23224/94

 AS TO THE ADMISSIBILITY OF Application No. 23224/94 by H. W. K. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 12 april 1996, the following members being present: MM. C.L. ROZAKIS, President S. TRECHSEL Mrs. J. LIDDY MM. E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL M.P. PELLONPÄÄ B. MARXER B. CONFORTI N. BRATZA I. BÉKÉS E. KONSTANTINOV G. RESS A. PERENIC C. BÎRSAN K. HERNDL Mrs. M.F. BUQUICCHIO, Secretary to the Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 15 December 1993 by H. W. K. against Switzerland and registered on 10 January 1994 under file No. 23224/94; Having regard to: - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 23 December 1994 and the observations in reply submitted by the applicant on 10 April 1995; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, a Swiss citizen born in 1931, is a lawyer residing at Zumikon in Switzerland. Before the Commission he is represented by Messrs. B. Badertscher and Th. Poledna, lawyers practising in Zurich. Particular circumstances of the case I. The applicant's wife was a member of the Federal Council (Bundesrat) and Head of the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement). On 14 December 1988 the applicant's wife announced her resignation as from 28 February 1989 in view of allegations, which she disputed, that she had passed on secret information to the applicant in a telephone conversation. On 31 January 1989 the Swiss Parliament instituted a Parliamentary Commission of Enquiry (Parlamentarische Untersuchungskommission) to examine the exercise of her office and her resignation. The Commission submitted its Report on 22 November 1989. While identifying various issues in connection with the exercise of the office of the applicant's wife, the Report also concluded that she had dealt with her work carefully and prudently. In February 1990 the Federal Court (Bundesgericht) acquitted the applicant's wife of the charge of a breach of official secrets (Amtsgeheimnisverletzung). II. On 28 January 1988 a client asked the lawyer H., who worked in the applicant's office, to examine the legality of certain letters rogatory (Rechtshilfeverfahren) of the United States. H. undertook a preliminary examination of the matter whereupon he refused to deal with the matter, referring to an instruction in the applicant's office not to take on any cases concerning the Federal Department of Justice and Police, or the applicant's wife. The case was then passed on to the law firm N. On 10 June 1988 the law firm N. filed a request with the Federal Office for the Police (Bundesamt für Polizeiwesen) to consult the letters rogatory. On 23 August 1988 the Federal Office transmitted to the law firm N. a shortened ("gestrippte") version of the letters rogatory. III. Shortly after the Parliamentary Commission (above I.) was instit- uted, its President L. obtained information that a certain X., a US citizen, had apparently obtained a particular document from the applicant which both the Federal Office for the Police and the Federal Court had previously refused to make available. X. had allegedly offered the applicant 250,000 SFr to obtain this document from the Federal Department of Justice and Police. L. obtained this infor- mation from a certain Y. who in turn had obtained the information from the main informant Z. It later transpired that X. was involved in letters rogatory from the USA, containing secret information as to his role in organised crime. The suspicion therefore arose that the document which the applicant was allegedly asked to obtain concerned these letters rogatory; and that a person at the Federal Department of Justice and Police could, in breach of official secrets, have handed out documents to unauthorised persons. On 21 November 1989 the Federal Attorney (Bundesanwalt) instituted judicial investigations (gerichtspolizeiliches Ermittlungsverfahren) against unknown persons. The purpose thereof was to address (ansprechen) the informant Y. and eventually to identify the person in the Federal Department of Justice and Police who might have breached official secrets. IV. In the course of the investigations it transpired that the applicant's law firm, and later the law firm N. (see above II.) had attempted to obtain documents from the Federal Office for the Police, though the latter had refused to transmit those parts of the letters rogatory which concerned X.'s involvement in organised crime. The judicial investigations of 21 November 1989 (above III.) included the surveillance of the telephone lines of X., Y., the applicant and his wife. The applicant was involved as a "third person" (see below, Relevant domestic law) rather than as a suspect. On 23 November 1989 the President of the Indictment Chamber (Anklagekammer) of the Federal Court granted the Federal Attorney's request to monitor altogether 13 lines, including the applicant's private telephone lines, the telephone lines of his office and his wife's telephone lines, in particular a secret number granted to her as a former Federal Councillor. The order contained the remark "Lawyers' conversations must be disregarded" (Anwaltsgespräche sind nicht zu erfassen"). Six of these lines were no longer monitored after 1 December 1989. On the other hand, the President of the Indictment Chamber granted on 1 December 1989 the monitoring of a further telephone line. The order again contained the remark "Lawyers' conversations must be disregarded". Also on 1 December 1989 a meeting took place between the Federal police, the informant Y. and the President of the Parliamentary Commission L. On 4 December 1989 L. contacted the main informant Z. The latter was questioned by the Federal Attorney's Office on 8 December 1989. On 11 December 1989 the Federal Office for the Police, having found that the suspicion of a breach of official secrets had been invalidated, terminated the surveillance of all telephone lines of the applicant and his wife. On 14 December 1989 the Federal Attorney's Office (Bundesanwaltschaft) issued its final report in which it concluded that no concrete suspicion had transpired as to a breach of official secrets. The Report noted that in 1988 the lawyer H., who worked in the applicant's office, had passed on a case, concerning the letters rogatory, to the law firm N., and that there were no indications that the applicant or his wife could have been directly involved in the matter. On 6 March 1990 the Federal Attorney's Office decided to close the investigations as there was no confirmation of the suspicion that the applicant's wife or a collaborator of the Federal Department of Justice and Police had breached official secrets by passing on secret parts of letters rogatory. By letter of 9 March 1990 the applicant was informed that under Sections 320 and 340 para. 1, subpara. 7 of the Penal Code (Strafgesetzbuch, see below, Relevant domestic law) judicial inves- tigations had been instituted on suspicion of a breach of official secrets, and that under Sections 66 et seq. of the Federal Code of Criminal Procedure (Bundesstrafprozessordnung, see below, Relevant domestic law) his private and professional telephone lines had been monitored. The letter stated that the surveillance had lasted from 21 November 1989 until 11 December 1989 and that "conversations conducted in the function as a lawyer had been excluded from the surveillance" ("von der Überwachung ausgenommen waren die in anwaltschaftlicher Eigenschaft geführten Gespräche"). It was also stated that in application of Section 66 para. 1ter of the Federal Code of Criminal Procedure (see below, Relevant domestic law) all recordings had been destroyed. V. On 12 March 1990 the Parliamentary Commission (see above I.) issued a communiqué stating inter alia:

"In the course (of the investigations of the Federal Attorney's Office), which also included authorised telephone surveillance, the Office found that Swiss representatives of a US citizen had attempted, with the help (of the applicant), to obtain access to a secret document. They hoped for an easier access to the Federal Department of Justice and Police, as he was the husband of the Federal Councillor concerned. A lawyer of (the applicant's) office examined, for a fee, the possibility of taking over the case, but then refused. As a result, there was an attempt to obtain the secret part of the documents with the help of another lawyer. The US letters rogatory were finally handed out, though the crucial parts were censored. Based on this result the Federal Attorney's Office closed its investigations ... The suspicion of a breach of official secrets thus proved to be unfounded. The police investigations demonstrate, however, how the rumour arose which led to the indications and the suspicion."

