CASE OF STOLL v. SWITZERLAND
Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient
Nicolas Bratza
7. In 1996 and 1997 negotiations were conducted between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts. 8. Against that background Carlo Jagmetti, who was the Swiss ambassador to the United States at the time, drew up on 19 December 1996 a “strategy paper”, classified as “confidential”, which was faxed to Thomas Borer, who was the head of the task force that had been set up to deal with the question within the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals and to the Swiss diplomatic missions in Tel Aviv, New York, London, Paris and Bonn. 9. The applicant obtained a copy. It seems clear that he could not have acquired possession of the document without a breach of professional confidence by a person whose identity remains unknown. On Sunday 26 January 1997 the Zürich Sunday newspaper the Sonntags-Zeitung published the following article by the applicant (translation): “Mr Carlo Jagmetti insults the Jews Secret document: 'Our adversaries are not to be trusted' by [the applicant] Berne/Washington – Another scandal involving the Swiss ambassador to the United States: Carlo Jagmetti, in a confidential strategy paper on the assets of Holocaust victims, talks of the 'war Switzerland must wage', and of 'adversaries' who 'are not to be trusted'. The paper is classified as 'confidential'. It was written by Carlo Jagmetti, Swiss ambassador to the United States. On 19 December the 64-year-old high-ranking diplomat in Washington sent the task force in Berne his views on what he described as a 'campaign against Switzerland'. This report has been obtained by the SonntagsZeitung, and is dynamite. In terms of its content, it is an unremarkable assessment of the situation. But the aggressive language used by Carlo Jagmetti has the effect of an electric shock on the reader. 'It is a war', writes the ambassador, 'a war Switzerland must wage, and win, on the external and the domestic fronts'. He describes Senator D'Amato and the Jewish organisations as 'adversaries', saying that 'most of our adversaries are not to be trusted'. In his paper, Carlo Jagmetti mentions the possibility of concluding an agreement, because 'the Jewish organisations and Senator D'Amato must be placated as a matter of urgency'. He uses the word 'deal' in this context. Ambassador Jagmetti suggests 'payment of a lump sum' in order to settle 'all Jewish claims once and for all'. Then, he writes, 'everyone will be happy'. Speaking of the 'external front', Carlo Jagmetti says that Switzerland should 'campaign systematically in political circles and in the media'. Relations with Jewish organisations should be 'cultivated in a friendly manner but without servility', with the help of a firm of lawyers, and a 'well-orchestrated public relations campaign [should be launched] including seminars and round-table sessions'. No comments on this strategy paper by the eminent diplomat – due to retire in the spring – were forthcoming yesterday either from Flavio Cotti [head of the Swiss diplomatic service] at the Federal Department of Foreign Affairs or from the task force headed by Thomas Borer. Carlo Jagmetti had no comment to make to this newspaper. Martin Rosenfeld, President of the Swiss Federation of Jewish Communities (SIG/FSCI) described Carlo Jagmetti's remarks as 'shocking and profoundly insulting'. He said he foresaw 'a difficult run-up to retirement' for Mr Jagmetti. 10. In the same edition of the Sonntags-Zeitung of 26 January 1997, another article by the applicant read (translation): “The ambassador in bathrobe and climbing boots puts his foot in it again An unusual public display for a diplomat ... and the strategy paper on unclaimed assets By [the applicant] Berne/Washington – Swiss ambassador Carlo Jagmetti constantly gets himself noticed on the diplomatic stage. With his insensitive remarks on the assets of Holocaust victims, he has thrown Swiss foreign policy into turmoil – and not for the first time. Early on Friday morning the temperature began to rise in the offices of the Swiss embassy in Washington. 'We do not comment on internal documents' said an embassy spokesman emphatically to this newspaper... By the following day, nevertheless, ... [an] editor on the [daily newspaper] Neue Zürcher Zeitung had already leapt to the defence of his close friend Carlo Jagmetti. Under the heading 'Leaks continue unabated', he announced that 'this balanced document, some parts of which may, of course, be wrongly construed, may be published this weekend'. Damage limitation, therefore, was the name of the game in Washington on Friday. Ambassador Carlo Jagmetti, who has represented Switzerland abroad for 34 years, was clearly aware of the explosive nature of his strategy paper, dated 19 December 1996, on the subject of unclaimed Jewish assets. In his paper, he talks about a 'war Switzerland must wage, and win, on the external and the domestic fronts'. He winds up with a flourish by observing: 'Most of our adversaries are not to be trusted'. The Swiss Embassy in Washington is however, experienced in crisis management. Carlo Jagmetti, who heads the embassy, regularly puts his foot in it. In 1993, a few months after moving into his office in the prestigious Cathedral Avenue, this senior diplomat committed his first faux pas. In an interview with the Schweizer Illustrierte, he complained about the American administration, saying 'I've observed a certain lack of courtesy'. Even Bill Clinton, who was said to 'burst out laughing sometimes at inopportune moments', was criticised during the interview. Apparently, Mr Clinton had 'kept [Carlo Jagmetti] waiting for four months' before he was accredited. And, according to the ambassador, it was legitimate to