Information Note on the Court’s case-law No. 103
December 2007
Stoll v. Switzerland [GC] - 69698/01
Judgment 10.12.2007 [GC]
Article 10
Article 10-1
Freedom of expression
Conviction of a journalist for the publication of a diplomatic document on strategy classified as confidential: no violation
Facts: The case relates to the sentencing of the applicant, a journalist by profession, to payment of a fine for having disclosed in the press a confidential report by the Swiss ambassador to the United States concerning the strategy to be adopted by the Swiss Government in negotiations between, among others, the World Jewish Congress and Swiss banks on the subject of compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts.
In December 1996 the Swiss ambassador to the United States drew up a “strategy paper”, classified as “confidential”, in the context of the negotiations in question. The paper was sent to the official dealing with the matter in the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals in the Swiss Government and the federal authorities and to Swiss diplomatic missions abroad. The applicant obtained a copy, probably as the result of a breach of official secrecy by a person whose identity remains unknown.
A Zurich Sunday newspaper published, among other things, two articles by the applicant entitled “Ambassador Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it”. The following day a Zurich daily newspaper printed extensive extracts from the strategy paper; subsequently, another newspaper also published extracts.
The court ordered the applicant to pay a fine of 800 Swiss francs (approximately 476 euros) for having published “secret official deliberations” within the meaning of Article 293 of the Criminal Code. The applicant’s appeals were dismissed at final instance by the Federal Court.
The Swiss Press Council, while accepting that publication had been legitimate on account in particular of the importance at the time of the public debate concerning the assets of Holocaust victims, took the view that the applicant had, in irresponsible fashion, made the ambassador’s remarks appear shocking and scandalous by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear. The Press Council added that the other newspapers, by contrast, had placed the affair in its proper context by publishing the strategy paper in its near‑entirety.
Law: Procedure – In its Chamber judgment the Court held, by four votes to three, that there had been a violation of Article 10. At the request of the Swiss Government the case was referred to the Grand Chamber in accordance with Article 43 of the Convention.
Merits – The applicant’s conviction amounted to “interference” with the exercise of his freedom of expression. The interference had been provided for by the Swiss Criminal Code and had pursued the legitimate aim of preventing the “disclosure of information received in confidence”. The Grand Chamber emphasised that, in the light of paragraph 3 of Article 33 of the 1969 Vienna Convention on the Law of Treaties, and in the absence of any indication to the contrary in the drafting history of Article 10, it was appropriate to adopt an interpretation of the phrase “preventing the disclosure of information received in confidence”, within the meaning of Article 10 § 2, that encompassed confidential information disclosed either by a person subject to a duty of confidence or by a third party and in particular, as in the present case, by a journalist.
The main issue to be determined was whether the interference in question had been “necessary in a democratic society”. In that regard the Grand Chamber confirmed at the outset that Article 10 was applicable to the dissemination by journalists of confidential or secret information.
The issue of unclaimed assets not only involved substantial financial interests, but also had a significant moral dimension which meant that it was of interest even to the wider international community. Consequently, in assessing whether the measure taken by the Swiss authorities had been necessary, the Court took account of the need to weigh up the two public interests involved: the interest of readers in being informed on a topical issue and the interest of the authorities in ensuring a positive and satisfactory outcome to the diplomatic negotiations being conducted.
Although the impugned articles had concentrated almost exclusively on the ambassador’s personality and personal style, they had been capable of contributing to the public debate on the issue of unclaimed assets, which was the subject of lively discussion in Switzerland at that time. The public had therefore had an interest in publication of the articles.
As to the interests which the Swiss authorities had sought to protect, it was vital to diplomatic services and the smooth functioning of international relations for diplomats to be able to exchange confidential or secret information. However, the confidentiality of diplomatic reports could not be preserved at any price; in weighing the interests at stake against each other, the content of the report and the potential threat posed by its publication were the important factors. In the present case the disclosure of passages from the ambassador’s report at that point in time had been liable to have negative repercussions on the smooth progress of the negotiations in which Switzerland was engaged, on account not just of the content of the ambassador’s remarks but also of the way in which he had expressed himself. The disclosure – albeit partial – of the content of the ambassador’s report had been capable of undermining the climate of discretion necessary to the successful conduct of diplomatic relations in general and of having negative repercussions on the negotiations being conducted by Switzerland in particular. Hence, given that they had been published at a particularly delicate juncture, the articles written by the applicant had been liable to cause considerable damage to the interests of the Swiss authorities.
As to the applicant’s conduct, he could not, as a journalist, have been unaware that disclosure of the report was punishable under the Criminal Code. The question whether the form of the articles had complied with the rules of journalistic ethics carried greater weight. The content of the articles had been clearly reductive and truncated and the language used had tended to suggest that the ambassador’s remarks were anti‑Semitic. The applicant had, in capricious fashion, started a rumour which had undoubtedly contributed to the ambassador’s resignation and which related directly to one of the very phenomena at the root of the issue of unclaimed assets, namely the atrocities committed against the Jewish community during the Second World War. The Court reiterated the need to deal firmly with allegations and/or insinuations of that nature. Furthermore, the way in which the articles had been edited, with sensationalist headings, seemed unfitting for a subject as important and serious as that of the unclaimed funds. Lastly, the applicant’s articles had also been imprecise and liable to mislead the reader.
In the circumstances, and in view of the fact that one of the articles had been placed on the first page of a Swiss Sunday newspaper with a large circulation, the Court shared the opinion of the Swiss Government and the Press Council that the applicant’s chief intention had not been to inform the public on a topic of general interest but to make the ambassador’s report the subject of needless scandal. The truncated and reductive form of the articles in question, which had been liable to mislead the reader as to the ambassador’s personality and abilities, had considerably detracted from the importance of their contribution to the public debate protected by Article 10. Finally, the Court considered that the fine imposed on the applicant had not been disproportionate to the aim pursued.
Conclusion: no violation (by twelve votes to five).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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