CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 10 décembre 2007

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page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }     GRAND CHAMBER               CASE OF STOLL v. SWITZERLAND   (Application no. 69698/01)                     JUDGMENT       STRASBOURG   10 December 2007     In the case of Stoll v. Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Luzius Wildhaber,   Boštjan M. Zupančič,   Peer Lorenzen,   Rıza Türmen,   Margarita Tsatsa-Nikolovska,   András Baka,   Mindia Ugrekhelidze,   Anatoly Kovler,   Vladimiro Zagrebelsky,   Antonella Mularoni,   Elisabet Fura-Sandström,   Renate Jaeger,   Egbert Myjer,   Dragoljub Popović,   Ineta Ziemele,   Isabelle Berro-Lefèvre, judges , and Vincent Berger, Jurisconsult , Having deliberated in private on 7 February and 7 November 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 69698/01) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Martin Stoll (“the applicant”), on 14   May 2001. 2.     The applicant was represented by Ms H. Keller, a lawyer practising in Zürich. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, Head of the Human Rights and Council of Europe Section of the Federal Office of Justice. 3.     The applicant alleged that his conviction for publishing “secret official deliberations” had been contrary to Article 10 of the Convention. 4.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6.     On 3 May 2005 the application was declared admissible by a Chamber composed of Nicolas Bratza, President, Josep Casadevall, Luzius Wildhaber, Matti Pellonpää, Rait Maruste, Javier Borrego Borrego and Ján   Šikuta, judges, and of Michael O’Boyle, Section Registrar . 7.     On 25 April 2006 the Chamber delivered a judgment in which it held, by four votes to three, that there had been a violation of Article 10 of the Convention. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. The applicant did not submit any claim for costs and expenses. 8.     On 14 July 2006 the Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule 73 of the Rules of Court. The panel of the Grand Chamber granted the request on 13   September 2006. 9.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 10.     The Government, but not the applicant, filed observations on the merits. The applicant submitted his claim for just satisfaction. 11.     In addition, third-party comments were received from the French and Slovakian Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 12.     A hearing took place in public in the Human Rights Building, Strasbourg, on 7 February 2007 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   F. Schürmann , Head of the Human Rights and     Council of Europe Section of the Federal Office     of Justice, Federal Department of Justice,   Agent , Mr   P. Seger , Ambassador, Jurisconsult, Head of the     International Public Law Directorate,     Federal Department of Foreign Affairs, Mr   A. Scheidegger , Deputy Head of the Human Rights     and Council of Europe Section, Ms   D. Steiger , Legal Assistant, Human Rights and     Council of Europe Section,   Counsel ; (b)     for the applicant Ms   H. Keller ,   Representative , Mr   S. Canonica , Legal Adviser, TA Media, Mr   A. Durisch , Editor, Sonntags-Zeitung , Mr   A. Fischer , Lecturer, University of Zürich, Ms   D. Kühne, Lecturer, University of Zürich, Ms   M. Forowicz, Lecturer, University of Zürich,   Advisers .   The applicant was also present. The Court heard addresses by Ms Keller, Mr Schürmann and Mr Seger. The parties’ representatives replied to the questions asked by one judge. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 13.     The applicant was born in 1962 and lives in Switzerland. A.     Background to the case 14.     In 1996 and 1997 negotiations were conducted between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts. 15.     Against that background Carlo Jagmetti, who was the Swiss ambassador to the United States at the time, drew up on 19 December 1996 a “strategy paper”, classified as “confidential”, which was faxed to Thomas Borer, head of the task force that had been set up to deal with the matter within the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals in the Swiss government and the federal authorities and to the Swiss diplomatic missions in Tel Aviv, New York, London, Paris and Bonn. 16.     Below are some extracts from the document, based on the article “That’s all we need”, which appeared in the Tages-Anzeiger on 27 January 1997, the day after the applicant’s articles were published (unofficial translation): “Ambassador, The campaign against Switzerland and the huge claims accompanying it, reflected in the activities of the Jewish organisations, the statements of American politicians and the class actions, will greatly occupy the authorities and public opinion on both sides of the Atlantic for some time to come ... However, the real reverberations will not be felt until the inquiries which are to be launched have been completed, those claims that are well-founded have been met, the proceedings have been concluded and matters have been put right in historical, political, legal and moral terms. That will take at least three years, possibly much longer. Moreover, it is impossible to predict