CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 7 juin 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .sB217F55E { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s83FDA10F { margin-top:0pt; margin-left:113.4pt; margin-bottom:0pt; text-align:justify; font-size:9pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD25 { font-family:Arial; font-size:9pt } EUROPEAN COURT OF HUMAN RIGHTS   390 7.6.2007 Press release issued by the Registrar   CHAMBER JUDGMENT DUPUIS AND OTHERS v. FRANCE   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Dupuis and Others v. France (application no. 1914/02).   The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. (The judgment is available only in French.)   1.     Principal facts   The applicants are two French journalists, Jérôme Dupuis and Jean-Marie Pontaut, who were born in 1964 and 1947 respectively and live in Paris, and the publishing company Librairie Arthème Fayard.   The application concerns the journalists’ conviction for the publication in 1996 of a book entitled “The Ears of the President” ( Les Oreilles du Président ), on the subject of what was known in France as the “Elysée eavesdropping” operations (“ les écoutes de l’Elysée ”). This was an illegal system of telephone tapping and record-keeping, orchestrated by the highest office of the French State and directed against numerous figures from civil society, between 1983 and 1986.   In 1982 a “Mission for coordination, information and action against terrorism” was set up. This “anti-terrorist unit” at the Elysée Palace operated from 1983 to March 1986 within the French President’s Office, engaging in telephone tapping and bugging. In the early 1990s the press published a list of 2,000 people who had been placed under surveillance, including numerous public figures, together with journalists and lawyers. The case then aroused considerable media interest.   In 1993 a judicial investigation was opened in the course of which G.M., deputy director of President François Mitterrand’s private office at the material time, was placed under formal investigation for breach of privacy.   A few days after President Mitterrand’s death in January 1996, the publishing company Arthème Fayard published the book “The Ears of the President”, which the first two applicants had written on the subject of the surveillance operations at the Elysée Palace.   G.M. lodged a criminal complaint, with an application to join the proceedings as a civil party, against Mr Pontaut and Mr Dupuis, accusing them of handling documents and making use of information obtained through a breach of professional confidentiality and of handling stolen property. He alleged that 36 passages from the applicants’ work reproduced the official records of the statements made before the investigating judge and that four appendices in the book consisted of “facsimile phone-taps” which were identical to documents in the case-file.   The applicants denied having obtained their information illegally; they refused to reveal their sources and claimed, in particular, that many of the people examined by the judge had since publicly disclosed the content of their statements.   On 10 September 1998 the Paris tribunal de grande instance found that both the facsimiles and the record extracts came from the judicial investigation file, which were only accessible to people bound by the confidentiality of the investigation or by professional confidentiality. The court considered that the applicants, as experienced journalists, could not have been unaware of the fact that the documents in question were protected by such confidentiality. Consequently, the court found Mr Pontaut and Mr Dupuis guilty of the offence of using information obtained through a breach of the confidentiality of the investigation or of professional confidentiality and ordered each of them to pay a fine equivalent to EUR   762.25. The court also ordered them, jointly and severally, to pay G.M. damages equivalent to EUR 7,622.50 and found the company Librairie Arthème Fayard to be civilly liable. The applicants’ book continued to be published and no copies were seized.   The Paris Court of Appeal upheld the judgment on 16 June 1999. Moreover, the Court of Cassation dismissed an appeal by the applicants on 19 June 2001.   In November 2005 G.M. was given a suspended six-month prison sentence and fined EUR 5,000.     2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 17 December 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Boštjan M. Zupančič (Slovenian), President , Corneliu Bîrsan (Romanian), Jean-Paul Costa (French), Elisabet Fura-Sandström (Swedish), Alvina Gyulumyan (Armenian), David Thór Björgvinsson (Icelandic), Isabelle Berro-Lefèvre (Monegasque), judges ,   and also Stanley Naismith , Deputy Section Registrar .     3.     Summary of the judgment [2]   Complaints   The applicants complained about the judgment against them, relying on Article 10 (freedom of expression) and Article 6 § 2 (presumption of innocence).     Decision of the Court   Article 10   The Court observed that the conviction in question constituted interference with the applicants’ right to freedom of expression, that that interference was prescribed by the French Criminal Code and that it had the legitimate aim of protecting G.M.’s right to a fair trial with due respect for presumption of innocence.   