- Article 293 SCC violates freedom of the media and freedom of expression and is contrary to Article 10 ECHR and relevant case law.
- The legislator should repeal Article 293 of the Criminal Code, as the standard disproportionately protects formal secrets and puts whistleblowers and media professionals at a disadvantage.
Submitted text
Based on Article 160 paragraph 1 of the Federal Constitution and Article 107 of the Parliamentary Act, I submit the following parliamentary initiative:
Article 293 of the Criminal Code (publication of official secret proceedings) shall be repealed.
Justification
Article 293 of the Penal Code, which has been controversial for decades, restricts media freedom, contradicts Article 10 of the ECHR (freedom of expression) and the Goodwin decision of the European Court of Human Rights of March 27, 1996 (protection of whistleblowers), which is based on it. In a report on various proceedings against media professionals and a critical letter from the OSCE, the “NZZ” of February 4, 2006, under the title “Punishment for the messenger of the news,” stated: “To date, no renowned media or criminal law expert can be heard speaking out in favor of retaining the punishment norm.”
The Federal Council itself had justified the abolition of Article 293 SCC in its dispatch on the amendment of the SCC and the MStG of 17 June 1996 with the following arguments: “Article 293 protects only formal secrets, i.e. facts that have been declared secret by law or by a simple decision. It also seems objectionable that the third party who has further disseminated the secret is convicted, while the official or parliamentarian who has broken the secret often escapes prosecution … in the case of actual state secrets and military secrets … the current law, independently of Article 293 SCC, provides for double protection anyway.” Although the majority of the National Council committee followed the Federal Council, the repeal failed in the National Council (March 19, 1997) and in the Council of States (June 12, 1997) – albeit by an extremely narrow margin.
On August 18, 2011, the Federal Criminal Court acquitted a journalist from “Sonntag” on the grounds that the secret he had made public was of minor importance. The Fedpol document on the Ramos case had been wrongly classified as secret. As pleasing as this acquittal was, it remains unpleasant that the judge avoided a fundamental discussion of Article 293 SCC. It is up to the legislature to repeal the article, which was described by then Federal President Arnold Koller as an “old braid”.