DISSENTING OPINION OF JUDGE YUDKIVSKA

“[F]ree speech and fair trials are two of the most cherished policies of our civilisation, and it would be a trying task to choose between them.”

Justice Black in Bridges v. California [1]

When a case that has sharply divided a Chamber is referred to the Grand Chamber, it usually means that some important principles need to be clarified. The present case provided an opportunity to nuance an approach to the weighting of the conflicting interests of the media in reporting on ongoing trials, on the one hand, and protection of the private life of an accused and the interests of justice, on the other. The majority decided that in the particular circumstances of the present case the latter interests deserved greater protection.

It is true that Article 10 is the only provision in the Convention which mentions the responsibilities of the beneficiary of a guaranteed right. The majority relied, in the present case, on the concept of “responsible journalism”, as developed in the Court ’ s case-law and recently summarised in the Grand Chamber judgment in Pentikäinen v. Finland [2] . To my regret, I can share neither the reasoning nor the conclusion of the majority.

On 8 September 2013 a tragedy occurred on Lausanne Bridge, taking the lives of three persons and severely injuring eight more, all within seconds. For a relatively small town it was a large-scale incident: virtually every inhabitant could have known the victims or their relatives, or might have happened to be on the spot at the relevant time. A person ’ s desire to find out what happened to his neighbours and why citizens had been left without protection was disdainfully dismissed by the Federal Court as “unhealthy curiosity”, chiming in with George Bernard Shaw ’ s belief that “most of all people are interested in what does not concern them”.

It is hard to explain why the court decided that “[ i]t was not a case of collective trauma on the part of the Lausanne population, which would have justified reassuring the citizens and keeping them informed of the progress of the investigation”. This stance deprived the citizens of Lausanne of their right to be informed about the investigation of a crime that shocked them. Disappointingly, the majority endorsed this reasoning.

The Grand Chamber reproaches the applicant with failure “ to demonstrate how the fact of publishing records of interviews, statements by the accused ’ s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation” (see paragraph 66 of the present judgment). However, it was precisely, and naturally, M.B. ’ s mental state at the time of committing this crime (and the authorities ’ assessment of that state) which was of most interest to the general public. Therefore, not only the medical statements but also the letters to the investigating judge, in which he claimed certain rights and privileges, and the explanations of his family members were supposed to provide the general public with some idea of M.B. ’ s attitude toward the crime he had committed.

As the United States Supreme Court said in Sheppard v. Maxwell [3] , “the press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism”. According to Justice Brennan “free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability” [4] .

However “banal” the aspects of the accused ’ s life in detention might appear, information about them prevents proceedings “behind closed doors” from drifting into carelessness or ignorance.

In its landmark judgment in The Sunday Times v. the United Kingdom [5] , the Court declared its position on the watchdog role of the press:

“... Not only do the media have the task of imparting information concerning matters that come before the courts: the public also has a right to receive them.”

Interference in a person ’ s private life is an unavoidable consequence of this watchdog role. It remains to be seen whether the interference in question did not overstep acceptable limits.

In paragraph 50 of the present judgment, the Court reiterates its case-law to the effect that the press must respect certain bounds, in particular when it comes to the need to prevent the disclosure of information received in confidence. Notably, all but one case referred to in this connection concern civil proceedings instituted against the applicants, and violation of Article 10 was found in all these cases with reference to the role of media. The only exception is the case of Tourancheau and July v. France [6] , in which by a very narrow margin, four votes to three, the Court found no violation of Article 10 in a criminal verdict against the applicants, who had published investigation materials prior to a trial. In that case, however, the impugned publication had reproduced information that clearly could have impeded the further course of the proceedings – extracts from statements made to the police and the investigating judge by one of the accused, and comments by another accused (who had a different account of the events); the author also claimed that the version given by one of them was the most trustworthy, which could, of course, have influenced the jury.

Nothing similar is to be found in the present case. The majority accepted that “ the impugned article did not openly support the view that the accused had acted intentionally”. Nevertheless, “a highly negative picture” of the accused, a description of “certain disturbing aspects of his personality” and the conclusion that he was doing “everything in his power to make himself impossible to defend” (see paragraph 69 of the present judgment) were found to be capable of negatively influencing the further investigations.

Being unable to share this conclusion, I wholeheartedly subscribe to the US Supreme Court ’ s wording in Sheppard v Maxvell (cited above): “where there was ‘ no threat or menace to the integrity of the trial, ’ we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.”

The majority have not suggested that the integrity of the investigation was impaired, that is to say that the information published could somehow create an obstacle to further inquiry by revealing information which had to be hidden from, for instance, the co-accused or witnesses for the purposes of proper investigation. Instead, they used the following extremely vague wording: “ inherent risk of influencing the course of proceedings in one way or another , whether in relation to the work of the investigating judge, the decisions of the accused ’ s representatives, the positions of the parties claiming damages, or the objectivity of the trial court .” In my opinion, unidentified potential harm to investigation cannot serve as a basis for the journalist ’ s criminal conviction.

