Journalist veroordeeld wegens gebruik van vertrouwelijke lijst met verdachten uit kantoor van Openbaar Aanklager - Mensenrechtenhof veroordeelt Zwitserland (en)

The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Dammann v. Switzerland (application no. 77551/01).

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him 3,244 euros (EUR) for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

Viktor Dammann, a Swiss national aged 56 who lives in Zürich, is a journalist.

As a court reporter for the daily newspaper Blick, he decided to investigate a robbery that had taken place in September 1997 at the Fraumünster post office in Zürich in which 53 million Swiss Francs (CHF) (34 million euros) had been stolen.

As part of that investigation the applicant telephoned the switchboard of the Zürich Public Prosecutor’s Office on 10 September 1997. As none of the public prosecutors were in the office, the applicant spoke to Ms Z., an administrative assistant. He told her that he had a list of names of persons who had been arrested in connection with the robbery at the post office. Ms Z. agreed to help him by searching the data in the public prosecutor’s office to see whether the individuals concerned had any previous convictions. Mr Dammann therefore immediately faxed the list to the assistant, who returned it to him during the morning after marking next to each of the names on the list whether there was an entry for drug offences or other offences or no entry at all.

Mr Dammann did not publish the information; nor did he use it for any other purpose. However, it appears that he showed the fax to a policeman who reported the incident to the prosecuting authorities. Criminal proceedings were then brought against the applicant. Throughout the proceedings, neither the applicant nor Ms Z. denied their communications. At first the applicant attempted to cover Ms Z., but she voluntarily reported her actions to the investigating authorities.

Ms Z. was convicted of breaching an official secret and lost her employment in the Public Prosecutor’s Office.

Mr Dammann was prosecuted for inciting another to disclose an official secret. He was acquitted at first instance and sentenced, on appeal, by Zürich Court of Appeal to a criminal fine of CHF 500 (approximately EUR 325). In the court’s opinion, the applicant, as an experienced court reporter, must have known that the assistant was bound by professional secrecy; that information on those involved in criminal proceedings was confidential; and that no public prosecutor would have agreed to comply with his request.

Appeals by the applicant on grounds of nullity were dismissed by the Court of Cassation on 25 September 2000 and by the Federal Court on 1 May 2001.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 29 November 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

Complaint

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

Decision of the Court

Article 10

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 case did not concern the restraining of a publication as such or a conviction following a publication, but a preparatory step towards publication, namely a journalist’s research and investigative activities. That phase, which also fell within its scrutiny, called for the most scrupulous examination on account of the great danger represented by that sort of restriction on the freedom of expression.

There was no doubt that data relating to a suspect’s criminal record in principle merited protection. However, as the Federal Court had acknowledged, the information could have been obtained by other means, such as consulting case-law reports or press records. In the circumstances the grounds relied on by the Swiss authorities to justify fining the applicant did not really appear “relevant and sufficient”, since it had not actually been “information received in confidence” within the meaning of the Convention and, accordingly, the details in question had been in the public domain. In the Court’s opinion, the information had been of a kind that raised matters of public interest in that it had concerned a very spectacular robbery that had been widely reported in the media.

With regard to the Swiss courts’ argument that the applicant should have known that the information he had requested was confidential, the Court considered that the Swiss Government had to bear a large share of responsibility for the indiscretion committed by the assistant at the public prosecutor’s office, especially as Mr Dammann had not tricked, threatened or pressurised her into disclosing the desired information.

Furthermore, no damage had been done to the rights of the persons concerned. While there might have been a risk, at a particular time, of interference with other persons’ rights, the risk had disappeared once the applicant had himself decided not to publish the data in question.

Moreover, although the penalty imposed on Mr Dammann 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 undertaking research, inherent in his job, with a view to preparing an informed press article on a topic of current affairs. Punishing, as it did, a step that had been taken prior to publication, 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 its role as provider of information and watchdog.

In the circumstances the Court considered that Mr Dammann’s conviction had not 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.

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

Press Contact :

Emma Hellyer (téléphone : 00 33 (0)3 90 21 42 15)

Stéphanie Klein (téléphone : 00 33 (0)3 88 41 21 54)

Beverley Jacobs (téléphone : 00 33 (0)3 90 21 54 21)

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.