Camenzind v. Switzerland (136/1996/755/954) 16 December 1997: search of residential premises carried out in connection with administrative criminal law proceedings -- Interference "in accordance with the law" and pursued aim consistent with Convention: "prevention of disorder or crime".

Switzerland – search of residential premises carried out in connection with administrative criminal law proceedings (section 48 of the Federal Administrative Criminal Law Act)

I. ARTICLE 8 OF THE CONVENTION

A. Whether there was an interference

Interference with applicant’s right to respect for his home.

B. Whether the interference was justified

Interference "in accordance with the law" and pursued aim consistent with Convention: "prevention of disorder or crime".

Contracting States may consider it necessary to resort to measures such as searches of residential premises and seizures in order to obtain physical evidence of certain offences – Court will assess whether reasons adduced to justify such measures were relevant and sufficient and whether proportionality principle has been adhered to – with regard to latter point, Court ensures that relevant legislation and practice afford individuals adequate and effective safeguards against abuse – it must be particularly vigilant where authorities are empowered under national law to order and effect searches without a judicial warrant –Court must also consider particular circumstances of each case – in case before it, Swiss federal legislation provided safeguards and, more particularly, search had been of very limited scope.

Conclusion: no violation (eight votes to one).

B. Whether the interference was justified

1. "In accordance with the law"

36. The applicant denied that the search had been "in accordance with the law". He argued that the act of which he had been accused was not an "offence" but a "breach of administrative regulations" within the meaning of section 3 of the Federal Administrative Criminal Law Act of 22 March 1974, as amended ("the DPA"). Section 45(2) of the DPA therefore operated to preclude the use of any coercive measures against him. Furthermore, that Act provided, contrary to the general principles of administrative law, that coercive measures were to be ordered by public servants and not by a judicial authority. Lastly, section 48(1) of the DPA provided that searches could only be carried out on premises if it was "likely" that the object sought was to be found there. However, as the applicant had informed the officials present when the search was carried out that the telephone was no longer in his possession, that statutory requirement had not been satisfied.

37. The Court reiterates that the expression "in accordance with the law", within the meaning of Article 8 § 2 of the Convention, requires that the impugned measure should have some basis in domestic law and that the law in question 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 (see the Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27). In the instant case it notes, firstly, that under section 42 of the Federal Act of 1922 "regulating telegraph and telephone communications" it was an offence, inter alia, to "[set up, operate or use], without a licence or permit ... transmitters or receivers or any equipment for which a licence or permit is required and which is used for electric or radio transmission of signals, images or sounds" (see paragraph 16 above). The Court further notes that to enable offences under administrative criminal law to be detected, section 48 of the DPA provides that searches may be carried out in dwellings and other premises "if ... evidence of the commission of the offence [is] to be found there" and that the Act contains safeguards against arbitrary interference by the authorities with the right to respect for the home (see paragraphs 17-25 above and paragraph 46 below). Since the applicant did not supply any evidence in support of his allegations, the Court, like the Government and the Commission, accepts that the measure complained of was "in accordance with the law".

2. Legitimate aim

38. Mr Camenzind maintained that the aim of the search – to find evidence of the offence – had become unlawful once he had informed the officials responsible that the telephone in question was no longer in his possession.

39. Neither the Government nor the Commission accepted that proposition.

40. The Court notes that the applicant was suspected of having contravened section 42 of the Federal Act of 1922 "regulating telegraph and telephone communications" by using a cordless telephone of an unauthorised type. There is, therefore, no doubt that the search of the building in which the applicant lived, with a view to finding and seizing the telephone, pursued an aim that was consistent with the Convention, namely the "prevention of disorder or crime".

3. "Necessary in a democratic society"

41. Mr Camenzind argued that it had not been "necessary" for the purpose of obtaining physical proof of the offence, and hence of achieving the aim pursued, to search his property. Such proof had already existed as the conversation had been recorded by the radio communications surveillance unit of the Head Office of the Swiss Post and   Telecommunications Authority (PTT) and he had admitted using the telephone. Other factors showed the measure to have been disproportionate: he had not used the telephone again during the six-week period the authorities had allowed to elapse between the commission of the offence and the search, the act he was accused of was "trifling" and the authorities could have taken measures that were less coercive. In short, the interference had not met a "pressing social need" within the meaning of the case-law of the Convention institutions.

42. The Government submitted that the Contracting States were permitted by the Court’s case-law to have recourse to certain coercive measures in order to obtain evidence of an offence, in so far as their relevant legislation and practice afforded adequate and effective safeguards against abuse and the resulting interference was proportionate to the legitimate aim pursued. The fact that the search had been carried out without a judicial warrant therefore did not necessarily mean that there had been a violation of the Convention. On the contrary, the statutory basis on which it had been ordered, the manner in which it had been executed and its very limited scope showed it to have been "necessary in a democratic society".