When it comes to the infringement of the accused ’ s right to protection of his personal life, what strikes me in the present case is the level of paternalism demonstrated by the State authorities: lacking any relevant complaint from the defendant or his family members about interference in his private life, they instituted criminal proceedings against the applicant in order to fulfil their positive obligations under Article 8. I could not agree more with the Chamber ’ s conclusion in this respect that “it was primarily incumbent on M.B. to ensure respect for his private life” (see paragraph 56 of the Chamber judgment).

The Grand Chamber, however, stressed that it was not clear if M.B. was even aware of the publication in question or felt that he was vulnerable (the fact that he had a wife who was also mentioned in the publication but did not consider it to be interference is completely ignored). The majority has reached an extraordinary conclusion, broadening the scope of the State ’ s positive obligations under Article 8, to the effect that the authorities “could not simply wait for M.B. himself to take the initiative in bringing civil proceedings against the applicant”, and that their recourse to criminal prosecution in order to protect the private life of a person who does not want it to be protected is perfectly justified in the circumstances. It is to be recalled that this Court has consistently held that the State ’ s positive obligation under Article 8 may extend to questions relating to the effectiveness of the criminal investigation when it comes to serious acts, where fundamental values and essential aspects of private life are at stake ; while as regards less serious acts between individuals, even when it comes to a violation of psychological integrity, the obligation of the State under Article 8 does not always require a criminal-law framework if civil-law remedies are capable of affording sufficient protection (see summary of the relevant case-law in Söderman v. Sweden [GC], no. 5786/08, § 78-85, ECHR 2013).

Not only did the present case not concern the physical or psychological integrity of M.B., but also nothing extremely intimate about his private life was revealed by the applicant that could have justified his criminal prosecution.

As regards positive obligations under Article 8, the majority refers to Craxi v. Italy (no. 2) [7] . However, that case concerned positive obligations to investigate how the confidential information was disclosed. In the present case, equally, positive obligations would require investigation into how the leak occurred, but hardly criminal sanctions against a journalist who used that leak.

In my view, the proceedings which were brought can be seen as an overreaction by the authorities, in the absence of a civil suit from an injured party.

It is worth noting here that the conventional three-stage proportionality test requires that, having satisfied itself that the means of interference are appropriate ( Eignung ), the Court has to assess the necessity of the interference ( Erforderlichkeit ), checking if a less restrictive measure could have been used, and only then proceed to balance the aim and impact of the measure ( Zumutbarkeit ). In the present case the test already fails at the second stage – the authorities failed to verify whether the desired effect could be reached by less serious interference than a criminal conviction, that is to say whether other measures could mitigate the alleged undesirable effect of the publication.

In Nebraska Press Association v. Stuart (cited above) the US Supreme Court addressed the problem of imposing prior restraints on the press, prohibiting the pre-trial publication of such information as the existence or contents of a confession of the accused. Assessing the interference in question it acknowledged that, in order to protect the accused ’ s fair-trial guarantees, courts could adopt less restrictive measures, but protecting the freedom of the press necessitated, for instance, changing the trial venue, giving unequivocal instructions to jurors, sequestering the jurors, limiting extrajudicial statements by any lawyer, party, witness, or court official, etc. However expensive and time-consuming these measures might be, they would achieve the aim of ensuring fair-trial guarantees and protecting the jury from outside influence, without excessive interference in press freedom.

Finally, any criminal sentence inevitably has a “chilling effect”, and the fact that the applicant had never served his suspended sentence of one month ’ s imprisonment, which was subsequently commuted to a fine, does not alter that situation.

In sum, I find that the applicant aimed to participate in a public debate on a matter of a serious public concern, namely ongoing criminal proceedings, which Lausanne citizens wanted to follow not as a matter of “unhealthy curiosity” but in order to make sure that the crime did not go unpunished. The authorities ’ disproportionate response in the form of a criminal conviction constituted a violation of Article 10 of the Convention.

Around 120 years ago, the prominent Russian lawyer Ivan Foinitskiy pronounced:

“Through openness, a constant exchange of views between judges and the rest of society is maintained, and thus justice does not lose its connection with life. For citizens it is more important to be convinced that their court is just and good than to have a court that speaks the absolute truth. And this public belief in the dignity of the court is possible on the sole condition that each step in the judicial activity is known to the public.” [8]

Over one hundred years later, the Committee of Ministers pointed out that “the public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system”, subject to certain limitations [9] .

This Court had always regarded the press as the servant of an effective judicial system, granting little scope for restrictions on freedom of expression in such matters as the public interest in the proper administration of justice. In my view, the present judgment constitutes a regrettable departure from this long-established position.

[1] . 314 US 252, 260 (1941).v

[2] . Pentikäinen v. Finland [GC], no. 11882/10, ECHR 2015.

[3] . 384 US 333 (1966) .

[4] . Nebraska Press Association v. Stuart , 427 US 593, (1976) .

[5] . The Sunday Times v. the United Kingdom , 26 April 19 7 9 , § 6 5 , Series A no. 30.

[6] . Touranche a u and July v. France , no. 53886/00, § 65, 24 November 2005 .

[7] . Craxi v. Italy (no. 2) , no. 25337/94, 17 July 2003.

[8] . I. Foinitskiy , “The course of criminal proceedings: in 2 volumes”, SPb., 1898, volume 1, p p . 96 - 97.

[9] . Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member States on the provision of information through the media in relation to criminal proceedings ; see paragraph 21 of the present judgment.