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issued by the Registrar of the Court   ECHR 380 (2020)   17.12.2020   A journalist’s conviction for using information obtained in breach of   the secrecy of the investigation did not constitute excessive interference   with his freedom of expression   In today’s Chamber judgment1 in the case of Sellami v. France (application no. 61470/15) the   European Court of Human Rights held, unanimously, that there had been:   no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   The case concerned the conviction of a journalist for using information obtained in breach of   professional secrecy, following the publication of a composite image produced by the police in   connection with an ongoing investigation.   The Court saw no strong reason to question the assessment made by the domestic courts, which had   found, firstly, that the interest in informing the public had not justified the use of the item of   evidence in question and, secondly, that the publication of the material had had a negative impact   on the conduct of the criminal proceedings.   In view of these considerations, and taking into account the margin of appreciation left to States and   the fact that the exercise of balancing the competing interests at stake had been properly conducted   by the domestic courts, which had applied the relevant criteria under the Court’s case-law, the Court   concluded that there had been no violation of Article 10 of the Convention protecting freedom of   expression.   Principal facts   The applicant, Stéphane Sellami, is a French national who was born in 1972 and lives in Saint-Ouen   (France).   On 23 December 2011 two women were raped in Paris, and one of them was also the victim of an   attempted killing. The investigation was assigned to the Paris 3rd police district, headed by   Superintendent D.   On 28 December 2011 a 15-year-old girl was raped and stabbed in Étampes in the département of   Essonne. On 30 December 2011 a composite image of the suspect was produced by the forensic   identification unit on the basis of the testimony of the third victim.   On 3 January 2012 the Paris public prosecutor opened a judicial investigation concerning all the   offences, and on 4 January 2012 the investigating judge issued instructions to the 3rd police district.   On the same day Superintendent D., head of the investigating unit, sent an email to his team   members informing them that he had received a telephone call from the applicant, who was not to   be provided with any information.   On 11 January 2012 the existence of the composite image was disclosed by the magazine Le   Nouveau Détective. The following day the daily newspaper Le Parisien devoted a full page to the   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   information, publishing three articles written by the applicant in its news in brief section, one of   which included the image. On 13 January 2012, following the publication of the articles and in view   of the fact that the composite image did not match the suspect who had been identified by   photographs in the meantime, the investigating judge and the criminal investigation department   decided to issue an appeal for witnesses, publishing a photograph of the individual they were   seeking to trace.   On 19 January 2012 Superintendent D. sent a report to his supervisors complaining of a breach of   the secrecy of the investigation on account of the publication of the composite image in Le Parisien   on 12 January 2012. The public prosecutor ordered an investigation concerning a breach of the   secrecy of the investigation.   In a judgment of 21 November 2012 the Paris Criminal Court found the applicant guilty of using   information obtained in breach of professional secrecy and ordered him to pay a fine of 8,000 euros   (EUR), together with one euro in damages to the victims who had joined the proceedings as civil   parties. In a judgment of 16 January 2014 the Paris Court of Appeal upheld the first-instance   judgment as to the finding of guilt, but reduced the sentence to a fine of EUR 3,000. The Court of   Cassation dismissed an appeal on points of law lodged by the applicant.   Complaints, procedure and composition of the Court   Relying on Article 10 (freedom of expression), the applicant maintained that his conviction for using   information obtained in breach of professional secrecy, following the publication of a composite   image produced by the police in connection with an ongoing investigation, had been contrary to the   Convention.   The application was lodged with the European Court of Human Rights on 5 December 2015.   Judgment was given by a Chamber of seven judges, composed as follows:   Síofra O’Leary (Ireland), President,   Ganna Yudkivska (Ukraine),   Stéphanie Mourou-Vikström (Monaco),   Latif Hüseynov (Azerbaijan),   Jovan Ilievski (North Macedonia),   Arnfinn Bårdsen (Norway),   Mattias Guyomar (France),   and also Victor Soloveytchik, Section Registrar.   Decision of the Court   Article 10   After noting that there had been interference with the applicant’s exercise of his right to freedom of   expression, the Court observed that it had previously held that the conviction of a journalist for   using information obtained in breach of professional secrecy, under Article 321-1 of the Criminal   Code, satisfied the requirement of foreseeability of the law for the purposes of Article 10 of the   Convention (Dupuis and Others v. France, § 31; Hacquemand v. France; and Ressiot and Others v.   France, §§ 107-108). As it saw no reason in the present case to depart from that finding, the Court   concluded that the interference in question had been “prescribed by law” within the meaning of the   second paragraph of Article 10 of the Convention.   