ask, on a general note, 'who [was] actually governing the United States'. Berne reprimanded the ambassador for his ill-chosen remarks and for an unconventional public appearance (Carlo Jagmetti and his wife had been pictured [in an article in the magazine Schweizer Illustrierte] in their bathrobes), but the ambassador did not prove much more reticent in his subsequent utterances. And in the highly topical debate concerning the assets of Holocaust victims, Carlo Jagmetti has also given the impression of somebody blundering onto the diplomatic stage in outsize boots. He rebuked the Holocaust survivor Gerda Beer in front of the assembled American press, saying that her claims were unfounded as her uncle had emptied the Swiss bank account in question. The incident-prone diplomat based his remarks, however, not on proven facts, but on unsubstantiated rumours which had been circulating. Berne was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage. These remarks, which have now been made public, are all the more embarrassing since the tension seemed to be easing. Only last Friday Senator D'Amato and the World Jewish Congress had for the first time welcomed Switzerland's agreeing to set up a fund for Holocaust victims. Swiss diplomats are now engaged in behind-the-scenes efforts to head off the impending crisis by stressing the fact that Carlo Jagmetti is due to retire shortly. In any event, they argue, Mr Jagmetti played only a minor role in the recent successful negotiations between Jewish organisations and the American Senator D'Amato. Carlo Jagmetti himself has declined to comment. He absented himself from the major press conference held by Senator D'Amato on Friday before the world's press. He was reportedly on holiday in Florida.” 11. A third article, which also appeared in the Sonntags-Zeitung on 26 January 1997 and was written by the editor Ueli Haldimann, was entitled “The ambassador with a bunker mentality”. On Monday 27 January 1997 the Zürich daily the Tages-Anzeiger reproduced lengthy extracts from the strategy paper in an article entitled “The finishing touches!”. Subsequently, another newspaper, the Nouveau Quotidien, also published extracts from the paper. 12. On 5 November 1998 the Zürich District Office (Statthalteramt des Bezirkes Zürich) fined the applicant 4,000 Swiss francs (CHF) for contravening Article 293 of the Swiss Criminal Code (see “Domestic law and practice” below) in publishing the articles entitled “Mr Carlo Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it again”. 13. On 22 January 1999, following an application by the applicant to have the decision set aside, the Zürich District Court (Bezirksgericht) convicted him of an offence under Article 293 § 1 of the Swiss Criminal Code, but reduced the amount of the fine to CHF 800. 14. In its decision the District Court, noting that prior to its publication by the applicant, the strategy paper had not been in the public domain, found that the issue of whether the content of the paper should ultimately be divulged was irrelevant. The document had been far from insignificant, as it contained an assessment of the delicate foreign-policy situation in which Switzerland found itself in relation to the assets of Holocaust victims deposited in Swiss banks. It outlined various strategies open to Switzerland in order to deal with this difficult situation. The District Court held that carefully worded evaluations and assessments, provided on a regular basis, were an essential part of the exchange and formation of opinion among ambassadors. That being so, even dissenting points of view were circulated internally. Article 293 of the Swiss Criminal Code was designed to ensure freedom to form opinions without undue outside influence. In the instant case, the document in question had been aimed at assisting the head of the task force set up by the Government to form his opinion, and would therefore have influenced the country's handling of the issue concerned. Given its nature, publishing an internal document of that kind could have devastating consequences. 15. As to the applicant's argument that the public had the right to be informed of points of view which were at variance with the official Swiss position, the District Court considered that the applicant had in reality sought to report on a document whose style he found offensive. He could have started a public debate on the issue without contravening Article 293 of the Swiss Criminal Code. Lastly, the District Court considered that this was not a matter of “minor importance” within the meaning of the third paragraph of that Article. By publishing the paper, the applicant had jeopardised Swiss foreign policy. 16. In determining the amount of the fine, the District Court took mitigating circumstances into account, notably the fact that the disclosure of the confidential document had not undermined Switzerland's very foundations. In addition, the applicant had published the article with the approval of his editor and the newspaper's legal department, and with the intention of starting an open debate on the subject. 17. The applicant lodged an appeal on grounds of nullity (Nichtigkeitsbeschwerde), which was dismissed by the Court of Appeal (Obergericht) of the Canton of Zürich on 25 May 2000. 18. The applicant lodged an appeal on grounds of nullity and a publiclaw appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht). He complained that a journalist could be convicted of an offence under Article 293 of the Swiss Criminal Code only in exceptional circumstances, namely if the secret published was of unusual importance and publishing it undermined the country's very foundations. He referred to the public interest in the remarks made by the Swiss ambassador and the role of journalists as watchdogs in a democratic society. 