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JUDGMENT
STRASBOURG
29 March 2016
PROCEDURE
1. The case originated in an application (no. 56925/08) against the Swiss
Confederation lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Swiss national, Mr Arnaud Bédat (“the applicant”), on
7 November 2008. Having originally been designated by the initials A.B.,
the applicant subsequently agreed to the disclosure of his name.
2. The applicant was represented by Mr C. Poncet and Mr D. Hoffmann,
lawyers practising in Geneva. The Swiss Government (“the Government”)
were represented by their Agent, Mr F. Schürmann, of the Federal Office of
Justice.
3. The applicant alleged that the fine imposed on him in criminal
proceedings for having published information covered by the secrecy of
criminal investigations had violated his right to freedom of expression as
secured by Article 10 of the Convention.
2 BÉDAT v. SWITZERLAND – JUDGMENT
THE FACTS
characterising all these statements, surely M.B. is doing everything in his power to
make himself impossible to defend?”
10. The article also included a brief summary entitled “He lost his
marbles...” (“Il a perdu la boule...”), and statements from M.B.’s wife and
from his doctor.
11. It appears from the file that the applicant’s article was not the only
piece to have been published on the Lausanne Bridge tragedy. The
authorities responsible for the criminal investigation had themselves decided
to inform the press about certain aspects of the investigation, which had led
to the publication of an article in the Tribune de Genève on 14 August 2003.
12. M.B. did not lodge a complaint against the applicant. However,
criminal proceedings were brought against the applicant on the initiative of
the public prosecutor for having published secret documents. It emerged
from the investigation that one of the parties claiming damages in the
proceedings against M.B. had photocopied the case file and lost one of the
copies in a shopping centre. An unknown person had then brought the copy
to the offices of the magazine which had published the impugned article.
13. By an order of 23 June 2004 the Lausanne investigating judge
sentenced the applicant to one month’s imprisonment, suspended for one
year.
14. Following an application by the applicant to have the decision set
aside, the Lausanne Police Court, by a judgment of 22 September 2005,
replaced the prison sentence with a fine of 4,000 Swiss francs (CHF)
(approximately 2,667 euros (EUR)). At the hearing on 13 May 2015, in
reply to a question from the Court, the applicant’s representative stated that
the sum of CHF 4,000 had been advanced by his client’s employer and that
his client was intending to refund it after the proceedings before the Court.
He also confirmed that the amount set by the criminal court had taken
account of the applicant’s previous record.
15. The applicant lodged an appeal on points of law. His appeal was
dismissed on 30 January 2006 by the Criminal Court of Cassation of the
Canton of Vaud.
16. The applicant lodged a public-law appeal and an appeal on grounds
of nullity with the Federal Court, which on 29 April 2008 dismissed the
appeals. Its decision was served on the applicant on 9 May 2008. The
relevant passages from the decision are as follows:
“7. In short, the appellant submits that his conviction for a breach of Article 293 of
the Criminal Code is contrary to federal law. He does not challenge the fact that the
information which he published falls within the ambit of Article 293 of the Criminal
Code. He does, on the other hand, submit, under an interpretation of Articles 293
and 32 of the Criminal Code in the light of the principles inferred from Article 10
ECHR by the European Court of Human Rights, that having received that information
in good faith without obtaining it unlawfully, he had the duty as a professional
journalist, under Article 32 of the Criminal Code, to publish it owing to what he sees
BÉDAT v. SWITZERLAND – JUDGMENT 5
as the obvious interest of the so-called ‘Lausanne Bridge’ case to the general public in
French-speaking Switzerland.
7.1. In accordance with Article 293 of the Criminal Code (Publication of secret
official deliberations), anyone who, without being entitled to do so, makes public all
or part of the documents, investigations or deliberations of an authority which are
secret by law or by virtue of a decision taken by that authority, acting within its
powers, will be punished by a fine (paragraph 1). Complicity in such acts is also
punishable (see paragraph 2). The court may decide not to impose any penalties if the
secret thus made public is of minor importance (see paragraph 3).
According to case-law, this provision proceeds from a formal conception of secrecy.
It is sufficient that the documents, deliberations or investigations in question have
been declared secret by law or by virtue of a decision taken by the authority, or in
other words that there has been an intention to keep them from becoming public,
regardless of the type of classification selected (for example, top secret or
confidential). On the other hand, strict secrecy presupposes that the holder of the
specific information wishes to keep it secret, that there is a legitimate interest at stake,
and that the information is known or accessible only to a select group of persons (see
ATF [Judgments of the Swiss Federal Court] 126 IV 236, point 2a, p. 242, and 2c/aa,
p. 244). This state of affairs was not altered by the entry into force of paragraph 3 of
this Article on 1 April 1998 (RO [Recueil officiel – Official Collection of Federal
Statutes] 1998 852 856; FF [Feuille fédérale] 1996 IV 533). That rule concerns not
secrets in the substantive sense but rather instances of futile, petty or excessive
concealment (see ATF 126 IV 236, point 2c/bb, p. 246). In order to exclude the
application of paragraph 3, the court must therefore first of all examine the reasons for
classifying the information as secret. It must, however, do so with restraint, without
interfering with the discretionary power wielded by the authority which declared the
information secret. It is sufficient that this declaration should nonetheless appear
tenable vis-à-vis the content of the documents, investigations or deliberations in issue.
Moreover, the journalists’ viewpoint on the interest in publishing the information is
irrelevant (see ATF 126 IV 236, point 2d, p. 246). In its Stoll v. Switzerland judgment
of 10 December 2007, the European Court of Human Rights confirmed that this
formal conception of secrecy was not contrary to Article 10 ECHR inasmuch as it did
not prevent the Federal Court from determining whether the interference in issue was
compatible with Article 10 ECHR, by assessing, in the context of its examination of
Article 293, paragraph 3, of the Criminal Code, the justification for classifying a given
piece of information as secret, on the one hand, and weighing up the interests at stake,
on the other (see Stoll v. Switzerland, cited above, §§ 138 and 139).
