CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 13 décembre 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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS 916 13.12.2007   Press release issued by the Registrar   CHAMBER JUDGMENT FOGLIA v. SWITZERLAND   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Foglia v. Switzerland (application no. 35865/04).   The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 3,014   euros   (EUR) in respect of non-pecuniary damage and costs and expenses. (The judgment is available only in French.)   1.     Principal facts   Aldo Foglia is a Swiss national who was born in 1953 and lives in Lugano (Switzerland). He works as a lawyer in the Canton of Ticino.   In March 2002 the body of HJ was found in Lake Lugano. It emerged that he had embezzled sums amounting to about 60   million   Swiss   francs   (CHF) from the accounts of the clients of his trust company in favour of Lugano Football Club, of which he had been vice-president and president. The embezzled money had been deposited in accounts held by the Banca del Gottardo in Lugano, for which HJ had worked for more than ten years.   Mr Foglia agreed to act as defence lawyer for several individuals who had been victims of HJ’s actions and who joined the proceedings as civil parties. The case was ultimately discontinued on the grounds that there was insufficient evidence.   The case received extensive media coverage. Mr Foglia gave several interviews and expressed to the press his opinion that the employees of the bank concerned could not have been unaware of the embezzlement, and described the investigation by the Public Prosecutor’s Office as superficial and hasty.   The bank brought an action for damages against the applicant, on the grounds that his remarks to the press had been damaging to its reputation, but finally abandoned its civil action in September 2006.   The bank also complained about the applicant’s conduct to the Bar of the Canton of Ticino, which brought disciplinary proceedings against Mr Foglia. At the close of those proceedings, the applicant was ordered to pay a fine amounting to about EUR   1,024 at the time (CHF   1,500), on the grounds, in particular, that he had conducted a press campaign, that his comments – concerning both the bank and the Public Prosecutor’s Office – lacked respect and objectivity, which amounted to dereliction of his professional and ethical duties, and that he had given the press access to documents from the trial.   On 7 May 2004 the Federal Court held that the role played by the applicant vis-à-vis the press had exceeded the limits of what was necessary for the defence of his clients, and that accordingly he had failed to comply with the duty of diligence in practicing his profession. It also criticised the applicant for failing to ensure that the media used the documents from the proceedings in a discreet and restricted manner.   The civil action brought against the bank by the applicant on behalf of his clients is currently pending before the Swiss courts.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 30 September 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Anatoli Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), Giorgio Malinverni (Swiss), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained, in particular, that there had been a violation of his right to freedom of expression, on account of the fine imposed on him and the fact that the Swiss courts had based their decisions on facts which had not been proved. He relied on Article 10.   Decision of the Court   Article 10   The Court considered that the applicant’s condemnation could be seen as an interference in his right to freedom of expression, interference which was prescribed by Swiss law and had in any case the legitimate aim of maintaining the authority and impartiality of the judiciary.   As to whether the interference was “necessary in a democratic society”, the Court considered that, although lawyers had the right to comment publicly on the administration of justice, their criticism could not overstep certain bounds.   In the applicant’s case, the Court noted that his conduct had been interpreted as being at the origin of a press campaign and amounting to a trial by media, in parallel to the court proceedings. In the Court’s opinion, the dispute had undeniably been of considerable media interest, even before the interviews granted by the applicant. As to the applicant’s statements concerning the Public Prosecutor’s Office, the Court considered that, even allowing that those comments could be perceived as indicating a certain lack of consideration for the investigative authorities, they could not be classified as either serious or insulting; nor did they appear likely to undermine the confidence of the public in the justice system.   As to the fact of making trial documents available to the press, even supposing that that was proved to have occurred, the Court noted that that was not illegal under Swiss law. It considered that placing responsibility for the actions of the press on the applicant was unjustified, and noted that that disclosure of information took place in the context of media interest and could correspond to the public’s right to receive information on the activities of the judicial authorities.   Finally, the Court considered that the comments made by the applicant had been neither excessive nor offensive and had not unduly harmed the interests of the bank and its management. That was confirmed by the fact that no complaint alleging defamation had been lodged against the applicant and that the civil proceedings had been abandoned. The Court further noted that no complaint against the applicant had been filed by the Public Prosecutor’s Office or other people involved in the investigation. It also emphasised that although the fine imposed on the applicant had in itself been modest, it was nonetheless symbolic in value.   In those circumstances, the Court concluded that there had been a violation of Article 10.     ***   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) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   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.