"Im Rahmen (der Ermittlungen der Bundesanwaltschaft), zu welchen auch bewilligte Telefonabhörungen eingesetzt wurden, eruierte diese, dass die Schweizer Vertreter des amerikanischen Staatsangehörigen versucht hatten, durch Einschaltung (des Beschwerdeführers) zum geheimen Aktenstück zu gelangen. Sie versprachen sich einen leichteren Zugang ins EJPD, weil er Gatte der zuständigen Bundesrätin war. Ein Rechtsanwalt des Büros (des Beschwerdeführers) prüfte gegen Honorar die allfällige Mandatsübernahme, lehnte sie jedoch ab. In der Folge wurde mit einem anderen Rechtsanwalt die Herausgabe des geheimen Teils der Akten versucht. Schliesslich wurde zwar das amerikanische Rechtshilfegesuch herausgegeben, die entscheidenden Passagen jedoch abgedeckt. Gestützt auf dieses Ergebnis stellte die Bundesanwaltschaft die Ermittlungen ein. ... Der Verdacht auf Verletzung des Amtsgeheimnisses erwies sich als unbegründet. Die polizeilichen Ermittlungen zeigen jedoch auf, wie das Gerücht, das zu Hinweis und Verdacht führte, entstanden ist." On 13 March 1990, various Swiss newspapers, including the Neue Zürcher Zeitung and the Tages-Anzeiger, published articles on the communiqué of the Parliamentary Commission. Therein, reference was made to the applicant as one of the persons involved, and to telephone surveillances which had been undertaken. VI. On 10 April 1990 the applicant filed a complaint (Beschwerde) with the Federal Department of Justice and Police about a breach of the provisions concerning telephone surveillance, and of Article 8 of the Convention. Following a further complaint about the delay in the proceedings the Department dismissed the complaint on 2 November 1992. The Department, which dealt with the complaint as a hierarchical complaint (Aufsichtsbeschwerde), decided inter alia to refuse the applicant's request for unrestricted access to the case-file. VII. On 2 December 1992 the applicant filed an administrative appeal (Verwaltungsbeschwerde) with the Federal Council against the decision of the Federal Department of Justice and Police of 2 November 1992. In his appeal he complained inter alia that the telephone surveillance had been unlawful and that he had been refused unrestricted access to the case-file. In his appeal the applicant stated inter alia that it was irrelevant whether the European Court of Human Rights had regarded Sections 66 et seq. of the Federal Code of Criminal Procedure as conforming with the Convention, as long as the application of these norms was not in conformity with the Convention; the incorrect or arbitrary application of a norm that conformed with the Convention could also breach the Convention. Under the headline "Breach of Article 8 of the Convention", the appeal continued:

"In this connection it must not be overlooked that the telephone lines belonging to the applicant's legal practice, which was shared by a number of other lawyers, were tapped. However, Section 66 para. 1bis of the Federal Code of Criminal Procedure expressly prohibits the tapping of such telephone calls. The tapping of the telephone conversations with the applicant's law firm was therefore unlawful under the aforementioned provision of domestic law."

"In diesem Zusammenhang darf auch nicht übersehen werden, dass die Telefonanschlüsse der Anwaltskanzlei des Beschwerdeführers abgehört wurden, an der eine Reihe von Anwälten beteiligt war. Art. 66 Abs. 1bis BStP schliesst aber das Abhören solcher Telefongespräche ausdrücklich aus. Das Abhören der Telefongespräche der Anwaltskanzlei des Beschwerdeführers war somit auch unter der vorgenannten innerstaatlichen Gesetzes- bestimmung widerrechtlich." The Federal Council dismissed the administrative appeal on 30 June 1993 in a decision numbering 26 pages. In its decision the Federal Council recalled that, even without a legal basis, hierarchical complaints in cases of telephone surveillance were treated as formal administrative appeals. The Federal Council found that the applicant should have access to the case-file only to the extent that the documents directly related to his telephone surveillance as a "third person". The Federal Council noted that the applicant had had restricted access to documents some of which had been censored in particular in respect of names of informants. Other documents, concerning for instance telephone surveillances, had not been handed out, though the applicant had been orally informed of their existence and content. The Federal Council found that the Federal Department of Justice and Police had acted in an exemplary and generous manner. Insofar as documents concerning third persons had not been handed out, the interests of the latter outweighed the applicant's interest therein. The Federal Council further found that Section 66 of the Federal Code of Criminal Procedure permitted the telephone surveillance of third persons such as the applicant if there were indications that the latter would receive information from, or pass it on to, the perpetrator of an offence. The Federal Council considered that the applicant had not contested the conformity of Sections 66 et seq. of the Federal Code of Criminal Procedure with Article 8 of the Convention, though he claimed that the authorities had incorrectly