today the course of Swiss domestic and foreign policy in the years ahead. In any event, the political, economic and social challenges facing the country internally and the uncertainty surrounding the European issue (the EU, security, etc.) and globalisation are already prompting some painful soul-searching by the Swiss people. The comments now coming from America are all we need. Suddenly, on top of the present and future uncertainties, we must come to terms with the past. The campaign against Switzerland, therefore, is being conducted in an already difficult climate ... All Switzerland’s efforts are aimed at preserving the country’s integrity, forestalling or at least warding off dangers and maintaining international relations (in particular with the United States) during the crisis and beyond while avoiding any lasting damage. All interim goals must be viewed solely in relation to the main objective. Short-lived successes such as ‘truces’, temporarily positive reactions from the media, satisfaction at seeing certain projects put in hand, historical insights which may be favourable to Switzerland or constructive remarks from our negotiating partners abroad should not blind us to the long-term reality. Individual battles may be important, but ultimately it is the war that Switzerland must win ... If we assume that the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency, and that then calm will be restored, an actual deal might be struck with the organisations concerned. Instead of just making the ‘gesture’ currently being speculated on, we could act immediately to resolve the matter by paying a lump sum in order to settle all the claims once and for all. Given that a large number of groups and countries are affected by this issue and that Switzerland is now being called to account, as it were, by the international community, the plan must have both a national and an international dimension and be based on a long-term strategy. It might look something like this: –     the measures planned to date (publication of the expert report on the compensation agreement with the countries of eastern Europe, commencement of the work of the historical commission, inquiries by the Volcker Committee) will be effectively implemented by Switzerland using the necessary resources and within a realistic time frame, with any difficulties being overcome in a determined manner; –     the dialogue with all the groups concerned must be continued in a correct and conciliatory manner, without making interim concessions which could jeopardise the entire process; –     as far as the activities of foreign governments and parliaments are concerned (particularly in the United States and the United Kingdom), the aim should be to bring about courteous bilateral cooperation focusing primarily on establishing the truth and avoiding any polemics. Where necessary, of course, a clear and firm stance should be taken, particularly if Switzerland is disparaged or accused without absolutely clear ‑ cut reasons; –     when significant interim findings have been obtained and, especially, when all the inquiries have been completed, negotiations will need to be conducted on the conclusions to be drawn and on how any funds released should be used. These should be conducted at governmental level, either multilaterally, if possible with all the countries concerned (including the Allies, those countries that were neutral at the time, Israel and Germany), bilaterally with Israel (which would mean giving up a long-standing position and accepting the risk of adverse reactions from the Arab world), or with non-governmental organisations. Much will depend on the strategy of our adversaries. However, the issue must be made an international one and other countries must be held to account. Switzerland, which has set a good example with its inquiries, should assume a leading role and hence seize the initiative ... It must also be borne in mind that scenarios and strategies are not immune to outside influences and that events may occur or a new trend emerge at any time, calling everything into question or at least requiring considerable flexibility. Accordingly, a mix of action based on international law and interim payments would, if possible, be more realistic. Opting for this kind of mix from the outset would almost inevitably mean taking a pragmatic approach that evolves from day to day and scarcely deserves the ambitious description of a ‘strategy’ ... Switzerland cannot afford to just muddle through in this matter. Whatever strategy is chosen, action will be needed on the external front to lend credibility to Swiss efforts. This can be done by taking the same – essentially reactive – stance taken hitherto or by adopting a more innovative approach. As part of the latter I would advocate campaigning systematically in political circles and in the media, maintaining ongoing contacts with the American administration in order to compare results and refine methods, cultivating relations with the Jewish organisations wherever possible in a friendly manner but without servility, and conducting a well-orchestrated public relations campaign including, for instance, seminars and round-table sessions. On the subject of public relations, however, statements should be made only if there is