European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) of the Convention and to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 and Article 10 (art. 6-1, art. 10).

In a letter he received on 13 December 1989 the Registrar was informed by the Secretary to the Commission that the Delegate would submit his observations at the hearing.

There appeared before the Court:

- for the Government

       Mr P. Boillat, Head

                            of the European Law and International Affairs Section,       

                            Federal Office of Justice,                                            Agent,

       Mr C. Vautier, former Vaud cantonal judge,

       Mr J.P. Kureth, Deputy Head

                            of the European Law and International Affairs Section,       

                            Federal Office of Justice,                                        Counsel;

- for the Commission

       Mr S. Trechsel,                                                                      Delegate;

- for the applicant

       Mr R. Schaller, avocat,                                                          Counsel.

The Court heard addresses by Mr Boillat and Mr Vautier for the Government, by Mr Trechsel for the Commission and by Mr Schaller for the applicant, as well as their replies to its questions.

AS TO THE FACTS

I.   THE CIRCUMSTANCES OF THE CASE

"Like all your readers, no doubt, I recently found in my letter-box another of the begging letters sent out by unscrupulous people when they want to cadge money.

Everyone is getting really sick of it and I think Franz Weber would do better to go and knock down the factory chimneys which crowd the skyline of Basle and protect his beloved captive seals in the zoo than to pester us with his initiatives, which he lives on at our expense - in case you didn’t know.

If Mr Weber had the courage to show us his tax returns, you would be amazed. But the list of municipal taxpayers is not published and it is easy to hide behind that sort of censorship and live by devious means, sponging off decent people who still believe that these drop-outs have their uses and in so doing demonstrate their distrust of the whole country’s democratically - and how democratically! - elected authorities.

May everyone have the courage to tell Helvetia Nostra (there’s a fine name to fleece you with!) that we have had enough of playing into the hands of people who sponge off us and whose behaviour borders on the criminal.

 ..."

In May 1981 Mr Weber forwarded Helvetia Nostra’s accounts in a sealed envelope but not those of the Foundation. Two subsequent sequestration orders were not executed.

A.  The proceedings before the President of the Criminal Cassation Division of the Vaud Cantonal Court

The applicant replied on 22 March 1982. He denied having given any "information about the investigation proceedings" and relied on Articles 6 and 10 (art. 6, art. 10) of the Convention.

"II. 1. Mr Weber relied on Article 6 (art. 6) of the European Convention on Human Rights (ECHR) and impugned the procedure provided for in Article 185 § 3 of the Code of Criminal Procedure (CCP), which is the same as the one provided for in Articles 384 § 2, 386 § 2 and 336 CCP. This complaint is irrelevant, as Article 6 (art. 6) ECHR does not apply to the summary investigation proceedings provided for in respect of these breaches of procedure under cantonal law, reserved by Article 335 § 1, second sub-paragraph, of the Criminal Code (CC), because it is not a question of a ‘criminal charge’.

 ...

Mr Weber also submitted that he did not disclose any confidential matters on 2 March 1982, since the matters in question had already become public knowledge as a result of his press conference of 11 May 1981.

Since no judicial investigation was commenced following the press conference of 11 May 1981 and as Mr Weber did not have any occasion to avail himself of his right to a hearing, there is no need to deal with it in the present proceedings. Furthermore, criminal proceedings will shortly be time-barred (s. 12 of the Vaud Criminal Justice Act, s. 4 of the Minor Offences Act, s. 109 CC).

It is true that as a result of the press conference of 11 May 1981 the matters dealt with at the press conference of 2 March 1982 were public knowledge, but that is of no importance as breaching the confidentiality of an investigation means ‘disclosing’ a matter which ought to be kept confidential. It is therefore of little importance that the matter which was to be kept confidential was known to a limited or indefinite number of people because confidentiality had already been breached by a third party or by the same person.

The actus reus of the offence punishable under Article 185 CC is therefore made out. This offence is punishable even if it has been committed inadvertently (s. 4 of the Vaud Criminal Justice Act, s. 6 of the Minor Offences Act). In the instant case it is plain that Mr Weber acted deliberately.

3.  By disclosing that he had challenged the investigating judge, Mr Weber revealed that there was an investigation, but it may be doubted whether that was ‘information about the investigation’.

4.  Disclosing that a criminal complaint has been lodged - which may amount to a different offence - is not caught by Article 185 CC, more particularly where it has been decided to take no action on the complaint.

