 December 1992 his lawyer complained, under the heading “Violation of Article 8 of the Convention”, that the tapping of his telephone lines had been unlawful (see paragraph 30 above). He maintained in particular that section 66(1 bis ) of the FCPA expressly prohibited the interception of lawyers’ telephone calls and consequently that the monitoring of the lines of the applicant’s law firm had contravened Swiss law. 49. The Court therefore considers, like the Commission, that the applicant raised in substance, before the national authorities, his complaint relating to Article 8 of the Convention. The preliminary objection must accordingly be dismissed. B. Merits of the complaint 1. Applicability of Article 8 50. In the Court’s view, it is clear from its case-law that telephone calls made from or to business premises, such as those of a law firm, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see, among other authorities, the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1016, § 44, and, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33–35, §§ 28–33). This point was in fact not disputed. 2. Compliance with Article 8 (a) Existence of an interference 51. The Government contended that the question whether there had really been interference by the authorities with the applicant’s private life and correspondence remained open, since none of the recorded conversations in which he had taken part had been brought to the knowledge of the prosecuting authorities, all the recordings had been destroyed and no use whatsoever had been made of any of them. 52. The Court notes that it was not contested that the Federal Public Prosecutor had ordered the monitoring of the telephone lines of Mr Kopp’s law firm, that the President of the Indictment Division of the Federal Court had approved that measure and that it had lasted from 21 November to 11 December 1989 (see paragraphs 16–18 above). 53. Interception of telephone calls constitutes “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1 (see, among other authorities, the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 30, § 64, and the above-mentioned Halford judgment, p. 1017, § 48 in fine ). The subsequent use of the recordings made has no bearing on that finding. (b) Justification for the interference 54. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims. (i) “In accordance with the law” 55. The expression “in accordance with the law”, within the meaning of Article 8 § 2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law. – Whether there was a legal basis in Swiss law 56. The applicant submitted that in the present case there was no legal basis in Swiss law, since sections 66(1 bis ) and 77 of the FCPA (see paragraph 35 above) expressly prohibited the tapping of a lawyer’s telephone lines where the latter was being monitored as a third party. 57. The Commission accepted this argument. It took the view that the purpose of the legal provisions in question was to protect the professional relationship between, among others, a lawyer and his clients. For this special relationship to be respected, it had to be assumed that all the telephone calls of a law firm were of a professional nature. Consequently, the Swiss authorities’ interpretation to the effect that these provisions gave them the power to record and listen to a lawyer’s telephone conversations before deciding whether they were covered by professional privilege could not be accepted. 58. The Government maintained in the first place that telephone tapping in the course of proceedings conducted by the federal authorities was governed by a set of exhaustive and detailed rules (see paragraphs 35–37 above). Moreover, according to sections 66(1 bis ) and 77 of the FCPA, and the relevant legal literature and case-law, legal professional privilege covered only activities specific to a lawyer’s profession. 59. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, the above-mentioned Malone judgment, p. 35, § 79, and the Kruslin v. France and Huvig v. France judgments of 24 April 1990, Series A no. 176-A and B, p. 21, § 29, and p. 53, § 28, respectively). In principle, therefore, it is not for the Court to express an opinion contrary to that of the Federal Department of Justice and Police and the Federal Council on the compatibility of the judicially ordered tapping of Mr Kopp’s telephone with sections 66(1 bis ) and 77 of the FCPA. 60. Moreover, the Court cannot ignore the opinions of academic writers and the Federal Court’s case-law on the question, which the Government cited in their memorial (see paragraphs 38–39 above). In relation to paragraph 2 of Article 8 of the Convention and other similar clauses, the Court has always understood the term “law” in its “substantive” sense, not its “formal one”, and has in particular included unwritten law therein (see the above-mentioned Kruslin and Huvig judgments, pp. 21–22, § 29 in fine, and pp. 53–54, § 28 in fine, respectively). 61. In short, the interference complained of had a legal basis in Swiss law. – “Quality of the law” 62. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case. 63. The same is not true of the third requirement, the law’s “foreseeability” as to the meaning and nature of the applicable measures. 64. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (see, as the most recent authority, the above-mentioned Halford judgment, p. 1017, § 49). 65. The Government submitted that the relevant legislation taken as a whole and the case-law of the Federal Court warranted the conclusion that the telephone tapping ordered in the instant case did in fact satisfy the requirement of foreseeability, as defined by the European Court. 66. The Court must therefore examine the “quality” of the legal rules applicable to Mr Kopp in the instant case. 67. It notes in the first place that the telephone lines of the applicant’s law firm were tapped pursuant to sections 66 et seq. of the FCPA (see paragraph 25 above) and that he was monitored as a third party. Under section 66(1 bis ) of the FCPA, “… third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.” Section 77 of the FCPA provides: “… lawyers … cannot be required to give evidence about secrets confided to them on account of their … profession.” 68. On the face of it, the text seems clear and would appear to prohibit the monitoring of a lawyer’s telephone lines when he is neither suspected nor accused. It is intended to protect the professional relations between a lawyer and his clients through the confidentiality of telephone conversations. 69. In the present case, moreover, the President of the Indictment Division adverted to that principle of the law, since the order of 23 November 1989 (see paragraph 18 above) states: “the lawyers’ conversations are not to be taken into account.” Similarly the Federal Public Prosecutor’s Office mentioned it in the letter of 9 March 1990 informing the applicant that his telephone lines had been tapped (see paragraph 25 above) and the Federal Council likewise referred to it in its decision of 30 June 1993 (see paragraph 31 above). 