something new to be said and the time and place are right. Pilgrimages abroad are best avoided on tactical grounds and in view of the domestic policy aspects ... The advantages and drawbacks of the different approaches are fairly obvious. However, it is clear that, from a historical, political and legal perspective, a ‘deal’ will never be satisfactory. Ideally, all the same, the legal strategy should be chosen. This places considerable demands on all concerned and calls for initiative, time and energy, to say nothing of the cost. In view of the main objective, however, we would be well advised to change the habit of a lifetime and make the necessary funds available without unseemly haggling. Let me repeat: this is a war Switzerland must wage and win on the external and domestic fronts. Most of our adversaries are not to be trusted. The potential damage to Switzerland from a boycott or perhaps even legislative action by other countries is immense. Even the figures for our national pension insurance scheme or the cost of the new trans-Alpine rail links, for instance, are liable to look modest by comparison. Switzerland must present a united and determined front ... Carlo Jagmetti, Swiss Ambassador” 17.     The applicant obtained a copy. It seems clear that he could not have acquired possession of the document without a breach of official secrecy by a person whose identity remains unknown. B.     The impugned articles by the applicant 18.     On Sunday 26 January 1997 the Zürich Sunday newspaper, the Sonntags-Zeitung , published the following article by the applicant (unofficial translation): “Ambassador Jagmetti insults the Jews [original title in German: Botschafter Jagmetti beleidigt die Juden ] Secret document: ‘Our adversaries are not to be trusted’ [ Geheimpapier: ‘Man kann dem Gegner nicht vertrauen ’] by [the applicant] Berne/Washington – Another scandal involving the Swiss ambassador to the United States: Carlo Jagmetti, in a confidential strategy paper on the assets of Holocaust victims, talks of the ‘war Switzerland must wage’, and of ‘adversaries’ who ‘are not to be trusted’. The paper is classified as ‘confidential’. It was written by Carlo Jagmetti, Swiss ambassador to the United States. On 19 December the 64-year-old high-ranking diplomat in Washington sent the task force in Berne his views on what he described as a ‘campaign against Switzerland’. This report has been obtained by the Sonntags ‑ Zeitung , and is dynamite. In terms of its content, it is an unremarkable assessment of the situation. But the aggressive language used by Carlo Jagmetti has the effect of an electric shock on the reader. ‘It is a war,’ writes the ambassador, ‘a war Switzerland must wage and win on the external and domestic fronts.’ He describes Senator D’Amato and the Jewish organisations as ‘adversaries’, saying that ‘most of our adversaries are not to be trusted’. In his paper, Carlo Jagmetti mentions the possibility of concluding an agreement, because ‘the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency’. He uses the word ‘deal’ in this context. Ambassador Jagmetti suggests ‘paying a lump sum’ to the Jews in order to settle ‘all the claims once and for all’. Then, he writes, ‘calm will be restored’. Speaking of the ‘external front’, Carlo Jagmetti says that Switzerland should ‘campaign systematically in political circles and in the media’. Relations with Jewish organisations should be ‘cultivated in a friendly manner but without servility’, with the help of a firm of lawyers, and a ‘well-orchestrated public relations campaign [should be conducted], including seminars and round-table sessions’. No comments on this strategy paper by the eminent diplomat – due to retire in the spring – were forthcoming yesterday either from Flavio Cotti [head of the Swiss diplomatic service] at the Federal Department of Foreign Affairs or from the task force headed by Thomas Borer. Carlo Jagmetti had no comment to make to this newspaper. Martin Rosenfeld, President of the Swiss Federation of Jewish Communities (SIG/FSCI) described Carlo Jagmetti’s remarks as ‘shocking and profoundly insulting’. He said he foresaw ‘a difficult run-up to retirement’ for Mr Jagmetti.” 19.     In the same edition of the Sonntags-Zeitung of 26 January 1997, another article by the applicant read (unofficial translation): “The ambassador in bathrobe and climbing boots puts his foot in it [ Mit Bademantel und Bergschuhen in den Fettnapf ] Swiss Ambassador Carlo Jagmetti’s diplomatic blunderings [ Der Schweizer Botschafter Carlo Jagmetti trampelt übers diplomatische Parkett ] by [the applicant] Berne/Washington – Swiss Ambassador Carlo Jagmetti constantly gets himself noticed on the diplomatic scene. With his insensitive remarks on the assets of Holocaust victims, he has thrown Swiss foreign policy into turmoil – and not for the first time. Early on Friday morning the temperature began to rise in the offices of the Swiss embassy in Washington. ‘We do not comment on internal documents’ said an embassy spokesman emphatically to this newspaper ... By the following day, nevertheless, ... [an] editor on the [daily newspaper] Neue Zürcher Zeitung had already leapt to the defence of his close friend Carlo Jagmetti. Under the heading ‘Leaks continue unabated’, he announced that ‘this balanced document, some parts of which might, of course, be mischievously construed, may be published this weekend’. Damage limitation, therefore, was the name of the game in Washington on Friday. Ambassador Carlo Jagmetti, who has represented Switzerland abroad for 34 years, was clearly aware of the explosive nature of his strategy paper, dated 19 December 1996, on the subject of unclaimed Jewish assets. In his paper, he talks about a ‘war Switzerland must wage and win on the external and domestic fronts’. He winds up with a flourish by observing: ‘Most of our adversaries are not to be trusted.’ The Swiss embassy in Washington is, however, experienced in crisis management. Carlo Jagmetti, who heads the embassy, regularly puts his foot in it. In 1993, a few months after moving into his office in the prestigious Cathedral Avenue, this senior diplomat committed his first faux pas . In an interview with the magazine Schweizer Illustrierte , he complained about the American administration, saying ‘I’ve observed a certain lack of courtesy’. Even Bill Clinton, who was said to ‘burst out laughing sometimes at inopportune moments’, was criticised during the interview. Apparently, Mr Clinton had ‘kept [Carlo Jagmetti] waiting for four months’ before he was accredited. And, according to the ambassador, it was legitimate to ask, on a general note, ‘who [was] actually governing the United States’. Berne reprimanded the ambassador for his ill-chosen remarks and for an unconventional public appearance (Carlo Jagmetti and his wife were pictured [in an article in Schweizer Illustrierte ] in their bathrobes), but the ambassador did not prove much more reticent in his subsequent utterances. And in the highly topical debate concerning the assets of Holocaust victims, Carlo Jagmetti has also given the impression of somebody blundering onto the diplomatic stage in outsize boots. He rebuked the Holocaust survivor Gerda Beer in front of the assembled American press, saying that her claims were unfounded as her uncle had emptied the Swiss bank account in question. The incident-prone diplomat based his remarks, however, not on proven facts, but on unsubstantiated rumours which had been circulating. Berne was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage. These remarks, which have now been made public, are all the more embarrassing since the tension seemed to be easing. Only last Friday Senator D’Amato and the World Jewish Congress had for the first time welcomed Switzerland’s agreement to set up a fund for Holocaust victims. Swiss diplomats are now engaged in behind-the-scenes efforts to head off the impending crisis by stressing the fact that Carlo Jagmetti is due to retire shortly. In any event, they argue, Mr Jagmetti played only a minor role in the recently concluded negotiations between Jewish organisations and the American Senator D’Amato. Carlo Jagmetti himself has declined to comment. He absented himself from the major press conference held by Senator D’Amato on Friday before the world’s press. He was reportedly on holiday in Florida.” C.     Other press articles 20.     A third article, which also appeared in the Sonntags-Zeitung on 26   January 1997 and was written by the editor Ueli Haldimann, was entitled “The ambassador with a bunker mentality” (“ Botschafter mit Bunkermentalität ”). 21.     On Monday 27 January 1997 the Zürich daily, the Tages-Anzeiger , reproduced lengthy extracts from the strategy paper in an article entitled “That’s all we need” (“ Das hat gerade noch gefehlt ”). Subsequently, another newspaper, the Nouveau Quotidien , also published extracts from the paper. D.     The opinion of the Swiss Press Council 22.     Following publication of these articles, the Swiss Federal Council ( Bundesrat ) requested the Swiss Press Council ( Presserat ) to examine the case. 23.     The Swiss Press Council acts as a complaints body for media-related issues. It is an institution under Swiss private law set up by four associations of journalists which formed a foundation ( Stiftung ) to organise and fund the activities of the Press Council. According to the Press Council rules, its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media. Its task is to uphold freedom of the press and freedom of information, and it adopts opinions, on its own initiative or in response to complaints, on issues concerning journalistic ethics. The Swiss Press Council has adopted a “Declaration on the rights and responsibilities of journalists”, which is available on the Internet. 24.     Its opinion ( Stellungnahme ) of 4 March 1997 concerning the present case (no. 1/97, C. J./ Sonntags-Zeitung ) reads as follows (unofficial translation): “II.     Considerations ... 2.     