Information Note on the Court’s case-law No. 103
December 2007
Foglia v. Switzerland - 35865/04
Judgment 13.12.2007 [Section I]
Article 10
Article 10-1
Freedom of expression
Conviction of a lawyer for triggering a press campaign about a sub judice case by making statements and trial documents available: violation
Facts: When HJ died it emerged that he had misappropriated large sums of money and deposited them in accounts in a bank. The Public Prosecutor’s Office opened a criminal investigation. The applicant, a lawyer, represented several victims and clients of the bank. The Public Prosecutor’s Office discontinued the proceedings for lack of evidence. It then published a press release stating that the investigation had revealed that HJ had misappropriated money on several occasions. An appeal lodged by the applicant against the decision to discontinue the proceedings was dismissed by the Court of Appeal. The applicant then brought criminal proceedings against the employees, managers and organs of the bank but no investigation was opened and that position was upheld by the Federal Court. HJ’s death and the investigations into his actions gave rise to considerable media coverage, including the publication of several interviews with the applicant in which he expressed his conviction that the employees of the bank concerned could not have been unaware of the fraudulent conversion, and described the investigation by the Public Prosecutor’s Office as superficial and hasty. The bank and three of its managers took court action against the applicant for damages and for the protection of personality rights, alleging that he had triggered a media campaign against them by disseminating information aimed at tarnishing their reputation. They eventually abandoned the case. Then the bank reported the applicant to the Bar Association’s disciplinary board, for failure to comply with the duty of diligence in practising his profession and for using methods not authorised by law. The board found against him and ordered him to pay a fine of CHF 1,500 (about EUR 1,024 at the time). That decision was upheld by the Court of Appeal and the Federal Court dismissed an appeal lodged by the applicant, pointing out that a lawyer should always, in any public statement, show moderation of tone and be objective in stating his arguments. It found that it had been because of the applicant’s statements that the press had started to show interest in the allegations of fraudulent conversion. The applicant had actively encouraged the publication of his own version of events in the press, when there was no evidence to substantiate his public statements. He had placed undue pressure on the courts, in view of the foreseeable widespread dissemination and repetition of his declarations. The Federal Court considered that he had not been justified in making public details of the proceedings under way. Moreover, he had failed to ensure that the media used them discreetly and with restraint and did not exaggerate his assertions. The court found that the applicant’s declarations, taken separately, had been neither exaggerated nor disrespectful. However, they had to be taken as a whole, considering the effect they had had, and the applicant had failed to show the necessary restraint in the circumstances. The court found that the role played by the applicant vis-à-vis the press had exceeded the limits of what was necessary for the defence of his clients. His declarations could not be said to have been necessary. Accordingly, he had failed to comply with the duty of diligence in practising his profession. The general interest in guaranteeing the proper administration of justice, confidence in the judicial system and upholding the dignity of the legal profession took precedence over the applicant’s freedom of expression and press freedom. The applicant brought civil proceedings against the bank on behalf of his clients and those proceedings are still pending before the domestic courts.
Law: The applicant’s conviction amounted to an interference with his right to freedom of expression and was prescribed by law. That interference had pursued a legitimate aim, namely to guarantee the authority and impartiality of the judiciary. The applicant had been convicted for making public statements which were allegedly unjustified in the light of the applicable domestic legal provisions and case-law. However, the applicant’s conduct had been set in a context of undeniably intense media interest, even well before the interviews he had given. Furthermore, the Court failed to see how a lawyer could be held liable for statements made to the press by his client. The statements the applicant himself had made to the press, subsequent to those made by his client, had concerned the reasons for his clients’ dissatisfaction and the grounds on which the appeal had been lodged, including the excessive haste and superficiality of the investigation. Those statements, made after the appeal had been lodged, contained reproaches that were not directed against the personal or professional qualities of the prosecuting authorities, but only how they had performed their duties in the case in which the applicant’s clients were civil parties. It followed that those statements could not be classified as serious or insulting in respect of the prosecuting authorities or likely to undermine public confidence in justice. The domestic courts had not substantiated the allegation that the applicant had made documents from the proceedings available to the press. The Federal Court had simply accused him of not having ensured that the media used the documents in a discreet and restrained manner. The applicant could not be held accountable for the conduct of the media. Furthermore, the information had been disclosed in a context of considerable media interest and was arguably in the interest of the public’s right to receive information on the activities of the judicial authorities. Also, as the press had used the applicant’s statements in articles published after he had given the interviews, he could not be held responsible. The applicant had thus not been responsible for a press campaign and a media trial in parallel with the judicial proceedings, to influence the courts in charge of the case. In addition, the statements he had made were neither excessive nor offensive and had not impinged unduly on the interests of the bank and its managers. That was confirmed by the fact that no complaint for defamation had been lodged against the applicant and the action for the protection of personality rights had been withdrawn. Furthermore, no complaint had been lodged against him by the prosecuting authorities or any other parties involved in the investigation. Lastly, while the fine imposed on the applicant had been quite a modest one, it nevertheless had a symbolic value. There had therefore been no pressing social need to restrict the applicant’s freedom of expression and the Swiss authorities had not given relevant and sufficient reasons to justify it. The interference could therefore not be considered necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41 – EUR 1,024 in respect of pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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