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THIRD SECTION
CASE OF DUPUIS AND OTHERS v. FRANCE
(Application no. 1914/02)
JUDGMENT
FINAL
12/11/2007
STRASBOURG
7 June 2007
This judgment is final but may be
subject to editorial revision.
In the case of Dupuis and Others v.
France,
The European Court of Human Rights
(Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr J.-P. Costa,
Mrs E. Fura-Sandström,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having deliberated in private on 15
May 2007,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
1. The case originated
in an application (no. 1914/02) against the French
Republic lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by two
French nationals, Mr Jérôme Dupuis and Mr Jean-Marie
Pontaut, together with Librairie Arthème Fayard, a
company incorporated under French law (“the
applicants”), on 17 December 2001.
2. The applicants were
represented by Mrs C. Waquet, of the Conseil d'Etat
and Court of Cassation Bar. The French Government (“the
Government”) were represented by their Agent, Mrs E.
Belliard, Director of Legal Affairs at the Ministry of
Foreign Affairs.
3. On 26 August 2005 the
Government were given notice of the application. It
was also decided, having regard to Article 29 § 3 of
the Convention, that the admissibility and merits of
the case would be examined at the same time.
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASE
4. By a decree of 17
March 1982, a “Mission for coordination, information
and action against terrorism” was set up. This “anti-terrorist
unit” at the Elysée Palace operated from 1983 to
March 1986 within the office of the French President,
engaging in telephone tapping and recording.
5. In November 1992 a
weekly magazine published a handwritten note dated 28
March 1983, under the letterhead of the President's
Office, containing indications that telephone lines,
in particular those of certain journalists and lawyers,
had been tapped.
In the same year a list of the
people who had been placed under surveillance was
published in the press.
6. The case aroused
considerable media interest and a judicial
investigation was opened in February 1993.
In the course of the proceedings
G.M., deputy director of the French President's
private office at the time of the surveillance, was
placed under formal investigation on a charge of
invading the privacy of others.
7. On 25 January 1996, a
few days after President Mitterrand's death, the
publishers Arthème Fayard published a book entitled
Les Oreilles du Président (“The President's Ears”),
which had been written by the first two applicants,
both journalists, on the subject of the monitoring
operations at the Elysée Palace.
8. On 1 February 1996
G.M. lodged a criminal complaint, with an application
to join the proceedings as a civil party, against Mr
Pontaut and Mr Dupuis, accusing them of handling
documents obtained through a breach of professional
confidence, of knowingly deriving an advantage from
such a breach and of handling stolen property. In his
complaint G.M. noted that appendix 1 of the book
consisted of six “facsimile telephone-tap
transcripts” which were identical to documents in
the case file and that the other three appendices
(list of individuals under surveillance) were also
based on information from the file. He further cited
thirty-six passages from the work which reproduced
officially-recorded statements made to the
investigating judge by the individuals under
investigation or witnesses.
9. In the ensuing
judicial investigation the applicants denied having
obtained their information illegally. They refused to
reveal their sources and claimed that many of the
people examined by the judge had since publicly
disclosed the content of their statements. As regards
the facsimile telephone-tap transcripts and the
content of the official records, the applicants argued
that they had been circulating among journalists well
before the opening of the judicial investigation.
10. In a judgment of 10
September 1998 the Paris tribunal de grande instance
found that both the facsimiles and the record extracts
came from the judicial investigation file, which was
only accessible to persons bound by the secrecy of the
judicial investigation or by a duty of professional
confidence. The court considered that, regardless of
how the documents in question had been transmitted,
they could not have fallen into the applicants' hands
without an offence being committed. In the court's
opinion, experienced journalists could not have been
unaware of that fact. Observing that all the elements
of the offence of handling illegally-obtained items (recel)
were sufficiently established, the court found Mr
Pontaut and Mr Dupuis guilty of the offence of
handling information obtained through a breach of the
secrecy of the investigation or through a breach of
professional confidence, under Articles 226-13,
226-31, 321-1 and 321-9 to 321-12 of the Criminal
Code, and ordered each of them to pay a fine of 5,000
francs (equivalent to 762.25 euros (EUR)). The court
further ordered them, jointly and severally, to pay
50,000 francs (EUR 7,622.50) in damages and found the
company Librairie Arthème Fayard civilly liable. The
applicants' book continued to be published and no
copies were seized.
11. The applicants
appealed. They claimed, among other things, that
Article 6 § 2 and Article 10 of the
Convention had been breached and argued that the
judgment against them could not be regarded as
necessary in the light of the Convention.
