CONCURRING OPINION OF JUDGE ZIEMELE

I voted with the majority in favour of finding that there has been no violation of Article 10 in the circumstances of this case. However, I do not share the reasoning of the majority on one specific point.

Beginning in paragraph 125 of the judgment, the Court looks in great detail at the interests which the domestic authorities sought to protect in this case. The first interest is the protection of the confidentiality of information within diplomatic services so as to ensure the smooth functioning of international relations. The Court takes the opportunity to articulate a very important principle as regards the role that Article 10 plays in inte rnational relations and foreign policy decisions of States Parties, namely, that “preventing all public debate on matters relating to foreign affairs by invoking the need to protect diplomatic correspondence is unacceptable” (see paragraph 1 28). Certain well-known foreign policy decisions of the last few years, for example those which led to complex international events and developments, demonstrate the importance of debate and transparency in this field.

Subsequently, the majority of the Court addresses the question of the repercussions that the published articles concerning Ambassador Jagmetti and his confidential report had on the negotiations between Switzerland and the World Jewish Congress and the other interested parties on the subject of compensation due to Holocaust victims for unclaimed assets deposited in Swiss ban k accounts (see paragraphs 130- 36). The majority of the Court first ly notes that the Government did not show that the published articles had actually prevented Switzerland and the banks in question from finding a solution to the problem (see paragraph 130). Nevertheless, the majority decides to assess whether, at the moment of their publication, th e articles were such as to damage the interests of the State. It comes to the conclusion that “... the disclosure – albeit partial – of the content of the ambassador ’ s report was capable of undermining the climate of discretion necessary to the successful conduct of diplomatic relations in general and of having negative repercussions on the negotiations being conducted by Switzerland in particular. Hence, given that they were published at a particularly delicate juncture, the articles written by the applicant were liable to cause considerable damage to the interests of the respondent party in the pre sent case” (see paragraph 136).

I disagree that the Court of Human Rights should single out the interests of the respondent party in these negotiations. The negotiations involved several parties but, above all, they related to a particularly difficult and delicate general interest and had implications extending beyond the Swiss public. The judgment points out elsewhere that “[t]he discussions on the assets of Holocaust victims and Switzerland ’ s role in the Second World War had, in late 1996 and early 1997, been very heated and had an international dimension” (see paragraph 118). Indeed, discussions about the State ’ s responsibilities under internation al law came up in this context.

The Court should instead have considered whether the partial disclosure of the report at that time was likely to contribute to the resolution of a long ‑ standing, important international issue or, on the contrary and to the detriment of all parties, was likely to make matters even mo re difficult.

The case under consideration shows that, in today ’ s globalised world, national audiences may not be the only public interests to be served by the media and others.

DISSENTING OPINION OF JUDGE ZAGREBELSKY JOINED BY JUDGES LORENZEN, FURA-SANDSTRÖM, JAEGER AND POPOVI Ć

(Translation)

I regret that I am unable to subscribe to the reasoning and conclusion adopted by the majority in the present case.

Until they reach paragraph 147 of the judgment , readers could easily believe that the Court is heading towards finding a violation of Article 10 of the Convention. It is only from that point on that the majority reveals the real reason for its negative assessment of the articles published by the applicant. But this seems to me to be a dangerous and unjustified departure from the Court ’ s well-established case-law concerning the nature and vital importance of freedom of expression in democratic societies.

My reasons for saying so are as follows. In paragraphs 54 to 62 the Court quite rightly excludes the possibility that, in the present case, the interference with the applicant ’ s exercise of his freedom of expression under Article 10 of the Convention could be justified by any aim other than preventing the disclosure of confidential information. The Court finds the other aims mentioned by the Government, namely protection of national security, public safety and the reputation or rights of others, to be without relevance in the case. The only remaining justification therefore is protection of secret information.

In that connection it should be noted that the protection of confidential information, unlike any other aim mentioned in Article 10 § 2, is functional in nature. If information which falls within the sphere of individual privacy is disregarded, it does not represent a value in itself (I am more inclined to say that the opposite is true, in a democratic society, at least as far as information regarding public authority is concerned). On the contrary, it is taken into consideration only because it serves to protect those values and interests which do merit protection at the expense of freedom of expression. It seems to me therefore that – for the purposes of Article 10 – the legitimacy of classifying a document or information as “confidential” cannot be assessed, nor can the value of such classification be “weighed” against the fundamental freedom of expression, without identifying and “weighing up” the underlying value or interest for the protection of which the information must remain confidential.

But the majority, after stating that “ the confidentiality of diplomatic reports is justified in principle, [but] cannot be protected at any price ” (see paragraph 128), and that “ the Government did not succeed in demonstrating that the articles in questio n actually prevented the Swiss g overnment and Swiss banks from finding a solution to the problem of unclaimed assets which was acceptable to the opposing party ” (see paragraph 130), ultimately

takes into consideration merely the “confidentiality” of the document, publication of which quite obviously undermined “ the climate of discretion necessary to the successful conduct of diplomatic relations in general ” (see paragraph 136). What follows, in the same paragraph, which states that publication was capable of “ having negative repercussions on the negotiations being conducted by Switzerland ” and that “ given that they were published at a particularly delicate juncture, the articles written by the applicant were liable to cause considerable damage to the interests of the respondent party ”, is merely a hypothesis, if not a petitio principii . In sum, this reasoning renders meaningless the principle whereby any interference with the right of free expression must be properly justified.

