HFHR on liability for unauthorised disclosure of criminal evidence

R. was charged with having publicly disseminated information from criminal preparatory proceedings before it was made public as part of a trial. The HFHR has filed an amicus curiae brief in the proceedings pending before a first instance court.

The brief underscores that the offence of an unauthorised violation of the secrecy of a criminal investigation was established in order to protect the interests of the justice system. This means that in order to be considered a crime, a public disclosure of records of an ongoing criminal inquiry should hinder or prevent detection of a criminal offence, material circumstances of a case or a perpetrator.

In determining whether the offence under article 241 (1) of the Criminal Code has actually been committed, a court must in each case be satisfied that a threat existed to the interests of the justice system, and not to the legal interests of third parties. “Also, it has long been accepted that if a person has obtained information about a case from sources different than the ongoing investigation itself, they do not commit a crime”, said Katarzyna Wiśniewska, a member of the HFHR legal team.

The HFHR has analysed the case law of the European Court of Human Rights on the criminal sanctions for press publications of information obtained from confidential records of criminal proceedings. For example, in the case of Arnaud Bédat v. Switzerland, the ECtHR ruled that no violation of the Convention had taken place but firmly stated that state institutions should show restraint in resorting to criminal sanctions in cases relating to the freedom of speech and act according to the principles of appropriateness and necessity.

“A state’s response to a violation of the secrecy of criminal preparatory proceedings must satisfy the criterion of proportionality. What should be noted is that some European states impose merely administrative – and not criminal – sanctions for an unauthorised disclosure of case records”, Michał Kopczyński, HFHR’s lawyer, adds.