Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 16461/90
by M.Z.
against Switzerland
The European Commission of Human Rights sitting in private on
9 April 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 31 March 1990 by
M.Z. against Switzerland and registered on 19 April 1990 under file No.
16461/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
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 1947, is a lawyer
(Rechtsanwalt) residing at St. Gallen in Switzerland. Before the
Commission he is represented by Mr. L.A. Minelli, a lawyer practising
at Forch in Switzerland.
Particular circumstances of the case
The applicant has his law office in St. Gallen at M.-Street. The
telephone number and address of his office are published in the
St. Gallen telephone directory.
On 4 November 1988 the applicant applied to the St. Gallen
Directorate of Telecommunications (Fernmeldedirektion) for a telephone
connection for his private apartment at Z.-Street. The Directorate
decided on 23 November 1988 to provide the applicant with a telephone
connection in his apartment and to publish the telephone number and
address of the applicant's apartment in the St. Gallen telephone
directory. As a result, the applicant would have had two entries in
the directory: his own private telephone number and his private address
would have been mentioned under his name; under "Lawyers' Offices" his
office telephone number and address would have been mentioned.
The applicant appealed against this decision to the Head Office
of the Swiss Postal Telephone and Telegraph authorities (PTT -
Generaldirektion der Schweizerischen Post-, Telephon- und Telegraphen-
betriebe), complaining in particular about the obligation to publish
the telephone number and address of his apartment.
During these proceedings the Head Office, on 25 January 1989,
forwarded to the applicant statements on his appeal of the St. Gallen
Directorate of Telecommunications and of the competent department of
the Head Office; both statements concluded that the appeal should be
dismissed. The Head Office also informed the applicant that for the
time being his address and telephone number would not be made
accessible to the public. It further drew the applicant's attention to
the possibility of having a second connection at his private apartment,
not to be be listed in the telephone directory, which could be used
while the first connection is not being used.
By letter of 22 February 1989 the applicant informed the Head
Office that he refused the offer of a second connection at home.
On 18 May 1989 the Head Office dismissed the applicant's appeal.
The applicant then filed an administrative law appeal (Ver-
waltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht) in
which he complained inter alia that a modern telephone directory was
a form of a "Who's Who" and that he did not wish everyone with whom he
had to deal professionally to know about his private address and
telephone number. The Court dismissed the appeal on 15 September 1989.
The decision was served on the applicant on 22 November 1989.
The Court first noted that the PTT authorities had complied with
the applicable PTT legislation, namely Section 24 of the Act on
Telegraph and Telephone Communications (Telegraphen- und
Telephonverkehrsgesetz) of 1922, Section 58 of Ordinance Nr. 3 to the
1922 Act, and the internal regulations of the PTT authorities (see
below Relevant domestic law and practice). The decision continues:
<Translation>
"6.- a) On the basis of this assessment it can be concluded that
a telephone subscriber must in principle be included with his
main telephone connections in the list of participants. In view
of the interest in an orderly and client friendly telephone
service, this is not merely a right of the participant but also
a duty. Exceptions to this duty may only be granted under
certain conditions; they have been compiled - for the internal
use of the PTT - in Section 2 of the Regulations on telephone
directories. These conditions do not comprise the applicant's
request not to have his private connection listed in the
telephone directory.
b) The interest of the public in having up-to-date and complete
telephone directories takes precedence over the private wish not
to be disturbed outside working hours or on weekends. As the
applicant can only refer to this wish and no other interest, the
contested decision appears - after balancing the opposing
interests - also to be proportionate. In this context of
balancing, one may further consider that a complete telephone
directory will effectively relieve the burden on the telephone
enquiry service."