As to whether that interference was necessary in a democratic society, the Court observed at the outset that the subject of the book concerned a debate which was of considerable public interest. It made a contribution to what could only be described as an affair of state, which was of interest to public opinion, and provided certain information and considerations about the prominent figures whose telephones had been illegally tapped, about the conditions in which the operations had taken place and about the identity of the instigators. Moreover, the Court could not but observe that the list of the “2,000 individuals under surveillance” included the names of numerous figures who were prominent in the media.   The Court reiterated in that connection that there was little scope under the Convention for restrictions on freedom of expression in the area of political speech or in matters of public interest and that the limits of acceptable criticism were wider as regards a politician as such than as regards a private individual. While G.M., at the time one of President Mitterrand’s main operatives, was not himself a politician, he nevertheless had all the characteristics of an influential public figure, being clearly involved in political life and at the highest level of the executive.   Furthermore, bearing in mind that the applicants’ book, like newspaper reports on court cases, satisfied a concrete and sustained public demand in view of the increasing interest shown nowadays in the day-to-day workings of justice, the Court considered that the public had a legitimate interest in the provision and availability of information about the trial and, in particular, about the facts dealt with in the book. The Court further emphasised the importance of the media’s role in the area of criminal justice.   The Court therefore had to determine whether the general public’s interest in being informed had prevailed in the present case over the “duties and responsibilities” imposed on the applicants in view of the questionable origin of the documents that had been sent to them. In that connection, the Court found it legitimate that special protection should be granted to the confidentiality of the 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. However, at the time when the applicants’ book was published, in addition to there being wide media coverage of the so-called “Elysée eavesdropping” case, it was already well known that G.M. had been placed under investigation in this case, in connection with a pre-trial investigation which had started about three years’ earlier. It was to lead to his conviction and suspended prison sentence some ten years after publication of the book. Moreover, the Government had failed to establish how, in the circumstances of the case, the disclosure of confidential information could have had a negative impact on G.M.’s right to the presumption of innocence or on his conviction and sentence almost ten years after the publication. In actual fact, after the publication of the impugned book and while the judicial investigation was ongoing, G.M. had regularly commented on the case in numerous press articles.   In those circumstances, the Court considered that the protection of the information on account of its confidentiality did not constitute an overriding requirement. The Court, moreover, questioned whether there was still an interest in keeping information confidential when it had already been at least partly made public and was likely to be widely known, having regard to the media coverage of the case, both because of the facts and because of the celebrity of many of the victims of the surveillance.   The Court further considered that it was necessary to take the greatest care in assessing the need to punish journalists for using information obtained through a breach of the confidentiality of an investigation or of professional confidentiality when those journalists were contributing to a public debate of such importance and were thereby playing their role as “watchdogs” of democracy. It transpired from the applicants’ undisputed allegations that they had acted in accordance with the standards governing their profession as journalists, since the impugned publication was relevant not only to the subject matter but also to the credibility of the information supplied, providing evidence of its accuracy and authenticity.   Lastly, the Court reiterated that interference with freedom of expression might have a chilling effect on the exercise of that freedom – an effect that the relatively moderate nature of the fine, as in the present case, would not suffice to negate.   In conclusion, the Court considered that the judgment against the applicants had constituted a disproportionate interference with their right to freedom of expression and that it was therefore not necessary in a democratic society. It accordingly held that there had been a violation of Article 10.     Article 6 § 2   In view of the Court’s finding of a violation under Article 10, it considered that it was not necessary to examine separately the complaint under Article 6 § 2.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.       [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [2] This summary by the Registry does not bind the Court.