applied the pertinent rules. The Federal Council then examined whether or not Federal civil servants had breached their duties in connection with the applicant's telephone surveillance. The Federal Council considered that at a time of general insecurity following rumours of subversion (eine durch Unterwande- rungsgerüchte verunsicherte Zeit) there had been concrete indications of a breach of official secrets within the Federal Department of Justice and Police. The document at issue concerned secret information in respect of which assurances had been given to the United States; thus, Switzerland's credibility was at stake. A risk arose as the applicant, the husband of the former Head of the Department of Justice and Police, had been mentioned. The civil servants concerned could justifiably have been criticised if in such circumstances they had not undertaken the necessary investigations. Furthermore, the telephone surveillance had to occur at the beginning of the investigations before contacts were established with Y. and Z. Thus, the civil servants concerned had not immediately examined the credibility of the informants as any further contact would have jeopardised the investigations. The applicant's phones had been monitored, not as those of a suspect, but as those of a "third person" within the meaning of Section 66 para. 1bis of the Federal Code of Criminal Procedure; conversations which he conducted as a lawyer had expressly been excluded. As the applicant was not a civil servant, he could not have been the perpetrator of the offence. His wife had been included in the theoretical circle of suspects, but there were no concrete suspicions either against her or against other persons. The applicant's telephone surveillance thus neither amounted to a suspicion in the criminal sense nor was it conducted against unknown persons merely for the sake of appearances. There were also no political motives, and the President of the Parliamentary Commission had not been in a position to influence the police investigations. The decision concluded that the conversations monitored had been irrelevant for the investigations, and no written record had been prepared. In any event, even if such a record had been given to the Parliamentary Commission, it could not have been abused, as the Commission members were bound by the secret of office (Amtsgeheimnis). VIII. Against the decision of the Federal Department of Justice and Police of 2 November 1992 (see above, VI.), the applicant also filed an administrative law appeal (Verwaltungsgerichtsbeschwerde). In his appeal he requested the Court to conclude that the telephone monitoring had been unlawful, and that for this reason criminal proceedings should be instituted against the persons concerned. On 8 March 1994 the Federal Court dismissed the applicant's administrative law appeal. The Court first dealt with the issue whether the applicant should have been permitted to consult the entire case-file during the proceedings before the Federal Department of Justice Police. The Court found that those parts of the document which had been pertinent for the decision (entscheidungswesentlich) had been shown to the applicant, and that it had been correct not to disclose the names of the informants; in the Court's opinion, this conclusion also corresponded with a decision of the Parliamentary Commission of Enquiry (see above, I.) to keep informants' names confidential. Indeed, the applicant had been sufficiently able to file complaints on the basis of a partial consultation of the case-file (gestützt auf die ihm zugestellten "gestrippten" Akten). The Court further found that the applicant's appeal to the Federal Department of Justice and Police satisfied the requirements of Article 13 of the Convention. The Court then examined the issue whether criminal proceedings should be instituted in view of the surveillance of the applicant's telephones. It found that it need not completely (abschliessend) examine the issue whether or not the telephone surveillance breached Article 8 of the Convention, inter alia as the applicant had already filed a complaint with the Federal Department of Justice and Police.

"Based on information received by the Federal Attorney's Office from the President of the Parliamentary Commission of Enquiry, the Office instituted proceedings on suspicion of a possible breach of official secrets. Suspects were Federal civil servants who had dealt with the letters rogatory and the confidential document. There was at least a connection with the applicant's office and the letters rogatory in that a partner of his office had examined whether or not to take over the case for a fee of 6'000 SFr - and not free of costs as the applicant maintains. As it turned out, the partner finally refused to take on the case, apparently because it concerned the Federal Department of Justice and Police, of which the applicant's wife was at that time the head. The supposition of the Federal Attorney's Office, namely that the original informant or the unfaithful civil servant would contact the applicant, and that this would lead to the resolution of the offence, did not therefore in view of the entire circumstances of the case appear incorrect."

