12708/87

 .CE AS TO THE ADMISSIBILITY OF Application No. 12708/87 by Rudolf ROHR against Switzerland .NC The European Commission of Human Rights sitting in private on 7 October 1987, the following members being present: MM. C.A.NØRGAARD, President S. TRECHSEL F. ERMACORA M.A. TRIANTAFYLLIDES E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL H.G. SCHERMERS H. DANELIUS G. BATLINER H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY Mr. J. RAYMOND, Deputy Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 30 January 1987 by Rudolf ROHR against Switzerland and registered on 13 February 1987 under file N° 12708/87; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the applicant, may be summarised a follows: The applicant, a Swiss citizen born in 1939, is a journalist residing in Richterswil, Switzerland. Before the Commission he is represented by Professor Nobel, a lawyer practising in Zurich. I. In 1982 altogether ten Soviet prisoners-of-war who had fought in Afghanistan were brought to Switzerland where, upon request of the International Committee of the Red Cross (ICRC), they were interned in a camp which normally serves as a Swiss military prisoners' camp (Militärstraflager). The camp is situated in a recreational area which is popular among the residents of Zug and its vicinity. A public road as well as generally accessible paths for pedestrians and a cross country skiing track lead past part of the camp. In 1983, one of the interned Russian soldiers fled from the camp and left Switzerland. In 1984, after two years, the ICRC and the Swiss Department of Foreign Affairs planned to repatriate to the Soviet Union three more prisoners-of-war, whereupon a public discussion commenced upon these occurrences. II. On 19 March 1984 the Swiss weekly magazine "Schweizer Illustrierte" published, on pp. 14-20, interspersed with advertisements, an article which had as title a quote from a renowned British human rights' specialist, i.e.: " 'At home the chaps are awaiting death' " (" 'Die Burschen erwartet zu Hause der Tod' "). The cover page of the issue which depicted Donald Duck announced on the top right hand corner the article with the lines: "Zugerberg-Russians- Scandal for Switzerland?" ("Zugerberg-Russen-Skandal für die Schweiz?"). The article was written by the applicant and illustrated with eight photographs which he had contributed together with three other photographers. The article gave the particulars of the remaining nine prisoners-of-war and generally explained their situation, their daily routine as well as the precautions taken by the authorities to prevent them from escaping. The article also cited a Soviet dissident and other persons and organisations as to the future prospects of the soldiers after their repatriation. The photographs disclosed as follows: - on page 14: the entrance of the camp with a watch tower and a warning sign stating that the camp was a closed area (Sperrgebiet) and that it was prohibited to take photographs; - on page 15: three interned soldiers at work cutting timber. The text to this photograph stated that it had been taken secretly ("heimlich fotografiert"); - on pages 16-17: interned soldiers setting out to work and guarded by Swiss soldiers; - on page 17: two unfocussed photos apparently depicting the recreational area in the camp building as well as photos of the soldier who escaped and of a Soviet dissident; - on page 18: a view of the camp from the distance. III. On 16 February 1984 the Zug Cantonal Police reported the applicant on the ground of a breach of military secrets according to Article 329(1) of the Swiss Criminal Code. The applicant was charged with having photographed and filmed since 26 January 1984 together with other persons in the Zugerberg camp within a military closed area. Section 329 states:

"Breach of Military Secrets 1. Whosoever unlawfully penetrates into institutions or other localities access to which is prohibited by the military authority, or depicts military institutions or objects, or mimeographs or publishes such pictures, will be punished by detention or a fine. 2. Attempt and abetment are punishable.