12. On 16 June 1999 the
Paris Court of Appeal upheld the judgment, for the
following reasons in particular:
“ ... The quantity, diversity
and accuracy of the sources used by the defendants
show that they were actually in possession of
reproductions of documents from the judicial
investigation file, as mere transcriptions or oral
accounts would not have enabled them to make such
systematic use of the material in that file ... The
defendants could only therefore have obtained the
documents through the intermediary of persons
involved in the proceedings, who can be divided into
two groups. The first group is bound by the secrecy
of the investigation (judges and prosecutors, clerks,
police officers, etc.), any breach of which will
constitute a criminal offence. The second group
consists of persons who are entitled to obtain
copies of documents but who are not bound by the
secrecy of the investigation, namely lawyers and the
parties themselves ... These clear and coherent
provisions show that compliance with certain
conditions ensuring the secrecy of the investigation
forms an integral part of the duty of professional
confidence. To be sure, the rights of the defence
must not be impaired by that duty. ... Thus the
documents used by the defendants were necessarily
obtained illegally and the precise classification of
the offence has no bearing on the unlawfulness of
their origin, which is the necessary and sufficient
basis of the statutory characterisation of the
offence of handling (recel), as is confirmed by the
case-law of the Court of Cassation. ...”
13. As regards Article
10 of the Convention, the Court of Appeal held as
follows:
“Even though the actual object
of the handling specifically consists of elements of
the judicial investigation, it should first be
observed that the offence of handling provided for
under Article 321-1 of the Code of Criminal
Procedure corresponds to a commonly used
characterisation. ... Accordingly, whilst
proceedings in their current form may not be very
numerous, they are based on clear and established
provisions, which have been implemented in
foreseeable conditions.
Under paragraph 2 of the
above-mentioned Article 10, the exercise of freedom
of expression may be subject to restrictions, in
particular for the protection of the reputation or
rights of others or for maintaining 'the authority
and impartiality of the judiciary'.
It has been established that, by
obtaining a number of the confidential documents
from proceedings in which [G.M.] had been placed
under judicial investigation, the defendants
interfered with his private life and with his
defence rights as an individual under judicial
investigation. That action further demonstrated a
wilful disregard for the rules governing the
functioning of the judicial authority. In addition,
the act of publication, which was the avowed
objective of Mr Pontaut and Mr Dupuis, was bound to
prejudice the presumption of innocence, a right
which must be guaranteed for every person against
whom criminal proceedings are brought.
... An obligation to comply with
the basic rules governing the functioning of courts
and the practices of persons involved in the
administration of justice contributes to maintaining
the democratic features of society. Accordingly, the
rules concerning respect for the secrecy of the
judicial investigation, like those concerning the
duty of professional confidence, have the effect of
protecting the judicial authority from excessive
pressure, as well as protecting essential interests
of those involved in the proceedings.
The restrictions to which freedom
of expression is subject are therefore necessary,
particularly because it has not been established
that the constraints imposed in the present case
really had an adverse effect on the informing of
public opinion, having regard to the articles
published on the subject, any more than it has been
established that there was a breakdown in the
administration of justice of which public opinion
had to be informed.”
14. The applicants
appealed on points of law.
15. In a judgment of 19
June 2001 the Criminal Division of the Court of
Cassation dismissed their appeal.
16. The Court of
Cassation rejected the ground of appeal in which the
applicants alleged, among other things, that there had
been a violation of Article 6 § 2 of the Convention,
finding as follows:
“In finding guilty the
defendants, who had denied having obtained the
information unlawfully, but had refused to reveal
their sources, the Court of Appeal notes that the
book contained facsimile telephone-tap transcripts
which are exact copies of pages from the
investigating judge's case file, and of official
records of statements drawn up by the judge. The
court adds that, absent any evidence to support the
hypothesis of accidental disclosure, the source
could only have been a professional bound by a duty
of confidence, whether one of the persons required
to respect the secrecy of the judicial investigation
or a lawyer bound by a duty of professional
confidence under Article 160 of the decree of 27
November 1991 on the organisation of the legal
profession. The court infers from the foregoing that,
regardless of how the documents in question were
transmitted, they could not have fallen into the
hands of the defendants without an offence being
committed. It adds that experienced journalists
could not have been unaware of this fact.
In the light of that reasoning as
it stands, based on a discretionary assessment of
the circumstances of the case, the Court of Appeal,
which established that the defendants had knowingly
possessed and published photocopies of material from
the judicial investigation in progress, duly
substantiated its decision ...”.
