JOINT DISSENTING OPINION OF JUDGES NuSSberger AND KELLER

1. This case concerns media access to prisons and the acceptability of restrictions on the freedom of the media to publish information about people serving prison sentences.

2. We agree with the majority of the Chamber on the basic principle that prison should not be a world unto itself, closed to the press and the media. However, the Convention explicitly states that national security and public safety may justify any restriction necessary in a democratic society.

3. The majority of the Chamber saw a violation of Article 10 of the Convention in the insufficient reasoning for the Swiss authorities’ decisions (I). That finding is based on the existence of a narrow margin of appreciation (II) and on an examination of proportionality that gave precedence to the interests of the applicant company (III).

I. Insufficient reasoning

4. Obviously, access for journalists and cameramen to prisons raises problems with regard to national security and public safety. The majority of the Chamber acknowledged and emphasised that the domestic authorities are best placed to assess the risks. They nevertheless found a violation of the Convention, especially because the reasons adduced by the Swiss authorities were not sufficiently substantiated and did not explain “in what respect order or security in the prison might have been effectively disturbed in practice by the proposed production” (§ 60). The fact that this argument was thrice repeated (§§ 58, 62 and 65) shows the decisive importance of the lack of sufficient reasoning in the final judgment. While it is true that any decision of the domestic authorities restricting the human rights protected by the Convention must be explained and justified in a manner people can understand, we do not share the position of the majority on this point for the following reasons.

5. In the present case the refusal of a filmed interview with the prisoner was neither summary nor superficial, but was based entirely on pertinent arguments (§§ 35-39). It is self-evident that an interview inside a prison poses security problems. We are therefore not convinced that detailed explanations were necessary in this connection. The Swiss authorities did not simply settle for reproducing stereotyped reasons: they pointed out that the organisational and supervisory efforts required for a television film crew were well beyond what might reasonably be expected of the prison authorities (§ 11). We fail to see what additional information might have been considered necessary. Even if more details about the security system had been given, the Court could not have substituted its opinion for that of the domestic authorities concerning the risks involved, especially as the domestic authorities alone would be responsible in the event of an escape or of disorder in the prison.

6. Also, the argument that filming for television in a prison would have exposed a detainee in a particularly delicate manner and that it was difficult to rule out the possibility of exploitation is convincing (§ 36). The authorities are responsible for all the detainees in their care.

7. Lastly, in the present case the argument that filming might have interfered with the proper administration of justice and with the presumption of innocence of a person who was about to stand trial at the time of the prison authorities’ refusal is equally pertinent (see Craxi v. Italy , no. 34896/97, § 98). The refusal of the domestic authorities is perfectly in keeping with the general ban under Swiss law on audio or video recordings of court hearings (see, in particular, Article 71 § 19 of the Swiss Code of Criminal Procedure).

8. All these factors taken into account by the domestic authorities were presented in a pertinent and comprehensible manner (see, concerning supervision criteria, Handyside v. the United Kingdom , 7 December 1976, no 5493/72, § 50 in fine ). Of course other details or points could always have been added. It is legitimate, however, for the reasons given by the domestic authorities for their decisions to be reasonably succinct. European supervision should be limited to ensuring that the reasons adduced are relevant and convincing and all the important considerations have been taken into account. What matters is whether the result of the courts’ analysis is reasonable and justifiable vis-à-vis the Convention. The form of the reasoning, however, may vary from one legal culture to another, in keeping with the well-established traditions of the highest courts of the Council of Europe’s member States. In our opinion it is not the Court’s role to judge the exhaustiveness or the wording of the reasons given by the domestic authorities. This is why, in our opinion, the majority was wrong to find that insufficient reasoning was given for the decisions in issue.

II. Margin of appreciation

9. The majority’s assessment is based on the assumption that the domestic authorities had only a limited margin of appreciation in determining whether there was a pressing social need (§ 56). In the present case – as in many cases of restrictions on freedom of expression – there were various conflicting interests involved. A fair balance had to be struck between the applicant company’s right to freedom of the press, the rights of the potential television viewers and the interests of society in general, without losing sight of the rights of the prisoner, the rights of her fellow prisoners and those of the accused person whose trial was imminent.

10. This delicate exercise was carried out before the Court, where only the applicant company and the respondent State were represented as parties to the proceedings. However, the domestic authorities are clearly better placed to examine the overall picture where such multiple conflicting interests are in issue. For this reason we are not convinced that the margin of appreciation should be very narrow in such a case.

III. Proportionality

11. The characterisation of the multiple conflicting interests in issue also has an impact on the balancing of those interests in the present case, which the majority did not fully take into account. In our opinion the Court’s case-law in the cases of Von Hannover v. Germany (no. 1) , 24 June 2004, no. 59320/00, §§ 59 et seq., and Von Hannover v. Germany (no. 2) , 7 February 2012, §§ 109 et seq., nos. 40660/08 and 60641/08, emphasising the need to distinguish between satisfying public curiosity and contributing to a debate of general interest, should have been transposed to the present case.

In the present case, the applicant company’s project did both of the above: on the one hand it contributed to the social debate on the proper functioning of the justice system, bearing in mind the action taken by the “ Appel-Au-Peuple ” organisation, which combats alleged miscarriages of justice; and on the other hand, an interview with a high-profile convict serving a prison sentence for murder was intended, by its very nature, to cater for a certain “voyeurism”, a purpose to which very little weight should be accorded.

12. Nor did the majority take into account the fact that the authorities did not ban the interview outright. Indeed, on 19 August 2004 a telephone interview with the prisoner was broadcast in the “ Schweiz aktuell ” current affairs programme and posted on the internet. The majority rightly pointed out that the media are free to decide what technique of reporting should be adopted in a given case (see Jersild v. Denmark , 23 September 1994, § 31, Series A no. 298, and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007 ‑ V). However, such considerations cannot be taken into account in assessing the proportionality of a restrictive measure. In the present case the domestic authorities simply refused to allow an audiovisual recording which would have meant filming inside a prison. As to the proportionality of the refusal, allowance should be made for the fact that the added value of film footage of the prisoner would have served more to satisfy people’s curiosity than to contribute to a general interest debate.

13. Lastly, all the media – whether considered serious or otherwise – should have the same access to prisons, provided that the public interest prevails in practice. In our opinion, and unlike what the majority suggested (§ 56), it is not for the Court to decide whether the media are serious, as long as they contribute to a public interest debate. In other words, the “serious” reputation of the “ Rundschau ” programme had nothing to do with the issue of the proportionality of the interference.

For the above reasons we are unable to agree with the position of the majority in this case.