CASE OF FRESSOZ AND ROIRE v. FRANCE
Violation of Art. 10;No separate issue under Art. 6-2;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Luzius Wildhaber;Paul Mahoney
8. Mr Roger Fressoz and Mr Claude Roire, who are French nationals, lived in Paris at the material time. Mr Fressoz was born in 1921 and is a former publishing director of the weekly satirical newspaper Le Canard enchaîné. Mr Roire was born in 1939 and is a journalist on Le Canard enchaîné. 9. September 1989 was a period of industrial unrest within the Peugeot motor company. The workforce's demands included pay rises, which the management, led by the company chairman and managing director Mr Jacques Calvet, refused to award. 10. On 27 September 1989, Le Canard enchaîné published an article by Mr Roire under the headline: “Calvet turbo-charges his salary” with the subhead: “His tax forms reveal more than he does. The Peugeot boss has given himself a 45.9% rise over the last two years.” The article itself included the following: “When Jacques Calvet appeared on the Antenne 2 programme 'L'heure de vérité' in October 1988, he refused to answer a question about his pay. This is seen as a public-relations blunder on the part of the Peugeot boss, but the Canard is now in a position to put it right, thanks to the famous M.D.'s three most recent tax-assessment forms, which have come into our hands by chance. At the time of the broadcast, he was earning 185,312 francs net per month. These documents show that, between 1986 and 1988, Calvet's total salary (plus benefits in kind and sickness benefit) rose by 45.9%. According to Peugeot's own figures, the average pay of the group's 158,000 workers rose by 6.7% over the same two years – in other words, almost seven times less than the boss's. M.D.'s blues Calvet has turned Peugeot around in spectacular style, but in a recent interview on Antenne 2 he said he was under stress due to his group's position in the face of the Japanese offensive. It would appear that this painful psychological crisis has not prevented him from swelling his income – though it should be noted that Calvet is far from Number 1 in the hit-parade of chief executives' salaries. In 1987 he awarded himself a 17% increase in his annual pay, bringing it to 1,786,171 francs – that is, 148,847 francs a month. Why? Probably because the Revenue had grabbed a big slice of his previous year's income. And this dreadful tax-pay spiral continued its destructive course the following year. In 1988, in order to scrape by, Calvet was forced to give himself another rise, of 24%. His salary that year came to 2,223,747 francs, i.e. 185,312 francs a month after deductions ...” The article was illustrated by a box reproducing a photocopy of that part of each of the three notices of assessment to tax which detailed Mr Calvet's “total taxable income” and showed the amounts he had received by way of “salary, benefits in kind and sickness benefit”. Each of the three totals was circled in pencil. 11. On 2 October 1989 Mr Calvet lodged a criminal complaint against a person or persons unknown, together with an application to join the proceedings as a civil party claiming damages, with the senior investigating judge at Paris tribunal de grande instance. He submitted that the events in question must have involved the unlawful removal and possession of the originals or copies of documents normally held by the tax authorities and amounted to the offences of misappropriation of deeds or documents by a public servant, breach of professional confidence, misappropriation of documents for the time needed to reproduce them and handling unlawfully obtained documents. 12. On 5 October 1989 the public prosecutor applied to the investigating judge for an investigation to be opened into allegations of theft, breach of professional confidence, unlawful removal of deeds or documents by a public servant and handling unlawfully obtained goods. 13. On 25 October 1989 the Minister for the Budget also lodged a criminal complaint, together with an application to join the proceedings as a civil party claiming damages, against a person or persons unknown for unlawful removal of government documents and breach of professional confidence. On 11 December 1989 the public prosecutor requested that a further investigation be opened. 14. In the course of the investigation, an analysis of the computer reference number on the copy documents in Mr Roire's possession revealed that they were photocopies of the part of the tax-assessment notice which is kept by the tax authorities and is not intended to leave their premises. An inspection of the premises confirmed that the locks on the cabinets containing the documents had not been forced and that the alarm protecting the premises outside working hours had not been activated. An examination of the original of Mr Calvet's tax assessment for 1988 revealed a palm-print belonging to the Divisional Director of Taxes. However, it was asserted that this person had called up the relevant tax file on 27 September 1989 at the request of the Head of the Revenue and the Director of Taxes for the département. The person or persons responsible for unlawfully removing the document from the tax authorities' premises could not be identified, with the result that no one was ever charged under that head. 15. On 8 March 1991 the applicants were charged with handling copies of notices of assessment to tax obtained through a breach of professional confidence, unlawful removal of deeds or documents and theft. 