CEDH · CASELAW;CLIN;ENG — 29 mars 2016

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Switzerland [GC] - 56925/08 Judgment 29.3.2016 [GC] Article 10 Article 10-1 Freedom to impart information Freedom to receive information Conviction of a journalist for the publication of materials covered by the secrecy of a pending investigation: no violation Facts – On 15 October 2003 the applicant, a journalist, published in a daily newspaper an article concerning criminal proceedings against a motorist who had been taken into custody for ramming his car into a group of pedestrians, killing three of them and injuring eight, before throwing himself off the Lausanne Bridge. The article painted a picture of the accused, presented a summary of the questions put by the police officers and the investigating judge and the accused’s replies, and was accompanied by several photographs of letters which he had sent to the investigating judge. The article also comprised a short summary of statements by the accused’s wife and GP. Criminal proceedings were brought against the journalist on the initiative of the public prosecutor for having published secret documents. In June 2004 the investigating judge sentenced the applicant to one month’s imprisonment, suspended for one year. Subsequently, the Police Court replaced his prison sentence with a fine of 4,000 Swiss francs (CHF) (approximately 2,667 EUR). The applicant’s appeals against his conviction proved unsuccessful. By a judgment of 1 July 2014 (see Information Note   176 ) a Chamber of the Court found, by four votes to three, a violation of Article   10 because the fining of the applicant for having used and reproduced data from the case file in his article did not meet any “pressing social need”. Although the reasons for his conviction had been “relevant”, they had not been “sufficient” to justify such an interference with the applicant’s right to freedom of expression. On 17 November 2014 the case was referred to the Grand Chamber at the Government’s request. Law – Article 10: The conviction of the applicant amounted to an interference, prescribed by law, with his exercise of the right to freedom of expression as secured under Article 10 §   1 of the Convention. The impugned measure pursued legitimate aims, namely preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation (and) rights of others”. The applicant’s right to inform the public and the public’s right to receive information come up against equally important public and private interests protected by the prohibition on disclosing information covered by investigative secrecy. Those interests are, on the one hand, the authority and impartiality of the judiciary and, on the other, the right of the accused to the presumption of innocence and protection of his private life. The Court considers that it is necessary to specify the criteria * to be followed by the national authorities of the States Parties to the Convention in weighing up those interests and therefore in assessing the “necessity” of the interference in cases of violation of investigative secrecy by a journalist. (a)     How the applicant came into possession of the information at issue – Even though it was not alleged that the applicant obtained the information illegally, as a professional journalist he could not have been unaware of the confidentiality of the information which he was planning to publish. (b)     Content of the impugned article – Although the impugned article did not take a specific stance on the intentional nature of the offence which the accused was alleged to have committed, it nevertheless painted a highly negative picture of him, adopting an almost mocking tone. The headings used by the applicant, as well as the large close-up photograph of the accused accompanying the text, leave no room for doubt that the applicant had wanted his article to be as sensationalist as possible. Moreover, the article highlighted the vacuity of the accused’s statements and his many contradictions, which were often explicitly described as “repeated lies”, concluding with the question whether the accused was not, by means of “this mixture of naivety and arrogance”, “doing all in his power to make himself impossible to defend”. Those were precisely the kind of questions which the judicial authorities were called upon to answer, at both the investigation and the trial stages. (c)     Contribution of the impugned article to a public-interest debate – The subject of the article, to wit the criminal investigation into the Lausanne Bridge tragedy, was a matter of public interest. This completely exceptional incident had triggered a great deal of public emotion among the population, and the judicial authorities had themselves decided to inform the press of certain aspects of the ongoing inquiry. However, the question was whether the information which was set out in the article and was covered by investigative secrecy was capable of contributing to the public debate on this issue or was solely geared to satisfying the curiosity of a particular readership regarding the details of the accused’s private life. In this connection, after an in-depth assessment of the content of the article, the nature of the information provided and the circumstances surrounding the case, the Federal Court, in a lengthily reasoned judgment which contained no hint of arbitrariness, held that the disclosure neither of the records of interviews nor of the letters sent by the accused to the investigating judge had provided any insights relevant to the public debate and that the public interest in this case