The Court had also ruled previously that interference based on the need to safeguard the secrecy of   the judicial investigation was aimed at ensuring the proper conduct of the investigation and thus   maintaining the authority and impartiality of the judiciary. This also applied where the case   concerned professional secrecy designed to prevent the disclosure of confidential information. In   the present case the interference had been based on the need to ensure the requisite confidentiality   of information concerning the conduct of a criminal investigation and, more generally, to maintain   the authority and impartiality of the judiciary. It had therefore pursued a legitimate aim.   As to the necessity of the interference and the case-law criteria that were applicable, the Court   noted that the domestic courts had taken the view that the applicant, a journalist by profession,   could not have been unaware that the composite image which he possessed and was planning to   publish was covered by the secrecy of the investigation. In its judgment of 16 January 2014 the Court   of Appeal had observed that the telephone call which the applicant had admitted making to   Superintendent D. confirmed the fact that he was aware that a judicial investigation had been   opened and that the composite image which he had obtained formed part of the case file.   With regard to the article in Le Parisien, the Court noted that the publication of the image in   question, together with a short caption commenting on it, had been part of a set of articles written   by the applicant, covering an entire page, on the subject of a series of rapes and assaults apparently   carried out by the same perpetrator. The layout had given particular prominence to the composite   image. In line with the assessment of the domestic courts, the Court considered that these editorial   choices left no doubt as to the sensationalist approach taken by the applicant.   Moreover, the Court stressed the fact that by the time it was published the image in question, which   had been produced originally on the basis of a description provided by just one victim, no longer   matched the description of the alleged perpetrator, as the investigators had obtained several   photographs of the suspect in the meantime. The domestic courts had therefore correctly found   that, in publishing the composite image, the applicant had presented it as matching the description   of the serial rapist, without concern for its reliability or for the impact on the ongoing judicial   investigation, in breach of the duties and responsibilities entailed in the exercise by journalists of   freedom of expression.   The Court acknowledged that the subject of the article, namely the criminal investigation into a   series of rapes and knife attacks on women in Paris and the surrounding suburbs, had been a matter   of public interest. Firstly, however, the sensationalist way in which the image was presented had   been designed primarily to satisfy the public’s curiosity; secondly, the information disseminated had   been inaccurate and had been bound to mislead the reader.   Accordingly, the Court could discern no strong reason to question the assessment made by the   domestic courts in finding that the interest in informing the public had not justified the use of the   composite image.   Furthermore, the Court reiterated that it was legitimate for special protection to be afforded to the   secrecy of a judicial investigation, in view of what was at stake in criminal proceedings, both for the   administration of justice and for the right of persons under investigation to be presumed innocent.   The present case related more specifically to ensuring the requisite confidentiality of information   concerning the conduct of a criminal investigation, in order to maintain the authority and   impartiality of the judiciary.   The risk of influencing proceedings justified per se the adoption by the domestic authorities of   deterrent measures such as prohibiting the disclosure of secret information.   In the present case the domestic courts had taken the view that the publication of the article in   question had interfered with the normal conduct of the investigations, observing that the publishing   of the image had been interpreted by some readers as an appeal for witnesses. This had resulted in a   large volume of telephone calls to the police and had prompted the investigating judge and the   criminal investigation department, the day after the article had appeared, to launch an appeal for   witnesses accompanied by a photograph of the man they were seeking to trace. The domestic courts   had noted that the journalist in question had knowingly interfered in the conduct of the   investigation, which had been at its most delicate stage, that of identifying and apprehending the   suspect. The Court could discern no strong reason to question the assessment that the publication of   the material had had a negative impact on the conduct of the criminal proceedings.   As to the financial penalty imposed, the Court considered that the recourse to criminal proceedings   and the penalty imposed on the applicant – a fine of EUR 3,000 instead of the amount of EUR 8,000   originally ordered by the Criminal Court – had not amounted to disproportionate interference with   the exercise of his right to freedom of expression. In the Court’s view, it could not be maintained   that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by   the applicant or any other journalist wishing to inform the public about ongoing criminal   proceedings.   In view of the margin of appreciation available to States and the fact that the exercise of balancing   the various competing interests had been properly conducted by the domestic courts, which had   applied the relevant criteria under its case-law, the Court concluded that there had been no   violation of Article 10 of the Convention.   The judgment is available only in French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. To receive   the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter   @ECHR_CEDH.   Press contacts   During the current public-health crisis, journalists can continue to contact the Press Unit via   [email protected].   Denis Lambert   Tracey Turner-Tretz   Inci Ertekin   Neil Connolly   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   4