EHRM, 10-12-2007, nr. 69698/01

The applicant argued that the purely formal notion of secrecy on which Article 293 of the Criminal Code was based and which had been confirmed by the Federal Court had adverse consequences for freedom of expression. According to that provision, the publishing by an official of any document, regardless of its content, which had been declared secret or confidential had to be punished, without it being possible to review the compatibility of the penalty imposed with Article 10 of the Convention. In the applicant's view, such a definition of secrecy was clearly at odds with the requirements of the Convention.

The applicant further maintained that the Swiss courts had punished the wrong person, since he had been penalised, as a journalist, for disclosing a report which he had obtained as the result of a leak by a Government agent who enjoyed immunity from prosecution in the present case.

In addition, the applicant considered that Article 293 of the Criminal Code had always been applied selectively by the relevant authorities with the aim of preventing the disclosure of information concerning culpable conduct on the part of State officials or agents or problems in public administration. The provision in question had become an anachronism with the entry into force on 1 July 2006 of the Federal Administrative Transparency Act (see paragraph 37 above).

In the applicant's submission, Article 293 of the Criminal Code should be repealed, given that disclosure of the most sensitive information could be prosecuted on the basis of Article 276 of the Criminal Code (provocation and incitement to breach of military duty) or Article 86 (espionage and treason on account of a breach of military secrecy) and Article 106 (breach of military secrecy) of the Military Criminal Code. Finally, journalists could also be convicted under Articles 24 and 320 of the Criminal Code of instigating a breach of official secrecy.

The applicant did not question the principle that the activities of the diplomatic corps merited protection. However, he considered it dangerous to confer absolute immunity on the members of the diplomatic corps in relation to all types of information. He referred to the proceedings based on Article 293 of the Criminal Code currently being brought against journalists in Switzerland accused of having disclosed information from the Swiss secret services concerning the existence of secret CIA detention centres in Europe.

In the applicant's opinion, only State secrets considered to be of particular importance could take precedence over freedom of expression within the meaning of Article 10. That certainly did not apply in the present case. He doubted whether the content of the paper had been liable to reveal a State secret whose disclosure might compromise ‘national security’ or ‘public safety’ in Switzerland. The views set forth in the two articles had been of too general a nature to weaken the position of the Swiss delegation in its talks with Jewish organisations.

The applicant further submitted that disclosure of the report had sparked a useful debate as to whether Mr Jagmetti was the right person to be conducting the negotiations with representatives of the Jewish organisations. Moreover, the publication of the report had been the reason for the ambassador's resignation the following day. Publication had clearly contributed to the adoption of a more sensitive approach by the Swiss authorities towards the delicate issue of unclaimed assets. At the same time, it had demonstrated that the Swiss authorities had no clear and coherent position at that stage as to Switzerland's responsibility in the matter and the precise strategy to be adopted in respect of the claims which had arisen.

The applicant was of the opinion that, in view of the importance and topical nature of the negotiations on the issue of unclaimed assets, the public had an interest in receiving more information about how those dealing with the issue in the Department of Foreign Affairs intended to conduct the negotiations with a view to an agreement on the subject of complaints against Swiss banks and financial institutions. In that connection, he considered the attitude and views of Mr Jagmetti who, he argued, had occupied a key role in relation to the unclaimed assets, to be particularly revealing.

As far as journalists' ethical responsibilities were concerned, the applicant did not deny that the articles could have been presented in a more balanced manner. At the same time, he made the point that he had not had much time to write the articles and had to comply with certain requirements concerning their length. He had therefore decided to concentrate on the way in which the ambassador had expressed himself rather than on the content of the report. This was, moreover, perfectly in line with the commentary by the newspaper's editor published in the same newspaper.

While the articles may have appeared shocking in places, the aim had been precisely to highlight the language used by Mr Jagmetti in his report, which, in the applicant's view, was unfitting for a senior representative of the Swiss Confederation and scarcely compatible with official Swiss foreign policy.

In addition, the applicant considered it essential to highlight the nature and functions of the Press Council, which was a private-law body created by four associations of journalists, the aim of which was to supervise the conduct of persons working in the media in the light of the ethical standards it had devised. The Press Council had no powers of investigation or prosecution and, consequently, any negative findings it made were in no way binding on the criminal courts.

The applicant also noted that, while the offence for which the fine had been imposed was merely a ‘minor offence’, it was nonetheless punishable by imprisonment. Although the fine he had been ordered to pay might appear to be small, it damaged his reputation as a journalist and might prevent him in the future from performing the vital role of watchdog played by the press in a democratic society.

In the Government's submission, the decisive factors in assessing the respondent State's margin of appreciation were the political context, the fact that the document in question had been written by an official who had assumed that it would remain confidential, the form in which it had been published, the reasons given by the applicant for the latter and the nature and severity of the penalty imposed.