"Aufgrund der Informationen, welche die Bundesanwaltschaft vom PUK-Präsidenten erhalten hatte, ermittelte sie wegen allfälliger Amtsgeheimnisverletzung. Als Verdächtige kamen Bundesbeamte in Frage, die sich mit dem fraglichen Rechtshilfeverfahren und dem geheim zu haltenden Dokument befasst hatten. Mit dem Anwaltsbüro des Beschwerdeführers und dem Rechtshilfeverfahren bestand immerhin insofern ein Zusammenhang, als ein Partner seines Büros die Mandatsübernahme gegen ein Honorar von Fr. 6'000.-- - und nicht unentgeltlich, wie der Beschwerdeführer behauptet - geprüft, schliesslich aber, wie sich herausstellte, offenbar deshalb abgelehnt hatte, weil das EJPD betroffen war, dem damals die Ehefrau des Beschwerdeführers vorstand. Die Vermutung der Bundesanwaltschaft, der Erstinformant oder der ungetreue Beamte werde sich mit dem Beschwerdeführer in Verbindung setzen, was zur Aufklärung der Tat führen könnte, erscheint aufgrund der gesamten Umstände des Falles nicht als abwegig." Relevant domestic law I. According to Section 320 para. 1 of the Penal Code (Strafgesetz- buch), whoever discloses a secret entrusted to him in his function as a civil servant will be punished with imprisonment or a fine. Section 340 para. 1 (7) of the Penal Code determines the jurisdiction of the Federal Court (Bundesgericht) in respect of this offence. II. Section 66 para. 1 the Federal Code of Criminal Procedure (Bundesstrafprozessordnung) envisages telephone surveillance if a person is suspected of a criminal offence. Section 66 para. 1bis of the Federal Code states as follows:

"If the conditions concerning the accused or the suspect have been met, third persons may also be monitored if it must be assumed on the basis of certain facts that they will receive certain messages from, or transmit such messages to, him. Persons who according to Section 77 can refuse to give evidence shall be excluded. The telephone of third persons may always be monitored if there is a well-founded suspicion that the accused uses it."

"Sind die Voraussetzungen beim Beschuldigten oder Verdächtigen erfüllt, so können Drittpersonen überwacht werden, wenn aufgrund bestimmter Tatsachen angenommen werden muss, dass sie für ihn bestimmte oder von ihm herrührende Mitteilungen entgegennehmen oder weitergeben. Ausgenommen sind Personen, die nach Art. 77 das Zeugnis verweigern dürfen. Der Telefonanschluss von Drittpersonen kann stets überwacht werden, wenn der Verdacht begründet ist, dass der Beschuldigte ihn benutzt." According to Section 66 para. 1ter of the Federal Code of Criminal Procedure telephone recordings which are not necessary for the investigations are kept under lock and key (unter Verschluss) and are destroyed after the termination of the proceedings. Section 77 of the Federal Code of Criminal Procedure states:

"Clergy, lawyers, notaries, doctors, pharmacists, midwives and their professional assistants shall not be ordered to give evidence in respect of secrets which have been entrusted to them officially or professionally."