7.2. In the present case the offence with which the appellant is charged concerned
the publication of records of interviews and correspondence contained in the case file
of a live criminal investigation.
In pursuance of Article 184 of the Code of Criminal Procedure of the Canton of
Vaud (CPP/VD), all investigations must remain secret until their final conclusion (see
paragraph 1). The secrecy requirement relates to all the evidence uncovered by the
investigation itself as well as all non-public decisions and investigative measures (see
paragraph 2). The law also specifies that the following are bound by secrecy vis-à-vis
anyone who does not have access to the case file: the judges and judicial staff (save in
cases where disclosure would facilitate the investigation or is justified on public-
order, administrative or judicial grounds; see Article 185 CPP/VD), and also the
parties, their friends and relatives, their lawyers, the latter’s associates, consultants
and staff, and any experts and witnesses. However, disclosure to friends or relatives
by the parties or their lawyer is not punishable (see Article 185a CPP/VD). Lastly, the
6 BÉDAT v. SWITZERLAND – JUDGMENT
law provides for a range of exceptions. As an exception to Article 185, the cantonal
investigating judge and, with the latter’s agreement, the judge responsible for the
preliminary inquiry or senior police officers specially appointed by the cantonal
government [Conseil d’Etat] (see Article 168, paragraph 3) may inform the press,
radio or television about a pending investigation if so required by the public interest or
considerations of fairness, particularly where public cooperation is required to shed
light on an offence, in cases which are particularly serious or are already known to the
general public, or where erroneous information must be corrected or the general
public reassured (see Article 185b, paragraph 1, CPP/VD).
The present case therefore concerns secrecy imposed by the law rather than by an
official decision.
7.3. As a general rule, the reason for the confidentiality of judicial investigations,
which applies to most sets of cantonal criminal proceedings, is the need to protect the
interests of the criminal proceedings by anticipating risks of collusion and the danger
of evidence being tampered with or destroyed. Nevertheless, the interests of the
accused must not be disregarded either, particularly vis-à-vis the presumption of
innocence and, more broadly, the accused’s personal relations and interests (see
Hauser, Schweri and Hartmann, Schweizerisches Strafprozessrecht, 6th ed., 2005,
§ 52, no. 6, p. 235; Gérard Piquerez, op. cit., § 134, no. 1066, p. 678; Gérard Piquerez,
Procédure pénale suisse: manuel, 2nd ed., 2007, no. 849, pp. 559 et seq.), as well as
the need to protect the opinion-forming process and the decision-making process
within a State authority, as protected, precisely, by Article 293 of the Criminal Code
(see ATF 126 IV 236, point 2c/aa, p. 245). The European Court of Human Rights has
already had occasion to deem such a purpose legitimate in itself. The aim is to
maintain the authority and impartiality of the judiciary in accordance with the wording
of Article 10 (2) ECHR, which also mentions the protection of the reputation or rights
of others (see Weber v. Switzerland, judgment of 22 May 1990, § 45, and Dupuis and
Others v. France, judgment of 7 June 2007, § 32).
Furthermore, in so far as the impugned publication concerned excerpts from records
of interviews of the accused and reproduced certain letters sent by the latter to the
investigating judge, this evidence can validly be classified secret, by prohibiting
public access to it, as provided by the legislation of the Canton of Vaud. This is the
inescapable conclusion as regards the records of interviews of the accused, as it would
be inadmissible to allow such documents to be analysed in the public sphere, before
the conclusion of the investigation, before the trial and out of context, in a manner
liable to influence the decisions taken by the investigating judge and the trial court. It
is also the only possible conclusion as regards the letters sent by the accused to the
investigating judge, which focused on practical problems and criticisms of his lawyer
(see Police Court judgment, point 4, p. 7). We might point out here that it appears
from the impugned publication – which the cantonal authorities did not reproduce in
full in their decisions, although they did refer to it and its content is not disputed – that
the aforementioned practical problems concerned requests for temporary release and
for access to personal effects (letters of 11 July 2003), for a change of cell (letter of
7 August 2003) and for authorisation to use the telephone (letter of 6 August 2003).
Regardless of the guarantee of the presumption of innocence and the inferences
concerning the detainee’s character which might be drawn during the criminal
proceedings from such correspondence, the detainee, whose liberty is considerably
restricted, even in respect of everyday acts relating to his private life, or indeed
intimate sphere, can expect the authority restricting his liberty to protect him from
public exposure of the practical details of his life as a remand prisoner and as a person
facing charges (see Article 13 of the Constitution).
BÉDAT v. SWITZERLAND – JUDGMENT 7
It follows that in the instant case the information published by the appellant, in so
far as it concerned the content of the records of his interviews and his correspondence
with the investigating judge, cannot be described as a secret of minor importance for
the purposes of Article 293, paragraph 3, of the Criminal Code. That being so, the
impugned publication constituted the factual elements of the offence provided for in
Article 293, paragraph 1, of the Criminal Code.
7.4. Moreover, the information in question may be described as being secret in
substantive terms because it was only accessible to a restricted number of persons (the
investigating judge and the parties to the proceedings). Furthermore, the investigating
authority was desirous to keep them secret, with not only a legitimate interest in doing
so but an obligation under the Cantonal Code of Criminal Procedure, the justification
for which was mentioned above (see point 7.3 above).