19. The Federal Court dismissed the applicant's appeals in two judgments dated 5 December 2000 (served on 9 January 2001) in which it upheld the decisions of the lower courts. The Federal Court considered in particular that the applicant, in submitting that Article 293 of the Swiss Criminal Code should apply only to breaches of confidentiality in matters of major importance, was in fact requesting that the legislative provision in question be amended. That was not within the jurisdiction of the Federal Court. Whether or not a fact was confidential depended not on the degree of public interest in the information, but on the content and subject matter of the fact in question. 20. Meanwhile, the Swiss Federal Council (Bundesrat) had requested the Swiss Press Council (Presserat) to examine the case. The Swiss Press Council acts as a complaints body for media-related issues. It is an institution under Swiss private law set up by four associations of journalists which formed a foundation (Stiftung) to organise and fund the activities of the Press Council. According to the Press Council rules, its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media. Its task is to uphold freedom of the press and freedom of information, and it adopts opinions, on its own initiative or in response to complaints, on issues concerning journalistic ethics. The Swiss Press Council has adopted a “Declaration on the rights and responsibilities of journalists” which is available on the Internet. Below is its opinion (Stellungnahme) of 4 March 1997 concerning the present case (no. 1/97, C.J./Sonntags-Zeitung) (translation): “II. Considerations ... 2. With regard to the publishing of confidential information, the following extracts from the Declaration on the rights and responsibilities of journalists are of relevance: (a) '[Journalists'] responsibility to the public [shall take precedence] over their responsibility ... towards the ... authorities ... in particular' (Preamble). (b) Journalists shall have free access 'to all the sources of their information and [shall have the] right to investigate without hindrance any facts which are in the public interest; objections of secrecy in public or private matters may be raised only in exceptional cases, with sufficient reasons given in each case' (point a. of the Declaration of rights). (c) Journalists shall publish only 'such information, documents [or] images whose origin is known to them; [they shall not suppress] information or essential elements [and shall not] distort any text, document, image ... or opinion expressed by another. [They shall] present unsubstantiated news items very clearly as such [and] make clear when pictures have been edited'. They shall comply with reasonable deadlines (point 3 of the Declaration of responsibilities). (d) Journalists shall not make use of 'unfair methods in order to obtain information, ... images or documents' (point 4 of the Declaration of responsibilities). (e) They shall respect 'editorial secrecy and shall not reveal the sources of information obtained in confidence' (point 6 of the Declaration of responsibilities). (f) They shall not accept 'any favours or promises which might compromise their professional independence or their ability to express their own opinions' (point 9 of the Declaration of responsibilities). ... 5. It must first be established whether diplomats' reports come under the heading of vital interests. The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by the Federal Council and the reports preceding such negotiations. These documents, they argue, merit greater protection than, for instance, expert reports or minutes of parliamentary committees. The Federal Department of Foreign Affairs and the Federal Council cannot form an accurate picture of international relations unless the ambassadors provide them with additional information, different to and more sensitive than that provided by the media. Diplomats also provide information they have obtained from confidential sources, behind the scenes or off the record. They need, for instance, to be able to express in plain language their views about violations of human rights and political relations in Iran, the involvement of leading Colombian politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the Kremlin. If, despite everything, reports of this kind are published, the ambassador concerned will almost automatically be declared persona non grata in the host country. If reports of this kind were to be published on a regular basis, ambassadors would no longer be able to report on everything that was going on. That would have an adverse impact on Swiss foreign policy, perhaps even paralysing it completely. And if everything were to be made public, Switzerland might just as well recall its diplomats and replace them with the media. In exercising their function as critic and watchdog, the media must always remain mindful of their responsibilities. This applies with particular force in the sphere of foreign policy, as the reports relating to foreign policy are also read abroad. If only for this reason, they are more sensitive than reports on domestic policy matters. Conversely, the representatives of the media argue that the function of the media as critic and watchdog is much the same in the foreign policy sphere as in other spheres. The tendency to invoke the national interest is particularly marked where foreign policy is concerned. This happened in Switzerland in the case of the closure of the Novosti agency and the revelations concerning the defects in the Panzer 68 tanks, and in the United States in the case of the Watergate and Pentagon Papers scandals. However, Swiss foreign policy is not a reserved area. When the media bow