"Geistliche, Rechtsanwälte, Notare, Ärzte, Apotheker, Hebammen und ihre beruflichen Gehilfen dürfen über Geheimnisse, die ihnen in ihrem Amte oder Berufe anvertraut worden sind, nicht zum Zeugnis angehalten werden." COMPLAINTS 1. Under Article 8 of the Convention the applicant complains of the telephone surveillance. He submits, first, that the measure was not "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention. Thus, according to Sections 66 para. 1bis and 77 of the Federal Code of Criminal Procedure, a lawyer may assume that his telephone and the telephones of his partners and other lawyers in his office are not monitored. Article 8 of the Convention prohibits telephone surveillance regardless of whether a written record is prepared. It is thus irrelevant if the Federal District Attorney's Office gave instructions not to prepare a written record of the surveillance of the applicant's office telephones. The aim of the Federal Attorney's Office was to monitor a particular discussion between client and lawyer as well as all legal telephone conversations. He submits, secondly, that the measure was disproportionate in that it was unnecessary. The authorities only insufficiently examined the credibility of the information as to a breach of official secrets. There were also no indications at all as to the applicant's participation therein. Moreover, the duration of the telephone surveillance was also disproportionate, having commenced before it had been authorised by the President of the Indictment Chamber of the Federal Court and before the main informant Z. had been questioned. Finally, the surveillance of all private and official telephone lines

- even the secret line of his wife - and the disclosure by the Parliamentary Commission thereof to the public severely damaged the confidence placed in him by his partners, employees and clients. 2. The applicant further complains under Article 13 of the Convention that for two different reasons he had no effective remedy at his disposal to complain of the telephone surveillance. He submits, first, that the authorities treated his complaint as a hierarchical complaint in respect of which they had no full powers of examination, even if they stated that they were in fact dealing with it as an administrative appeal. No authority examined his complaint in substance. The Federal Council examined neither the legality nor the proportionality of the measure. It was also not examined whether the suspicion of a breach of official secrets could justifiably have been assumed, or continued to exist. He complains, secondly, that he could only consult certain documents in part, and other documents not at all. He refers inter alia to the letters rogatory, to various documents, including written records of the telephone surveillance, concerning X. and Y. and to the written records of the surveillance of his own telephones. If the suspicion directed against him stemmed from third persons, he should have had the possibility of commenting on the credibility of the statements and the persons themselves. As he could not do so, the remedy was ineffective. It is irrelevant if the Federal Department of Justice and Police in its decision of 2 November 1992 did not rely on these documents as he was deprived of the possibility exhaustively to inform himself of the legality of the measure. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 15 December 1993 and registered on 10 January 1994. On 31 August 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government's written observations were submitted on 23 December 1994, after an extension of the time-limit fixed for that purpose. The applicant replied on 10 April 1995, also after an extension of the time-limit. THE LAW 1. Under Article 8 (Art. 8) of the Convention the applicant complains of the telephone surveillance. He submits, first, that the measure was not "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Thus, according to Sections 66 para. 1bis and 77 of the Federal Code of Criminal Procedure, a lawyer may assume that his telephone and the telephones of his partners and other lawyers in his office are not monitored. Article 8 (Art. 8) of the Convention prohibits telephone surveillance regardless of whether a written record is prepared. The aim of the Federal Attorney's Office was to monitor a particular discussion between client and lawyer as well as all legal telephone conversations. The applicant further submits that the measure was disproportionate in that it was unnecessary. The authorities only insufficiently examined the credibility of the information as to a breach of official secrets. There were also no indications at all as to the applicant's participation therein. Moreover, the duration of the telephone surveillance was also disproportionate, having commenced before it had been authorised by the President of the Indictment Chamber of the Federal Court and before the main informant Z. had been questioned. Finally, the surveillance of all private and official telephone lines - even the secret line of his wife - and the disclosure by the Parliamentary Commission thereof to the public severely damaged the confidence placed in him by his partners, employees and clients. a) The Government contend that the applicant did not raise before the domestic authorities the complaint which he is now raising before the Commission, namely that the interference was not "in accordance with the law". Thus, before the Commission he has referred to Sections 66 para. 1bis and 77 of the Federal Code of Criminal Procedure. Accordingly, the Federal Council, in its decision of 30 June 1993 stated that the applicant did not contest the conformity of Sections 66 et seq. of the Federal Code of Criminal Procedure with Article 8 (Art. 8) of the