DISSENTING OPINION OF JUDGE LÓPEZ GUERRA

1. In consonance with the Chamber ruling and contrary to the Grand Chamber judgment, I consider that there has been a violation of Article 10 of the Convention in this case.

2. This is a highly relevant case. It deals with the extent and limits of the right to freedom of expression, a right which is vital in order to maintain “an effective political democracy”, in the terms of the Preamble to the European Convention on Human Rights. It is also relevant because it refers to the limits of this right concerning the freedom to report on ongoing judicial proceedings, which may have profound legal and social consequences in a democratic society.

3. To summarise, this case involves determining whether the restrictions and the penalty imposed on the applicant by the domestic authorities violate the right to freedom of expression guaranteed in the first section of Article 10. These restrictions and penalty were based on the provisions of Article 293 of the Criminal Code. It should be noted that that Article contains a general across-the-board prohibition on publishing any documents or investigations that have been declared secret, without reference to the possible presence of a compelling public or private interest to justify that prohibition. It is an unconditional prohibition, the only exception to which is what the law describes as “secrets of minor importance”.

4. The right to freedom of expression not only protects an individual ’ s sphere of activity but is also, according to the Court case-law extensively quoted in the Grand Chamber judgment, one of the essential foundations of a democratic society. Freedom of expression is not only a subjective right, but also an objective guarantee of democracy. Furthermore, Court case-law has also emphasised that one specific aspect of freedom of expression, that is to say freedom of the press, plays an essential role in democratic societies. Consequently, and as Court case-law has also stressed, the safeguards to be afforded the press are of particular importance.

5. Therefore, when restrictions are placed on freedom of the press, the laws imposing those restrictions and also the domestic courts ’ application of those laws must be subjected to close scrutiny. And as guidance for that scrutiny, the Court has indicated that under Article 10 there is little scope (see Morice v. France [GC], no. 29369/10, § 125, ECHR 2015, among many others) for restrictions on freedom of expression in matters of public interest.

6. In that connection, and as stated in the Grand Chamber ’ s reasoning (see paragraph 64), the subject of the article, namely the criminal investigation into the Lausanne Bridge tragedy and the ongoing judicial proceedings, was a matter of public interest. Moreover, the events giving rise to those proceedings had a significant impact on public opinion, not only because of the information provided by the media and the authorities themselves, but mainly owing to the gravity of their consequences (three dead and eight wounded), and to their relation to a matter of common and general concern in all societies, such as the causes and circumstances of traffic accidents.

7. In other respects, the informal or even colloquial style used by the author of the information is irrelevant in deciding whether the reported events are in the public interest. The Court has repeatedly stated that journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation (see paragraph 58 of the present judgment).

8. Any restriction on freedom of expression must be “necessary in a democratic society”. Concerning the concept of necessity, since Handyside v. the United Kingdom (7 December 1976, § 88, Series A no. 24) the Court has repeatedly stated that “the adjective ‘ necessary ’ within the meaning of Article 10 § 2 implies the existence of a ‘ pressing social need ’ ”. Therefore, in this case the question was whether there was really a compelling social need to impose a criminal penalty on the applicant journalist when reporting on a matter of public interest.

9. The Grand Chamber adduces two reasons to find that need: the defence of criminal proceedings against any undue influence, and the protection of the accused person ’ s privacy. But in the light of the facts of the case, those reasons do not really warrant restricting the applicant ’ s freedom of expression.

10. Firstly, with regard to the risk of undue influence on the criminal proceedings deriving from the applicant ’ s article, the content of the published information did not contain any explicit or even implicit consideration concerning the accused ’ s guilt or innocence. And the Grand Chamber actually admits that the applicant did not support the view that the accused had acted intentionally (see paragraph 69 of the present judgment). On the contrary, the applicant merely reproduced the accused ’ s statements, without offering any comment or opinion as to the possible outcome of the case. This makes it difficult to understand how the applicant ’ s article could influence any future court judgment.

Moreover, the journalist ’ s report was published about three months after the events, and considerably in advance of the domestic courts ’ decisions. Given the normal pace of judicial proceedings, it is simply not conceivable that information published in a journal of limited circulation could in any way influence a judgment issued much later in time. In fact, the first judgment in the case was given by the District Court of Lausanne two years and one month after the publication of the information for which the applicant was sentenced. Therefore, no possible risk of interfering in the course of the proceedings existed when the article was published, particularly in view of the fact that the judgment in question was to be issued by a court composed of professional judges who are very unlikely to be influenced by a single newspaper article.