7.5. Therefore, the only remaining point at issue is the existence of justification.
8. In short, the appellant submits that he had the professional duty (under former
Article 32 of the Criminal Code) as a journalist to publish the information in question
because of what he describes as the obvious interest in the ‘Lausanne Bridge’ case for
the population of French-speaking Switzerland. He considers that in the light of
European case-law, the basic assumption should be that publication is justified in
principle unless there is a pressing social need to maintain secrecy. From the
standpoint of good faith, he submits that Article 32 should apply to journalists who
are not responsible for the indiscretion committed by a third party and who receive
information without committing any offence themselves other than the breach of
secrecy stemming from the publication. Lastly, he contends that the mode of
publication is not a relevant criterion.
8.1. As regards the former point, the cantonal court found that while the accident of
8 July 2003, the circumstances of which were undoubtedly unusual, had triggered a
great deal of public emotion, it had nevertheless, in legal terms, been simply a road
accident with fatal consequences, and did not in itself entail any obvious public
interest. It was not a case of collective trauma on the part of the Lausanne population,
which would have justified reassuring the citizens and keeping them informed of the
progress of the investigation (see judgment appealed against, point 2, p. 9).
It is true that the ‘Lausanne Bridge case’ attracted extensive media coverage (see
Police Court judgment, point 4, p. 8, to which the cantonal judgment refers (judgment
appealed against, point B, p. 2)). However, this circumstance alone, alongside the
unusual nature of the accident, is insufficient to substantiate a major public interest in
publishing the confidential information in question. Unless it can be justified per se,
the interest aroused among the public by media coverage of events cannot constitute a
public interest in the disclosure of classified information, because that would mean
that it would be sufficient to spark the public’s interest in a certain event in order to
justify the subsequent publication of confidential information likely to maintain that
interest. Furthermore, such a public interest is manifestly lacking as regards the letters
that were published. As we have seen above (see point 7.3 above), these letters
virtually exclusively concerned criticisms levelled by the accused against his lawyer
and such practical problems as requests for temporary release, for access to personal
effects, to change cells and to use the telephone. This type of information provides no
relevant insights into the accident or the circumstances surrounding it. It relates to the
private life, or indeed intimate sphere, of the person in custody, and it is difficult to
see any interest which its publication could satisfy other than a certain kind of
voyeurism. The same applies to the appellant’s requests to the investigating judge in
relation to his choice of defence lawyer. Nor is it clear, as regards the records of his
8 BÉDAT v. SWITZERLAND – JUDGMENT
interviews, what political question or matter of public interest would have arisen or
been worth debating in the public sphere, and the cantonal authorities explicitly ruled
out the existence of any collective trauma which might have justified reassuring or
informing the population. This finding of fact, which the appellant has not disputed in
his public-law appeal, is binding on this court (see section 277 bis of the Federal
Criminal Procedure Act). That being the case, the appellant fails to demonstrate the
‘obvious’ interest to the general public of the information published, and the cantonal
court cannot be criticised for having concluded that at the very most, such an interest
involved satisfying an unhealthy curiosity.
8.2. The other two factors relied upon by the appellant concern his behaviour (good
faith in access to information and mode of publication).
8.2.1. It should first of all be noted that Article 293 of the Criminal Code punishes
only the disclosure of information, irrespective of how the perpetrator obtained it.
Moreover, even under Article 10 ECHR, the European Court does not attach decisive
importance to this fact when considering whether applicants have fulfilled their duties
and responsibilities. The determining fact is rather that they could not claim in good
faith to be unaware that disclosure of the information was punishable by law (see Stoll
v. Switzerland, cited above, § 144, and Fressoz and Roire v. France [GC],
no. 29183/95, ECHR 1999-I). This point is well-established in the present case (see
section B above).
8.2.2. On the other hand, the mode of publication can play a more important role in
the context of safeguarding freedom of expression. While the European Court of
Human Rights reiterates that neither it, nor the domestic courts for that matter, should
substitute their own views for those of the press as to what technique of reporting
should be adopted by journalists, in weighing up the interests at stake it nevertheless
takes account of the content, vocabulary and format of the publication, and of the
headings and sub-headings (whether chosen by the journalist or the editors), and the
accuracy of the information (see Stoll v. Switzerland, cited above, §§ 146 et seq.,
especially 146, 147 and 149).
In the instant case the cantonal court ruled that the tone adopted by the appellant in
his article showed that his main concern was not, as he claims, to inform the general
public about the State’s conduct of the criminal investigation. The headline of the
article (‘Questioning of the mad driver’, ‘the reckless driver’s version’) already lacked
objectivity. It suggested that the case had already been tried in the author’s view, in
the sense that the fatalities on the Lausanne Bridge had been caused not by an
ordinary motorist but by a ‘mad driver’, a man ‘oblivious to the events and all the
hubbub around him’; The journalist concluded by wondering whether the driver was
in fact doing his best to ‘make himself impossible to defend’. The manner in which he
quoted the excerpts from the records of interviews and reproduced the letters sent by
the defendant to the judge pointed to the motives of the author of the impugned
article: he confined himself to sensationalism, his modus operandi being exclusively
geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel
about this type of case. Readers of this highly biased publication would have formed
an opinion and subjectively prejudged the future action to be taken by the courts
regarding this case, without the least respect for the principle of presumption of
innocence (see judgment appealed against, point 2, pp. 9 et seq.). The cantonal court
concluded that this factor did not indicate that the public interest in receiving
information prevailed. That court cannot be criticised on that account.
8.3. The appellant also submitted that the records of interviews and the letters
would in any case be mentioned in subsequent public hearings. He inferred from this
BÉDAT v. SWITZERLAND – JUDGMENT 9
that preserving the confidentiality of this information could therefore not be justified
by any ‘pressing social need’.
