Amann v Switzerland [2000] ECHR 88

Swiss authorities intercepted a telephone call Mr Amann received from the Soviet embassy and created a card labelling him a 'contact with the Russian embassy', storing it in the federal security index. The Court found violations of Article 8 as Swiss law lacked sufficient clarity regarding surveillance scope and data storage conditions.

Facts

The applicant, Mr Hermann Amann, was a Swiss businessman who imported depilatory appliances. On 12 October 1981, a woman from the former Soviet embassy in Berne telephoned him to order a ‘Perma Tweez’ depilatory appliance. This telephone call was intercepted by the Federal Public Prosecutor’s Office, which subsequently requested an investigation into the applicant. A card was created on the applicant describing him as a ‘contact with the Russian embassy’ and stored in the national security card index. In 1990, after the public learned of the existence of the card index, the applicant obtained a copy of his card. The card remained in the index until 1996 when it was transferred to the Federal Archives.

Domestic Proceedings

The applicant filed an administrative-law action with the Federal Court claiming compensation for the unlawful entry of his particulars in the card index. The Federal Court dismissed all claims on 14 September 1994, finding that while questionable whether recordings could be kept after it became apparent no criminal offence was being prepared, the applicant had not suffered a serious infringement of his personality rights.

Issues

The Court considered two main issues under Article 8 of the Convention:

Issue 1: Interception of Telephone Call

Whether the interception of the applicant’s telephone call was ‘in accordance with the law’ as required by Article 8(2).

Issue 2: Creation and Storage of Card

Whether the creation of a card on the applicant and its storage in the national security card index was ‘in accordance with the law’.

Issue 3: Effective Remedy

Whether the applicant had an effective remedy under Article 13 of the Convention.

Judgment

On the Interception

The Court found that the legal provisions relied upon failed to meet the foreseeability requirement. The Court stated:

“Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office… contains no indication as to the persons concerned by such measures, the circumstances in which they may be ordered, the means to be employed or the procedures to be observed. That rule cannot therefore be considered to be sufficiently clear and detailed to afford appropriate protection against interference by the authorities with the applicant’s right to respect for his private life and correspondence.”

The Court emphasised:

“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”

On the Card Creation and Storage

The Court held that the storing of data relating to ‘private life’ falls within Article 8(1). The term ‘private life’ must not be interpreted restrictively and includes the right to establish relationships with others and activities of a professional or business nature.

“the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8. The subsequent use of the stored information has no bearing on that finding”

The Court found the legal basis insufficiently clear and detailed, noting that Swiss law provided that unnecessary data should be destroyed, which the authorities failed to do.

On Article 13

The Court found no violation of Article 13, as the applicant had been able to bring an administrative-law action before the Federal Court which had jurisdiction to examine his complaints.

Implications

This judgment reinforces the principle that secret surveillance measures must be based on law that is sufficiently precise and foreseeable. States must ensure that their domestic laws clearly indicate the scope and conditions of exercise of authorities’ discretionary powers in surveillance matters. The case also establishes that the mere storing of personal data by public authorities constitutes interference with private life under Article 8, regardless of whether such data is subsequently used or disclosed. Furthermore, it confirms that ‘private life’ encompasses professional and business activities, not merely intimate personal matters.

Verdict: The Court unanimously held that there had been a violation of Article 8 of the Convention arising from both the interception of the telephone call and the creation and storing of the card. The Court found no violation of Article 13 of the Convention. The Court held that the judgment itself constituted sufficient just satisfaction for non-pecuniary damage and ordered Switzerland to pay CHF 7,082.15 for costs and expenses.

Source: Amann v Switzerland [2000] ECHR 88