43. The Commission reached the same conclusion.

44. Under the Court’s settled case-law, the notion of "necessity" implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is "necessary in a democratic society", the Court will take into account that a margin of appreciation is left to the Contracting States (see, for example, the Olsson v. Sweden (no.1) judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67).

45. The Contracting States may consider it necessary to resort to measures such as searches of residential premises and seizures in order to obtain physical evidence of certain offences. The Court will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the aforementioned proportionality principle has been adhered to (see the Funke v. France, Crémieux v. France and Miailhe v. France (no. 1) judgments of 25 February 1993, Series A no. 256-A, pp. 24-25, §§ 55-57, Series A no. 256-B, pp. 62-63, §§ 38-40, and Series A no. 256-C, pp. 89-90, §§ 36-38, respectively; and, mutatis mutandis, the Z v. Finland judgment of 25 February 1997, Reports of Judgments and Decisions 1997-..., § 94). As regards the latter point, the Court must firstly ensure that the relevant legislation and practice afford individuals "adequate and effective safeguards against abuse" (ibid.); notwithstanding the margin of appreciation which the Court recognises the Contracting States have in this sphere, it must be particularly vigilant where, as in the present case, the authorities are empowered under national law to order and effect searches without a judicial warrant. If individuals are to be protected from arbitrary interference by the authorities with the rights guaranteed under Article 8, a legal framework and very strict limits on such powers are called for. Secondly, the Court must consider the particular circumstances of each case in order to determine whether, in the concrete case, the interference in question was proportionate to the aim pursued.

46. In the present case the purpose of the search was to seize an unauthorised cordless telephone that Mr Camenzind was suspected of having used contrary to section 42 of the Federal Act of 1922 regulating telegraph and telephone communications (see paragraphs 7-9 above). Admittedly, the authorities already had some evidence of the offence as the radio communications surveillance unit of the Head Office of the PTT had recorded the applicant’s conversation and Mr Camenzind had admitted using the telephone (see paragraphs 7 and 10 above). Nevertheless, the Court accepts that the competent authorities were justified in thinking that the seizure of the corpus delicti – and, consequently, the search – were necessary to provide evidence of the relevant offence. With regard to the safeguards provided by Swiss law, the Court notes that under the Federal Administrative Criminal Law Act of 22 March 1974, as amended (see paragraphs 17-25 above), a search may, subject to exceptions, only be effected under a written warrant issued by a limited number of designated senior public servants (section 48) and carried out by officials specially trained for the purpose (section 20); they each have an obligation to stand down if circumstances exist which could affect their impartiality (section 29). Searches can only be carried out in "dwellings and other premises ... if it is likely that a suspect is in hiding there or if objects or valuables liable to seizure or evidence of the commission of an offence are to be found there" (section 48); they cannot be conducted on Sundays, public holidays or at night "except in important cases or where there is imminent danger" (section 49). At the beginning of a search the investigating official must produce evidence of identity and inform the occupier of the premises of the purpose of the search. That person or, if he is absent, a relative or a member of the household must be asked to attend. In principle, there will also be a public officer present to ensure that "[the search] does not deviate from its purpose". A record of the search is drawn up immediately in the presence of the persons who attended; if they so request, they must be provided with a copy of the search warrant and of the record (section 49). Furthermore, searches for documents are subject to special restrictions (section 50). In addition, suspects are entitled, whatever the circumstances, to representation (section 32); anyone affected by an "investigative measure" who has "an interest worthy of protection in having the measure ... quashed or varied" may complain to the Indictment Division of the Federal Court (sections 26 and 28). Lastly, a "suspect" who is found to have no case to answer may seek compensation for the losses he has sustained (sections 99-100).

As regards the manner in which the search was conducted, the Court notes that it was at Mr Camenzind’s request that it was carried out by a single official (see paragraph 11 above). It took place in the applicant’s presence after he had  been allowed to consult the file on his case and telephone a lawyer (see paragraph 10 above). Admittedly, it lasted almost two hours and covered the entire house, but the investigating official did no more than check the telephones and television sets; he did not search in any furniture, examine any documents or seize anything (see paragraph 11 above).

47. Having regard to the safeguards provided by Swiss legislation and especially to the limited scope of the search, the Court accepts that the interference with the applicant’s right to respect for his home can be considered to have been proportionate to the aim pursued and thus "necessary in a democratic society" within the meaning of Article 8. Consequently, there has not been a violation of that provision.

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