16. On 20 December 1991 the public prosecutor filed a report recommending that no one should be charged with the offences of theft or breach of professional confidence, that all the charges against the first applicant should be dropped and that the second applicant should be committed for trial before the Criminal Court on charges of handling photocopies of Mr Calvet's tax assessments obtained through a breach of professional confidence by an unidentified tax official. 17. On 27 January 1992 the investigating judge ordered that, as no culprit had been identified, the proceedings for theft and breach of professional confidence should be discontinued. The judge committed both applicants for trial before the Criminal Court on charges of handling confidential information concerning Mr Calvet's income obtained through a breach of professional confidence by an unidentified tax official and of handling stolen photocopies of Mr Calvet's tax assessments. 18. The applicants submitted two arguments in their defence: first, that the conditions for publishing directors to be criminally liable, laid down in section 42 of the Freedom of the Press Act of 29 July 1881 (see paragraph 25 below) did not apply and, second, that the elements of the offences with which they had been charged, as defined in Article 460 of the Criminal Code (see paragraph 27 below), were not made out in their case. 19. At the trial Mr Fressoz stated that the first time he had seen the extracts from the tax assessments printed in the newspaper was when he looked at the proofs before personally passing the article for press. He said he had asked Mr Roire “whether his documents were sound in journalistic terms”, that is to say, “whether the information was accurate and had been checked”. He acknowledged that, as a general rule, passing copy for press was the responsibility of an editorial assistant, who, “if there is a problem, consults the editor and, in the last resort, the publishing director”. The second applicant stated that the photocopies of the tax assessments had been sent anonymously in an envelope addressed to him by name, about a fortnight before they were used in the paper. He explained that he had “checked the plausibility” of the information in the documents, in particular by looking up the level of Mr Calvet's remuneration in specialist works including Fortune France. He said that he had also checked with various persons to ensure that the documents were photocopies of “genuine” tax-assessment notices. He specified that he had also verified that they really were tax-authority documents, adding that once it appeared that there was no proof that they had been obtained unlawfully, “the overriding consideration was the documents' significance”. 20. In a judgment of 17 June 1992, Paris Criminal Court acquitted the applicants, holding that the principal offences of theft and breach of professional confidence had not been made out because it had proved impossible to identify who had disclosed the documents or to establish the circumstances in which the offences had been committed. In relation to the offence of breach of professional confidence, the court held as follows: “ ... In the instant case, while it has been established that the originals of the documents in question are notices of assessment to tax held on Mr Calvet's tax file, it cannot be inferred from this that the person guilty of wrongfully taking them for the time needed to photocopy them, or of disclosing them to third parties, or of divulging the information contained in them, necessarily fell within one of the categories of person defined in the above-mentioned provision [Article L. 103 of the Code of Tax Procedure]; since the tax authorities themselves have suggested that the perpetrator might be 'someone from outside' ... – whatever the security regulations at the time. The fact that the status and professional functions of the person responsible for the disclosure are unknown therefore rules out any possibility of proving one of the essential elements of the offence of breach of professional confidence. Consequently, there is no formal proof that this offence was committed, so that the charge against the defendants of handling the fruits of a breach of professional confidence has not been made out ...” In relation to the theft charge, the court held: “... In particular, it has not been shown that the person who originally copied the documents had any unlawful intention or had such an intention at the time of taking the documents. Hence, without further rehearsing the numerous questions remaining unanswered concerning how these documents found their way into Mr Roire's hands, we find that the elements of the offence of theft have not been sufficiently proved. Unless it can be precisely established that, in the first place, an act defined as a serious crime (crime) or other major offence (délit) was committed, and its elements can be made out, the prerequisite for an offence of handling is lacking, and the defendant must be acquitted.” 