17. The Court of
Cassation, reasoning as follows, also dismissed the
applicants' ground of appeal, based on a violation of
Article 10 of the Convention, in which they submitted
that the simple fact that the telephone tapping
described in the book was the subject of a judicial
investigation was not sufficient to justify the
interference with their freedom of expression and that
the judgment against them did not fulfil any necessity:
“In dismissing the complaint
that there had been a violation of Article 10 of the
European Convention on Human Rights, the Court of
Appeal, by reasoning of its own and espousing that
of the court below, notes that the essential subject
matter of the offending work consists of the actual
case file from the judicial investigation in
progress; that the book reproduces, among other
things, numerous passages from interviews with
individuals examined by the investigating judge; and
that this information was used in some detail in the
authors' observations on the functioning of the
monitoring system set up within the French
President's Office. The court explains that the
defendants found themselves in possession of
confidential information on [G.M.] to which they had
no right of access, thus interfering with a
legitimate interest of the latter. The court adds
that the limits to which freedom of expression is
subject are necessary, particularly because it has
not been established that the constraints applied in
the present case caused any real prejudice to the
informing of public opinion or that there was any
breakdown in the administration of justice of which
public opinion had to be informed.
Having regard to the foregoing
findings, from which it transpires that the
defendants were prosecuted for disclosing the
content, that remained confidential, of material
from a judicial investigation in progress, and that
such a measure was justified by the necessity of
protecting the rights of others, one such right
being the presumption of innocence, and by the need
to prevent disclosure of confidential information
and to maintain the authority and impartiality of
the judiciary, the Court of Appeal duly
substantiated its decision for the purposes of
Article 10 of the European Convention on Human
Rights.
...
In awarding damages to the civil
party, on the ground that the publication by the
defendants of confidential information concerning
that party had directly contributed to the damage he
had sustained, the Court of Appeal substantiated its
decision for the purposes of Article 2 of the Code
of Criminal Procedure.”
18. In a judgment of the
Paris Criminal Court dated 9 November 2005, G.M. was
given a suspended six-month prison sentence and fined
EUR 5,000.
II. RELEVANT DOMESTIC
AND INTERNATIONAL LAW
19. The relevant provisions of the
Criminal Code read as follows:
Article 226-13
“The disclosure of confidential
information by persons who are entrusted with it
either on account of their position or profession or
on account of a temporary function or assignment
shall be punished by one year's imprisonment and a
fine of 15,000 euros.”
Article 321-1
“The offence of handling (recel)
is constituted by the concealment, possession or
transmission of a thing, or by the fact of acting as
an intermediary with a view to its transmission, in
the knowledge that the said object was obtained by
means of a serious crime (crime) or other major
offence (délit).
The offence of handling is also
constituted by the fact of knowingly deriving an
advantage, by any means, from the product of a
serious crime or other major offence. Handling shall
be punished by five years' imprisonment and a fine
of 375,000 euros.”
20. 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,
reads as follows:
“...
Recalling that the media have the
right to inform the public due to the right of the
public to receive information, including information
on matters of public concern, under Article 10 of
the Convention, and that they have a professional
duty to do so;
Recalling that the rights to
presumption of innocence, to a fair trial and to
respect for private and family life under Articles 6
and 8 of the Convention constitute fundamental
requirements which must be respected in any
democratic society;
Stressing the importance of media
reporting in informing the public on criminal
proceedings, making the deterrent function of
criminal law visible as well as in ensuring public
scrutiny of the functioning of the criminal justice
system;
Considering the possibly
conflicting interests protected by Articles 6, 8 and
10 of the Convention and the necessity to balance
these rights in view of the facts of every
individual case, with due regard to the supervisory
role of the European Court of Human Rights in
ensuring the observance of the commitments under the
Convention;
...
Desirous to enhance an informed
debate on the protection of the rights and interests
at stake in the context of media reporting relating
to criminal proceedings, and to foster good practice
throughout Europe while ensuring access of the media
to criminal proceedings;
...
Recommends, while acknowledging
the diversity of national legal systems concerning
criminal procedure, that the governments of member
states:
1. take or reinforce, as the case
may be, all measures which they consider necessary
with a view to the implementation of the principles
appended to this recommendation, within the limits
of their respective constitutional provisions,
2. disseminate widely this
recommendation and its appended principles, where
appropriate accompanied by a translation, and
3. bring them in particular to
the attention of judicial authorities and police
services as well as to make them available to
representative organisations of lawyers and media
professionals.