5.  Mr Weber himself admits that the breach of the confidentiality of the investigation was intentional. His submission based on a kind of necessity is devoid of merit since it was open to him to appeal to the Indictment Division against the orders for the sequestration of the Franz Weber Foundation’s and the Helvetia Nostra association’s accounts, as he in fact did two days later.

 ..."

B.  The proceedings in the Criminal Cassation Division of the Vaud Cantonal Court

"...

In the instant case the disclosure that criminal complaints had been lodged - on 2 April 1980 against [R.M.] and on 1 March 1982 against the investigating judge - is not information about an investigation except in so far as it implies - and discloses - that an investigation has been commenced ..., but it may indeed amount to an offence (defamation, calumny, on the part of the complainant). Article 185 of the Code of Criminal Procedure (CCP) is therefore not applicable to the disclosure that the first complaint had been lodged, because this was punishable as defamation, or to the disclosure that the second complaint had been lodged, because no investigation was commenced. The decision is therefore well-founded on that point.

The disclosure of the challenge is not information about an investigation. The challenge is not the purpose of the investigation, and the disclosure that such a challenge has been made says nothing about the purpose of the investigation, its content or its results. It remains true, on the other hand, that the existence of such an investigation is disclosed; but such a disclosure is not punishable under Article 185 CCP, since it was punishable as defamation.

The disclosure of the orders for production and sequestration of the accounts in the file does amount to information about an investigation.

It remains to be considered whether one can talk of disclosure, given that the matters had already been made public at an earlier press conference.

 ...

Article 185 CCP, which is designed also - and even primarily - to protect the public interest in ensuring that investigations take place in the best possible conditions, prohibits parties from communicating information from the file; it is therefore sufficient that the matters should be confidential in nature, without necessarily still being confidential; communication of matters of a confidential nature to someone who knows them already as a result of an earlier indiscretion is therefore a punishable offence. Furthermore, the applicant cannot rely on common knowledge when that knowledge is due to an earlier disclosure that he himself has made.

The appellant was therefore rightly convicted.

 ..."

Finally, the Criminal Cassation Division set aside of its own motion the entry of the fine in the cantonal register. It noted that under Vaud law and notwithstanding that they were convertible into days of imprisonment (arrêts), the fines for "procedural offences", such as breaching the confidentiality of a judicial investigation, were disciplinary in nature, since they were designed to ensure that the investigation proceeded normally. On this point cantonal law differed from federal law.

C.  The proceedings in the Federal Court

"...

2.  The applicant ... maintained that Article 185 of the Vaud Code of Criminal Procedure (Vaud CCP) violates in the abstract, and in the alternative in the specific case, freedom of expression as secured in federal constitutional law and in Article 10 (art. 10) of the European Convention on Human Rights (ECHR). In so doing, he overlooked that it may be legitimate in the public interest to impose certain restrictions on the exercise of that fundamental right ... Article 10 § 2 (art. 10-2) in fine ECHR, moreover, provides expressly that such restrictions are permissible where they are necessary in a democratic society, in particular for maintaining the authority and impartiality of the judiciary. The rule enacted in Article 185 Vaud CCP clearly conforms to these principles. A weighing of the competing interests at stake leads to the same conclusions. While it may indeed be readily appreciated that the applicant had grounds for rebelling against the sometimes unorthodox course taken by the proceedings against him, it must not be forgotten that the usual remedies were open to him; and, indeed, on a number of occasions he successfully availed himself of them. His interest in expressing his views on this matter in public and the public’s interest in being informed by this means cannot outweigh the interest in ensuring that the judicial system can function as smoothly and impartially as possible. The prohibition against communicating information about an investigation until its completion and the penalties attaching to the offence are undoubtedly consistent with the proportionality principle. Consideration of whether the impugned interference was founded on sufficient reasons which rendered it necessary in a democratic society, having regard to all the public-interest aspects of the case (European Court of Human Rights, Sunday Times case, Series A no. 30, paragraphs 65-67) leads inevitably to the conclusion - particularly if the interests at stake in the Sunday Times case previously cited and in the applicant’s case are compared - that there was no violation of freedom of expression.

 ...

In the instant case the appellant was liable to a fine not exceeding 500 francs (Article 185 § 1 Vaud CCP) and was fined 300 francs. Under Vaud law, such a penalty typically comes within the sphere of rules of conduct to be observed during proceedings. That is not decisive, however, according to the European institutions.

Such rules are generally directed primarily at barristers, and in that instance their disciplinary nature is not in doubt; the parties to criminal proceedings, however, may also be subject to certain disciplinary rules. Admittedly, it has to be recognised that the measure taken against the appellant could have been based on a combination of Article 184 Vaud CCP, which lays down that judicial investigations shall be confidential, and Article 293 of the Criminal Code (CC), which provides that anyone who makes public any proceedings in a judicial investigation or deliberations by an authority which are secret by law shall be punishable with imprisonment or a fine. In that event the application of the Criminal Code would have justified an application of Article 6 § 1 (art. 6-1) ECHR. This was not the case, however, and it was on the basis of a cantonal rule of procedure that the appellant suffered a penalty whose disciplinary or criminal nature can be determined only by assessing the degree of its severity.

The appellant showed, aptly enough, that such a fine was convertible into ten days’ imprisonment under Article 12 of the Vaud Order on the recovery of fines and their conversion into imprisonment. That procedure indeed leaves the authorities only a very limited discretion and at all events does not enable them to comply retrospectively with the requirements of Article 6 (art. 6) ECHR. The appellant overlooks, however, that Article 49 § 3, second sub-paragraph, of the Swiss Criminal Code (SCC) enables the judge to rule out conversion where the person convicted has proved that, through no fault of his own, he is unable to pay the fine. In view of the foregoing, the possibility of a custodial sentence could not make the penalty imposed in the instant case a criminal one.

Ultimately, while the fine imposed in the instant case was not a negligible one, it nonetheless came into the category of penalties which by their nature, duration or manner of execution are deemed not to be appreciably detrimental. The possibility of conversion into a custodial sentence makes no difference, since conversion is possible only in the event of the appellant’s refusing to pay the fine out of sheer unwillingness. The safeguards provided for in Article 6 § 1 (art. 6-1) ECHR were therefore not applicable in the instant case."

The applicant paid the fine in January 1985.

II.   THE RELEVANT DOMESTIC LAW

A.  The Vaud Code of Criminal Procedure

Article 184

"All judicial investigations shall remain confidential until they are finally completed.

Judges, other members of the national legal service and civil servants shall not communicate any documents or information about an investigation except to experts, other witnesses or an authority where such communication assists the investigation or is justified on administrative or judicial grounds."

Article 185

"The parties, their counsel, employees of their counsel and experts and witnesses shall be bound to maintain the confidentiality of an investigation, on pain of a fine of up to five hundred francs, unless the breach is punishable under other provisions.

The punishment provided for in the foregoing paragraph shall be ordered by the President of the Cassation Division, of his own motion or acting on an information.

He shall give his ruling after a summary investigation."

In 1983 the applicant was the sponsor of a constitutional initiative entitled "For a system of criminal justice with a human face", one of whose aims was to secure the repeal of Article 185. This was in line with the approach adopted by those who had drafted the 1977 Geneva Code of Criminal Procedure, which does not attach any penalty to the obligation to maintain the confidentiality of an investigation, an obligation from which it even completely exempts witnesses, complainants, accused persons and their lawyers. In a referendum on 20 May 1984 the people of the Canton of Vaud rejected the Weber initiative by a clear majority.

B.  The Swiss Criminal Code

"Anyone who, without being entitled to do so, makes public all or part of the proceedings of an investigation or of the deliberations of any authority which are confidential by law or in virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine."

C.  The Vaud cantonal Fines (Recovery and Conversion into Imprisonment) Order of 23 January 1942

Article 8

"If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless, the Prefect shall convert the fine into a term of imprisonment.

 ...

The Prefect may, however, decide against conversion at any time if the person convicted proves that, through no fault of his own, he is unable to pay the fine."

Article 12

"The conversion rate shall be one day’s imprisonment for every thirty francs of fine; fractions of less than thirty francs shall be left out of account; the length of imprisonment shall not exceed three months.

 ..."

Article 14

"Within twenty-four hours of receiving them, the Department shall send to the Prefect of the district in which the court that heard the case is situated copies of any judgments and decisions entailing imposition of a fine which have been communicated to it.

It shall order the Prefect to enforce the judgment or decision."

Article 15

"If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless, the Prefect shall inform the Department accordingly with a view to converting the fine into a term of imprisonment, unless such conversion was excluded at the outset in the judgment or decision concerned."

Article 17

"The presiding judge of the court shall decide whether to convert the fine into a term of imprisonment pursuant to Article 49 of the Criminal Code and shall proceed in accordance with Articles 459 and 460 of the Code of Criminal Procedure.

 ..."

Article 18a

"Articles 14 and 15 shall apply to fines imposed for breaches of provisions of criminal or civil procedure.

In the case of Article 15, the Department shall report the matter to the appropriate judicial officer, who shall be able to convert the fine into a term of imprisonment, wholly or in part; he shall inform the Department of his decision.

Articles 8 and 10-13 shall apply to the conversion, save that the judge with jurisdiction to determine the matter shall be:

(a) the President of the Cantonal Court in respect of fines imposed by him or by the court as such;

(b) the presidents of the various sections or divisions of the Cantonal Court in respect of fines imposed by them or by the section or division;

 ..."

III.  SWITZERLAND’S RESERVATION IN RESPECT OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION

A.  Wording

"The rule contained in Article 6, paragraph 1 (art. 6-1), of the Convention that hearings shall be in public shall not apply to proceedings relating to the determination ... of any criminal charge which, in accordance with cantonal legislation, are heard before an administrative authority.

The rule that judgment must be pronounced publicly shall not affect the operation of cantonal legislation on civil or criminal procedure providing that judgment shall not be delivered in public but notified to the parties in writing."

B.  The Schaller judgment

"Moreover, the expression ‘administrative authority’ (autorité administrative) is not to be found in the text of the European Convention on Human Rights (ECHR) but appears in Switzerland’s reservation in respect of the principle laid down in Article 6 (art. 6) of the Convention that hearings must be public and judgments pronounced publicly. It is therefore not a Convention concept which should be construed according to the principle of reasonable expectation, that is to say in the meaning which the other signatory States might and should in good faith give it, or directly under Articles 31 and 32 of the Vienna Convention of 23 May 1969, which Switzerland has not yet ratified. A reservation made when ratifying a treaty is a unilateral declaration which must in general be interpreted by reference to the domestic law of the State which has adopted it, like a provision in a statute or regulation.

In the case of a reservation, an interpretation in accordance with the will of the declaring State makes it possible to take into account the real purpose of the reservation, whose justification lies precisely in the special features of national law ...

That being so, regard should be had to the meaning which the Swiss Government and Parliament intended giving to the expression ‘administrative authority’. While the Federal Parliament accepted the reservation without discussion or comment, the Federal Council gave the following particulars in its 1968 Communication (FF [Federal Gazette] 1968 II p. 1118/1119).

‘... In Switzerland, as was pointed out above, the administrative authorities may have to determine private-law disputes and impose penalties in the way that a criminal court would. Administrative proceedings, however, are not normally public. The same is true of proceedings in the administrative courts, although they are adversarial. It is, moreover, doubtful whether the principle that proceedings must be public is generally applicable to administrative criminal proceedings.’

In its communication of 4 March 1974 (FF 1974 I, p. 1020), on the other hand, the Federal Council merely stated that proceedings before administrative authorities were not public.

It is therefore possible to confirm the precedent of R. and Others of 25 November 1982, referred to above. In the light of the 1968 Communication it is apparent that Switzerland meant to exclude application of the principle that hearings and judgments must be public not only before administrative authorities but also in the administrative courts, notwithstanding that proceedings there are adversarial. It would, moreover, be consistent with the principle of good faith to accept that the reservation applies to such-and-such an authority not because of the way the authority is organised but rather because of the functions it discharges, in the instant case administrative functions.

(cc) The respondent authority was right in considering that it could apply the reservation made in respect of Article 6 (art. 6) ECHR and in accepting that in Switzerland ‘disciplinary regulations come within the domain of administrative law and the authorities which apply them exercise an administrative jurisdiction’."

PROCEEDINGS BEFORE THE COMMISSION

"As to Article 6 § 1 (art. 6-1) of the Convention,

- that this provision is not applicable to the instant case;

- in the alternative that, having regard to Switzerland’s reservation in respect of this provision, the principle that proceedings must be public was not applicable to the proceedings complained of;

As to Article 10 (art. 10) of the Convention,

- that the State interference complained of was justified under paragraph 2 (art. 10-2) of this provision."

AS TO THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

Having regard to the arguments of the Government and the Commission, the question whether Article 6 (art. 6) is applicable must be determined first.

A. Applicability of Article 6 § 1 (art. 6-1)

A majority of the Commission agreed.