to the wishes of the Government, we are dangerously close to the kind of artificial neutrality we had during the Second World War. In all spheres, including foreign policy, it is argued, reforms occur only when the veil of secrecy is lifted. The Press Council acknowledges the importance of the principle that diplomatic correspondence should remain confidential. In the past, the Swiss media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view. Revelations in the foreign policy sphere have been the exception rather than the rule in Switzerland. Media bosses are clearly aware of the responsibilities inherent in the media's role as critic and watchdog in this sphere. At the same time, it should not be forgotten that revelations by the media in the field of foreign policy are commonplace in other countries, particularly in the United States, but also in the United Kingdom and Israel. Clearly, other governments and diplomats have long had to contend with this risk of revelations concerning foreign policy, and have learned to live with it. Whether they like it or not, the Swiss authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy, and in which revelations may come not just from the Swiss media but also from foreign media. An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate, particularly since diplomatic reports are regularly forwarded to a large number of authorities. There can be no doubt that the revelations in the Sonntags-Zeitung and the TagesAnzeiger were a source of embarrassment and problems for those responsible for Swiss foreign policy, but they did not restrict their room for manoeuvre substantially. Diplomatic reports are confidential in law, but when the conditions that allow confidential reports to be published are met, freedom of the press must take precedence (Opinion 2/94, Moser/Reimann parliamentary questions). 6. The Press Council must now examine whether the content of Mr Jagmetti's strategy paper is of such importance that it was appropriate to invoke the public interest, and whether it should have been published. In the view of Ueli Haldimann, editor of the Sonntags-Zeitung, the public interest lay in the fact that it was important to let people know how the Swiss ambassador in Washington perceived the complex issue of the assets of the Holocaust victims and the way Switzerland was coming to terms with its past, and the kind of aggressive language he used. According to Haldimann, his newspaper did not publish any leaked information unless the public interest was at stake. Although there were more leaks now than previously, they were not damaging in principle, and were often the only remaining means of putting a stop to harmful conduct. The representatives of other media also recognised the fact that Mr Jagmetti's paper was of public interest, as it shed important light on the Delamuraz affair. The television channels or the Tages-Anzeiger, for example, would have reported on the document in the same way had they happened on it first. Those critical of the publication of Mr Jagmetti's paper, on the other hand, take the view that the public interest of information not intended for public consumption is invariably defined by the media themselves, and that other factors should be considered, such as confidentiality, personality rights, the national interest, the foreseeable consequences of disclosure and the motives and interests of those providing the information. In the present case, so the argument runs, Ambassador Jagmetti's report was of limited public interest, since prior to publication it had been a non-event, it was already five weeks old and it could not be made public without damaging Swiss interests. In that respect, the Sonntags-Zeitung undermined Swiss foreign policy in a foreseeable and serious manner which was not justified in the public interest. According to this line of argument, the Jagmetti report should properly have been dealt with as a background document in the classic sense and should not have been published, either in full or in part. From the Press Council's standpoint, the next step is to assess the strategic importance of Mr Jagmetti's paper. Mr Jagmetti set out in this document to make a perfectly reasonable analysis of the situation, making a number of constructive proposals. He explored two 'extreme' options – the first involving some kind of 'deal' and the second involving a 'legal approach'. The paper testifies to a fundamental concern to get at the truth, to find a generous financial solution and to protect Swiss interests and the country's good relations with the United States. However, it could not escape the attention of even the most casual reader that Mr Jagmetti used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal. The language used betrays attitudes which are problematic even in an internal document, since attitudes are liable to be reflected also in negotiations and informal contacts. In that connection, Mr Jagmetti was to have been engaged in important discussions concerning the assets of Holocaust victims during the last six months of his tenure. The Press Council is mindful of the fact that the degree of public interest of confidential information cannot be determined in a wholly objective manner, but depends on the ideological, cultural, economic and advertising context in which the medium operates. Nevertheless, in the case of Mr Jagmetti's strategy paper, the public interest was clear, as the debate surrounding the assets of Holocaust victims and Switzerland's role in the Second World War was highly topical in late 1996 and early 1997 and had an international dimension, and because the Swiss ambassador in Washington was to occupy a prominent position in the forthcoming discussions. Knowing what that ambassador thought and how he formulated his opinions was relevant, and not a trivial concern. Leaving aside the question of the public interest and the relevance of the ambassador's remarks, the publication of this supposedly confidential paper was justified from an ethical viewpoint, as only as a result of its publication did it become clear that those in charge still had no very clear idea, despite the creation of the task force, as to the question of Swiss responsibility and what steps should be taken. From the perspective of political transparency, publication of the confidential paper, despite the fact that it was more than a month old and that in the meantime there had been talk of setting up a fund for Holocaust victims, might have spurred the Government on to overcome the problems, demonstrate leadership and devise convincing solutions. 