Appendix to Recommendation Rec(2003)13
- Principles concerning the provision of information
through the media in relation to criminal
proceedings
Principle 1 - Information of the
public via the media
The public must be able to
receive information about the activities of judicial
authorities and police services through the media.
Therefore, journalists must be able to freely report
and comment on the functioning of the criminal
justice system, subject only to the limitations
provided for under the following principles.
Principle 2 - Presumption of
innocence
Respect for the principle of the
presumption of innocence is an integral part of the
right to a fair trial. Accordingly, opinions and
information relating to on-going criminal
proceedings should only be communicated or
disseminated through the media where this does not
prejudice the presumption of innocence of the
suspect or accused.
...
Principle 6 - Regular information
during criminal proceedings
In the context of criminal
proceedings of public interest or other criminal
proceedings which have gained the particular
attention of the public, judicial authorities and
police services should inform the media about their
essential acts, so long as this does not prejudice
the secrecy of investigations and police inquiries
or delay or impede the outcome of the proceedings.
In cases of criminal proceedings which continue for
a long period, this information should be provided
regularly.
...”
THE LAW
I. ALLEGED VIOLATION
OF ARTICLE 10 OF THE CONVENTION
21. The applicants
complained that the judgment against them did not meet
a pressing social need and had therefore breached
their right to freedom of expression. The fact that
the case had not been initiated by the public
prosecutor was proof of this, in their view. The
applicants further claimed that the offending book had
caused no prejudice to G.M.'s presumption of innocence,
it being publicly known that he was under judicial
investigation. In this connection they invoked their
right to impart information in the context of an
affair of state and argued that this public debate
concerned the exercise of power, with its excesses and
its checks and balances, and that the debate pre-dated
the book's publication, the purpose of which was not
to impede the investigation. The applicants relied on
Article 10 of the Convention, of which the relevant
part 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. ...
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 ... 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.”
22. The Government
contested the applicants' arguments.
A. Admissibility
23. The Court observes
that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention. It moreover considers that no other ground
for declaring it inadmissible has been established and
therefore declares it admissible.
B. Merits
1. The parties'
submissions
(a) The applicants
24. The applicants
argued in particular that the interference was not
necessary. In their submission, the secrecy of the
judicial investigation was binding only on the
participants in the investigation but not on the
parties. Disclosure was not prohibited and there were
no facts that were specifically precluded from being
imparted to third parties.
25. Moreover, the
applicants considered that they had not prejudiced the
protection of the rights of others. Even though there
had not yet been a judgment in the case when the book
was published, the judicial investigation had been
ongoing for the previous three years and a further ten
years had then elapsed before the judgment of the
Paris Criminal Court. In such a context, the
publication of a book to report once again on what was
an affair of state, whilst the judicial system was
being particularly slow, did not contravene any
fundamental principle and especially not the secrecy
of the judicial investigation. When an investigation
lasted for such a long period, and when testimony,
evidence and elements could have disappeared in the
meantime, it was, on the contrary, praiseworthy and in
the interest of democracy for investigative
journalists to disclose what they discovered through
their own investigations. In the present case, it had
no longer been a question of protecting evidence but,
on the contrary, of preventing its disappearance by
bringing into the public domain what the judicial
system had struggled to bring to light.
26. In this connection,
the public interest prevailed over the interest of
G.M. and it could not be argued that his right to
presumption of innocence had been prejudiced in such a
way that the criminal court had been unable to pass
judgment, ten years later, with totally unfettered
discretion in the assessment of his guilt.
(b) The Government
27. The Government did
not dispute the fact that the applicants' conviction
for the offence of handling information protected by
the secrecy of a judicial investigation or by a duty
of professional confidence constituted interference
with their right to freedom of expression. In their
opinion, that interference was prescribed by law,
namely by Articles 226-13 and 321-1 of the Criminal
Code, which fulfilled the conditions of accessibility
and foreseeability required by the Court (see Fressoz
and Roire v. France [GC], no. 29183/95, ECHR 1999‑I).
The Government considered, however, that the
interference constituted a measure that was necessary
in a democratic society for the protection of the
reputation or rights of others and for maintaining the
authority and impartiality of the judiciary. Without
disputing the fact that the aim of the applicants'
work had been to inform the general public about an
affair of state that was of interest to public
opinion, they considered that it prejudiced the
presumption of innocence in respect of G.M. The
publication of the book just a few days after the
death of François Mitterrand had given it a certain
commercial and media impact, thereby increasing the
prejudice sustained by G.M. Moreover, the affair had
been a very sensitive one and the book had contained
precise reproductions of a number of documents from
the case file.