However, the mere possibility that the secrecy of criminal investigations might be
lifted during a subsequent phase of proceedings, particularly during the trial, which is
generally subject to the publicity principle, does not undermine the justification for
keeping judicial investigations confidential, because the primary aim is to protect the
opinion-forming and decision-making processes on the part not only of the trial court
but also of the investigating authority, until the completion of this secret phase of
proceedings. Moreover, far from being neutral and comprehensive, the publication in
issue included comments and assessments which presented the information in issue in
a particular light, without providing the opportunities for adversarial argument which
are the very essence of proceedings in trial courts.
8.4. Lastly, the appellant did not explicitly criticise the amount of the fine imposed
on him. Nor did he challenge the refusal to grant him a probationary period after
which the fine would be struck out (former Article 49, point 4, in conjunction with
former Article 106, paragraph 3, of the Criminal Code) under Swiss law. From the
angle of weighing up the interest in the interference, we might simply note that the
fine imposed, the amount of which took into account a previous conviction dating
back to 1998 (imposition of a CHF 2,000 fine, which could be struck out after a two-
year probationary period, for coercion and defamation), does not exceed half the
amount of the appellant’s monthly income at the material time (see Police Court
judgment, point 1, p. 5), and there is nothing to suggest that his freelance status at the
time of the first-instance judgment led to any significant drop in his earnings. It
should also be pointed out that at CHF 4,000 the amount of the fine is below the
statutory maximum set out in former Article 106, paragraph 1, of the Criminal Code
(as in force until 31 December 2006), and that this maximum amount, set by the
legislature more than thirty years ago, was not revised until the entry into force of the
new general section of the Criminal Code, which now sets a figure of CHF 10,000
(see Article 106, paragraph 1, of the Criminal Code as in force since 1 January 2007).
Furthermore, the sanction for the offence with which the appellant is charged did not
prevent him from expressing his views, since it was imposed after the article had been
published (see Stoll v. Switzerland, cited above, § 156). That being the case, it is
unclear, in view of the nature of the offence charged (the least serious in the
classification set out in the Swiss Criminal Code), the amount of the fine and the time
of its imposition, how the sanction imposed on the applicant could be regarded as a
form of censorship.
8.5. It follows from the foregoing that the appellant disclosed a secret within the
meaning of Article 293, paragraph 1, of the Criminal Code and that he cannot rely on
any justifying factor in his favour. The decision appealed against does not violate
federal law as interpreted in the light of the Convention provisions relied upon by the
appellant.”
17. The relevant provisions of the Swiss Criminal Code (version in force
until 31 December 2006) are as follows:
10 BÉDAT v. SWITZERLAND – JUDGMENT
2
Secrecy shall concern all evidence uncovered by the investigation itself and all non-
public investigative decisions and measures.”
BÉDAT v. SWITZERLAND – JUDGMENT 11
Article 185a
“1The parties, their friends and relatives, their lawyers, the latter’s associates,
consultants and staff, and any experts and witnesses are required to observe the
secrecy of the investigation vis-à-vis anyone who does not have access to the files.
2
Disclosure of such information to friends or relatives by the parties or their lawyers
shall not be punishable.”
Article 185b
“1As an exception to Article 185, the cantonal investigating judge and, with the
latter’s agreement, the judge responsible for the preliminary inquiry or senior police
officers specially appointed by the cantonal government [Conseil d’Etat] (see
Article 168, paragraph 3) may inform the press, radio or television about a pending
investigation if so required by the public interest or considerations of fairness,
particularly in the following cases:
a. where public cooperation is required to shed light on an offence;
b. in cases which are particularly serious or are already known to the general public;
c. where erroneous information must be corrected or the general public reassured.
2
If a press conference is organised, counsel for the parties and the public prosecutor
shall be invited to attend.
3
If incorrect information has been disclosed to the press, radio or television, the
parties may apply to the cantonal investigating judge to order rectification of such
information, via the same media.”
20. The directives relating to the Declaration of the Duties and Rights of
the Journalist issued by the Swiss Press Council which are relevant to the
instant case read as follows:
In so doing they must describe in detail the serious accusations which they are
intending to publish. There is no obligation for the statements of the person accused of
serious offences to be given the same weight in a report as the criticism of his or her
actions. These statements must, however, be presented fairly when published in the
same media report.”
...
Principle 8 - Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other
parties to criminal proceedings should respect their right to protection of privacy in
accordance with Article 8 of the Convention. Particular protection should be given to
parties who are minors or other vulnerable persons, as well as to victims, to witnesses
and to the families of suspects, accused and convicted. In all cases, particular
consideration should be given to the harmful effect which the disclosure of
information enabling their identification may have on the persons referred to in this
Principle.”
B. Comparative law
THE LAW
24. The applicant complained that his criminal conviction had resulted
in a violation of his right to freedom of expression as provided in Article 10
of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
BÉDAT v. SWITZERLAND – JUDGMENT 15
25. In its judgment of 1 July 2014 the Chamber concluded that there had
been a violation of Article 10. It first of all considered that the applicant’s
conviction and the fine imposed on him for using and reproducing extracts
from the investigation file in his article had amounted to interference with
his right to freedom of expression and that such interference had been
prescribed by law and had pursued the following legitimate aims:
preventing “the disclosure of information received in confidence”,
maintaining “the authority and impartiality of the judiciary” and protecting
“the reputation [and] rights of others”.
26. The Chamber then stated that the impugned article originated from a
set of judicial proceedings initiated following an incident which had
occurred under exceptional circumstances, which had immediately aroused
interest among the public and which had prompted many media outlets to
cover the case and its handling by the criminal justice system. In the
impugned article the applicant looked at the character of the accused and
attempted to understand his motives, while highlighting the manner in
which the police and judicial authorities were dealing with him, a man who
seemed to be suffering from psychiatric disorders. The Chamber therefore
concluded that the article had addressed a matter of public interest.
