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=Bédat v. Switzerland=

Bédat v. Switzerland (2016)(Application no. 56925/08), was a judgment of the European Court of Human Rights (ECHR) concerning the freedom to impart information and the freedom to receive information. It was an important component of the court's case-law, which illustrated the conception of responsible journalism and the idea of margin of appreciation. The court suggested that the intervention of government, in limited circumstances, to protect the privacy of the suspect was sometimes necessary to maintain the authority and impartiality of the judiciary. The court ruled that, in the case of Bedat, a fine of 4,000 Swiss francs sentenced by the Switzerland Police Court was justified. The court insisted that the penalty imposed by the national court in this case was very unlikely to have a “deterrent effect” on the exercise of freedom of expression by journalists who were intended to notify the public about criminal procedures neutrally. Therefore, the Grand Chamber reversed the decision made by the Chamber in A.B. v. Switzerland and concluded that there had been no violation of Article 10 of the European Convention on Human Rights. (the Article that protects the freedom of expression and freedom of information).

Background
On 8 July 2003, M.B. rammed his car into pedestrians in a car accident, which killed three people including a Brazilian pregnant woman and injured eight including a two years old girl on the Lausanne Bridge in the city of Lausanne. This car accident was widely reported as "The Drama of Grand-Pont"(French: Drame du Grand-Pont") "The last Lausanne accident with a similar death toll had happened in 1982, when a crane fell onto a bus, which killed eight and injuring thirty. Considering its brutality, the accident sparked common interests and was widely reported by mass media. The public anger was induced by the ambiguous attitude of the suspect who refused to plea guilty and take responsibilities. Whether the suspect suffered mental-health problems also led to public scrutiny. Arnaud Bédat, a journalist, wrote an article for weekly magazine L’Illustré, in which he discussed the circumstances of the case and injected personal feelings within the sentences. In addition, he discussed the letters sent by the driver to the investigating judges; he attached several photocopies of the letters and other related information to support his arguments. According to Arnaud Bédat, the information he posted in the article was rested on a copy of the case file that was carelessly lost by one of the plaintiffs in this case and was picked up by an unknown person later.

Soon after, Tribune de Genève newspaper published an article about the same subjects and other related details of criminal investigation, which were based on the information authorized by the police department. However, the public prosecutor brought a suit against Bédat, because publishing article that included confidential information violated Article 293 of the Criminal Code: "Any person who without authorisation publishes information from the files, proceedings or official investigations of a public authority which have been declared secret by that authority in accordance with its powers is liable to a fine."

In June 2004, Bédat was sentenced to one-month imprisonment. The Police Court replaced this penalty to a fine of 4,000 Swiss francs later. Bédat's further appeals to the Federal Court and the Criminal Court of Cessation of the Canton of Vaud were dismissed on 29 April 2008 and 30 January 2006 respectively. Therefore, Bédat eventually sent his suit to the European Court of Human Rights.

Ten years after the tragedy had happened, the press widely reported this accident again in 2013. The media blamed M.B. as "irresponsible" driver who should be sanctioned by law without exceptions. The media interviewed the survivals of the accident, which showed an effort to help the public recall the brutality of this particular accident.

In 2014, the Chamber in B.A. v. Switzerland (2014) ruled that government's intervention violated the freedom of speech. (4-3)

Thereafter, the Swiss government appealed the case to the Grand Chamber in 2015. The public debates on the struggle between the freedom of press and the right to privacy continued until the Grand Chamber issued its opinion.

Majority Opinion
The Grand Chamber overruled (15-2) the Chamber's judgment, concluding that there has been no violation of Article 10 of the Convention. Bédat v. Switzerland(2016) was an important component of the case-law of European Court of Human Rights, in which the court articulated that the margin of appreciation should be closely examined while dealing with matters of public interests. The court also recalled the conception of responsible journalism and emphasized the necessity of interference under specific conditions. In addition, the court insisted the relationship between the negative obligations and positive obligations of the adherent states of the Conference. Thus, this section summarizes the significant scrutiny used by the Court in Bédat v. Switzerland(2016), which was mentioned in the majority opinion of the case.

 Necessity of the interference "in a democratic society" 

The court acknowledged that the freedom of expression was the "essential foundation" of a democracy. The paragraph 2 Article 10 of the European Convention on Human Rights protected offensive "ideas and information" and inoffensive "ideas and information" equally. Therefore, even though exceptions could be made in limited circumstances, restrictions on the freedom of expression should be constructed strictly and convincingly.The necessity of such an interference referred to "the existence of a 'pressing social need.'"

Margin of Appreciation
The state's court had margin of appreciation in evaluating the existence since national courts were generally in a better position that made judgment balancing competing interests including "the realities of the country" than the one of an international court, while the European Court of Human Rights had a final say on determining whether the interference should be justified or not.The court articulated that, under the Article 10 of the European Convention on Human Rights, the contracting states had relatively little margin of appreciation in dealing with political speech and matters of public interests. The freedom of information preserved by the Article 10 implied that both the right to impart information and the right to receive information should be protected by law.

Responsible Journalism
The court repeatedly acknowledged the concept of "responsible journalism, " meaning, although the freedom of press was of vital importance in a democratic society, the Article 10's protection on journalism was largely made on the assumption that journalists had acted in "a good faith." Journalists' comments on pending criminal proceedings should not be written in a way that aimed to trample the suspect's right to have a fair trial or to undermine public confidence of the impartiality of judiciary.