21. On 25 and 26 June 1992 respectively, the public prosecutor and the civil parties claiming damages appealed. 22. In a judgment of 10 March 1993, Paris Court of Appeal reversed the judgment and found the applicants guilty of handling photocopies of Mr Calvet's tax returns obtained through a breach of professional confidence by an unidentified tax official. Mr Fressoz and Mr Roire were sentenced to, respectively, fines of 10,000 and 5,000 French francs (FRF) and ordered, jointly and severally, to pay Mr Calvet FRF 1 by way of damages for non-pecuniary damage and FRF 10,000 by way of reimbursement of legal costs under Article 475-1 of the Code of Criminal Procedure. The Court of Appeal held as follows: “This Court cannot agree with the manner in which the court below analysed the facts. The results of the investigations show that only a tax official familiar with the department could have leaked the documents, since no outside party had requested Jacques Calvet's file and that file was found, on the morning of 27 September 1989, in its normal condition, with the documents filed according to the particular practice of Chaillot Tax Office. It is certain that a third party, someone who was not a civil servant or was from outside the tax department, could not – without attracting attention – have taken documents filed in two separate places in the file, photographed or photocopied them and put them back in exactly the right place, given that the file is kept in a metal cabinet in a locked room to which there is access only for authorised persons. Contrary to the court below, we therefore hold that, in this case, it has been established that the offence of breach of professional confidence was committed, and that the fact that the culprit has not been identified is irrelevant. Mr Roire told the investigating judge that the photocopies of Jacques Calvet's tax notices were sent to him anonymously at the newspaper, in an envelope addressed to him personally. He confirmed that he had questioned various people in order to ensure that they were indeed copies of genuine tax documents. Mr Roire's article, containing a reproduction of the documents in question, was submitted to Roger Fressoz, the publishing director of Le Canard enchaîné, who, personally, passed it for press. Mr Fressoz told the investigating judge that he saw the extracts from Jacques Calvet's tax notices at that point. He explained that – as a general rule – copy is passed for press by the senior editorial assistant, who, if there is a problem, consults the editor and, in the last resort, himself. The offence of handling the fruits of a breach of professional confidence was characterised, in the instant case, by the publication of documents obtained in breach of the provisions of Article L. 103 of the Code of Tax Procedure and Article 378 of the Criminal Code and was committed by Mr Roire and Mr Fressoz given that, in the light of the nature of the documents and of the checks which Mr Roire says he carried out, the defendants must have known that those documents came from a tax file. Moreover, this explains why the article was passed for press by Mr Fressoz, the publishing director, and not an editorial assistant or the editor. It is worth recalling that, although Mr Fressoz was not the person to whom the documents were sent, he saw them before giving his authorisation to publish the article reproducing extracts from them. Therefore, both the actus reus and the mens rea of the offence of handling the fruits of a breach of professional confidence are present in his case as well as in that of the author of the article, Mr Roire ...” 23. Mr Fressoz and Mr Roire appealed to the Court of Cassation on points of law. In their grounds of appeal (and subsequently in a reply to Mr Calvet's pleadings), they submitted two arguments. As the first ground of appeal, Mr Fressoz argued that, since he was a publishing director as defined in the Act of 29 July 1881, the lower courts were not empowered to convict him of a handling offence under the general criminal law, but only of one of the offences specially defined in that Act. In his reply, he pointed out that the other side was confusing “handling” with “publishing”, submitting that Mr Calvet was concerned, not by the handling but by the publication – something which did not contravene any provision of the press laws, so that the prosecution had resorted to another, inappropriate, charge, that of handling. As the second ground, both applicants argued that the elements of the offence with which they had been charged, as defined in the relevant domestic law, including sections 5, 6 and 42 of the 1881 Act, were not made out in their case. On that point, they