Kopp v. Switzerland (13/1997/797/1000) 25 March 1998: – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor -- law did not clearly state how, under what conditions and by whom distinction was 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

Switzerland – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor (sections 66(1 bis) and 77 of the Federal Criminal Procedure Act – "the FCPA")

I. ARTICLE 8 OF THE CONVENTION

A. Government’s preliminary objection

Reference to Court’s case-law – applicant had complained in his administrative appeal to the Federal Council that tapping of his telephones had been illegal – consequently, he had raised in substance his complaint relating to Article 8 of Convention.

Conclusion: objection dismissed (unanimously)

B. Merits of complaint

1. Applicability

Telephone calls from and to business premises may be covered by notions of "private life" and "correspondence" within meaning of Article 8 1 – not disputed.

2. Compliance

(a) Existence of interference

Interception of telephone calls constituted "interference by a public authority", within meaning of Article 8 2, with exercise of a right guaranteed to applicant under paragraph 1 - subsequent use of recordings made had no bearing on that finding.

(b) Justification of the interference

i. Whether interference was "in accordance with the law"

- Whether there was a legal basis in Swiss law

Reference to Court’s case-law – in principle, it was not for the Court to express an opinion contrary to that of Federal Department of Justice and Police and Federal Council on compatibility of judicially ordered tapping of applicant’s telephone with sections 66(1) and 77 of the FCPA – Court could not ignore opinions of academic writers and Federal

Court’s case-law on the question - interference complained of therefore had a legal basis in Swiss law.

 

- Quality of the law

Accessibility of the law: not in doubt in present case.

Law’s "foreseeability" as to meaning and nature of applicable measures:

As interception constituted a serious interference with private life and correspondence, it had to be based on a "law" that was particularly precise, especially as the technology available for use was continually becoming more sophisticated.

Safeguards afforded by Swiss law not without value – however, contradiction between clear text of legislation which protected legal professional privilege when a lawyer was being monitored as a third party and practice followed in present case - law did not clearly state how, under what conditions and by whom distinction was 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 - above all, it was astonishing that in practice this task was assigned to an official of the Post Office’s legal department, a member of the executive, without supervision by an independent judge – accordingly, applicant, as a lawyer, had not enjoyed minimum degree of protection required by rule of law in a democratic society.

 

Conclusion: violation (unanimously)

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

 

B. Merits of the complaint

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 of 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.

1. 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 nos. 176-A and 176-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.

2. "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 not 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 6 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.

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