CEDH · CASELAW;CLIN;ENG — 18 janvier 2001

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Switzerland (dec.) - 41615/98 Decision 18.1.2001 [Section II] Article 9 Article 9-1 Freedom of religion Confiscation of the means of communication used by an asylum seeker for political propaganda on behalf of an Islamic group: inadmissible Article 10 Article 10-1 Freedom of expression Confiscation of the means of communication used by an asylum seeker for political propaganda: inadmissible In Algiers the applicant was an active member of the Islamic Salvation Front (FIS), of which he was elected a representative in 1991. In 1993 he left Algeria where he was sentenced to death in absentia. The applicant took refuge in France and then in Belgium. His applications for political asylum were dismissed in both countries. In Belgium he was given a suspended prison sentence for “conspiracy” for membership of an Islamic group and made subject to a compulsory residence order. He left Belgium illegally, however, for Switzerland where he applied for political asylum in 1997. While his application for asylum was pending, he published tracts of political propaganda inciting to activism within the FIS Foreign Coordination Committee and against the Algerian government in power. As a result of those publications, in April 1998 the Federal Council banned the applicant from his terrorist activities and ordered his fax machines and his access to the internet to be blocked. It also ordered the applicant’s telephones to be seized if he failed to comply with the decision. Inadmissible under Article 9: the applicant’s activities were mainly aimed at broadcasting messages of propaganda in favour of the FIS and did not constitute the expression of a religious belief within the meaning of Article 9. The confiscation did not therefore infringe his freedom of religion: manifestly ill-founded. Inadmissible under Article 10: With regard first to the threat of seizure of his telephones, the applicant could not claim to be a victim within the meaning of Article 34 because it was merely a hypothetical penalty and not an effective one. The confiscation of his fax machines and the blocking of his access to the internet, however, constituted an interference with the applicant’s freedom of expression. That interference was prescribed by law and pursued the legitimate aim of protecting national security, public safety and public order. With regard to the “necessity in a democratic society” of that interference, it had to be observed that, in the opinion of the Federal Council, the purpose of confiscating the applicant’s means of telecommunication was to prevent him from pursuing his political propaganda activities internationally. Despite his suspended sentence and the strict surveillance measures taken against him, the applicant had left Belgium to enter Switzerland illegally and apply for political asylum. Furthermore, the Federal Council’s decision had been based on the fact that the applicant had engaged in acts of political propaganda while his application for asylum was pending. Under domestic law, asylum could be refused to a refugee who threatened Switzerland’s internal or external security. Although it was, admittedly, difficult for another State to assess the situation in Algeria and the effect of activities conducted abroad by members of the Islamic opposition, having regard to the context in which the applicant had left Algeria, his propaganda for the Islamic opposition, his criminal conviction in Belgium, the conditions of his entry into Switzerland and, lastly, the reasons for his stay there and his misdeeds in that country, the seizure of his means of communication, which were instruments of political propaganda, could be justified as necessary in a democratic society: manifestly ill-founded.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes