CASE OF DUPUIS AND OTHERS v. FRANCE
Violation of Art. 10;No separate issue under Art. 6-2
David Thór Björgvinsson
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. 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. “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.” “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. ...”