27. However, the Chamber noted that the applicant, an experienced
journalist, must have known that the documents that had come into his
possession were covered by the secrecy of judicial investigations. That
being the case, he ought to have complied with the relevant legal provisions.
28. In weighing up the competing interests at stake, the Chamber found
that the Federal Court had merely noted that the premature disclosure both
of the records of interviews and of the letters sent by the accused to the
judge had necessarily infringed both the presumption of innocence and,
more broadly, the accused’s right to a fair trial. However, the article in issue
had not addressed the matter of the accused’s guilt and had been published
more than two years before the first hearing at his trial for the alleged
offences. Furthermore, the accused had been tried by courts made up
exclusively of professional judges, with no lay jury participating, which also
16 BÉDAT v. SWITZERLAND – JUDGMENT
reduced the risks of articles such as the present one affecting the outcome of
the judicial proceedings.
29. Inasmuch as the Government had alleged that the disclosure of the
documents covered by the secrecy of judicial investigations had constituted
interference with the accused’s right to respect for his private life, the
Chamber noted that although remedies had been available to the accused
under Swiss law for claiming compensation for the damage to his
reputation, he had failed to use them. Accordingly, the second legitimate
aim relied upon by the Government was necessarily less important in the
circumstances of the case.
30. As regards the Government’s criticism of the form of the impugned
article, the Chamber reiterated that in addition to the substance of the ideas
and information expressed, Article 10 also protected the manner in which
the latter were conveyed.
31. Finally, although the fine had been imposed for a “minor offence”
and heavier penalties, including prison sentences, could be imposed for the
same offence, the Chamber considered that because of its significant
deterrent effect, the fine imposed in the instant case had been
disproportionate to the aim pursued.
32. The Chamber concluded that the reasons put forward by the national
authorities were relevant but not sufficient to justify such an interference
with the applicant’s right to freedom of expression.
1. The applicant
33. The applicant accepted that his conviction had had a legal basis, but
submitted that it had not been necessary in a democratic society.
34. He submitted first of all that the publication had not been intended to
disclose confidential information but rather had satisfied a public interest,
namely the obligation to inform the population about facts relating to a
major event which had shocked the inhabitants of Lausanne and French-
speaking Switzerland.
He contended that although that information had indeed been formally
confidential, its nature had not been such as to justify keeping it secret.
35. The applicant also pointed out that the impugned publication had not
influenced the ongoing investigations or infringed the presumption of
innocence in respect of the accused. As regards this latter principle, the
applicant emphasised that while it was binding on State authorities, it could
not prevent private individuals from forming an opinion before the end of a
criminal trial. As in Campos Dâmaso v. Portugal (no. 17107/05, § 35,
24 April 2008), no non-professional judge could have been called on to
determine the case, which had in fact been tried by a court made up
BÉDAT v. SWITZERLAND – JUDGMENT 17
2. The Government
37. The Government did not contest the fact that there had been an
interference in the applicant’s exercise of his right to freedom of expression,
referring to the Chamber finding that such interference had been “prescribed
by law” and had pursued a “legitimate aim”.
38. The Government’s arguments centred mainly on the necessity of the
interference in a democratic society.
39. First of all the Government observed that in the instant case there
had been no compelling reasons to inform the public that might have
enabled the applicant to disregard the secrecy of the investigation. They
referred to a number of cases adjudicated by the Court inferring the
existence of a public interest from the high profile of the individuals
involved in the criminal proceedings in question. With reference to
Leempoel & S.A. ED. Ciné Revue v. Belgium (no. 64772/01, § 72,
9 November 2006), the Government emphasised that the mere fact that the
information published might satisfy some kind of public curiosity was
insufficient. They also referred to the conclusion reached by the Federal
Court in its judgment of 28 April 2008 to the effect that even though the
circumstances of the accident had been unusual and had triggered a great
18 BÉDAT v. SWITZERLAND – JUDGMENT
protection of that right even though he could have done so under Swiss law.
They submitted that the existence of remedies to which the accused could
have had recourse did not exempt the State from fulfilling its positive
obligation. The Government added that the accused, who had been
incarcerated and suffered from mental disorders, had probably not been in a
position to commence legal proceedings in defence of his interests.
42. As regards the protection of the ongoing investigation and the
presumption of innocence, the Government submitted that the fact that the
hearing had been held more than two years after the publication of the
impugned article and that the accused had been tried by professional judges
rather than a lay jury had been unknown at the time of publication. They
therefore argued that the Chamber had been wrong to take these facts into
account in its judgment.
Furthermore, the Government submitted that the Court could not expect
them to provide proof that the disclosure of confidential information had
caused actual and tangible harm to the interests protected. Such a
requirement would deprive the secrecy of judicial investigations of much of
its meaning.
43. As regards the proportionality of the penalty imposed, the
Government emphasised that the fine had not exceeded half the applicant’s
monthly income and had been assessed on the basis of factors including the
applicant’s previous record. They also pointed out that it had not been the
applicant himself but his employer who had paid the fine.
impartial tribunal (see Tourancheau and July, cited above, § 66) and the
right to the presumption of innocence (ibid. § 68). As the Court has already
emphasised on several occasions (ibid. § 66; see also Worm v. Austria,
29 August 1997, § 50, Reports of Judgments and Decisions 1997-V;
Campos Dâmaso, cited above, § 31; Pinto Coelho v. Portugal,
no. 28439/08, § 33, 28 June 2011; and Ageyevy v. Russia, no. 7075/10,
§§ 224-225, 18 April 2013):
“This must be borne in mind by journalists when commenting on pending criminal
proceedings since the limits of permissible comment may not extend to statements
which are likely to prejudice, whether intentionally or not, the chances of a person
receiving a fair trial or to undermine the confidence of the public in the role of the
courts in the administration of criminal justice.”