With regard to the publishing of confidential information, the following extracts from the Declaration on the rights and responsibilities of journalists are of relevance: (a)     ’[Journalists’] responsibility to the public [shall take precedence over] their responsibility ... towards the ... authorities ... in particular’ (Preamble). (b)     Journalists shall have free access ‘to all sources of information and [shall have the] right to investigate without hindrance any facts which are in the public interest; objections of secrecy in public or private matters may be raised only in exceptional cases, with sufficient reasons given in each case’ (point (a) of the Declaration of rights). (c)     Journalists shall publish only ‘such information, documents [or] images whose origin is known to them; [they shall not suppress] information or essential elements [and shall not] distort any text, document, image ... or opinion expressed by another. [They shall] present unsubstantiated news items very clearly as such [and] make clear when pictures have been edited’. They shall comply with reasonable deadlines (point   3 of the Declaration of responsibilities). (d)     Journalists shall not make use of ‘unfair methods in order to obtain information, ... images or documents’ (point 4 of the Declaration of responsibilities). (e)     They shall respect ‘editorial secrecy and shall not reveal the sources of information obtained in confidence’ (point 6 of the Declaration of responsibilities). (f)     They shall not accept ‘any favours or promises which might compromise their professional independence or their ability to express their own opinions’ (point 9 of the Declaration of responsibilities). ... 5.     It must first be established whether diplomats’ reports come under the heading of vital interests. The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by the Federal Council and the reports preceding such negotiations. These documents, they argue, merit greater protection than, for instance, expert reports or minutes of parliamentary committees. The Federal Department of Foreign Affairs and the Federal Council cannot form an accurate picture of international relations unless the ambassadors provide them with additional information, different from and more sensitive than that provided by the media. Diplomats also provide information they have obtained from confidential sources, behind the scenes or off the record. They need, for instance, to be able to express in plain language their views about violations of human rights and political relations in Iran, the involvement of leading Colombian politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the Kremlin. If, despite everything, reports of this kind are published, the ambassador concerned will almost automatically be declared persona non grata in the host country. If reports of this kind were to be published on a regular basis, ambassadors would no longer be able to report on everything that was going on. That would have an adverse impact on Swiss foreign policy, perhaps even paralysing it completely. And if everything were to be made public, Switzerland might just as well recall its diplomats and replace them with the media. In exercising their function as critic and watchdog, the media must always remain mindful of their responsibilities. This applies with particular force in the sphere of foreign policy, as the reports relating to foreign policy are also read abroad. If only for this reason, they are more sensitive than reports on domestic policy matters. ... The Press Council acknowledges the importance of the principle that diplomatic correspondence should remain confidential. In the past, the Swiss media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view. Disclosures in the foreign policy sphere have been the exception rather than the rule in Switzerland. Media bosses are clearly aware of the responsibilities inherent in the media’s role as critic and watchdog in this sphere. At the same time, it should not be forgotten that disclosures by the media in the field of foreign policy are commonplace in other countries, particularly in the United States, but also in the United Kingdom and Israel. Clearly, other governments and diplomats have long had to contend with this risk of disclosures concerning foreign policy, and have learned to live with it. Whether they like it or not, the Swiss authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy, and in which revelations may come not just from the Swiss media but also from foreign media. An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate, particularly since diplomatic reports are regularly forwarded to a large number of authorities. There can be no doubt that the revelations in the Sonntags-Zeitung and the Tages ‑ Anzeiger were a source of embarrassment and problems for those responsible for Swiss foreign policy, but they did not restrict their room for manoeuvre substantially. Diplomatic reports are confidential by right, but when the conditions that allow confidential reports to be published are met, freedom of the press must take precedence (Opinion 2/94, Moser/Reimann parliamentary questions). 6.     