Convention. The applicant submits that in his appeal to the Federal Council of 2 December 1992 he stated that the monitoring of his telephone conversations was unlawful under Section 66 para. 1bis of the Federal Code of Criminal Procedure. The Commission notes that in his appeal to the Federal Council of 2 December 1992 the applicant complained under the headline "Breach of Article 8 (Art. 8) of the Convention" that the telephone lines at issue belonged to the applicant's legal practice, which was shared by a number of other lawyers; that Section 66 para. 1bis of the Federal Code of Criminal Procedure expressly prohibited the tapping of such telephone calls; and that the tapping of the telephone conversations with the applicant's law firm was therefore unlawful under domestic law. The Commission considers, therefore, that before the Federal Council the applicant sufficiently raised the complaint which he is now making before the Commission. As a result, the applicant's complaints cannot be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. b) The Government furthermore contend that the interference at issue was justified under Article 8 para. 2 (Art. 8-2) of the Convention, and that the lawfulness of the measure could not be called in question by the fact that the telephone surveillance did not eventually confirm the original suspicions. In the Government's submissions, due regard must be had to the political and legal framework of the case; reference is made here in particular to the Parliamentary Commission of Enquiry. It is further recalled that the US citizen X. tried all legal possibilities to obtain the document of the Federal Department of Justice and Police; that the confidentiality of the proceedings had in fact been requested by US authorities; and that the President of the Parliamentary Commission of Enquiry had himself confirmed the credibility of the informants. As regards the proportionality of the interference, the Government point out that the telephones of various other persons were also monitored, and that the national authorities considered it essential also to monitor the applicant's telephones; and that the interference was considered only in last resort since the person who had breached an official secret could not be determined by other means of surveillance. The Government also recall the practice of the Swiss authorities in such matters. Thus, the decision of the Federal Attorney's Office to monitor a person's telephone is transmitted to the President of the Indictment Chamber of the Federal Court as well as to the Law Department of the General Directorate of the Swiss Federal Postal, Telephone and Telegraph Services. The latter will then record the telephone conversations. Specialised staff will listen to the tapes to determine any pertinent conversation in respect of the proceedings at issue. If no pertinent conversations are conducted, no transcripts will be prepared, and no information on the conversation will be transmitted to the prosecuting authorities. The recorded tapes are simply kept for ten days in case the authorities put further questions; if not, the recordings are deleted. The Government point out that in the present case the control of the monitored telephone conversations was personally entrusted to the head of the service concerned in Zurich. Moreover, no recording whatsoever was held back and transmitted to the Federal Attorney's Office; all recordings of the applicant's telephone conversations were deleted. The telephone surveillance of the applicant and his family thus remained within the legal framework of the secrecy of the Swiss Postal, Telephone and Telegraph Services. The rules at issue thus protected the applicant, as the Swiss authorities were prevented from learning, even by coincidence, of information which he was not obliged to give in view of this right to refuse to give evidence. The Government state that they are aware of the difficulties of distinguishing between telephone conversations conducted "with a lawyer" and those which are not. However, this distinction is irrelevant in the present case as the applicant's telephone conversations were not transmitted to the Federal Attorney's Office. In the applicant's submissions, it is striking that the Government acknowledge the political and legal context of the case. The applicant himself pointed out during the domestic proceedings that the telephone surveillance did not in fact serve to clarify an alleged criminal offence, but to check on the behaviour of the applicant and his wife in the course of the proceedings of the Parliamentary Commission of Enquiry. The applicant sees a confirmation herefor in the fact that his wife's telephone was also monitored; moreover, the Chairman of the Parliamentary Commission was said to have received the information concerning the applicant's alleged involvement in procuring the secret documents from a newspaper which had previously conducted a vicious media campaign against the applicant; indeed, the telephone surveillance was ordered solely on the basis of a tip-off given to the President of the Parliamentary Commission. The applicant points out in detail how he and his wife had come under pressure from a number of quarters, and were parties to several court proceedings. For the Parliamentary Commission there could be no better period to conduct a hearing than the end of November 1989. Since a criminal investigation was unnecessary, the hearing obviously served political purposes. The applicant further submits that the surveillance of other parties' telephones does not alter this assessment. It transpires from the press communiqué of the Parliamentary Commission that the surveillance was clearly directed at the applicant. Indeed, it is particularly serious that uninvolved