<German>
"6.- a) Aufgrund dieser Beurteilung ergibt sich, dass ein
Telefonabonnent grundsätzlich mit seinen Hauptanschlüssen ins
Teilnehmerverzeichnis aufzunehmen ist. Dabei handelt es sich im
Interesse eines geordneten und kundenfreundlichen Telefondienstes
nicht bloss um ein Recht des Teilnehmers, sondern auch um eine
Pflicht. Von dieser Pflicht sind Ausnahmen nur unter bestimmten
Voraussetzungen zu gestatten; sie sind - für den PTT-internen
Gebrauch - in Ziff. 2 des Reglementes über die Telefonbücher
zusammengestellt. Das Gesuch des Beschwerdeführers um
Nichteintrag seines privaten Anschlusses im Telefonbuch fällt
nicht darunter.
b) Das Interesse des Publikums an einem aktuellen und
vollständigen Stand der Telefonbücher geht dem privaten Wunsch
vor, ausserhalb der Arbeitszeit und an Wochenenden ungestört zu
sein. Weil der Beschwerdeführer für sich kein anderes Interesse
als diesen Wunsch anzuführen vermag, erscheint der angefochtene
Entscheid - bei Abwägung der sich entgegenstehenden Interessen
- auch als verhältnismässig. Bei dieser Abwägung darf zusätzlich
berücksichtigt werden, dass ein vollständiges Telefonverzeichnis
auch den telefonischen Auskunftsdienst wirksam zu entlasten
vermag."
Following the Federal Court's decision, the applicant requested
cancellation of the telephone connection at his home, explaining that
there was no longer a need for it.
The applicant then requested a further connection at his office;
according to the second paragraph of Section 2 of the Regulations on
telephone directories for internal use (see below Relevant domestic law
and practice) such further connections of the same subscriber in the
same town are possible, if they are linked with a branch line. The
applicant's request not to have this number published was granted.
A statement of the PTT authorities, dated 22 September 1989,
confirmed that the branch line led from the second connection in the
applicant's office to his address at Z.-street.
Relevant domestic law and practice
According to Section 24 of the 1922 Act on Telegraph and
Telephone Communications, every subscriber to a telephone connection
must be listed in his local telephone directory. According to Section
58 of Ordinance No. 3 to the 1922 Act, the PTT authorities will publish
the telephone subscribers in alphabetical order under the name of the
town where the subscriber has the main telephone connection. The
publication includes the person's surname and first name, the street
name, possibly the postal code, and the telephone number itself.
The Head Office of the PTT authorities has published regulations
on telephone directories for internal use. Section 2 concerns
derogations from the requirement of publication of a telephone number
in the directory . This provision states, insofar as relevant:
<Translation>
"Publication in the telephone directory may be dispensed with
upon the subscriber's request or upon instruction of the
Directorate of telecommunications in the case of
- further telephone connections of the same subscriber on the
same real property;
- further connections of the same subscriber in the same town
if these are linked with a branch line or something
similar..."
<German>
"Auf den Eintrag im Telefonbuch kann auf Wunsch des Abonnenten
oder auf Veranlassung der Fernmeldedirektion verzichtet werden
für
- weitere Anschlüsse des gleichen Abonnenten auf dem gleichen
Grundstück;
- weitere Anschlüsse des gleichen Abonnenten in der gleichen
Ortschaft, wenn diese durch eine Zweigleitung oder
ähnliches verbunden sind..."
Apart from these derogations the PTT authorities will not publish
a telephone number if there is a danger, certified by the police, for
the life and security of the telephone subscriber and his family. Of
the approximately 3.5 million telephone subscribers in Switzerland in
1989, 439 subscribers were authorised on these grounds not to have
their number and address published in the telephone directory.
COMPLAINTS
The applicant complains under Articles 8 and 10 of the Convention
that as a telephone subscriber he is obliged to publish his private
telephone number in the official telephone directory.
Under Article 8 of the Convention he submits in particular that
if a lawyer requests his private telephone connection not to be
published, he does so in order not to be disturbed outside working
hours by clients and third persons. The security of the lawyer and his
family also plays a part.
The applicant submits that there is not sufficient interest for
the State to ensure that everyone who has a telephone in his home may
be contacted by everybody else by telephone.
Under Article 10 of the Convention the applicant complains of a
violation of the right to freedom of expression. He submits that the
right to freedom of expression is violated if persons with whom he does
not wish to communicate are given a facility to telephone him, so that
he is compelled to answer their calls.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 March 1990 and registered
on 19 April 1990.