52. Furthermore, when it is called upon to adjudicate on a conflict
between two rights which enjoy equal protection under the Convention, the
Court must weigh up the competing interests. The outcome of the
application should not, in principle, vary according to whether it has been
lodged with the Court under Article 8 of the Convention by the person who
was the subject of the offending article or under Article 10 of the
Convention by the author of that article, because these two rights deserve, in
principle, equal respect (see Hachette Filipacchi Associés (ICI PARIS)
v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.),
no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom,
no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi
Associés v. France [GC], no. 40454/07, § 91, 10 November 2015).
Accordingly, the margin of appreciation should in theory be the same in
both cases (see Von Hannover (no. 2), cited above, § 106; Axel Springer
AG, cited above, § 87; and Couderc and Hachette Filipacchi Associés, cited
above, § 91).
53. The Court considers that analogous reasoning must apply in
weighing up the rights secured under Article 10 and Article 6 § 1
respectively.
54. Lastly, the Court reiterates that account must be taken of the need to
strike the right balance between the various interests involved. Because of
their direct, continuous contact with the realities of the country, a State’s
courts are in a better position than an international court to determine how,
at a given time, the right balance can be struck. For this reason, in matters
under Article 10 of the Convention, the Contracting States have a certain
margin of appreciation in assessing the necessity and scope of any
interference in the freedom of expression protected by that Article (see,
among other authorities, Palomo Sánchez and Others v. Spain [GC],
nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 54, ECHR 2011), in
particular when a balance has to be struck between conflicting private
interests.
BÉDAT v. SWITZERLAND – JUDGMENT 23
61. On this point the Court likewise sees no strong reason to call into
question the fully reasoned decision of the Federal Court.
(iii) Contribution of the impugned article to a public-interest debate
62. In its judgment of 1 July 2014, the Chamber noted that the incident
which had been the subject of the criminal proceedings at issue had
immediately attracted public interest and led many media outlets to cover
the case and its handling by the criminal justice system.
63. The Court reiterates that it has already held that the public has a
legitimate interest in the provision and availability of information about
criminal proceedings, and that remarks concerning the functioning of the
judiciary relate to a matter of public interest (see Morice, cited above,
§ 152).
64. In the present case the Court accepts that the subject of the article,
namely the criminal investigation into the Lausanne Bridge tragedy, was a
matter of public interest. This highly exceptional incident had triggered a
great deal of emotion among the population, and the judicial authorities had
themselves seen fit to inform the press of certain aspects of the ongoing
inquiry (see paragraph 11 above).
However, the question arising here is whether the content of the article
and, in particular, the information which was covered by the secrecy of
judicial investigations were capable of contributing to the public debate on
this issue (see Stoll, cited above, § 121; see also Leempoel & S.A. Ed. Ciné
Revue, cited above, § 72) or served purely to satisfy the curiosity of a
particular readership regarding the details of the accused’s private life (see,
mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 65,
ECHR 2004-VI; Société Prisma Presse v. France (dec.), nos. 66910/01 and
71612/01, 1 July 2003; Hachette Filipacchi Associés (ICI PARIS), cited
above, § 40; and Mosley, cited above, § 114).
65. The Court notes in this connection that after an in-depth assessment
of the content of the article, the nature of the information provided and the
circumstances surrounding the “Lausanne Bridge” case, the Federal Court,
in a lengthily reasoned judgment which contained no hint of arbitrariness,
held that neither the disclosure of the records of interviews nor that of the
letters sent by the accused to the investigating judge had provided any
insights relevant to the public debate and that the interest of the public in
this case had at the very most “involved satisfying an unhealthy curiosity”
(see paragraph 16 above).
66. For his part, the applicant failed to demonstrate how the fact of
publishing records of interviews, statements by the accused’s wife and
doctor and letters sent by the accused to the investigating judge concerning
banal aspects of his everyday life in detention could have contributed to any
public debate on the ongoing investigation.
26 BÉDAT v. SWITZERLAND – JUDGMENT
67. Accordingly, the Court sees no strong reason to substitute its own
view for that of the Federal Court (see, mutatis mutandis, MGN Limited,
cited above, §§ 150 and 155; Palomo Sánchez and Others, cited above,
§ 57; and Haldimann and Others, cited above, §§ 54 and 55), which had a
certain margin of appreciation in such matters.
actual impact of the publications on the trial, such as the composition of the
trial court (see paragraph 35 above).
71. The Federal Court was therefore right to hold, in its judgment of
29 April 2008, that the records of interviews and the accused’s
correspondence had been “discussed in the public sphere, before the
conclusion of the investigation, before the trial and out of context, in a
manner liable to influence the decisions taken by the investigating judge and
the trial court”.
74. The Court notes that in order to fulfil its positive obligation to
safeguard one person’s rights under Article 8, the State may have to restrict
to some extent the rights secured under Article 10 for another person. When
examining the necessity of that restriction in a democratic society in the
interests of the “protection of the reputation or rights of others”, the Court
may be required to verify whether the domestic authorities struck a fair
balance when protecting two values guaranteed by the Convention which
may come into conflict with each other in certain cases, namely, on the one
hand, freedom of expression as protected by Article 10 and, on the other, the
right to respect for private life as enshrined in Article 8 (see Hachette
Filipacchi Associés, cited above, § 43; MGN Limited, cited above, § 142;
and Axel Springer AG, cited above, § 84).
75. The Government argued that in the present case the Swiss authorities
had both a negative and a positive obligation to protect the accused’s private
life. The Government rightly observed that the choice of means calculated
to secure compliance with this positive obligation fell within the States’
margin of appreciation. They submitted that Article 293 of the Swiss
Criminal Code, which made it an offence to disclose classified information,
fulfilled that function.