However, even if one follows the majority ’ s reasoning, it seems clear to me that any damage sustained must have been very minor when judged against everything the Court has said in numerous judgments about the importance of freedom of expression, particularly where it is a question of unmasking and criticising the conduct of the public authorities and those through whom public authority is mediated. It is worth pointing out in this regard that the issue at stake was the publication of a few passages from a letter which the Swiss ambassador in Washington had sent to more than twenty individuals and offices; moreover, no proceedings were instituted against the other newspapers which published the document virtually in full (and obviously knew about it). The criticism of the applicant for having published only a few extracts from the document relating specifically to the way in which the ambassador expressed himself becomes, paradoxically, a factor which counts against him, and the majority goes so far as to suggest that it would have been wiser to publish the document in full ( see paragraph 147 of the judgment). In my view, therefore, this interest in discretion could not on its own justify restricting the exercise of j ournalistic freedom in a public- interest context (see paragraphs 113 - 24).

I can see no reason to depart from the Court ’ s case-law to the effect that the criterion for assessing whether interference is necessary in a democratic society must be whether it corresponds to a “pressing social need”, that “ the authorities have only a limited margin of appreciation ” in this sphere (see paragraph 105) and that “ [ t ] he most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken ... by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern ” (paragraph 106) (see, among other authorities, Handyside v. the United Kingdom , 7 December 1976, § 48 , Series A no. 24 ; The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, § 59 , Series A no. 30 ; Lingens v. Austria , 8 July 1986, § § 39-41 , Series A no. 103 ; Observer and Guardian v. the United Kingdom , 26 November 1991, § 59 , Series A no. 216 ; Hertel v. Switzerland , 25 August 1998, § 46 , Reports of Judgments and Decisions 1998-VI ; and Steel and Morris v. the United Kingdom , no. 68416/01 , § 87 , ECHR 2005 ‑ II ).

In its judgment in Dupuis and Others v. France (no. 1914/02 , 7 June 2007 ), where the applicants were journalists convicted of breaching the secrecy of a criminal investigation, the Court stated as follows: “Where the press is concerned, as in the present case, the national power of appreciation conflicts with a democratic society ’ s interest in securing and maintaining freedom of the press. Considerable weight should likewise be attached to that interest when it is a matter of determining, as required by the second paragraph of Article 10, whether the restriction was proportionate to the legitimate aim pursued”. It is regrettable in my opinion that the Grand Chamber, instead of developing and applying these principles, should be tending in the opposite direction, particularly at a time when a series of episodes in the democratic world has shown that, even in the sphere of foreign policy, democratic scrutiny is possible only after confidential documents have been leaked and made public.

However, the judgment does not accept the necessity in a democratic society of the interference in question solely on the basis of the authorities ’ interest in discretion. On the contrary, in paragraph 147 of the judgment, the majority addresses what appears to me to be the real reason for its criticism of the journalist, one which, in its view, justifies his conviction, namely the “form of the articles”.

The judgment reiterates that Article 10 protects the substance of the ideas and information expressed and the form in which they are conveyed . “ Consequently, it is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists ” (see paragraph 146 of the judgment). Having said that, the majority seems to me to contradict itself by stating in the following paragraph: “Nevertheless, like the Press Council, the Court observes a number of shortcomings in the form of the published articles . ” The judgment does not give any reason for this surprising “nevertheless”, which introduces an element of censure regarding the form chosen by the journalist and leads the Court to endorse the wholly different position of a private body concerned with journalistic ethics. Moreover, the majority does not ultimately attach any weight to the purpose of the applicant ’ s articles, which, as it itself acknowledges in paragraph 123, clearly related to the ambassador ’ s controversial handling of several episodes, and in particular of the issue of unclaimed assets lodged by Holocaust victims in Swiss bank accounts. This issue obviously provided the backdrop to the articles; however, the latter clearly targeted the personality, as well as the character and attitudes , of an ambassador who was an important player in the negotiations. And in my opinion, the judgment falls into a trap on account of the fact that, at the domestic level, criminal proceedings for disclosure of a confidential document were brought in place of defamation proceedings, which were not institu ted at any point (see paragraph 152 of the judgment).

This case, however, relates solely to a criminal prosecution for publication of official deliberations within the meaning of Article 293 of the Criminal Code.

Let me now turn to my conclusions. In my opinion the authorities ’ interest in discretion referred to in paragraph 136 of the judgment is not sufficient in this case to outweigh the journalist ’ s freedom. The examination and criticism of the form of the articles seem to me unduly harsh in view of the fact that the journalist focused his remarks on the ambassador (who did not complain as a result). In any event, it is my opinion that the majority ’ s criticism concerning the form of the applicant ’ s articles is not relevant from the Court ’ s perspective.

As to the penalty imposed and its potentially adverse effect on the exercise of journalistic freedom, I subscribe to the conclusions of the Chamber in this case and those of the Dupuis and Others judgment, cited above.

The Court has consistently held that freedom must be construed broadly and that any restrictions must, by contrast, be applied restrictively. In the light of this guiding principle, it seems clear to me that the Court should have found a violation of the right to freedom of expression.