The Press Council must now examine whether the content of Mr Jagmetti’s strategy paper is of such importance that it was appropriate to invoke the public interest, and whether it should have been published. In the view of Ueli Haldimann, editor of the Sonntags-Zeitung , the public interest lay in the fact that it was important to let people know how the Swiss ambassador in Washington perceived the complex issue of Holocaust victims’ assets and the way Switzerland was coming to terms with its past, and what kind of aggressive language he used. According to Haldimann, his newspaper did not publish any leaked information unless the public interest was at stake. Although there were more leaks now than previously, they were not damaging in principle, and were often the only remaining means of putting a stop to harmful conduct ... From the Press Council’s standpoint, the next step is to assess the strategic importance of Mr Jagmetti’s paper. Mr Jagmetti set out in this document to make a perfectly reasonable analysis of the situation, making a number of constructive proposals. He explored two ‘extreme’ options – the first involving some kind of ‘deal’ and the second involving a ‘legal strategy’. The paper testifies to a fundamental concern to get at the truth, to find a generous financial solution and to protect Swiss interests and the country’s good relations with the United States. However, it could not escape the attention of even the most casual reader that Mr Jagmetti used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal. The language used betrays attitudes which are problematic even in an internal document, since attitudes are liable to be reflected also in negotiations and informal contacts. In that connection, Mr Jagmetti was to have been engaged in important discussions concerning the assets of Holocaust victims during the last six months of his tenure. The Press Council is mindful of the fact that the degree of public interest of confidential information cannot be determined in a wholly objective manner, but depends on the ideological, cultural, economic and advertising context in which the medium operates. Nevertheless, in the case of Mr Jagmetti’s strategy paper, the public interest was clear, as the debate surrounding the assets of Holocaust victims and Switzerland’s role in the Second World War was highly topical in late 1996 and early 1997 and had an international dimension, and because the Swiss ambassador in Washington was to occupy a prominent position in the forthcoming discussions. Knowing what that ambassador thought and how he formulated his opinions was relevant, and not a trivial concern. Leaving aside the question of the public interest and the relevance of the ambassador’s remarks, the publication of this supposedly confidential paper was justified from an ethical viewpoint, since only as a result of its publication did it become clear that those in charge still had no clear idea, despite the creation of the task force, as to the question of Swiss responsibility and what steps should be taken. From the perspective of political transparency, publication of the confidential paper, despite the fact that it was more than a month old and that in the meantime there had been talk of setting up a fund for Holocaust victims, might have spurred the government on to engage in debate in order to overcome the problems, demonstrate leadership and devise convincing solutions. 7.     Finally, it is necessary to assess whether the information was made public in the most appropriate form. According to one school of thought, the media are in a position of power, since not only do they inform, they also suggest by the way in which they present the information how it is to be assessed. In the present case the Sonntags-Zeitung , it is argued, presented an internal analysis of foreign policy in truncated form and, by publishing it alongside comments from third parties who had not seen the original text, planted in people’s minds the idea that Ambassador Jagmetti had ‘insulted the Jews’. The newspaper, by accusing Mr Jagmetti of anti ‑ Semitism, started a rumour in an irresponsible manner. Reproducing the full text would not have placed Mr Jagmetti under the same kind of pressure and would not have forced him to resign. The manner in which the information was published, therefore, was a source of problems and consternation. The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti’s remarks. According to the Sonntags-Zeitung , there was no question of accusing Ambassador Jagmetti of anti-Semitism. Nevertheless, the newspaper’s editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full. They maintain that, on the day of publication, it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems. The Press Council regards these arguments as spurious, and agrees with the criticism regarding the manner of publication. The Sonntags-Zeitung did not make sufficiently clear that Ambassador Jagmetti had outlined several options in his strategy paper, of which the ‘deal’ was just one. Nor did it make the timing of the events sufficiently clear, particularly since the document was already five weeks old and had reached the addressees before the interview given by the outgoing Swiss President on the programme 24 heures/Tribune de Genève . The newspaper unnecessarily made the affair appear shocking and scandalous and, by its use of the headline ‘Ambassador Jagmetti insults the Jews’, misled the reader and made it appear that the remarks had been made the previous day. It was incorrect to assert that Mr   Jagmetti’s letter undermined the process which had begun in January, particularly since the document had been circulated beforehand and had not previously been in the public domain, and could not therefore adversely affect the talks with the country’s partners at home and abroad. When the Sonntags-Zeitung attempted to contact Mr   Jagmetti on Friday 24 January in order to obtain a comment, and failed to reach him because he was in Florida, the newspaper’s editors should have considered whether it might not be wiser to delay publication by a week so as to be able to publish an interview with Carlo Jagmetti alongside the extracts from his paper. The fact that publication went ahead in the next issue in spite of everything can only have been prompted by the fear of competition, which on no account constitutes sufficient justification for immediate publication. Hence, by publishing the strategy paper in the way it did, the Sonntags-Zeitung omitted vital pieces of information, in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). ... III.     