Facts
In issue No. 22 dated June 1, 1995, the weekly magazine FACTS reported on conflicting views between the Head of the Federal Department of Transport and Energy (EVED) and the Head of the Federal Department of the Interior (EDI) regarding the "Political Guidelines for the Swiss Federal Railways". Subsequently, the Federal Chancellor, on behalf of the Federal Council, filed a criminal complaint for breach of official secrecy and publication of confidential official negotiations.
The Federal Prosecutor's Office opened a criminal investigation against "Unknown (Federal Official)" and the FACTS parliamentary correspondent [A.] and requested retroactive surveillance of the telecommunications of the FACTS parliamentary editorial office. The President of the Indictment Chamber of the Federal Court approved the surveillance from June 12, 1995 to September 12, 1995.
The surveillance remained unsuccessful. On February 24, 1997, the Federal Prosecutor's Office informed the FACTS parliamentary editorial office of the retroactive participant identification and surveillance. Thereupon, [A.], B. and C., as well as TA-Media AG as the publisher of FACTS, filed a complaint against the unconstitutionality and unlawfulness of the surveillance.
Considerations
The Indictment Chamber of the Federal Court decided that the surveillance of the telecommunications of the journalists as third parties is generally not permissible, as they have a right derived from Art. 10 ECHR to refuse to disclose their sources of information. This right can only be overridden in exceptional cases if there is an overriding public interest in clarifying the criminal…