The Application of principles
"The possession of the information"

"the possession of the information" referred to the means through which a person gained information considered to be secret or confidential. The Grand Chamber maintained the judgment made by the Chamber, which had pointed out that a professional journalists should be able to acknowledge the confidential nature of certain information when publishing it. On the other hand, the Court insisted that the applicant agreed that the publication of information that has a questionable nature might violate national laws.

"Content of the impugned article"

The court emphasized that, in the case of journalism, both the content of the information and the means one used to convey such information were protected by the Article 10, only if journalists were "acting in good faith and on a accurate factual basis and provided 'reliable and precise' information in accordance with the ethnics of journalism." In the case of Bédat, the author unarguably used "sensationalist tone" that is inconsistent with the concept of "reasonable journalism." The court quoted the conclusion made by the Federal Court in 2008 and ruled that the author's "sensationalist tone" undeniably showed an effort to undermine the public confidence of judicial impartiality and authority by using confidential materials to question the process of investigation and trial irrationally.

"Contribution of the impugned article to a public-interest debate"

The court denied that the impugned article had an unarguable contribution to public interests. It was true that the public had the right to be informed by authorities about certain criminal proceedings. However, in the case of Bédat, the government itself released necessary information about the case, which aimed to keep the information available to the public. The applicant failed to show the existence of connection between the promotion of public interests and the "unlawfully" released information. In this regard, the impugned article merely showed an effort to induce "unhealthy curiosity" about the suspect's private life among the population, rather than protect public interests. Therefore, the court claimed that the Federal Court had margin of appreciation by denying that Bédat v. Switzerland(2016) was not a case that had a sufficient tie to public interests.

"Influence of the impugned article on the criminal proceedings"

The court ruled that the secrecy of judicial investigation is justified by the necessity of judicial independence. In this regard, national governments had the right to implement domestic deterrent measures that protect the impartiality of criminal proceedings and the presumption of innocence by prohibiting certain behaviors, such as the disclosure of confidential information. Therefore, the Grand Chamber supported the former judgment made by the Federal Court.

"Infringement of the accused's private life"

The Court insisted that it should weigh the balance between the protection of reputation and personal privacy preserved by Article 8 and the freedom of expression protected by Article10, depending on related facts. The Court ruled that, according to Article 8, states not only had a negative obligation to be adhere to the article and do not pass laws trample citizen's privacy, but also had a positive obligation to protect their citizen's privacy from being harmed by others. In the case of Bédat, the information published by the author was highly personal. For instance, it included the suspect's doctor's statements. Therefore, the court concluded that Switzerland's Criminal Code was justified, and argued that ordinal citizens and the accused should be treated differently from those public figures who voluntarily exposed themselves in front of the public. The Court overruled the judgment made by the Camber, pointing out that, in this case, the accused could not effectively protect his reputation by himself. His vulnerabilities came from his mental illness and the situation in which he was in the prison and could not be effectively informed. Therefore, it was the state's obligation to protect his right to privacy.

"Proportionality of the penalty imposed"

The Court mentioned that the proportionality of the penalty imposed was an important factor when measuring the interference. In this case, the penalty imposed on the applicants was changed from a sentence of one-month prison to a fine of 4,000 Swiss francs. Considering such penalty has no deterrent effect on "responsible journalism," the Court ruled in favor of the state.

Dissenting Opinions
There were 2 dissenting opinions in this case.

Judge López Guerra dissented on the ground that the freedom of journalism allowed a certain degree of exaggeration, or even provocation. In addition, a court consisted of professional judges would not be influenced by a newspaper article published two years and one month prior to the accused being sentenced. On the other hand, the Article 293 of the Criminal Code was an "unconditional prohibition." The only exception described by law was "secrets of minor importance," instead of a matter of public interests. What's more, the right to privacy was never provoked by the accused. it was the government that used this case to restrict the freedom of press. Such a restriction should not be considered as being motivated by compelling public interests, since neither the journalist published information considered the innocence or guilty of the accused nor this restriction was the only means to protect the accused's right to privacy.

Judge Yudkivska dissented as well, arguing that the car accident happened on the Lausanne bridge, which killed three and injured eight, was significant to a relatively small community, the city of Launsanne. The public should be informed on the mental status of the driver while he was conducting such a tragedy. The criminal prosecution used to restrict the freedom of press and fulfill the positive obligation of the Article 8 would be justified, only if there was an "unidentified potential harm to investigation cannot serve as a basis for the journalist’s criminal conviction."

Bédat and Case-law
Bédat v. Switzerland (2016) has been frequently cited while the Court analyzing "the necessity of interference" and "margin of appreciation" since the opinion issued. This section includes some current cases in which the judges cited Bédat v. Switzerland (2016). These quotations also exposed how the Court, as an international court of human rights with limited jurisdiction, balanced the conflict between right to be informed and right to privacy.

Fürst-Pfeifer v. Austria
"In Bédat the Court defended, against the media, the personality rights of an individual who had allegedly not only committed an unlawful act which entailed serious consequences (including the loss of human life) and of which that person was accused in criminal proceedings, but who, at the time that act was committed, allegedly suffered mental-health problems which were aired to the public by a magazine. The distressing incident in which that person was involved had legitimately become the topic of a heated public debate even before an article which infringed upon the perpetrator’s privacy was published."

ZIEMBIŃSKI v. POLAND(No.2)
"The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well-settled in the Court’s case-law."

GREBNEVA AND ALISIMCHIK v. RUSSIA
"The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10 § 2, this freedom is subject to exceptions, which must, however, be construed strictly and the need for any restrictions must be established convincingly."

TERENTYEV v. RUSSIA
"Domestic courts have the advantage of possessing direct knowledge of the situation and have all the evidence before them"