11. Secondly, there was no compelling social need to impose a restriction on the applicant ’ s freedom of expression based on the requirement of protecting the accused ’ s private life.

In that connection, from the procedural angle, this Court has in fact repeatedly insisted on the positive obligations of the State to protect the private lives of individuals. However, in this specific case the person whose private life was supposedly affected by the applicant ’ s publication never sought to defend his right to privacy through any of the remedies afforded him under Swiss law. At no point did the accused ever suggest that his privacy had been invaded. On the contrary, it was the public authorities that used this case to apply the prohibition set out in the Criminal Code on publishing information concerning secret proceedings. There never was any conflict between the right to freedom of expression and the right to privacy, because the accused never invoked that right.

12. Furthermore, there were other means of protecting the accused ’ s privacy less detrimental to freedom of the press. Indeed, it is the State ’ s duty to protect an accused ’ s private data during judicial proceedings, essentially by preventing them from being leaked to the press through the actions or omissions of State officials, or by any person bound to keep the secrecy of the proceedings.

13. From a substantive perspective, even if the information did indeed concern certain aspects of the accused ’ s private life, those aspects (for instance, regarding his mental health) relate to the main questions of an event of public interest. And some of the allegedly private data pertaining to the accused, such as letters to the judge concerning the conditions of his remand in custody, are totally unrelated to intimate or private matters.

14. Therefore, given the nature of the information in question and the fact that the person affected by the published information never sought any legal remedy for an alleged invasion of his privacy, there was no reason in this case for the public authorities to restrict freedom of expression by imposing a penalty on the applicant journalist.

15. In connection with the proportionality of the sanction (4,000 Swiss francs), there are two aspects to consider. First, the substantive amount of the sanction renders it much more than merely symbolic. Moreover, a sanction of this magnitude obviously has a chilling effect on the exercise of freedom of expression, introducing a factor of fear and insecurity in journalists with regard to their future publications.

16. Certainly, as pointed out in the judgment (see paragraphs 22-23), there is no European standard on the matter. In some countries, the parties to a case and public officials are prohibited from revealing matters declared secret in judicial proceedings. But once secret information has been leaked to the press, the prohibition and any punishment do not extend to the journalists publishing it. However, in other countries the prohibition also extends to journalists, as is the case in Article 293 of the Criminal Code, which, moreover and as previously indicated, does not make any exceptions for matters of compelling public interest.

Of course, the present case does not address the general compatibility of the Convention with this type of regulation or with Article 293 of the Criminal Code, but rather with the national authority ’ s specific application of existing law. As the Chamber pointed out in its judgment (see paragraph 53 of the Chamber judgment), the formal notion of secrecy of Article 293 of the Criminal Code cannot be considered as having prevented the domestic courts, including the Federal Court, from applying and interpreting the law in a manner compatible with the Convention right to freedom of expression. The Criminal Code ’ s regulation on secrecy is not the subject of the Court ’ s ruling, but rather the Swiss authorities ’ specific application of that regulation in the applicant ’ s case.

17. Nevertheless, although the nature of the Criminal Code ’ s regulation on secrecy is admittedly not the main subject of this case, the terms of that regulation are not irrelevant when assessing the domestic courts ’ application of the law, given that the Code contains a blanket prohibition on revealing information concerning matters declared secret. Indeed, this is one of the reasons for finding a violation of the Convention.

As experience shows, it is not uncommon for judicial proceedings to address matters which are not only of general interest but also concern questions directly related to the functioning of a democratic system and to the responsibilities of holders of political, social or economic power, on which journalists have the right to report. Although the present case does not refer to that type of question, given that it concerns specific reporting on proceedings relating to a road accident, the issue it raises has a more general dimension. Any interpretation of Article 10 of the Convention which expressly or tacitly validates general and unconditional clauses restricting publications concerning judicial proceedings would conflict with the effective defence and protection of freedom of expression, particularly freedom of the press. Regardless of the advisability of this type of clauses, their application should be subject to especially stringent control in order to avoid restricting those freedoms that are essential for the functioning of a democratic society.

18. In conclusion, I consider that the Grand Chamber should have followed the Chamber ’ s view, finding a violation of Article 10 § 1 of the Convention, given that the domestic authorities have applied a general prohibition of information, thus restricting freedom of the press on a matter of public interest, without sufficiently justifying that restriction as falling within the limits to the right to freedom of expression established in the Convention.