issued by the Registrar of the Court

ECHR 265 (2012)

21.06.2012

Ban on television station interviewing a prisoner breached

freedom of expression

In today’s Chamber judgment in the case of Schweizerische Radio- und

Fernsehgesellschaft SRG v. Switzerland (application no. 34124/06), which is not

final¹, the European Court of Human Rights held, by a majority, that there had been:

a violation of Article 10 (freedom of expression and information) of the European

Convention on Human Rights.

The case concerned the refusal to allow a television station to carry out a televised

interview inside a prison with a prisoner serving a sentence for murder. The applicant

company had intended to broadcast the interview in one of the longest-running

programmes on Swiss television.

The Court found in particular that the authorities had failed to justify their refusal, even

though the interview was of particular general interest, and had failed to establish that

the ban on filming met a “pressing social need”.

Principal facts

The applicant company, Schweizerische Radio- und Fernsehgesellschaft SRG (the Swiss

Radio and Television Company SSR), is a private-law entity based in Zurich.

On 12 August 2004 it requested permission to have access to Hindelbank Prison (Canton

of Berne) in order to film A., a prisoner serving a sentence for murder. It had intended

to broadcast the interview in “Rundschau” – a weekly programme covering political and

economic questions, and one of the longest-running programmes on Swiss television – in

a feature on the trial of another person accused in the same case. The applicant

company submitted that an interview with A., who had given her consent, was a matter

of public interest given that even after her conviction, the case had continued to attract

a great deal of media interest.

The prison refused the request, referring to the need to maintain peace, order and safety

in the prison and to ensure equal treatment among the prisoners. On 1 July 2005 the

Administrative Court of the Canton of Berne dismissed an appeal lodged by the applicant

company – which had argued that it had planned to film the prisoner “in general and to

interview her” rather than to film the technical installations – relying in particular on

Article 16 § 3 of the Federal Constitution which merely allowed access to generally

accessible sources. The court held that the organisation and supervision measures

required for television filming exceeded what could reasonably be expected of the prison

authorities and proposed instead an audio recording or a simple interview, considering

that images of the prisoner were not necessary for the purposes of a thematic report.

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

The applicant company lodged a public-law appeal and an administrative-law appeal. It

submitted that insufficient reasons had been given for the technical and security grounds

on which its request had been refused and argued that the use of light, modern

equipment would have limited the drawbacks of filming in the prison. It also submitted

that filming could have taken place in the room set aside for prison visits. The Federal

Court rejected both appeals. It held firstly that the importance of prison visits for

prisoner rehabilitation did not grant entitlement to film in prisons and secondly that

access by the film crew to the prison could violate the personality rights of other

prisoners. It also endorsed the findings of the Administrative Court concerning access to

generally accessible sources.

The Government’s observations showed that A.’s conviction had attracted a high level of

public interest and that A. had always protested her innocence. The organisation “Appel-

Au-Peuple”, which takes various kinds of action in respect of alleged miscarriages of

justice, had allegedly made threats against the judges involved in the case. The director

of that organisation had also gone on a 60-day hunger strike in support of A.

Complaints, procedure and composition of the Court

Relying on Article 10 (freedom of expression and information), the applicant company

complained that it had not been granted permission to film an interview with a prisoner

inside a prison.

The application was lodged with the European Court of Human Rights on 14 August

2006.

Judgment was given by a Chamber of seven judges, composed as follows:

Dean Spielmann (Luxembourg), President,

Karel Jungwiert (the Czech Republic),

Mark Villiger (Liechtenstein),

Ann Power-Forde (Ireland),

Angelika Nußberger (Germany),

Helen Keller (Switzerland),

André Potocki (France),

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 10

The Court observed that in determining an issue of freedom of expression in the context

of a very serious television broadcast devoted to a subject of particular public interest,

the Swiss authorities had had limited discretion (margin of appreciation) to judge

whether or not the ban on filming had met a “pressing social need”.

While acknowledging that there had, at the outset, been grounds to justify the ban on

filming – in particular with regard to the presumption of innocence of the person who

was the subject of the programme and whose trial was imminent and the interests of the

proper administration of justice – the Court observed that the grounds for the courts’

refusal had not been relevant or sufficient, either from the point of view of the other

prisoners or from the point of view of maintaining order. The applicant company had,

however, on various occasions, explained the conditions and limits of the filming.

Furthermore, the courts had not examined the technical aspects submitted by the

applicant company.

As regards the duty of the authorities to protect A., the Court noted that the latter had

given her full and informed consent to the filming.

The Court reiterated lastly, with regard to the alternatives to filming proposed by the

authorities, that since Article 10 also protected the form by which ideas and information

were conveyed, it was not for this Court, or for the national courts, to substitute their

own views for those of the media as to what technique of reporting should be adopted by

journalists. Thus the telephone interview with A. broadcast by the applicant company in

“Schweiz aktuell” had not in any way remedied the interference caused by the refusal to

grant permission to film in prison.

While reiterating that the national authorities were better placed than the Court to make

decisions concerning access by third parties to a prison, the Court concluded that the

absolute ban imposed on the applicant company’s filming in the prison had not met a

“pressing social need”.

Article 41

The applicant company did not follow up its claim for costs and expenses in respect of

just satisfaction.

Separate opinion

Judges Nußberger and Keller expressed a joint dissenting opinion which is attached to

the judgment.

The judgment is available only in French.

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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.