28. In the Government's
view, the interference was in fact proportionate to
the aim pursued. The prohibition on producing
documents from an investigation file was limited to
the period of the judicial investigation itself and
covered only the acts of handling and disclosure of
actual documents from the case file; therefore it did
not prevent journalists from imparting information on
a case that was the subject of an ongoing judicial
investigation or from engaging in their own
investigations, interviewing parties to the
proceedings, witnesses or lawyers, or even from making
critical comments about judicial activity.
29. The Government
lastly considered that the present case had to be
distinguished from that of Fressoz and Roire (cited
above). The secrecy of the judicial investigation and
respect for the presumption of innocence, which
protected collective and public interests, could not
be placed on the same footing as confidentiality in
tax matters, which protected purely private interests.
Moreover, the French courts had adduced sufficient
reasons in support of their decisions after a precise
examination. The public's right to information on the
“Elysée eavesdropping” affair had not been
impaired, the publication of the book had continued
and no copies had been seized. The public had,
moreover, continued to be informed extensively by the
media. In addition, the applicants had been given a
“token sentence”, far less than the statutory
maximum.
2. The Court's
assessment
30. The Court observes
that the applicants were ordered to pay a fine and
damages on account of the use and reproduction in
their book of elements from the judicial investigation
file. It is not in dispute that the applicants
sustained “interference” with their right to
freedom of expression under Article 10 of the
Convention. Such interference will be in breach of
Article 10 unless it fulfils the requirements of
paragraph 2 of that Article. It therefore remains to
be determined whether the interference was “prescribed
by law”, pursued one or more of the legitimate aims
referred to in that paragraph and was “necessary in
a democratic society”.
(a) “Prescribed
by law”
31. The Court notes that
the offences with which the applicants were charged
had been provided for, like the penalties imposed, in
the Criminal Code. Moreover, the applicants did not
dispute the foreseeability and accessibility of the
applicable statutory provisions. The interference was
thus prescribed by law.
(b) Legitimate aim
32. The Court observes
that the domestic courts based their decisions on a
breach of professional confidence or of the secrecy of
the judicial investigation. The interference thus had
the aim, among others, of guaranteeing respect for the
right of a person who had not yet stood trial to be
presumed innocent. It also had the aim of ensuring the
proper administration of justice by preventing any
extraneous influence on that administration. These
aims correspond to the protection of “the reputation
or rights of others” and to the maintaining of “the
authority and impartiality of the judiciary”, in so
far as the latter safeguard has been construed as
encompassing the rights enjoyed by individuals as
litigants in general (see Ernst and Others v. Belgium,
no. 33400/96, § 98, 15 July 2003).
Accordingly, the Court considers
that the reasons adduced by the domestic courts were
consonant with the legitimate aim of protecting G.M.'s
right to a fair trial, with due respect for
presumption of innocence.
(c) “Necessary
in a democratic society”
(i) Reminder of
general principles
33. Freedom of
expression constitutes one of the essential
foundations of a democratic society and the safeguards
to be afforded to the press are therefore of
particular importance (see, among other authorities,
Jersild v. Denmark, judgment of 23 September
1994, Series A no. 298, p. 23,
§ 31; Worm v. Austria, judgment of 29 August
1997, Reports of Judgments and Decisions 1997‑V,
p. 1550-51, § 47; and Fressoz and Roire,
cited above, § 45).
34. The press plays an
essential role in a democratic society. Although it
must not overstep certain bounds, in particular in
respect of the reputation and rights of others and the
need to prevent the disclosure of information received
in confidence, its duty is nevertheless to impart –
in a manner consistent with its obligations and
responsibilities – information and ideas on all
matters of public interest (see De Haes and Gijsels v.
Belgium, judgment of 24 February 1997, Reports 1997‑I,
pp. 233-234, § 37; Bladet Tromsø and
Stensaas v. Norway [GC], no. 21980/93,
§ 62, ECHR 1999‑III; Thoma v. Luxembourg,
no. 38432/97, §§ 43-45, ECHR 2001‑III;
and Tourancheau and July v. France, no. 53886/00,
§ 65, 24 November 2005).
