Ex-Stapi Estermann acquitted in Zurich

It is not often that a former mayor is accused before the district court of Zurich. Josef Estermann – Zurich police officer from 1990 to 2002 – was sentenced to a fine of 800 francs by the Zurich district governor’s office in March 2021 for helping to publish officially secret negotiations. The now 74-year-old trained lawyer did not accept the penalty order and took it to the court for assessment.

In January 2020, in the run-up to the vote on the rose garden project, Estermann had disseminated information from a protocol of the Cantonal Council Commission for Energy, Transport and the Environment. Among other things, he mentioned them in an interview with the NZZ and later in an article in the Tamedia newspapers. The governor’s office has also issued penal orders against the journalists involved. On the other hand, the two media houses defend themselves with objections; these proceedings are still pending.

Controversial billion dollar project

In the run-up to the vote at the time, it was disputed whether the Rosengarten Tunnel project, worth billions, would result in an increase in private transport in the city of Zurich. On January 24, 2020, the NZZ published an interview with Estermann as an opponent of the project and Ruth Enzler as a member of the yes committee. The Zurich electorate rejected the project on February 9, 2020 with around 63 percent no votes.

The ex-mayor is accused in the penalty order of having stated in the course of the NZZ interview that the head of the cantonal traffic office, Markus Tobler, had expressly said in the cantonal commission that the project was about increasing capacity for individual traffic. Estermann stated that he was showing the relevant passage in the report and that he had it with him.

An article appeared in the Tamedia newspapers on January 29, 2020, in which the minutes of the commission meeting of February 6, 2018 were quoted and an excerpt of the minutes was published as a picture. According to the governor, Estermann provided the protocol, which was actually secret. The penalty order also claims that Estermann incompletely reproduced the statements made by Markus Tobler, the head of the then Office for Transport, which is now called the Office for Mobility, and took them out of context.

Does the public interest prevail?

The accused appeared before the single judge without a lawyer. He admits the external facts. Democracy lives on transparency, says Estermann. “I knew the protocol was confidential. But I think it’s a scandal that it’s like that.” He acted in the public interest and did not violate any penal provisions. The governor failed to weigh up the interests in the specific case.

The governor’s office neither justified the interest in secrecy in the specific situation nor examined the interest in the journalistic dissemination of the published documents. The assertion that the statements were taken out of context is also wrong. Estermann emphasizes that he “tel quel” passed on the log pages, which were sent to him by third parties, to the Tamedia newspapers.

The statement of the head of the traffic office was reproduced exactly as it was listed in the three-page protocol. It is related to the statements made by the members of the commission. The statements made by the majority representatives of the Commission in the minutes do not correspond to the protestations made by the tunnel advocates in the referendum campaign. In the Commission they would have represented exactly the opposite.

Estermann argues that he has many years of experience with similar bills, in which general promises were made before the vote without these ever being implemented in the form of measures. Transparency about how a bill came about and about the arguments that were presented on the way to the voting bills serve the fair and free formation of opinions on public affairs. He did not commit an offense. In the event of an acquittal, he also waives compensation. For him, the process was “a service to democracy”.

Democracy saved

In the end, single judge Roger Harris found Josef Estermann not guilty. The costs go to the court treasury. It is clear that the minutes were secret and are classified as confidential under cantonal law. And as an assistant, Estermann fulfilled the first two paragraphs of Article 293 of the Criminal Code – publication of officially secret negotiations. However, the third paragraph refrains from a penalty in the event of an overriding public interest. This is the case here.

In terms of content, the question of whether the project worth billions at the Rosengarten would generate more individual traffic or not was the central point of the voting campaign. The text of the voting documents stated that the current capacity would be maintained. On the other hand, Head of Office Traber had said in the Commission that efforts were being made to provide greater capacity with the tunnel. The publication of the protocol did not create a distorted image in the media, especially not in relation to Traber’s statements, Harris notes.

Traber was “not just any politician”, but the specialist who, as head of the Transport Office, knew best what impact the project would have on the city. “It carries enormous weight when this person says the project is intended to increase capacity,” Harris said. Especially if it is then written in the voting documents that no increase in capacity is sought.

“The publication is to be weighted as important in the context of weighing interests,” Harris justifies Estermann’s acquittal. The publication of the protocol was suitable to make a relevant contribution so that the people could form an opinion. Such an unbiased and free formation of opinion is central to democracy.

Judgment GC210222 of June 24, 2022, not yet final.