maintained that Mr Calvet's tax assessments were not covered by a duty to preserve confidentiality – so that there could have been no breach of such a duty – but contained information which was available to the public. They argued that a journalist could not lawfully be convicted of “handling information” and submitted that the Court of Appeal had failed to demonstrate how the actus reus and mens rea of the offence with which they had been charged – namely possession or control of the thing in question and knowledge that it had been obtained unlawfully – were made out in their case. With regard to the fact that the Court of Appeal had deduced that Mr Roire must have known that the documents had been obtained unlawfully since, when he had received them, he had verified that they were indeed copies of tax assessments, Mr Roire submitted that he had “merely fulfilled his duty as a journalist: before publishing information, he had checked that it was genuine, as required by the obligation on all journalists to exercise caution and verify sources”. 24. The Court of Cassation dismissed the appeal on 3 April 1995, holding as follows: “ ... The grounds [of the Court of Appeal's judgment], following as they do from findings of fact which are not subject to review by this Court, show that the appellate court, having established that the defendants knowingly had in their possession or control documents obtained through a breach of professional confidence, contrary to Article L. 103 of the Code of Tax Procedure, did not misdirect themselves in law as alleged [by the appellants]. In particular, the Court of Appeal cannot be held to have misinterpreted Article 460 of the Criminal Code as it stood at the time, in which the only offence defined is that of handling stolen goods, since, although it found the applicants guilty of handling unlawfully obtained photocopies, it rightly dismissed the charge of handling unlawfully obtained information on which the journalists were committed for trial before the Criminal Court. Information, whatever its nature or source, is covered neither by Article 460 nor by Article 321-1 of the Criminal Code which came into force on 1 March 1994, so that, if a problem arose – that is, if certain information were published and that publication were challenged by the persons concerned – the only legal provisions governing it would be those specifically concerning the freedom of the press or of audiovisual communication ...” 25. The relevant sections of the Freedom of the Press Act of 29 July 1881 provide as follows: “Anyone may print or sell books and other publications”. “Any newspaper or periodical may be published without prior authorisation or the payment of any security, provided that the declaration required by section 7 has been made”. “All press publications must have a publishing director ...” “The following persons shall be liable, as principals and in the following order, to penalties for serious crimes (crimes) or other major offences (délits) committed through the press: (1) publishing directors or publishers, whatever their profession or title and, in the circumstances defined in section 6(2), joint publishing directors; (2) in the absence of any of the foregoing, the actual offenders; ...” 26. The relevant Articles of the Code of Tax Procedure provide as follows:  Article L. 103 “The duty to preserve professional confidentiality, as defined in Article 378 of the Criminal Code, applies to any person who is required, in the course of his duties or exercise of his powers, to take any action concerning the assessment, inspection or recovery of, or disputes over, any taxes, duties, imposts or levies referred to in the General Tax Code. The duty shall cover all information obtained in the course of the above-mentioned operations.” Article L. 111-1 “A list of the persons liable for income tax or corporation tax shall be drawn up, distinguishing between the two types of tax as levied in each municipality. ... The list shall be kept by the Revenue Department for each area and shall be available for consultation by the taxpayers in that area. The Department may order it to be posted. ... The list concerning income tax shall also show, in the manner provided for by decree and for each taxpayer, the number of dependants' allowance tax units applicable, the amount of tax payable and the total tax credits. ... Publishing or otherwise disseminating the lists referred to above or any information relating to those lists which concerns a named person is forbidden on pain of a tax fine under Article 1768 ter of the [General Tax] Code”. 27. At the material time, Article 460 of the Criminal Code provided: “Anyone who knowingly handles any goods (or any part thereof) taken, misappropriated or obtained by means of a serious crime (crime) or other major offence (délit) shall be liable to between three months' and five years' imprisonment or a fine of between FRF 10,000 and FRF 2,500,000 or both. The amount of the fine may be increased to a sum exceeding FRF 2,500,000 but not exceeding half the value of the goods handled ...”