On 8 April 1991 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits with regard to the
issues under Article 8 of the Convention.
The Government's observations were received by letter dated
12 July 1991, the applicant's observations in reply are dated
9 September 1991.
THE LAW
1. The applicant complains that as a telephone subscriber he is
obliged to have his private telephone number listed in the official
telephone directory. The applicant relies on Article 8 (Art. 6) of the
Convention which states:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in
the interests of national security, public safety or the
economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of
others."
a) The Government submit that the applicant has not complied with
the requirement as to the exhaustion of domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention. In particular
before the Federal Court the applicant did not invoke Article 8 or 10
(Art. 8, 10) of the Convention.
The applicant recalls that in his administrative law appeal to
the Federal Court he invoked in substance his right to a private sphere
at home.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law. In
the present case, the Commission considers that the applicant in fact
raised the complaints he is now making before the Commission before the
Federal Court. The Federal Court then dealt with the complaints,
though it eventually dismissed the applicant's appeal.
It follows that the application cannot be rejected for non-
exhaustion of domestic remedies under Article 26 (Art. 26) of the
Convention.
b) With reference to the concrete circumstances of the case the
Government submit that the applicant cannot claim to be a victim within
the meaning of Article 25 (Art. 25) of the Convention for three
reasons. First, he refused the authorities' offer of 25 January 1989
for the installation of a second connection at his home which would not
have been listed in the telephone directory. Furthermore, his
telephone number and address were never actually published. Finally,
the applicant now has a branch line from the office to his home.
The applicant submits that, had he accepted the offer of 25
January 1989 to have a second connection at his home, the first
connection would still have been published in the telephone directory.
Moreover he draws attention to the fact that all authorities refused
his request not to have his number and address published; if he were
again to request a new connection for his home, he would again risk
publication. Finally, the so-called secondary line must not, in the
applicant's opinion, be confused with a main connection. The main
connection is in the applicant's office, with a branch line of 240m
leading to his home. It is not possible to use this line from his home
when somebody in the office is using the main connection.
The applicant submits that the authorities put him before the
alternative: either he can telephone freely, but his number will be
published; or his private sphere is respected, but he cannot telephone
freely. The applicant claims that in doing so the authorities did not
respect his right to respect for private life within the meaning of
Article 8 (Art. 8) of the Convention.
The Commission recalls that it is not competent to review the
relevant domestic law and practice in abstracto. Rather, it must
determine whether the manner in which they applied to or affected the
applicant raises an issue under Article 8 (Art. 8) of the Convention
(see Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no.
154, p. 21, para. 45).
The Commission further notes that normally telephone subscribers
have their telephone numbers and their addresses published in telephone
directories. There could nevertheless be an interference with the
right to respect for private life within the meaning of Article 8 para.
1 (Art. 8-1) of the Convention where a telephone number and address are
published against the subscriber's will with a consequent risk of
invasion of privacy.
Turning to the circumstances of the present case, the Commission
observes that the applicant, when applying for a telephone connection
at his home, requested that the telephone number and his address should
not be published in the telephone directory. While he was granted the
telephone connection on 23 November 1988, his request not to publish
his number and address was refused, upon appeal, by the Federal Court
on 15 September 1989. Immediately after the Court's decision, the
applicant requested cancellation of his telephone connection at home.
At no time were the applicant's private address or private
telephone number inserted in a telephone directory.
The Commission furthermore notes the Government's submissions
according to which the applicant now has a so-called secondary line
from his office to his home.
It is true that according to the applicant's submissions there
may be a certain inconvenience in the use of this telephone connection.
However, the Commission considers that the applicant in fact now has
a telephone connection at home without a private telephone number or
his private address appearing in a telephone directory.
As neither a private telephone number of the applicant nor a
private address were published and the applicant in fact has a
telephone at home, the Commission considers that the circumstances of
the present case do not disclose a lack of respect on the part of the
Swiss authorities for the applicant's private life within the meaning
of Article 8 para. 1 (Art. 8-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
2. Insofar as the applicant raises further complaints under Article
10 (Art. 10) of the Convention the Commission finds that no issue
arises under this provision. It follows that the remainder of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)