Findings 1.     Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the State. The role of critic and watchdog played by the media requires them to make information public where the public interest is at stake, whether the source of information is freely accessible or confidential. 2.     As to the publication of confidential information, the pros and cons must be weighed up carefully, with an eye to whether interests which merit protection are liable to be damaged in the process. 3.     Internal reports by diplomats are confidential by right, but do not necessarily merit a high degree of protection in all cases. The media’s role as critic and watchdog also extends to foreign policy, with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest. 4.     In the case of Mr Jagmetti, the interest to the public of his strategy paper should be acknowledged, as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims, the prominent position occupied by the Swiss ambassador in Washington and the content of the document. 5.     In this case the Sonntags-Zeitung , in irresponsible fashion, made Mr Jagmetti’s views appear shocking and scandalous by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear. The newspaper therefore acted in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). The Tages-Anzeiger and the Nouveau Quotidien , on the other hand, placed the affair in its proper context following the revelations by reproducing the document in its near ‑ entirety.” E.     The criminal proceedings against the applicant 1.     Proceedings at cantonal level 25.     Following publication of the articles, the applicant was made the subject of an investigation by the Zürich cantonal authorities. By a decision of 6 March 1998, the Federal Public Prosecutor’s Office ordered the discontinuation of the investigation into a breach of official secrecy ( Verletzung des Amtsgeheimnisses ) within the meaning of Article 320 of the Swiss Criminal Code. It remitted the case in respect of the charge of publication of official deliberations within the meaning of Article 293 of the Criminal Code to the prosecuting authorities of the Canton of Zürich. 26.     On 5 November 1998 the Zürich District Office ( Statthalteramt des Bezirkes Zürich ) fined the applicant 4,000 Swiss francs (CHF) (approximately 2,382 euros (EUR) at the current exchange rate) for contravening Article 293 § 1 of the Swiss Criminal Code (see paragraph 35 below) by publishing the articles entitled “Ambassador Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it”. 27.     On 22 January 1999, following an application by the applicant to have the decision set aside, the Zürich District Court ( Bezirksgericht ) convicted him of an offence under Article 293 § 1 of the Swiss Criminal Code, but reduced the fine to CHF 800 (approximately EUR 476 at the current exchange rate). 28.     The relevant passages of the District Court judgment read as follows (unofficial translation): “5.2.2     According to the case-law of the Federal Court, the offence defined in Article 293 of the Criminal Code is based on a formal notion of secrecy whereby the confidential nature of a document, a set of talks or an investigation stems not from its content but from it being classified as such by the competent body. In accordance with this approach by the Federal Court, the strategy paper in question, which was marked ‘(classified) confidential’ (Document 2/2), amounts to a secret in the formal sense, and as such attracts the protection of Article 293 of the Criminal Code. When it comes to interpreting Article 293 of the Criminal Code, freedom of expression and freedom of the press (Article 10 of the European Convention on Human Rights and Article 55 of the Federal Constitution) should in principle be taken into consideration in the appellant’s favour. With the revision of the Criminal Code of 10 October 1997, which made the publication of secrets of minor importance an extenuating circumstance (Article 293 § 3), the legislature added a substantive component to the notion of secrecy under Article 293. But even assuming that for these reasons – and contrary to the case-law of the Federal Court – the court were to base its decision on a purely substantive notion of secrecy, the outcome would not be favourable to the appellant. The views expressed by Ambassador Jagmetti in the strategy paper were not in the public domain. This, moreover, is also apparent from the fact that the information conveyed and the way it was analysed provided the basis for ‘sensationalist’ articles by the appellant. Whether or not Ambassador Jagmetti might have been willing to divulge the content of the str