Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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Swiss journalist Ludivic Rocchi reported on a case of plagiarism at the University of Neuchatel. The university suspended the professor who then sued Rocchi of libel and slander for publishing the plagiarism story. In 2012, police searched Rocchi’s house and confiscated papers and computers. Rocchi sued the government for illegal search and seizure and won the trial case. The court recognized that protection of journalists was paramount and found that the search and seizure of Rocchi’s computer and notebooks was illegal. The Court also asked the prosecutor to return the materials.
A plagiarism investigation was taking place at the University of Neuchâtel in Switzerland and the newspaper, Le Matin, reported on the matter in an article written by a journalist named Ludovic Rocchi. The university eventually suspended the professor being investigated, and that professor then accused Rocchi of libel and slander.
Looking for proof, police searched Rocchi’s house in 2012, and confiscated papers and computers belonging to both him and wife. This was the first time such a search and seizure had taken place in Switzerland. Subsequently, Rocchi sued the government for illegal search and seizure. Rocchi argued that the methods employed by the public ministers violated 10 of the European Convention on Human Rights (“ECHR”), as well as section 17 of the Federal Constitution, Article 28a of the criminal code (“CP”), and Article 172 of the code of criminal procedure (“CPP”). Article 28a of the CP and 172 of the CPP provide for protection of journalist sources and give journalists the right torefuse to testify. The prosecutor argued that because in this case Rocchi was an accused and not a witness, the provisions did not apply.
The judgment was delivered by Jeanine ds Vries Reilingh (President), Mr. Niels Sorensen (Vice President), Mr. Jean-Denis Roulet (Vice President), and Mr. Camillo Bozzi (registrar).
The Court noted that many Swiss Criminal Law provisions were devoted to the media. Article 28a of the penal code titled “Protection of Sources” provided that journalists could not be subject to penalty for the refusal to reveal a source unless a judge found that it was necessary to prevent death or serious bodily harm. Article 172 of the code of criminal procedure further concretizes the protection of sources by providing that journalists and members of the media have a right to refuse to testify regarding identity. Thus, because of the protections granted to journalists, the search and seizure of documents is not permitted outside of the few exceptions. [pp. 13-15]
It was held that, in this case, Rocchi’s journalistic integrity was not in question and it did not appear that the circumstances justified the conduct of the public ministers since the search of a journalist, who was merely a witness, is not permissible if that journalist meets the criteria of Article 172 of the code of criminal procedure. Further, European precedent takes the approach that there should be a balancing between the public interest in press liberty and the prosecution’s interest in pursuing and punishing crimes. [p. 15]
The Court held that the residential raid was an infringement on the journalist’s fundamental rights. It was held that the request for search and seizure was hasty and premature and that it was not permissible to search and seize materials if the prosecutor does not first check or examine whether the journalist could have reasonably known what the infringement he was being accused of was—a standard not met here. It was further held that a raid cannot be used as pressure against journalists in a democratic society that protects against such acts.
Thus, the search and seizure was found to be illegal. It was held that there was no proportionality in the decision to raid and that, in this case, the public interest in press liberty outweighed the prosecution’s interest in pursuing and punishing crimes.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court in this case found that the hasty search and seizure of a journalist’s personal documents and computers without warning was illegal. This case expands expression as it properly balances the public interest in liberty of the press and the public interest in pursuing and punishing crimes.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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