76. The Court has already examined under Article 8 the issue of respect
for an accused person’s private life in a case involving a violation of the
secrecy of judicial investigations. In Craxi v. Italy (no. 2) (no. 25337/94,
§ 73, 17 July 2003) it held that the national authorities were not merely
subject to a negative obligation not to knowingly disclose information
protected by Article 8, but that they should also take steps to ensure
effective protection of an accused person’s right to respect for his
correspondence.
Consequently, the Court considers that the criminal proceedings brought
against the applicant by the cantonal prosecuting authorities were in
conformity with the positive obligation incumbent on Switzerland under
Article 8 of the Convention to protect the accused person’s private life.
Furthermore, the information disclosed by the applicant was highly
personal, and even medical, in nature, including statements by the accused
person’s doctor (see paragraph 10 above), as well as letters sent by the
accused from his place of detention to the investigating judge responsible
for the case. The Court takes the view that this type of information called
for the highest level of protection under Article 8; that finding is especially
important as the accused was not known to the public and the mere fact that
he was the subject of a criminal investigation, albeit for a very serious
offence, did not justify treating him in the same manner as a public figure,
who voluntarily exposes himself to publicity (see, mutatis mutandis and by
contrast, Fressoz and Roire, cited above, § 50, and Egeland and Hanseid
v. Norway, no. 34438/04, § 62, 16 April 2009).
BÉDAT v. SWITZERLAND – JUDGMENT 29
77. In its judgment of 1 July 2014 the Chamber held that the protection
of the accused’s private life, particularly the secrecy of correspondence,
could have been ensured by means less damaging to the applicant’s freedom
of expression than a criminal conviction. The Chamber took the view that in
order to uphold his rights under Article 8 of the Convention, the accused
could have had recourse to the civil-law remedies available to him under
Swiss law.
The Court considers that the existence of those civil-law remedies under
domestic law for the protection of private life does not release the State
from its positive obligation deriving, in each individual case, from Article 8
of the Convention vis-à-vis a person accused in criminal proceedings.
78. At all events, as regards the particular circumstances of the present
case, it should be noted that when the impugned article was published the
accused was in prison, and therefore in a situation of vulnerability.
Moreover, there is nothing in the case file to suggest that he was informed
of the publication of the article and of the nature of the information which it
provided. In addition, he was probably suffering from mental disorders, thus
increasing his vulnerability. In those circumstances, the cantonal authorities
cannot be blamed for considering that in order to fulfil their positive
obligation to protect M.B.’s right to respect for his private life, they could
not simply wait for M.B. himself to take the initiative in bringing civil
proceedings against the applicant, and for consequently opting for an active
approach, even one involving prosecution.
(vii) Conclusion
82. In view of the foregoing, and having regard to the margin of
appreciation available to States and to the fact that the exercise of balancing
the various competing interests was properly conducted by the Federal
Court, the Court concludes that there has been no violation of Article 10 of
the Convention.
M.L.T.
T.L.E.
32 BÉDAT v. SWITZERLAND JUDGMENT – SEPARATE OPINIONS
2. This is a highly relevant case. It deals with the extent and limits of the
right to freedom of expression, a right which is vital in order to maintain “an
effective political democracy”, in the terms of the Preamble to the European
Convention on Human Rights. It is also relevant because it refers to the
limits of this right concerning the freedom to report on ongoing judicial
proceedings, which may have profound legal and social consequences in a
democratic society.
9. The Grand Chamber adduces two reasons to find that need: the
defence of criminal proceedings against any undue influence, and the
protection of the accused person’s privacy. But in the light of the facts of
the case, those reasons do not really warrant restricting the applicant’s
freedom of expression.
10. Firstly, with regard to the risk of undue influence on the criminal
proceedings deriving from the applicant’s article, the content of the
published information did not contain any explicit or even implicit
consideration concerning the accused’s guilt or innocence. And the Grand
Chamber actually admits that the applicant did not support the view that the
accused had acted intentionally (see § 69). On the contrary, the applicant
merely reproduced the accused’s statements, without offering any comment
or opinion as to the possible outcome of the case. This makes it difficult to
understand how the applicant’s article could influence any future court
judgment.
Moreover, the journalist’s report was published about three months after
the events, and considerably in advance of the domestic courts’ decisions.
Given the normal pace of judicial proceedings, it is simply not conceivable
34 BÉDAT v. SWITZERLAND JUDGMENT – SEPARATE OPINIONS
In that connection, from the procedural angle, this Court has in fact
repeatedly insisted on the positive obligations of the State to protect the
private lives of individuals. However, in this specific case the person whose
private life was supposedly affected by the applicant’s publication never
sought to defend his right to privacy through any of the remedies afforded
him under Swiss law. At no point did the accused ever suggest that his
privacy had been invaded. On the contrary, it was the public authorities that
used this case to apply the prohibition set out in the Swiss Criminal Code on
publishing information concerning secret proceedings. There never was any
conflict between the right to freedom of expression and the right to privacy,
because the accused never invoked that right.
