The ECHR ruling of October 06, 2020 in the case "Jecker v. Switzerland (Jecker v. Switzerland)" (aplication No. 35449/14).
In 2014, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Switzerland.
In the case, an aplication was successfully considered against the requirement for a journalist to report the identity of a drug dealer after the journalist published an article about this person, without comparing the special interests affected in the case. The case involved a violation of the requirements of article 10 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant, who was a journalist, published an article in the local newspaper "Visiting a Dealer", in which she described an hour-long visit to the apartment of a drug dealer, during which three drug addicts made purchases, and which also reported, among other things, that the dealer had been selling cannabis and hashish for 10 years and earned more than 10,000 euros annually from this.
The prosecutor opened a criminal case against an unknown person or persons and issued a decision according to which the applicant had to give evidence, since the crime in question fell into the list of exceptions established by Swiss law to the rule on the protection of journalistic sources of information. The applicant appealed against the said decision. However, after assessing the circumstances of the case, the Swiss Federal Court decided that there were no sufficient grounds to doubt the balance of competing interests that the Swiss legislative authorities had already established in their acts
LEGAL ISSUES
Regarding compliance with article 10 of the Convention. Legality and purpose of the intervention. The decision made against the applicant was provided for by law. It was not disputed that the decree pursued the legitimate goal of "preventing a crime".
The need for a democratic society. Indeed, the applicant was the only person who could help the prosecution to identify the drug dealer who provided the materials for the applicant's article, and there were undoubtedly legal grounds for criminal prosecution of the drug dealer. Undoubtedly, these arguments were directly related to the case.
At the same time, in order to establish - in order to "prevent a crime" - the need to disclose the identity of the source of information, it was not enough to say that in the absence of such disclosure it would be impossible to conduct a criminal investigation, it was necessary to take into account the gravity of the crimes that became the object of investigation.
However, in the present case, it seems that the crime in question was not given much importance: the Swiss Federal Court referred to the choice of the Swiss legislative authorities, which included this crime in the list of offenses justifying a deviation from the principle of protecting journalistic sources of information, while at the same time criticizing the inconsistency of the systematization of this list. Indeed, in its ruling, the Swiss Federal Court indicated other factors that it considered essential for assessing the gravity of the crime. In this regard, the Swiss Federal Court first of all emphasized the commercial nature of the dealer's activities and the profit he received, and not the fact that the import of "soft" drugs into the country posed a significant threat to the health of those who use these substances.
In the opinion of the European Court, the following factors should also have been given some importance (in addition to the lesser degree of public danger of the crime in question-the transportation of "soft" drugs-in relation to the various exceptions provided for by Swiss law for the principle of non-disclosure of journalistic sources of information): increased public interest, which was probably caused by the published article (given that the article highlighted the facts that the drug dealer was able to work actively in the country for many years and was not brought to justice); the danger to the reputation of the newspaper in the eyes of future potential informants; the interest of members of the society in obtaining information disseminated through anonymous sources.
Nevertheless, the applicant could not be reproached for not criticizing the subject of her article sufficiently, nor could this circumstance serve as a basis for protecting the source of information, as the Swiss Federal Court apparently assumed.
Taking into account the importance of protecting journalistic sources of information for the freedom of the press, it was not enough for the intervention to be carried out if the crime under consideration in the case fell into a certain category or if it was subject to a legal norm formulated in general terms. Instead, it was necessary to check that the intervention was necessary in the specific circumstances of the case. Indeed, it seems that this approach was followed by the Swiss Federal Court in the previous case (in which it ruled, in particular, that the requirement to testify was justified only if the interest in bringing charges prevailed over the interest of the journalist in not disclosing his sources of information).
However, in the present case, after the Swiss Federal Court found that no special importance was attached to either the issue of the public interest or the interests of the applicant herself, the said court referred to the balance of interests carried out by the Swiss legislative authorities in general and abstract terms. Thus, the decision of the Swiss Federal Court could not lead to the conclusion that the decision made against the applicant on the mandatory testimony of her met the requirement of the prevailing public interest. The Swiss Federal Court did not indicate sufficient reasons to justify that the appealed measure corresponded to an "urgent public necessity".
RESOLUTION
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The applicant did not submit any claims for compensation for damage.