It also had to be borne in mind that the domestic courts had subjected this delicate and sensitive case to close scrutiny and that the Federal Court, after holding a hearing, had delivered two judgments, including the judgment concerning the appeal on grounds of nullity which had been published in the Federal Court Reports (BGE 126 IV 236 to 255). When it came to assessing the extent of the authorities' margin of appreciation, the fact that the matter had been examined in depth at the domestic level should also be taken into account. Such examination was vital to the operation of the principle of subsidiarity, a fact which should prompt the Court to show restraint.

The Government argued that the crucial factor determining the margin of appreciation of the domestic authorities was not the nature and importance of the position held by the author of the document containing confidential information, but whether the person concerned had knowingly laid himself open to close scrutiny of his every word and deed, as was the case with politicians. In the instant case it was clear that Ambassador Jagmetti had quite reasonably assumed that his report would remain confidential.

The Government further pointed out that the confidentiality of all diplomatic correspondence was enshrined in Articles 24 to 27 of the Vienna Convention on Diplomatic Relations of 18 April 1961 as an absolute principle of international customary law. Although the Treaty did not provide for any criminal penalties to be imposed for a breach of its articles, the principle of pacta sunt servanda and the rules on States' international liability for unlawful acts meant that the States party to the 1961 Vienna Convention were obliged to honour the undertakings entered into under that instrument.

In the Government's view, the applicant had covered only the ‘deal’ option in his two articles. It was vital to ensure that negotiations of that nature, like any negotiations concerning a friendly settlement, could be prepared in a climate of strict confidentiality. In addition, the applicant's articles had been published only five weeks after the Jagmetti report was written, at a time when the talks between the different parties had already begun.

The ambassador's remarks had been made against a highly sensitive political background. Their disclosure had jeopardised Switzerland's position and had threatened, in particular, to compromise the negotiations in which it was engaged at the time on the delicate issue of unclaimed assets.

Publication of the Jagmetti report had taken place at a particularly delicate moment. The applicant had, in biased and incomplete fashion, disclosed one of the options for defending the national interest being proposed in confidence to the Federal Council and the task force. At the time of its publication, the document was already more than a month old and in the meantime talks had begun on setting up a fund for Holocaust victims. Publication of the document had therefore been liable to cause serious damage to the country's interests.

In the Government's view, the chief intention of the applicant — who had himself described the content of the strategy paper as ‘unremarkable’— had not been to contribute to a debate of public interest, but to create a sensation centred first and foremost on Ambassador Jagmetti personally. Hence, the domestic courts had not accepted the existence of reasons, not prescribed by law, which might have justified disclosure in breach of Article 293 of the Criminal Code on the grounds of ‘protecting legitimate interests’.

The Government pointed out that the editors of the Sonntags-Zeitung had themselves acknowledged that it would have been preferable to publish the text of the document in full, but had claimed that it had not been possible for technical reasons, an argument which the Press Council had considered ‘spurious’. In the Government's view, the Chamber had not explained with sufficient clarity why the principle of publication in full, the importance and value of which were firmly established in the Court's case-law, had not been applied in the instant case.

In addition, the effect produced by publishing only certain extracts from the paper in isolation from their context had been heightened by the tone and presentation of the applicant's articles. The Press Council had stated that ‘the newspaper unnecessarily made the affair appear shocking and, by its use of the headline ‘Ambassador Jagmetti insults the Jews’, misled the reader and made it appear that the remarks had been made the previous day’. The applicant's duties and responsibilities as a journalist meant that he should have made clear that the document was already five weeks old.

The Government also considered it revealing that it had been the Press Council, a private, independent body set up by the press, which had criticised the applicant for a lack of professionalism and for acting in breach of the ‘Declaration on the rights and responsibilities of journalists’. Moreover, other newspapers had distanced themselves from the articles written by the applicant, both in formal terms, by publishing the strategy paper in its near-entirety, and in terms of substance, by criticising vehemently the publication of a confidential document.

With regard to the nature and severity of the penalty imposed, the Government pointed to the Chamber's finding that, although the offence had been a minor one and the fine had been small (CHF 800), what mattered was not the mildness of the penalty but the fact that the applicant had been convicted at all. In the Government's view, these two elements were difficult to reconcile.

The French Government shared the Swiss Government's view and expressed surprise that the case-law developed by the Court in relation to politicians, which was justified by the willingness of the latter to lay themselves open to press criticism, should be applied to an official writing a confidential report. They considered that ambassadors did not inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the population at large, still less so in the context of a confidential report.

They shared the view of the Chamber's minority that there was no country in which diplomatic reports were not confidential. They further argued that ambassadors abroad should be able to communicate with their governments and express themselves freely and without constraints without having to use with their own authorities the ‘diplomatic language’ which was essential in relations between countries.