7. Finally, it is necessary to assess whether the information was made public in the most appropriate form. According to one school of thought, the media are in a position of power, since not only do they inform, they also suggest by the way in which they present the information how it is to be viewed. In the present case the Sonntags-Zeitung, it is argued, presented an internal analysis of foreign policy in truncated form and, by publishing it alongside comments from third parties who had not seen the original text, planted in people's minds the idea that Ambassador Jagmetti had “insulted the Jews”. The newspaper, by accusing Mr Jagmetti of antiSemitism, started a rumour in an irresponsible manner. Reproducing the full text would not have placed Mr Jagmetti under the same kind of pressure and would not have forced him to resign. The manner in which the information was published, therefore, was the source of problems and consternation. The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti's remarks. According to the Sonntags-Zeitung, there was no question of accusing Ambassador Jagmetti of anti-Semitism. Nevertheless, the newspaper's editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full. They maintain that, on the day of publication, it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems. The Press Council regards these arguments as spurious, and agrees with the criticism regarding the manner of publication. The Sonntags-Zeitung did not make sufficiently clear that Ambassador Jagmetti had outlined several options in his strategy paper, of which the 'deal' was just one. Nor did it make the timing of the events sufficiently clear, particularly since the document was already five weeks old and had reached the addressees before the interview given by the outgoing Swiss President on the programme 24 heures/Tribune de Genève. The newspaper unnecessarily made the affair appear shocking and scandalous and, by its use of the headline “Mr Carlo Jagmetti insults the Jews”, misled the reader and made it appear that the remarks had been made the previous day. It was incorrect to assert that Mr Jagmetti's letter undermined the process which had begun in January, particularly since the document had been circulated beforehand and had not previously been in the public domain, and could not therefore adversely affect the talks with the country's partners at home and abroad. When the Sonntags-Zeitung attempted to contact Mr Jagmetti on Friday 24 January in order to obtain a comment, and failed to reach him because he was in Florida, the newspaper's editors should have considered whether it might not be wiser to delay publication by a week so as to be able to publish an interview with Carlo Jagmetti alongside the extracts from his paper. The fact that publication went ahead in the next issue can only have been prompted by the fear of competition, which on no account constitutes sufficient justification for immediate publication. Hence, by publishing the strategy paper in the way it did, the Sonntags-Zeitung omitted vital pieces of information, in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). ... III. Findings 1. Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the State. The media's role as critic and watchdog requires them to make information public where the public interest is at stake, whether the source of information is freely accessible or confidential. 2. As to the publication of confidential information, the pros and cons must be weighed up carefully, with an eye to whether interests which merit protection are liable to be damaged in the process. 3. Internal reports by diplomats are rightly confidential, but do not necessarily merit a high degree of protection in all cases. The media's role as critic and watchdog also extends to foreign policy, with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest. 4. In the case of Mr Jagmetti, the interest to the public of his strategy paper should be acknowledged, as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims, the prominent position occupied by the Swiss ambassador in Washington and the content of the document. 5. In this case the Sonntags-Zeitung, in irresponsible fashion, by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear, made Mr Jagmetti's views appear shocking and scandalous. The newspaper therefore acted in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). The Tages-Anzeiger and the Nouveau Quotidien, on the other hand, placed the affair in its proper context by reproducing the document in its near-entirety.” 21. Article 293 of the Swiss Criminal Code, entitled “Publication of secret official deliberations”, reads as follows: “1. 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 secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine. 2. Complicity in such acts shall be punishable. 3. The court may decide not to impose any penalty if the secret concerned is of minor importance.”