Verletzung militärischer Geheimnisse 1. Wer unrechtmässig in Anstalten oder andere Örtlichkeiten eindringt, zu denen der Zutritt von der Militärbehörde verboten ist, militärische Anstalten oder Gegenstände abbildet, oder solche Abbildungen vervielfältigt oder veröffentlicht, wird mit Haft oder mit Busse bestraft. 2. Versuch und Gehilfenschaft sind strafbar." The Federal Attorney's Office (Bundesanwaltschaft) referred the case in respect of the report of 16 February 1984 to the Zug authorities and, after the article was published in the "Schweizer Illustrierte", also in that respect. On 2 May 1985 the Police Judge's Office (Polzeirichteramt) of the Canton of Zug convicted the applicant of a breach of military secrets according to Article 329(1) and imposed a fine of 300 SFr. According to the Police Judge's Office, it had been established that photographs had been published in the "Schweizer Illustrierte" of the camp of Zugerberg and that the applicant was mentioned as author of the article and as one of the photographers. The purpose of Article 329 was to screen (abschirmen), inter alia, preliminary areas of military secrets (Vorfeld militärischer Geheimnisse), namely military areas and objects which, while not being of a confidential character within the meaning of the Military Criminal Code, nevertheless required in the interests of national defence that their existence and outline etc. were not accessible to everybody. The photographs at issue did not depict military secrets. Nevertheless, the military authorities, in the interests of national defence, attributed to the area and the objects concerned a certain protection from mass publicity. The applicant's appeal was dismissed by the Zug Criminal Court (Strafgericht) on 18 November 1985. The court held on the one hand that the military criminal camp in Zugerberg constituted a military institution (Anstalt) though it did not directly serve the interests of Swiss national defence within the meaning of the Federal Act on military localities and was not therefore secret. For this reason, the stricter provisions of the Military Criminal Code were not applicable. On the other hand, the Court found that Article 329 of the Swiss Criminal Code did not require that a secret institution be depicted. It sufficed that the picture disclosed military institutions and that there was an interest not to disclose them to the broad public. The fact that the prisoners-of-war were being guarded not only to prevent them from escaping but also to screen them from the broader public demonstrated that there was a legitimate interest in preventing pictures of the guarded objects and areas. The latter had also been clearly marked as a closed area. The applicant then filed a plea of nullity (Nichtigkeitsbe- schwerde) with the Federal Court (Bundesgericht) which the latter dismissed on 3 June 1986. In its decision which was served on 6 August 1986 the Court found in particular that Article 329 of the Criminal Code did not require that military secrets which served the interests of national defence had been breached. Since the facts of the case were not at issue the plea of nullity was therefore unfounded. COMPLAINTS The applicant now complains under Article 10 of the Convention of a restriction of his right to express his opinion and to impart information. He alleges in particular that the conditions in Article 10 para. 2 have not not been met, namely the sufficient legal basis, the lawful grounds for justification of the restriction and the necessity of the measure in a democratic society. Thus, while Article 329(1) of the Criminal Code had, until the present case, never been applied by a court, the doctrine is unanimous in stating that the provision may only be referred to if interests of Swiss national defence are involved. It is therefore unclear what purpose Article 329 serves. Moreover, it is doubtful whether in the present case one can still speak of a military institution since the internment of the prisoners-of-war occurred upon instructions of the International Committee of the Red Cross which was therefore acting within the framework of its good offices under international law. In any event, there is no link between the measure and Swiss national defence. There were no secrets of a military or other nature in the camp. It was clearly for this reason that the soldiers were placed in the camp in Zugerberg since the Soviet soldiers themselves would most of all be observing their surroundings. On the other hand, anybody could pass along the camp which is in a popular recreational area. What every pedestrian and even foreign military person can see must also be permitted to be published in a magazine. THE LAW The applicant complains under Article 10 (Art. 10) of the Convention of a restriction of his right to express his opinion and impart information. He submits that Article 329 para. 1 of the Criminal Code did not provide a sufficient legal basis for this restriction under Article 10 para. 2 (Art. 10-2) . There was no legitimate aim under that provision since no link existed between the prohibition to take photographs and Swiss national defence. Article 10 states (Art. 10): "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." The Commission notes that the applicant was punished by the Swiss courts for having published photographs in a Swiss magazine. The Commission finds that this punishment constituted an interference by a public authority with the exercise of the applicant's rights under Article 10 para. 1 (Art. 10-1). Its task is next to examine whether such interference was justified under Article 10 para. 2 (Art. 10-2) of the Convention. The first question to be considered is whether the measure was "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2). In particular, the interference must have had some basis in domestic law which itself must be adequately accessible and be formulated with sufficient precision to enable the individual to regulate his conduct (see e.g. European Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, p. 21 para. 45). In the present case the Commission observes that S.329(1) of the Criminal Code clearly stated that whosoever "depicts military institutions or objects ... or publishes such pictures" will be punished by detention or a fine. The Commission finds therefore that the interference at issue was "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2). The next question is whether the interference also had an aim which was legitimate under Article 10 para. 2 (Art. 10-2) and whether it was "necessary in a democratic society" within the meaning of that provision, in particular whether the measure was proportionate to the aim pursued (see the Barthold judgment, ibid., p. 24 para.55). The Commission notes that the Zugerberg camp serves military functions and constitutes a restricted area within the meaning of Article 329 of the Criminal Code. The Commission further notes that the internment of the Soviet soldiers occurred upon request of the ICRC and that as a basis for the arrangement between the ICRC and the Swiss Government the soldiers were granted the status of prisoners of war. This status implies, under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, particular responsiblities for the interning State. In view thereof, and of the fact that the applicant was punished only for publishing the photographs at issue and not generally for being the author of the article, the Commission finds that the interference complained of occurred "in the interests of national security, territorial integrity (and) for the protection of the ... rights of others" and that it was "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) in that the measure was proportionate to the legitimate aim pursued. In the light of these considerations the Commission finds that the complaints at issue do not disclose any appearance of a violation of the rights set out in Article 10 (Art. 10) of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Deputy Secretary to the Commission President of the Commission (J. RAYMOND) (C.A. NØRGAARD)