35. In particular, it
would be inconceivable to consider that there can be
no prior or contemporaneous discussion of the subject
matter of judicial proceedings elsewhere, be it in
specialised journals, in the general press or amongst
the public at large. Not only do the media have the
task of imparting such information and ideas: the
public also has a right to receive them. However, it
has to be taken into account that everyone is entitled
to the enjoyment of the guarantees of a fair trial set
out in Article 6 § 1 of the Convention, which in
criminal proceedings include the right to an impartial
tribunal (Tourancheau and July, cited above, § 66).
As the Court has already had occasion to point out,
“[t]his 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” (ibid., and Worm,
cited above, § 50).
36. As a matter of
general principle, the “necessity” for any
restriction on freedom of expression must be
convincingly established. Admittedly, it is in the
first place for the national authorities to assess
whether there is a “pressing social need” for the
restriction and, in making their assessment, they
enjoy a certain margin of appreciation. In the present
context of the press, the national margin of
appreciation is circumscribed by the interest of
democratic society in ensuring and maintaining a free
press. Similarly, that interest will weigh heavily in
the balance in determining, as must be done under
paragraph 2 of Article 10, whether the
restriction was proportionate to the legitimate aim
pursued (see, to the same effect, Goodwin v. the
United Kingdom, judgment of 27 March 1996, Reports
1996‑II, pp. 500-501, § 40; Worm,
cited above, § 47; and Bladet Tromsø and Stensaas,
cited above, § 59).
37. The Court's task, in
exercising its supervisory function, is not to take
the place of the national authorities but rather to
review under Article 10 the decisions they have
taken pursuant to their power of appreciation. In so
doing, the Court must look at the “interference”
complained of in the light of the case as a whole and
determine whether the reasons adduced by the national
authorities to justify it are “relevant and
sufficient” (see, among other authorities, Goodwin,
cited above, and Du Roy and Malaurie v. France,
no. 34000/96, § 27, ECHR 2000‑X).
Also of relevance for the balancing of competing
interests which the Court must carry out is the fact
that under Article 6 § 2 of the Convention
individuals have a right to be presumed innocent of
any criminal offence until legally proved guilty (see
Du Roy and Malaurie, cited above, § 34, and Pedersen
and Baadsgaard v. Denmark [GC], no. 49017/99,
§ 78, ECHR 2004‑XI).
38. It is therefore for
the Court to determine whether the interference
complained of met a “pressing social need”,
whether it was proportionate to the legitimate aim
pursued and whether the reasons adduced by the
national authorities to justify it appear “relevant
and sufficient”.
(ii) Application
to the present case
39. The Court observes
at the outset that the subject of the book was an
issue of considerable public interest. The book made a
contribution to a matter that was an affair of state,
as the Government acknowledged, and of interest to
public opinion, providing certain information and
considerations about the prominent figures whose
telephone lines had been illegally monitored, about
the conditions in which the operations had taken place
and about the identity of the instigators. It is
moreover noteworthy that the list of the “two
thousand individuals under surveillance” included
the names of numerous figures who were particularly
prominent in the media.
40. The Court reiterates
that Article 10 § 2 of the Convention leaves little
scope for restrictions on freedom of expression in the
area of political speech or in matters of public
interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95,
§ 61, ECHR 1999‑IV). Furthermore, the
limits of acceptable criticism are wider as regards a
politician as such than as regards a private
individual. Unlike the latter, the former inevitably
and knowingly lays himself open to close scrutiny of
his every word and deed by both journalists and the
public at large, and he must consequently display a
greater degree of tolerance (see Lingens v. Austria,
judgment of 8 July 1986, Series A no. 103,
p. 26, § 42; Incal v. Turkey, judgment of 9
June 1998, Reports 1998‑IV, p. 1567,
§ 54; Feldek v. Slovakia, no. 29032/95,
§ 74, ECHR 2001‑VIII; and Brasilier v.
France, no. 71343/01, § 41, 11 April 2006).
The promotion of free political debate is a
fundamental feature of a democratic society. The Court
attaches the highest importance to freedom of
expression in the context of political debate and
considers that very strong reasons are required to
justify restrictions on political speech. Allowing
broad restrictions on political speech in individual
cases would undoubtedly affect respect for freedom of
expression in general in the State concerned (see
Feldek, cited above, § 83). In the present case,
the speech complained of concerned G.M., one of
President François Mitterrand's closest aides.
Although G.M., who initiated the proceedings and
judgment against the applicants, could not himself be
described, strictly speaking, as a politician, he
nevertheless had all the characteristics of an
influential public figure, being clearly involved in
political life and at the highest level of the
executive.