70. However, as the Court has already observed (see paragraph 52 above), all the telephone lines of Mr Kopp’s law firm were monitored from 21 November to 11 December 1989. 71. The Government sought to resolve this contradiction by referring to the opinions of academic writers and the Federal Court’s case-law to the effect that legal professional privilege covered only matters connected with a lawyer’s profession. They added that Mr Kopp, the husband of a former member of the Federal Council, had not had his telephones tapped in his capacity as a lawyer. In the instant case, in accordance with Swiss telephone-monitoring practice, a specialist Post Office official had listened to the tape in order to identify any conversations relevant to the proceedings in progress, but no recording had been put aside and sent to the Federal Public Prosecutor’s Office. 72. The Court, however, is not persuaded by these arguments. Firstly, it is not for the Court to speculate as to the capacity in which Mr Kopp had had his telephones tapped, since he was a lawyer and all his law firm’s telephone lines had been monitored. Secondly, tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see the above-mentioned Kruslin and Huvig judgments, p. 23, § 33, and p. 55, § 32, respectively). In that connection, the Court by no means seeks to minimise the value of some of the safeguards built into the law, such as the requirement at the relevant stage of the proceedings that the prosecuting authorities’ telephone-tapping order must be approved by the President of the Indictment Division (see paragraphs 18 and 35 above), who is an independent judge, or the fact that the applicant was officially informed that his telephone calls had been intercepted (see paragraph 25 above). 73. However, the Court discerns a contradiction between the clear text of legislation which protects legal professional privilege when a lawyer is being monitored as a third party and the practice followed in the present case. Even though the case-law has established the principle, which is moreover generally accepted, that legal professional privilege covers only the relationship between a lawyer and his clients, the law does not clearly state how, under what conditions and by whom the distinction is to be drawn between matters specifically connected with a lawyer’s work under instructions from a party to proceedings and those relating to activity other than that of counsel. 74. Above all, in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence. 75. In short, Swiss law, whether written or unwritten, does not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the matter. Consequently, Mr Kopp, as a lawyer, did not enjoy the minimum degree of protection required by the rule of law in a democratic society. There has therefore been a breach of Article 8. (ii) Purpose and necessity of the interference 76. Having regard to the above conclusion, the Court, like the Commission, does not consider it necessary to review compliance with the other requirements of paragraph 2 of Article 8 in this case. II. Alleged violation of Article 13 of the Convention 77. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 78. Mr Kopp expressly stated that he did not intend to pursue this complaint before the Court, and the Court considers that it is not required to consider it of its own motion. III. application of Article 50 of the Convention 79. Under Article 50 of the Convention, “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 80. Mr Kopp claimed 550,000 Swiss francs (CHF) for pecuniary damage on account of the effects that publication of the fact that his law firm’s telephone lines had been tapped had had on his professional activities and his firm’s good name. He also claimed CHF 1,000 for non-pecuniary damage, on the ground that the monitoring of his telephone lines had seriously perturbed his relations with his family and the members of his firm. 81. The Government maintained that the amounts claimed were excessive and that the applicant had not adduced evidence of either the existence of pecuniary damage or a causal connection between any violation of the Convention and such damage. Furthermore, if the applicant had lost clients, it was not because of the telephone tapping in issue but for other reasons, such as the fact that he had been convicted of fraud and forging securities or the fact that his name had been struck off the roll of members of the Bar. As regards non-pecuniary damage, the Government submitted that if the Court were to find a violation, that would constitute sufficient just satisfaction. 82. The Delegate of the Commission submitted that compensation should be awarded for loss of income, but left the amount to the Court’s discretion. He was of the view that the compensation claimed for non-pecuniary damage was justified. 83. As regards pecuniary damage, the Court considers that Mr Kopp was not able to prove the existence of a causal connection between the interception of his telephone calls and the alleged loss. As to non-pecuniary damage, the Court considers that the finding of a violation of Article 8 constitutes sufficient compensation. B. Costs and expenses 84. The applicant also claimed CHF 67,640 in respect of his costs and expenses for the proceedings in the Swiss courts and CHF 58,291 in respect of those he had incurred for the proceedings before the Convention institutions. He further sought CHF 174,000 for research he had conducted himself and for out-of-pocket expenses. 85. The Government submitted that if the Court were to find a violation, an award of CHF 21,783 for costs and expenses would satisfy the requirements of Article 50. If the finding of a violation concerned only one of the two complaints raised by the applicant, it would be appropriate for the Court to reduce that amount in an equitable proportion. 86. The Delegate of the Commission left the amount to be awarded for costs and expenses to the Court’s discretion. 87. On the basis of the information in its possession and its case-law on this question, and taking into account the fact that only the applicant’s complaint under Article 8 of the Convention has given rise to the finding of a violation, as the applicant expressly stated that he no longer wished to pursue the complaint relating to Article 13 of the Convention (see paragraph 78 above), the Court decides, on an equitable basis, to award the applicant the sum of CHF 15,000. C. Default interest 88. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum.
The Court held that there had been a violation of Article 8 of the Convention, finding that Swiss law did not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the matter. The Court consequently considered that the applicant, as a lawyer, had not enjoyed the minimum degree of protection required by the rule of law in a democratic society.