Refusal to condition the release of telephone recordings on an undertaking to respect telecommunications secrecy

Facts

On July 22, 1988, a Geneva investigating judge ordered the tapping of the telephone lines of company X and its managing director A, suspected of fraud, breach of trust, incitement to speculate, disloyal management, and forgery in securities. The General Directorate of PTT handed over the magnetic tapes recorded in relation to A's private line to the investigating judge, but proposed to hand over all the recorded tapes subject to respect for telecommunications secrecy.

The investigating judge refused to sign the requested undertaking, considering himself not to be subject to art. 6 LTT. The General Directorate of PTT explained that it was required to guarantee telecommunications secrecy and asked the investigating judge to confirm in writing that he would observe secrecy.

The investigating judge ordered the representative of the General Directorate of PTT to hand over the magnetic tapes within 24 hours, under penalty of search and seizure. The General Directorate of PTT appealed to the Geneva Canton's Indictment Chamber, which declared the appeal inadmissible.

The General Directorate of PTT seized the Federal Tribunal's Indictment Chamber, which rejected the request.

Considerations

The Federal Tribunal's Indictment Chamber considered that the jurisdiction to rule on the request resulted from art. 357 SCC in conjunction with art. 252 para. 3 FCJA. The request was directed against the search and seizure order issued by the investigating judge, as well as against the decision of the Geneva Canton's Indictment Chamber declaring the cantonal appeal inadmissible.

The Indictment Chamber examined the disputes relating to judicial assistance between the cantons and the Confederation, and considered that the examination of these disputes did not require the prior exhaustion of all cantonal remedies. The Indictment Chamber also considered that the monitoring of telephone conversations by the authorities constituted an infringement of the fundamental right provided for in art. 36 para. 4 of the Constitution, and that this infringement had to be based on a formal legal basis.

The Indictment…