Journalist veroordeeld voor gebruik gelekte documenten in artikelserie over Joods goud - Mensenrechtenhof veroordeelt Zwitserland (en)

The European Court of Human Rights has today notified in writing its Chamber judgment[1] in the case of Stoll v. Switzerland (application no. 69698/01).

The Court held, by four votes to three, that there had been a violation of Article 10 of the European Convention on Human Rights.

It held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. (The judgment is available only in French.)

• 1. 

  Principal facts

Martin Stoll, a Swiss national who lives in Zürich (Switzerland), is a journalist.

In December 1996 Carlo Jagmetti, who was then the Swiss ambassador to the United States, drew up a “strategic document”, classified as “confidential”, in the course of negotiations between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss banks.

The document was sent to the person in charge of the matter at the Federal Department of Foreign Affairs in Berne and copies were sent to 19 other people and certain Swiss diplomatic representatives. The applicant obtained a copy, probably as a result of a breach of professional confidence by a person whose identity remains unknown.

On 26 January 1997 the Zürich Sunday newspaper Sonntags-Zeitung published two articles by the applicant under the headings “Carlo Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it again”, accompanied by extracts from the report in question. The next day the Zürich daily Tages-Anzeiger reproduced large extracts from the strategic document and subsequently the newspaper Nouveau Quotidien also published extracts from the report.

On 22 January 1999 Zürich District Court sentenced the applicant to a fine of 800 Swiss francs (approximately 520 euros) for publishing “official confidential deliberations” within the meaning of Article 293 of the Criminal Code. Appeals lodged by the applicant were dismissed by the Federal Court on 5 December 2000.

The Swiss Press Council, to which the case had been referred by the Swiss Federal Council in the meantime, found that by thus shortening the analysis and failing to place the report sufficiently in context, the applicant had irresponsibly made the ambassador’s remarks appear sensational and shocking.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 14 May 2001 and declared admissible on 3 May 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,

Josep Casadevall (Andorran),

Luzius Wildhaber (Swiss),

Matti Pellonpää (Finnish),

Rait Maruste (Estonian),

Javier Borrego Borrego (Spanish),

Ján Šikuta (Slovakian), judges,

and also Michael O’Boyle, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaint

The applicant submitted that his conviction had infringed Article 10 of the Convention.

Decision of the Court

The central question before the Court was to determine whether the interference with the applicant’s right to freedom of expression had been “necessary in a democratic society”.

The Court noted that the criticism expressed in the articles had directly targeted a senior official, namely a member of the diplomatic corps having the rank of ambassador, who had had a particularly important mission to perform with the United States. It found that the confidentiality of diplomatic relations was justified in principle, but could not be protected at any price. Moreover, the role of the media as critic and watchdog also applied to matters of foreign policy.

The information contained in the report in question had been of a kind that raised matters of public interest. The articles had been published in the context of a public debate about a matter widely reported in the Swiss media and one that had deeply divided public opinion in Switzerland, particularly as the discussions about the assets of Holocaust victims, and Switzerland’s role in the Second World War, had then been very heated and had had an international dimension. The Swiss ambassador to Washington had occupied an important position in the discussions and the Court acknowledged that the public had had a legitimate interest in receiving information about the officials dealing with such a sensitive matter and their negotiating style and strategy.

The Court recognised the importance of protecting the work of the diplomatic corps from outside interference. However, it was not persuaded that the disclosure of aspects of the strategy to be adopted by the Swiss Government in the negotiations concerning the assets of Holocaust victims and Switzerland’s role in the Second World War was capable of prejudicing interests that were so precious that they outweighed the freedom of expression in a democratic society. By concluding that there had been mitigating circumstances, the Zürich District Court had, moreover, explicitly acknowledged that the disclosure of the confidential document had not undermined the very foundations of Switzerland.

With regard to the form of the published articles, the Court noted that the Press Council had considered that the ambassador’s remarks had been made to appear sensational and shocking. It pointed out, however, that freedom of the press afforded the public one of the means of discovering and forming an opinion of the ideas and attitudes of leaders. In that connection, press freedom also covered possible recourse to a degree of exaggeration, or even provocation.

Furthermore, although the penalty imposed on Mr Stoll had not been very harsh, the Court reiterated that what mattered was not that he had been sentenced to a minor penalty, but that he had been convicted at all. While the penalty had not prevented the applicant from expressing himself, his conviction had nonetheless amounted to a kind of censure which would be likely to discourage him from making criticisms of that kind again in future. In the context of a political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community and was thus liable to hamper the press in performing its task as purveyor of information and watchdog.

In the circumstances the Court considered that Mr Stoll’s conviction had not therefore been reasonably proportionate to the pursuit of the legitimate aim in question, having regard to the interest of a democratic society in ensuring and maintaining the freedom of the press.

Accordingly, the Court held that there had been a violation of Article 10.

President Wildhaber, joined by Judges Borrego Borrego and Šikuta, expressed a dissenting opinion, which is annexed to the judgment.

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2]This summary by the Registry does not bind the Court.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.