41. Not only does the
press have the task of imparting such information and
ideas: the public also has a right to receive them (see,
among many other authorities, Observer and Guardian v.
the United Kingdom, judgment of 26 November 1991,
Series A no. 216, p. 30, § 59;
Jersild, cited above, p. 23, § 31; and De Haes
and Gijsels, cited above, p. 234, § 39). This was
particularly true in the present case, concerning as
it did an illegal system of telephone tapping and
recording directed against many prominent figures from
civil society and organised at the highest echelon of
the State. The revelation of these facts aroused a
considerable degree of emotion and concern among
public opinion. The offending book, like reports on
court cases, satisfied a concrete and sustained public
demand in view of the increasing interest shown
nowadays in the day-to-day workings of the courts. The
public therefore had a legitimate interest in the
provision and availability of information about these
proceedings and, in particular, about the facts
reported in the book.
42. The importance of
the media's role in the area of criminal justice is,
moreover, very widely recognised. In particular, the
Court has previously found that “[p]rovided that it
does not overstep the bounds imposed in the interests
of the proper administration of justice, reporting,
including comment, on court proceedings contributes to
their publicity and is thus perfectly consonant with
the requirement under Article 6 § 1 of the Convention
that hearings be public” (Worm, cited above, § 50).
The Council of Europe's Committee of Ministers, for
its part, has adopted Recommendation Rec(2003)13 on
the provision of information through the media in
relation to criminal proceedings. It rightly points
out that the media have the right to inform the public
in view of the public's right to receive information,
and stresses the importance of media reporting on
criminal proceedings in order to inform the public and
ensure public scrutiny of the functioning of the
criminal justice system. In addition, the appendix to
that Recommendation states that the public must be
able to receive information about the activities of
judicial authorities and police services through the
media and that journalists must therefore be able to
report freely on the functioning of the criminal
justice system.
43. Admittedly, those
who exercise freedom of expression, including
journalists, undertake “duties and responsibilities”
the scope of which depends on their situation and the
technical means they use (see, mutatis mutandis,
Handyside v. the United Kingdom, judgment of 7
December 1976, Series A no. 24, p. 23,
§ 49 in fine). In the present case the domestic
courts considered, in view of the nature of the
documents reproduced in the book or used in support of
certain passages in the book, that the authors, as
experienced journalists, could not have been unaware
that the said documents came from the judicial
investigation file and were protected, depending on
the person who instigated their disclosure, by the
secrecy of the judicial investigation or by a duty of
professional confidence. While recognising the vital
role played by the press in a democratic society, the
Court emphasises that journalists cannot, in principle,
be released from their duty to abide by the ordinary
criminal law on the basis that Article 10 affords them
protection. Indeed, paragraph 2 of Article 10 defines
the boundaries of the exercise of freedom of
expression. It falls to be decided whether, in the
particular circumstances of the case, the interest in
the public's being informed outweighed the “duties
and responsibilities” the applicants had as a result
of the suspect origin of the documents that had been
transmitted to them.
44. The Court must more
specifically determine whether the aim of protecting
the secrecy of a judicial investigation provided
relevant and sufficient justification for the
interference. It is legitimate for special protection
to be afforded to the secrecy of a judicial
investigation, in view of the stakes of criminal
proceedings, both for the administration of justice
and for the right of persons under investigation to be
presumed innocent. However, in the circumstances of
the present case, the Court considers that, at the
time when the offending book was published, in January
1996, in addition to there being very wide media
coverage of the so-called “Elysée eavesdropping”
case, it was already publicly known that G.M. had been
placed under investigation in this case, in the
context of a pre-trial judicial investigation which
had started about three years earlier, and which
ultimately led to his conviction and suspended prison
sentence on 9 November 2005, that is to say just
over nine years and nine months after the book was
published. Moreover, the Government have failed to
show how, in the circumstances of the case, the
disclosure of confidential information could have had
a negative impact on G.M.'s right to the presumption
of innocence or on his conviction and sentence almost
ten years after that publication. In actual fact,
following the publication of the impugned book and
while the judicial investigation was ongoing, G.M.
regularly commented on the case in numerous press
articles. In those circumstances, the protection of
the information on account of its confidentiality did
not constitute an overriding requirement.