third parties, especially the lawyers working at the applicant's office, were subjected to the surveillance. The applicant contends that the Government's reference to the Swiss interception procedures does not alter the fact that when officials of the Swiss Postal, Telephone and Telegraph Services listen in to telephone conversations, this constitutes an interference within the meaning of Article 8 (Art. 8) of the Convention. In this respect it is irrelevant whether transcripts have been prepared, whether these transcripts still exist or whether they have been destroyed. It is equally irrelevant whether the officials were instructed not to record conversations with lawyers, since they have first to be listened to before a decision is taken on their suitability for use as evidence. In any event, the files given to the applicant for consultation in no way indicate that no transcripts were made or that they were destroyed. The Commission, having examined these complaints, finds that they raise serious issues of questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established. 2. The applicant further complains under Article 13 (Art. 13) of the Convention that for two different reasons he had no effective remedy at his disposal to complain of the telephone surveillance. He submits, first, that the authorities, in particular the Federal Department of Justice and Police and the Federal Council, treated his complaint as a hierarchical complaint in respect of which they had no full powers of examination, even if they stated that they were in fact dealing with it as an administrative appeal. No authority examined his complaint in substance. The Federal Council examined neither the legality nor the proportionality of the measure. It was also not examined whether the suspicion of a breach of official secrets could justifiably have been assumed, or continued to exist. He complains, secondly, that he could only consult certain documents in part, and other documents not at all. He refers inter alia to the letters rogatory, to various documents, including written records of the telephone surveillance, concerning X. and Y. and to the written records of the surveillance of his own telephones. If the suspicion directed against him stemmed from third persons, he should have had the possibility of commenting on the credibility of the statements and the persons themselves. As he could not do so, the remedy was ineffective. It is irrelevant if the Federal Department of Justice and Police in its decision of 2 November 1992 did not rely on these documents as he was deprived of the possibility exhaustively to inform himself of the legality of the measure. The Government refer to the Commission's case-law according to which the administrative appeal to the Federal Department of Justice and Police met the requirements of Article 13 of the Convention (see No. 11811/85, Dec. 8.3.88, D.R. 55, p. 182). In any event, the procedure has to be considered as a whole. In the present case the President of the Indictment Chamber of the Federal Court as well as the Federal Court in its judgment of 8 March 1994 examined the justification of the telephone surveillance. The Government further point out that the applicant was considered a "third person" for purposes of the criminal investigation and could not, therefore, have access to the entire case-file. Indeed, the Parliamentary Commission of Enquiry aimed at protecting the informants. In the present case the applicant had access to all the documents enabling him effectively to file an appeal. While the Government admit that they have not consulted all documents mentioned by the applicant, it is submitted that the applicant could consult all files directly relating to the telephone surveillance and even other documents. Finally, the Federal Court, which possessed the entire case-file, was able to conclude in its judgment of 8 March 1994, on the one hand, that the applicant had had access to all the pertinent documents in order effectively to file an appeal: and on the other that it appeared justified that informants' names remained confidential. The applicant replies that the Federal Court's judgment of 8 March 1994 is irrelevant insofar as the proceedings concerned the institution of criminal proceedings. They did not concern the issue whether the administrative appeal before the Federal Council was an effective remedy within the meaning of Article 13 (Art. 13) of the Convention. The President of the Indictment Chamber of the Federal Court, on the other hand, when he authorised the telephone surveillance, only undertook a cursory examination of the matter. The applicant further submits that the documents which he could not consult constituted very important files which had to be consulted in order to lodge an effective remedy. The applicant contests the assertion of the Government, and of the Federal Court, that partial consultation sufficed in his case; the Government admit that they did not have the full file at their disposal, and the Federal Court also was not in possession of the full file. In the applicant's opinion, the files that were not, or not in their entirety, available for consultation were of great importance for assessing the question as to whether it was necessary to order the telephone surveillance, whether the surveillance was properly carried out, and whether the applicant had sufficient opportunity to put forward his case. The applicant thus requests the Government to hand out all documents for consultation and comment. The Commission, having examined these complaints, finds that they raise serious issues of questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The remainder of the application can also not, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (C.L. ROZAKIS)