14. Therefore, given the nature of the information in question and the
fact that the person affected by the published information never sought any
legal remedy for an alleged invasion of his privacy, there was no reason in
BÉDAT v. SWITZERLAND JUDGMENT – SEPARATE OPINIONS 35
Of course, the present case does not address the general compatibility of
the Convention with this type of regulation or with Article 293 of the Swiss
Criminal Code, but rather with the national authority’s specific application
of existing law. As the Chamber pointed out in its judgment (see § 53), the
formal notion of secrecy of Article 293 of the Criminal Code cannot be
considered as having prevented the domestic courts, including the Swiss
Federal Court, from applying and interpreting the law in a manner
compatible with the Convention right to freedom of expression. The
Criminal Code’s regulation on secrecy is not the subject of the Court’s
ruling, but rather the Swiss authorities’ specific application of that
regulation in the applicant’s case.
not refer to that type of question, given that it concerns specific reporting on
proceedings relating to a road accident, the issue it raises has a more general
dimension. Any interpretation of Convention Article 10 which expressly or
tacitly validates general and unconditional clauses restricting publications
concerning judicial proceedings would conflict with the effective defence
and protection of freedom of expression, particularly freedom of the press.
Regardless of the advisability of this type of clauses, their application
should be subject to especially stringent control in order to avoid restricting
those freedoms that are essential for the functioning of a democratic society.
When a case that has sharply divided a Chamber is referred to the Grand
Chamber, it usually means that some important principles need to be
clarified. The present case provided an opportunity to nuance an approach to
the weighting of the conflicting interests of the media in reporting on
ongoing trials, on the one hand, and protection of the private life of an
accused and the interests of justice, on the other. The majority decided that
in the particular circumstances of the present case the latter interests
deserved greater protection.
It is true that Article 10 is the only provision in the Convention which
mentions the responsibilities of the beneficiary of a guaranteed right. The
majority relied, in the present case, on the concept of “responsible
journalism”, as developed in the Court’s case-law and recently summarised
in the Grand Chamber judgment in the case of Pentikäinen v. Finland. To
my regret, I can share neither the reasoning nor the conclusion of the
majority.
On 8 September 2013 a tragedy occurred on Lausanne Bridge, taking the
lives of three persons and severely injuring eight more, all within seconds.
For a relatively small town it was a large-scale incident: virtually every
inhabitant could have known the victims or their relatives, or might have
happened to be on the spot at the relevant time. A person’s desire to find out
what happened to his neighbours and why citizens had been left without
protection was disdainfully dismissed by the Federal Court as “unhealthy
curiosity”, chiming in with George Bernard Shaw’s belief that “most of all
people are interested in what does not concern them”.
It is hard to explain why the court decided that “it was not a case of
collective trauma on the part of the Lausanne population, which would have
justified reassuring the citizens and keeping them informed of the progress
of the investigation”. This stance deprived the citizens of Lausanne of their
right to be informed about the investigation of a crime, which shocked
them. Disappointingly, the majority endorsed this reasoning.
The Grand Chamber reproaches the applicant with failure “to
demonstrate how the fact of publishing records of interviews, statements by
the accused’s wife and doctor and letters sent by the accused to the
2
384 U.S. 333 (1966)
3
Nebraska Press Association v. Stuart, 427 U.S. 593, (1976)
4
The Sunday Times v. the United Kingdom, no. 6538/74, § 65, 26 April 1979.
5
Tourancheau and July v. France, no. 53886/00, § 65, 24 November 2005)
BÉDAT v. SWITZERLAND JUDGMENT – SEPARATE OPINIONS 39
not simply wait for M.B. himself to take the initiative in bringing civil
proceedings against the applicant”, and that their recourse to criminal
prosecution in order to protect the private life of a person who does not want
it to be protected is perfectly justified in the circumstances. It is to be
recalled that this Court has consistently held that the State’s positive
obligation under Article 8 may extend to questions relating to the
effectiveness of the criminal investigation when it comes to serious acts,
where fundamental values and essential aspects of private life are at stake;
while as regards less serious acts between individuals, even when it comes
to a violation of psychological integrity, the obligation of the State under
Article 8 does not always require a criminal-law framework if civil-law
remedies are capable of affording sufficient protection (see summary of the
relevant case-law in Söderman v. Sweden [GC], § 78-85)
Not only did the present case not concern the physical or psychological
integrity of M.B., but also nothing extremely intimate about his private life
was revealed by the applicant in order to justify his criminal prosecution.
As regards positive obligations under Article 8, the majority refers to
Craxi v. Italy (no. 2). However, that case concerned positive obligations to
investigate how the confidential information was disclosed. In the present
case, equally, positive obligations would require investigation into how the
leak occurred, but hardly criminal sanctions against a journalist who used
that leak.
In my view, the proceedings which were brought can be seen as an
overreaction by the authorities, in the absence of a civil suit from an injured
party.
It it worth noting here that the conventional three-stage proportionality
test requires that having satisfied itself that the means of interference are
appropriate (Eignung), the Court has to assess the necessity of the
interference (Erforderlichkeit), checking if a less restrictive measure could
be used, and only then proceed to balance the aim and impact of the
measure (Zumutbarkeit). In the present case the test already fails at the
second stage - the authorities failed to verify whether the desired effect
could be reached by less serious interference than a criminal conviction, that
is to say whether other measures could mitigate the alleged undesirable
effect of the publication.
In Nebraska Press Association v. Stuart6 the US Supreme Court
addressed the problem of imposing prior restraints on the press prohibiting
the pre-trial publication of such information as the existence or contents of a
confession of the accused. Assessing the interference in question it
acknowledged that in order to protect the accused’s fair-trial guarantees,
courts could adopt less restrictive measures, but protecting the freedom of
the press necessitated, for instance, changing the trial venue, giving
6
427 U.S. 593 (1976)
BÉDAT v. SWITZERLAND JUDGMENT – SEPARATE OPINIONS 41
7
I. Ya. Foinitskiy. “The course of criminal proceedings: in 2 volumes”, SPb., 1898,
volume 1., p. 96 – 97.
8
See Recommendation Rec(2003)13 of the Committee of Ministers of the Council of
Europe to member States on the provision of information through the media in relation to
criminal proceedings, see paragraph 21 of the present judgment.