CoE: ECtHR on publishing confidential information about ongoing criminal proceedings

by Justyna Gogolewska-Apostel
The Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg decided that the conviction of a journalist for publishing secret information does not violate the right to freedom of expression protected by article 10 of the European Convention on Human Rights (ECHR).

The applicant is a journalist who published an article about criminal proceedings against a driver who had rammed his car into pedestrians. Known as the Lausanne Bridge Tragedy, this incident triggered a lot of public attention in Switzerland owed to the gravity of its consequences: three dead and eight wounded. In the article, the journalist quoted parts of interviews of police officers with the driver, the replies of the driver to questions of the investigating judge, as well as personal data of the driver such as the place and date of birth along with highly personal medical information, for example statements of the driver’s doctor on his health. The journalist used headings like “questioning of a mad driver” and spoke of “repeated lies” of the accused.

The published information had not been obtained by unlawful means, but was of confidential nature. Therefore, the Swiss Federal Court convicted the journalist for the crime of publishing official secrets according to art. 293 Swiss Criminal Code.

The ECtHR had to weigh the conflicting interests of the media to report about ongoing trials and the equally important protection of private life of the accused person and the interests of justice. The Court stated that the exercise of balancing the various competing interests was properly conducted by the Swiss Federal Court and therefore, the journalist’s conviction according to art. 293 of the Swiss Criminal Code did not violate art. 10 ECHR. For the protection of criminal proceedings against any undue influence and for the protection of the personal privacy of the accused, the restriction of the freedom of expression was necessary in a democratic society, according to the Grand Chamber. The ECtHR stated that the article painted a negative picture of the accused. It accepted that the subject of the article was a matter of public interest but found the information covered was not capable of contributing to the public debate on the issue. At most, the article satisfied an unhealthy curiosity and it entailed a risk of influencing the course of the proceedings by highlighting certain disturbing aspects of the accused’s personality.

Nonetheless, the ECtHR stated that the protection of the private life of the accused could have been ensured by means less damaging to the applicant’s right to freedom of expression, such as civil law remedies instead of a criminal conviction. However, the Court found that the accused person himself was in prison and probably suffering from mental disorders, and was, therefore, in a vulnerable position. The Swiss authorities could not wait for him to take the initiative of bringing civil proceedings against the applicant.

But, the decision of the ECtHR was not unanimous – the Grand Chamber split fifteen votes to two. According to the dissenting opinion of Judge Lopez Guerra, there was no risk of interfering the course of the proceedings and there never was any conflict between the right of freedom of expression and the right to privacy, because the accused never invoked that right.

Ass. jur. Justyna Gogolewska-Apostel, Berlin

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The decision of the ECHR is available here.