Moreover, if the approach taken by the Chamber judgment were followed, and diplomats were to run the risk of finding the memoranda they wrote to their governments printed in the newspapers, they would most likely limit their communications either in substance or in form; this would inevitably distort the information received by States through these channels and hence detract from the quality and relevance of their foreign policies. Consequently, in the French Government's view, disclosures of this kind undoubtedly undermined the authority of diplomats posted abroad and, as a result, affected relations between States.

The French Government were not convinced by the Chamber's argument that the question whether the matter was of public interest should be assessed in the context of the ‘media coverage of the issue concerned’ (see paragraph 49 of the Chamber judgment). In their view, this reasoning was flawed on two counts. Firstly, that would mean that the press itself, through its coverage of an issue, would determine the limits of its own freedom of expression; secondly, there were very few reports from ambassadors to their governments which did not deal with subjects of public interest.

In the view of the French Government, the Chamber had made a clear finding in the instant case that the requirements of journalistic ethics had not been complied with, as observed by the Press Council, but had not drawn the appropriate conclusions.

The French Government contended that the reasons given for the Chamber's decision had rendered nugatory the examination of the proportionality of the interference. This was all the more open to criticism since the aim pursued by States in seeking to protect the confidentiality of certain documents, and in particular diplomatic papers, was to safeguard not individual private interests, but the wider interests of the State and the harmony of international relations.

In the view of the Slovakian Government, Article 10 § 2 also covered information classified merely as ‘confidential’, and hence of a lesser degree of confidentiality according to the Court's case-law.

The Slovakian Government were of the opinion that no legal system allowed journalists access to diplomatic papers. Hence, refusing to grant a request for access could not amount to a violation of Article 10.

They further argued that diplomatic correspondence enabled diplomatic services to exchange information on developments occurring in international relations or domestically which had implications for the country's foreign policy.

They did not share the Chamber's view that publication of a confidential document should be allowed if it did not jeopardise ‘national security’ or ‘public safety’ or undermine the country's very foundations.

The Slovakian Government took the view that the applicant had published only extracts from the paper in which the ambassador had expressed himself in non-neutral terms, thus making the articles shocking and sensational.

In the Slovakian Government's view, the applicant had clearly been aware that he had obtained a copy of the confidential document purely as a result of a breach of official secrecy by a third party.

They considered that the breach of journalistic rules found by the Chamber needed to be examined more closely by the Grand Chamber. Furthermore, the Chamber judgment, which had given inadequate consideration to the breach of those rules, pushed the boundaries of freedom of expression too far and was liable to have considerable negative repercussions in the future.

The main issue to be determined is whether the interference was ‘necessary in a democratic society’. The fundamental principles in that regard are well established in the Court's case-law and have been summed up as follows (see, for example, Hertel v. Switzerland, judgment of 25 August 1998, Reports of Judgments and Decisions 1998-VI, pp. 2329 et seq., § 46, and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II):

The Court further reiterates that all persons, including journalists, who exercise their freedom of expression undertake ‘duties and responsibilities’ the scope of which depends on their situation and the technical means they use (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49in fine). Thus, notwithstanding the vital role played by the press in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see, for example, Bladet Tromsøand Stensaas v. Norway[GC], no. 21980/93, § 65, ECHR 1999-III, and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006-…).

Hence, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France[GC], no. 29183/95, § 54, ECHR 1999-I; Monnat, cited above, § 67; and Pedersen and Baadsgaard v. Denmark[GC], no. 49017/99, § 78, ECHR 2004-XI).

These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed. In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance. (As regards the principle, well established in the Court's case-law, whereby the Convention must be interpreted in the light of present-day conditions, see, for example, Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 15, § 31; Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14 et seq., § 26; Vo v. France[GC], no. 53924/00, § 82, ECHR 2004-VIII; and Mamatkulov and Askarov v. Turkey[GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I).

Where freedom of the ‘press’ is at stake, the authorities have only a limited margin of appreciation to decide whether a ‘pressing social need’ exists (see, by way of example, Editions Plon v. France, no. 58148/00, § 44, third sub-paragraph, ECHR 2004-IV).

Furthermore, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate of questions of public interest (see, for example, Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, p. 1957, § 58). The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, for example, Bladet Tromsøand Stensaas, cited above, § 64, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 25, § 35).

However, while it appears that all the member States of the Council of Europe have adopted rules aimed at preserving the confidential or secret nature of certain sensitive items of information and at prosecuting acts which run counter to that aim, the rules vary considerably not just in terms of how secrecy is defined and how the sensitive areas to which the rules relate are managed, but also in terms of the practical arrangements and conditions for prosecuting persons who disclose information illegally (see the comparative study by Mr Christos Pourgourides, paragraph 44 above). States can therefore claim a certain margin of appreciation in this sphere.

Having regard to the foregoing, the Court is of the view that, in weighing the interests at stake in the present case against each other in the light of all the relevant evidence, the domestic authorities did not overstep their margin of appreciation. Accordingly, the applicant's conviction can be said to have been proportionate to the legitimate aim pursued. It follows that there has been no violation of Article 10 of the Convention.