Information Note on the Court’s case-law No. 85
April 2006
Dammann v. Switzerland - 77551/01
Judgment 25.4.2006 [Section IV]
Article 10
Article 10-1
Freedom of expression
Criminal conviction of investigating journalist for having obtained, in breach of official secret, information about previous convictions of private persons: violation
Facts: As a court reporter for a daily newspaper the applicant decided to investigate a major robbery that had taken place after a break-in at a post office in Zürich. As part of that investigation he telephoned the switchboard of the Public Prosecutor’s Office. As none of the public prosecutors were available, the applicant transmitted to an administrative assistant a list of names of persons who had been arrested in connection with the robbery and asked her for information as to whether the individuals concerned had any previous convictions. After consulting the prosecuting authorities’ database, the assistant sent the applicant a fax containing the information he had requested.
The applicant did not publish the information, nor did he use it for any other purpose. However, he apparently showed the fax to a police officer, who reported the incident to the prosecuting authorities. Criminal proceedings were then brought against the applicant and the administrative assistant. She was convicted of breaching official secrets and lost her employment in the Public Prosecutor’s Office.
The applicant was prosecuted for inciting another to disclose official secrets. He was acquitted at first instance and sentenced, on appeal, to a criminal fine of approximately EUR 325. The Court of Appeal considered in particular that 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. The court noted that the interest of individuals in the preservation of their private life prevailed over any public interest, especially as at that stage it was impossible to know whether or not the persons in question would ultimately be convicted of the offences of which they were suspected. Appeals by the applicant on grounds of nullity were dismissed by the Court of Cassation and by the Federal Court.
Law: The interference in this case had been prescribed by law. As to its foreseeability, the Court expressed doubts, without reaching a final conclusion on that point. The interference had pursued a legitimate aim, namely the prevention of the “disclosure of information received in confidence”. 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 supervision, called for the closest scrutiny on account of the great danger represented by that sort of restriction on freedom of expression. There was no doubt that in principle data relating to a suspect’s criminal record 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 archives. In the circumstances the grounds relied on by the Swiss authorities to justify fining the applicant did not 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. The information had been of a kind that raised matters of public interest in that it had concerned a very spectacular break-in 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 the applicant had apparently 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 information in question.
Moreover, although the penalty imposed on the applicant had not been very harsh, 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 censorship which was likely to discourage him from undertaking research, inherent in his job, with a view to preparing an informed press article on a topical subject. Punishing, as it did, a step that had been taken prior to publication, such a conviction was likely to deter journalists from contributing to public discussion of issues affecting the life of the community and might thus hamper the press in its role as information provider and watchdog. That being so, the applicant’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.
Conclusion: violation (unanimously)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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