PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 12 April 1989 and by the Government of the Swiss Confederation (“the Government“) on 3 July 1989, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 11034/84) against Switzerland lodged with the Commission under Article 25 (art. 25) by a national of that State, Mr Franz Weber, on 15 May 1984. 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 response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mrs D. Bindschedler-Robert, the elected judge of Swiss nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 29 April 1989, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr B. Walsh, Mr R. Macdonald, Mr C. Russo, Mr J. De Meyer and Mr I. Foighel (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure (Rule 37 § 1). In accordance with the order made in consequence on 6 July 1989, the registry received the Government’s memorial, on 13 October, and the applicant’s memorial, on the 16th. 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.

Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 6 July 1989 that the oral proceedings should open on 23 January 1990 (Rule 38).

The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. 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

Mr Franz Weber, a Swiss journalist, lives at Clarens, in the Canton of Vaud.

On 2 April 1980 the applicant and one of the associations he runs, Helvetia Nostra, lodged a complaint alleging defamation against R.M., who had written a letter published in the letters column of the newspaper L’Est vaudois under the headline “Franz Weber is fooling you“. The letter contained the following passages: “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. ...“

Interviewed by the investigating judge (juge informateur) of the Vevey-Lavaux district, R.M. acknowledged the virulence of these accusations and attributed it to a nervous breakdown he had suffered at the time. Mr Weber refused all conciliation. In order to establish the truth of his allegations, R.M. then requested Mr Weber to produce a number of documents relating to his and his associations’ financial position.

On 4 November 1980 the investigating judge ordered disclosure of the Helvetia Nostra association’s and the Franz Weber Foundation’s articles and their accounts for the previous two financial years. On 22 January 1981, having still not received them, he ordered their sequestration, but on 13 April 1981 he had to renew the order, as the applicant had not complied. 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.

The applicant was dissatisfied with the way in which the investigating judge was proceeding and on 1 March 1982 he lodged a criminal complaint alleging misuse of official authority and coercion, but the investigating judge of the Canton of Vaud refused to take any action, whereupon Mr Weber challenged the Cantonal Court en bloc.

R.M. was charged with defamation (Article 173 of the Criminal Code) and on 1 March 1982 was committed for trial at the Vevey district police court. He appealed against the order committing him for trial, but the Indictment Division (tribunal d’accusation) dismissed the appeal on 25 May 1982.

On 2 March 1982 at a press conference in Lausanne the applicant informed the public that defamation proceedings had been taken against R.M., that orders had been made for the production and then for the sequestration of the associations’ accounts and that these had been handed over under seal. He also stated that he had lodged a challenge and a complaint against the investigating judge. Mr Weber had already divulged the first three items of information at a press conference in Berne on 11 May 1981, during which he denounced “the plot hatched against him by the Vaud authorities in order to intimidate him“.

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

On 3 March 1982 the daily newspapers Gazette de Lausanne, 24 heures and Tribune/Le Matin reported what the applicant had said.

Under Article 185 § 3 of the Vaud Code of Criminal Procedure, the President of the Criminal Cassation Division of the Vaud Cantonal Court commenced of his own motion a summary investigation for breach of the confidentiality of a judicial investigation. In a letter of 10 March 1982 he ordered Mr Weber to provide information within ten days about what exactly he said on 2 March 1982. 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.

On 27 April 1982 the President of the Cassation Division imposed a fine of 300 Swiss francs on him, together with a probationary period of a year for the purposes of deletion of the fine from the cantonal register. He based his decision on the following grounds: “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.

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’.

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.

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

On 15 October 1982 an appeal that Mr Weber brought against this decision was unanimously dismissed by the Criminal Cassation Division sitting in private (under Article 431 §§ 2 and 3 of the Vaud Code of Criminal Procedure), on the following grounds: “... 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

Mr Weber lodged a public-law appeal with the Federal Court. He relied on Articles 10 and 6 (art. 10, art. 6) of the Convention. In his view, Article 6 (art. 6) applied because of the criminal nature of the fine, which under Article 18a of an Order of 23 January 1982 was convertible into a custodial sentence.

On 16 November 1983 the Federal Court dismissed the appeal. It noted in particular: “...

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.