Information Note on the Court’s case-law No. 85

April 2006

Stoll v. Switzerland - 69698/01

Judgment 25.4.2006 [Section IV]

Article 10

Article 10-1

Freedom of expression

Criminal conviction of journalist for having published a confidential report by an ambassador on strategies to be adopted in diplomatic negotiations: violation

[This case was referred to the Grand Chamber on 13 September 2006]

Facts : In 1996 Carlo Jagmetti , who was then the Swiss Ambassador to the United States, drew up a “strategic document”, classified as “confidential”, in the course of negotiations between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss banks. The document was sent to a very limited number of senior officials in Switzerland. The applicant obtained a copy, probably as a result of a breach of professional confidence by a person whose identity remains unknown.

One month later a Swiss newspaper published two articles by the applicant under the headings “Carlo Jagmetti insults the Jews” and “Bathrobed ambassador makes new faux-pas with heavy boots”, accompanied by extracts from the report in quest ion. The next day two other newspapers reproduced long extracts from the strategic document.

In 1999 a district court sentenced the applicant to a fine of approximately 520 euros for publishing “secret official deliberations”. The court noted that by publi shing the document, the applicant had undermined Switzerland’s foreign policy position. Appeals lodged by the applicant were dismissed by the Federal Court. Moreover, the Swiss Press Council, to which the case had been referred by the Swiss Federal Council in the meantime, acknowledged the public interest of the document and the legitimacy of its publication, but found that by abridging essential passages of the report and failing to place it sufficiently in context, the applicant had irresponsibly made the ambassador’s remarks appear sensational and shocking.

Law : The interference, prescribed by law, had pursued a legitimate aim, namely the prevention of the “disclosure of information received in confidence”. The criticism expressed in the impugned articles had directly targeted a senior official, namely a member of the diplomatic corps having the rank of ambassador, who had had a particularly important mission to perform in relation to the United States. The confidentiality of diplomatic relations was justi fied in principle, but could not be protected at any price. Moreover, the role of the media as critic and watchdog also applied to foreign policy matters.

The information contained in the report in question had been of a kind that raised matters of public interest. The articles had been published in the context of a public debate about a matter widely reported in the Swiss media and one that had deeply divided public opinion in Switzerland, particularly as the discussions about the assets of Holocaust victi ms and Switzerland’s role in the Second World War had then been very heated and had taken on an international dimension. The Swiss ambassador to Washington had occupied an important position in the discussions and the public had had a legitimate interest i n receiving information about the officials dealing with such a sensitive matter and their negotiating style and strategy.

The Court recognised the importance of protecting the work of the diplomatic corps from outside interference. However, it was not per suaded that the disclosure of aspects of the strategy to be adopted by the Swiss Government in the negotiations concerning the assets of Holocaust victims and Switzerland’s role in the Second World War was capable of prejudicing interests that were so prec ious that they outweighed the freedom of expression in a democratic society. By concluding that there had been mitigating circumstances, the District Court had, moreover, explicitly acknowledged that the disclosure of the confidential document had not unde rmined the very foundations of Switzerland.

With regard to the form of the published articles, the Press Council had considered that the ambassador’s remarks had been made to appear sensational and shocking. The Court pointed out, however, that freedom of the press afforded the public one of the means of discovering and forming an opinion on the ideas and attitudes of leaders, observing in that connection that press freedom also covered possible recourse to a degree of exaggeration, or even provocation.

Fur thermore, although the penalty imposed on Mr Stoll had not been very harsh, the Court reiterated that what mattered was not that he had been sentenced to a minor penalty, but that he had been convicted at all. While the penalty had not prevented the applic ant from expressing himself, his conviction had nonetheless amounted to a kind of censorship which was likely to discourage him from making criticisms of that kind again in future. In the context of a political debate such a conviction was likely to deter journalists from contributing to public discussion of issues affecting the life of the community and might thus hamper the press in its role as information provider and watchdog.

That being so, Mr Stoll’s conviction had not been reasonably proportionate to the pursuit of the legitimate aim in question, having regard to the interest of a democratic society in ensuring and maintaining the freedom of the press.

Conclusion : violation (four votes to three).

© Council of Europe/European Court of Human Rights Thi s summary by the Registry does not bind the Court.

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