45. In this connection
it is noteworthy that, while the applicants'
conviction for the offence of handling was based on
the reproduction and use in their book of documents
which had come from the investigation file and which,
accordingly, were found to have been communicated in
breach of the secrecy of the judicial investigation or
in breach of professional confidence, that conviction
inevitably concerned the disclosure of information. It
is open to question, however, whether there was still
any need to prevent disclosure of information that was
already, at least partly, available to the public (see
Weber v. Switzerland, judgment of 22 May 1990, Series A
no. 177, p. 23, § 51, and Vereniging
Weekblad Bluf! v. the Netherlands, judgment of 9 February
1995, Series A no. 306‑A, p. 15,
§ 41) and might already have been known to a
large number of people (see Fressoz and Roire, cited
above, § 53) having regard to the media coverage
of the case, on account of the facts and of the
celebrity of many of the victims of the telephone
tapping in question.
46. The Court further
considers that it is necessary to take the greatest
care in assessing the need, in a democratic society,
to punish journalists for using information obtained
through a breach of the secrecy of an investigation or
a breach of professional confidence when those
journalists are contributing to a public debate of
such importance and are thereby playing their role as
“watchdogs” of democracy. Article 10 protects the
right of journalists to divulge information on issues
of public interest provided that they are acting in
good faith and on an accurate factual basis and
provide “reliable and precise” information in
accordance with the ethics of journalism (see Goodwin,
cited above, § 39; Fressoz and Roire, cited above,
§ 54; and Colombani and Others v. France, no. 51279/99,
§ 65, ECHR 2002‑V). In the present case,
it transpires from the applicants' undisputed
allegations that they acted in accordance with the
standards governing their profession as journalists,
since the impugned publication was relevant not only
to the subject matter but also to the credibility of
the information supplied, providing evidence of its
accuracy and authenticity (see Fressoz and Roire,
cited above, § 55).
47. Furthermore, as
regards the penalties imposed, the Court reiterates
that the nature and severity of the penalty are also
factors to be taken into account when assessing the
proportionality of interference (see Sürek (no. 1),
cited above, § 64; Paturel v. France, no. 54968/00,
§ 47, 22 December 2005; and Brasilier,
cited above, § 43).
48. The Court first
notes that the two authors were fined EUR 762.25 each
and were also ordered jointly to pay EUR 7,622.50 in
damages to G.M. In addition, the applicant company was
found to be civilly liable. However, no order to
destroy or seize the book was issued and its
publication was not prohibited (see Paturel, cited
above, § 48). That being said, the amount of the
fine, although admittedly fairly moderate, and the
award of damages in addition to it, do not appear to
have been justified in the circumstances of the case (see
Brasilier, cited above, § 3, and Paturel, cited above,
§ 49). Moreover, as the Court has stated on numerous
occasions, interference with freedom of expression
might have a chilling effect on the exercise of that
freedom (see, mutatis mutandis, Cumpǎnǎ and
Mazǎre v. Romania [GC], no. 33348/96,
§ 114, ECHR 2004‑XI) – an effect that
the relatively moderate nature of a fine would not
suffice to negate.
49. In conclusion, the
Court considers that the judgment against the
applicants constituted a disproportionate interference
with their right to freedom of expression and that it
was therefore not necessary in a democratic society.
Accordingly, there has been a
violation of Article 10 of the Convention.
II. ALLEGED VIOLATION
OF ARTICLE 6 § 2 OF THE CONVENTION
50. The applicants
further complained, additionally relying on Article 6
§ 2 of the Convention, that the domestic courts had
failed to respect the principle of presumption of
innocence since, in their view, no evidence had been
adduced to show that the documents had come into their
possession fraudulently. Article 6 § 2 reads as
follows:
“Everyone charged with a
criminal offence shall be presumed innocent until
proved guilty according to law.”
51. In view of its
finding of a violation under Article 10 of the
Convention, the Court considers that the complaint
under Article 6 § 2, which should be declared
admissible, is based on the same facts and that
therefore no separate question arises under Article 6
§ 2 of the Convention.
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
52. Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the
Protocols thereto, and if the internal law of the
High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary,
afford just satisfaction to the injured party.”
53. As the applicants
did not submit any claims for just satisfaction, the
Court considers that no award should be made to them
under that head (see, among other authorities,
Brasilier, cited above, § 46).
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Declares the
application admissible;
2. Holds that there
has been a violation of Article 10 of the
Convention;
3. Holds that no
separate question arises under Article 6 § 2 of the
Convention.
Done in French, and notified in
writing on 7 June 2007, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Stanley Naismith Boštjan
M. Zupančič
Deputy Registrar President
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