Information Note on the Court’s case-law 176

July 2014

A.B. v. Switzerland - 56925/08

Judgment 1.7.2014 [Section II]

Article 10

Article 10-1

Freedom of expression

Conviction of a journalist for the publication of materials covered by the secrecy of a pending investigation: violation

[This case was referred to the Grand Chamber on 17 November 2014]

Facts – On 15 October 2003 the applicant, a journalist, pu blished an article in a weekly magazine about criminal proceedings that had been brought against a motorist who had been remanded in custody after an incident in which he had rammed his car into pedestrians, killing three of them and injuring eight others, before throwing himself off the Lausanne Bridge. The article described the defendant’s background and gave a summary of the questions put to him by the police and the investigating judge, together with his own statements, and was illustrated by a number o f photographs of letters he had sent to the judge. The article also contained a brief summary of statements by the defendant’s wife and doctor. Criminal proceedings were brought against the journalist on the initiative of the public prosecutor for publicat ion of confidential documents. In June 2004 the investigating judge sentenced him to a suspended term of one month’s imprisonment, which the Lausanne Police Court subsequently replaced by a fine of 4,000 Swiss francs (about EUR 2,667). The applicant’s appe als against his conviction were unsuccessful.

Law – Article 10: The fining of the applicant for using and reproducing evidence from the judicial investigation file in his article had constituted an interference with his right to freedom of expression. That interference was prescribed by law. The measure at issue had pursued the legitimate aims of preventing the “disclosure of evidence received in confidence”, of “maintaining the authority and impartiality of the judiciary” and of protecting “the reputation (and) rights of others”.

The article had been based on court proceedings in connection with an incident which, having taken place in exceptional circumstances, had immediately aroused public interest and had led to widespread media interest in the case and in how it was being dealt with by the criminal justice system. In the impugned article the applicant looked at the defendant’s character and tried to understand his animus , while highlighting the manner in which the police and court authorities were deali ng with the defendant, who seemed to have psychiatric problems. Such an article thus addressed a matter that was in the general interest.

The applicant, an experienced journalist, could not have been unaware that the documents which had come into his posse ssion were covered by the confidentiality of the judicial investigation. In those circumstances, he had been required to comply with the statutory provisions applicable in such matters.

Concerning the weighing up of the interests at stake, the Court noted that the Federal Court had confined itself to finding that both the premature disclosure of the defendant’s statements and his letters to the judge had necessarily impaired the rights of the accused to be presumed innocent and to have a fair trial. However, the question whether the accused was guilty as charged was not the subject of the article at issue and the first hearing on the charges had not taken place until more than two years af ter its publication. In addition, a single judge had presided over the defendant’s trial. The Government had not therefore established how the disclosure of this type of confidential information could have had a negative influence on the defendant’s right to be presumed innocent or on the outcome of his trial.

The Government had alleged that the disclosure of the documents covered by the confidentiality of the investigation had interfered with the defendant’s right to respect for his private life. However, the defendant had failed to use any of the remedies that had been available to him under Swiss law through which he could have sought redress for the damage to his reputation. The second legitimate aim relied on by the Government thus necessarily became le ss persuasive in the circumstances of the case. The Government had not therefore sufficiently justified the sanction imposed on the applicant on account of the disclosure of personal information concerning the accused.

As regards the Government’s criticism about the form of the article at issue, it had to be borne in mind that Article 10 of the Convention protected not only the substance of the ideas and information expressed, but also the form in which they were conveyed. It was consequently not for the Co urt, any more than for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists.

Lastly, while the fine had been imposed for a “petty offence”, the lowest category of offence s provided for in the Swiss Criminal Code, and harsher sanctions, including a prison sentence, could have been envisaged for that offence, the chilling effect of the fine, even though it was inherent in any criminal sanction, was not insignificant in the p resent case. In that connection, the fact of a person’s conviction might in some cases be more important than the minimal nature of the penalty imposed. The Court thus regarded the fine imposed as disproportionate to the aim pursued.

In view of the foregoi ng, the applicant’s conviction did not meet a “pressing social need”. Whilst the grounds for the conviction were “relevant”, they were not “sufficient” to justify such an interference with the applicant’s right to freedom of expression.

Conclusion : violation (four votes to three).

Article 41: no claim made in respect of damage.

(See also Dupuis and Others v. France , 1914/02, 7 June 2007, Information Note 98 )

© 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