had at the very most “involved satisfying an unhealthy curiosity”. For his part, the applicant had failed to demonstrate how the fact of publishing records of interviews, statements by the accused’s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation. Accordingly, the Court saw no strong reason to substitute its view for that of the Federal Court, which has a certain margin of appreciation in such matters. (d)     Influence of the impugned article on the criminal proceedings – Although the rights guaranteed by Article   10 and by Article 6 §   1 respectively merit equal respect a priori , it is legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of the stakes of criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent. The secrecy of criminal investigations is geared to protecting, on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence, and more generally, his or her personal relations and interests. Such secrecy is also justified by the need to protect the opinion-forming process and the decision-making process within the judiciary. Even though the impugned article did not openly support the view that the accused had acted intentionally, it was nevertheless oriented in such a way as to paint a highly negative picture of the latter, highlighting certain disturbing aspects of his personality and concluding that he was doing “all in his power to make himself impossible to defend”. The publication of an article oriented in that way at a time when the investigation was still ongoing, comprised the inherent risk of influencing the conduct of proceedings in one way or another, potentially affecting the work of the investigating judge, the decisions of the accused’s representatives, the positions of the parties claiming damages, or the objectivity of any tribunal called upon to try the case, irrespective of its composition. A government cannot be expected to provide ex post facto proof that this type of publication actually influenced the conduct of a given set of proceedings. The risk of influencing proceedings justifies per se the adoption by the domestic authorities of deterrent measures such as prohibition of disclosure of secret information. The lawfulness of those measures under domestic law and their compatibility with the requirements of the Convention must be capable of being assessed at the time of the adoption of the measures, and not, as the applicant submitted, in the light of subsequent developments revealing the actual impact of the publications on the trial, such as the composition of the trial court. The Federal Court was therefore right to hold, in its judgment of 29   April 2008, that the records of interviews and the accused’s correspondence had been “discussed in the public sphere, before the conclusion of the investigation (and) out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court”. (e)     Infringement of the accused’s private life – The criminal proceedings brought against the applicant by the cantonal prosecuting authorities were in conformity with the positive obligation incumbent on Switzerland under Article   8 of the Convention to protect the accused person’s private life. Furthermore, the information disclosed by the applicant was highly personal, and even medical, in nature, including statements by the accused person’s doctor and letters sent by the accused from his place of detention to the investigating judge responsible for the case. This type of information called for the highest level of protection under Article   8; that finding is especially important as the accused was not known to the public and the mere fact that he was the subject of a criminal investigation, albeit for a very serious offence, did not justify treating him in the same manner as a public figure, who voluntarily exposes himself to publicity. When the impugned article was published the accused was in prison, and therefore in a situation of vulnerability. Moreover, there was nothing in the case file to suggest that he had been informed of the publication of the article and of the nature of the information which it provided. In addition, he was probably suffering from mental disorders, thus increasing his vulnerability. In those circumstances, the cantonal authorities cannot be blamed for considering that in order to fulfil their positive obligation to protect the accused’s right to respect for his private life, they could not simply wait for the latter himself to take the initiative in bringing civil proceedings against the applicant, and for consequently opting for an active approach, even one involving prosecution. (f)     Proportionality of the penalty imposed – The recourse to criminal proceedings and the penalty imposed on the applicant did not amount to disproportionate interference in the exercise of his right to freedom of expression. The applicant was originally given a suspended sentence of one month’s imprisonment. His sentence was subsequently commuted to a fine of CHF 4,000, which was set having regard to the applicant’s previous record and was not paid by the applicant but was advanced by his employer. This penalty was imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life. In those circumstances, it cannot be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public about ongoing criminal proceedings. Conclusion : no violation (fifteen votes to two). *     See Axel Springer AG v.   Germany [GC], 39954/08, 7   February 2012, Information Note   149 ; and Stoll v.   Switzerland [GC], 69698/01, 25   April 2006, Information Note   103 .   © 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