The legal basis of Mr Weber’s conviction was provided by Article 185 of the Vaud Code of Criminal Procedure (see paragraph 20 above) and not by Article 293 of the Swiss Criminal Code (see paragraph 21 above). In its judgment of 16 November 1983 the Federal Court recognised that the measure taken against the applicant could have been based on a combination of the two (see paragraph 19 above) but added that this had not happened in the event. The word "peine" (punishment) in Article 185 gives an indication but is not decisive.

In the Government’s submission, the impugned sentence was designed to punish a breach of a rule intended to protect defendants and ensure that proceedings were conducted objectively by shielding the judge in charge of them from any pressure, in particular by the media. The Commission considered that Article 185 applied to a limited number of people who shared the characteristic of taking part in a judicial investigation; although these people did not belong to the staff responsible for the administration of justice, they were in a "special relationship of obligation" with the relevant authorities, which justified subjecting them to a special discipline.

B. Validity of Switzerland’s reservation in respect of Article 6 § 1 (art. 6-1)

The Commission did not discuss the matter in its report since it concluded that Article 6 (art. 6) was not applicable. Before the Court its Delegate argued, however, that if the Court did not take the same view of that question, it would be bound to find that there had been a breach of the Article (art. 6), notwithstanding the reservation and irrespective of whether the relevant cantonal authorities had performed judicial functions or administrative duties, since in the first case there would have been a clear failure to comply with the requirement that proceedings should be public, while in the second eventuality an administrative body would have determined the merits of a criminal case.

That being so, it is unnecessary to determine whether the reservation was of "a general character" contrary to Article 64 § 1 (art. 64-1).

C. Compliance with Article 6 § 1 (art. 6-1)

II.   ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

"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 (art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The Government disputed that submission, whereas the Commission accepted it.

The Commission, the Government and the applicant concentrated their submissions on whether the aim pursued by the impugned measure was a legitimate one and whether it was "necessary in a democratic society".

A. Legitimacy of the aim pursued

In the Commission’s view, Article 185 was clearly intended to maintain the authority of the judiciary; there was nothing to suggest that it had been used for any other purpose in this instance.

Mr Weber, on the other hand, submitted that the cantonal judicial authorities’ real but unavowed purpose had been to intervene in a political controversy in order to "nip in the bud" any criticism of the functioning of the Canton of Vaud’s system of justice. This aim of intimidation and censorship was inconsistent with the pluralism and tolerance characteristic of democratic society.

B. Necessity "in a democratic society"

The Commission considered that the interference complained of by Mr Weber was not "necessary in a democratic society". In its view, Mr Weber had a "legitimate interest in expressing his views on judicial proceedings which chiefly concern[ed] him", an interest which "coincid[ed] with the public’s interest in being informed". Furthermore, imposing a penalty "for revealing information already made public" could not be said to be answering a "pressing social need".

The Government did not overlook the fact that there was a genuine public interest, but they condemned the defendant’s "partisan" exploitation of it. They criticised Mr Weber for having attempted to bring the discussion out into the open in order to secure a trial which conformed to his own ideas of fairness.

As to the submission that the impugned statements by Mr Weber on 2 March 1982 could be interpreted as an attempt to bring pressure to bear on the investigating judge and could therefore have been prejudicial to the proper conduct of the investigation, the Court notes that by that time the investigation was practically complete, because on the previous day the judge had committed R.M. for trial (see paragraph 12 above), and that from then on any attempt of that kind would have been belated and thus devoid of effect. Admittedly R.M. appealed against his committal for trial, but even though his appeal meant that the order committing him for trial did not become final, the investigation nonetheless remained suspended (see paragraph 12 above). It was accordingly not necessary to impose a penalty on the applicant from this point of view either.

III.  APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The applicant’s claims under this provision included both the award of financial compensation and reimbursement of costs and expenses.

The Government thought this amount reasonable and said they were willing to pay it if the Court held that there had been a violation of the Convention. The Delegate of the Commission regarded this sum as modest and wholly justified.

The Court agrees and will therefore allow this claim.

FOR THESE REASONS, THE COURT

1.   Holds by six votes to one that Article 6 § 1 (art. 6-1) of the Convention applied in the instant case and that there has been a breach of it;

2.   Holds unanimously that there has been a breach of Article 10 (art. 10);

3.   Holds unanimously that the respondent State is to pay the applicant costs and expenses in the sum of 8,482.50 Swiss francs (eight thousand four hundred and eighty-two francs, fifty centimes);

4.   Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 May 1990.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 53 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) dissenting opinion of Mrs Bindschedler-Robert;

(b) concurring opinion of Mr De Meyer.

R.R.

M.-A.E.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)