FEDERACIONLEX BLOG CON INFORMACION JURÍDICA

BLOG DESTINADO A LA DIFUSIÓN GRATUITA DE NOVEDADES DEL MUNDO DEL DERECHO

viernes, 17 de septiembre de 2010

TRIBUNAL EUROPEO DE DERECHOS HUMANOS -ESTRASBURGO - LIBERTAD DE PRENSA -

CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS
(Application no. 38224/03)
JUDGMENT
STRASBOURG
14 September 2010
This judgment is final but may be subject to editorial revision.
In the case of Sanoma Uitgevers B.V. v. the Netherlands,
The European Court of Human Rights, sitting as a Grand
Chamber composed of:
Jean-Paul Costa, President,
Christos Rozakis,
Nicolas Bratza,
Peer Lorenzen,
Fran輟ise Tulkens,
Karel Jungwiert,
Rait Maruste,
Khanlar Hajiyev,
Egbert Myjer,
Sverre Erik Jebens,
Dragoljub Popović,
Mark Villiger,
Isabelle Berro-Lef钁re,
P臺vi Hirvel・
George Nicolaou,
Zdravka Kalaydjieva,
Mihai Poalelungi, judges,
and Michael O'Boyle, Deputy Registrar,
Having deliberated in private on 6 January and 7 July 2010,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The case originated in an application (no. 38224/03) against
the Kingdom of the Netherlands lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a limited liability
company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under Netherlands law, Sanoma Uitgevers B.V. (“the
applicant company”), on 1 December 2003.
2. The applicant company were represented before the Grand
Chamber by Mr O.M.B.J. Volgenant and Mr I.J. de Vr・ lawyers
practising in Amsterdam. The Netherlands Government (“the
Government”) were represented by their Agent, Mr R.A.A. Bcker of
the Ministry for Foreign Affairs.
3. The applicant company alleged, in particular, that their rights
under Article 10 of the Convention had been violated as a result of
their having been compelled to give up information that would allow
sources of journalistic information to be identified.
4. The application was allocated to the Third Section of the Court
(Rule 52 ァ 1 of the Rules of Court). On 23 March 2006 the President
of the Third Section decided to give notice of the application to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 ァ 3). On
31 March 2009 a Chamber of that Section composed of Josep
Casadevall, President, Corneliu B繒san, Alvina Gyulumyan, Egbert
Myjer, Ineta Ziemele, Luis Lez Guerra, Ann Power, judges, and
Santiago Quesada, Section Registrar, unanimously declared the
application admissible and by four votes to three held that there had
been no violation of Article 10 of the Convention. A dissenting
opinion of Judge Ann Power joined by Judges Alvina Gyulumyan
and Ineta Ziemele was appended to the judgment.
5. On 14 September 2009 a panel of the Grand Chamber granted
the applicant company's request to refer the case to the Grand
Chamber in accordance with Article 43 of the Convention.
6. The composition of the Grand Chamber was determined
according to the provisions of Article 27 ァァ 2 and 3 of the
Convention and Rule 24 of the Rules of Court. At the final
deliberations, Mihai Poalelungi, substitute judge, replaced Nebojša
Vučinić, who was unable to take part in the further consideration of
the case (Rule 24 ァ 3).
7. The applicant company and the Government each filed written
observations on the merits. In addition, third-party comments were
received from Media Legal Defence Initiative, Committee to Protect
Journalists, Article 19, Guardian News & Media Ltd. and Open
Society Justice Initiative, who had been given leave by the President
to intervene in the written procedure (Article 36 ァ 2 of the
Convention and Rule 44 ァ 2).
8. A hearing took place in public in the Human Rights Building,
Strasbourg, on 6 January 2010 (Rule 59 ァ 3).
There appeared before the Court:
(a) for the Government
Mr R.A.A. BヨCKER, Ministry for Foreign Affairs, Agent,
Ms T. DOPHEIDE, Ministry of Justice,
Ms J. JARIGSMA, Public Prosecution Service, Advisers;
(b) for the applicant company
Mr O.M.B.J. VOLGENANT, Advocate,
Mr I.J. DE VRノ, Advocate, Counsel,
Mr T. BROEKHUIJSEN, Editor-in-Chief,
Ms F. GLAZENBURG, Assistant Editor-in-Chief,
Mr J. JANSEN, Company Lawyer, Advisers.
The Court heard addresses by Mr Volgenant, Mr Broekhuijsen, Mr
De Vr・and Mr Bker as well as their answers to questions put by
judges.
The Court afterwards invited the applicant company to respond in
writing to a statement made at the hearing by the Agent of the
Government. The applicant company's response was received on
21 January 2010.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background
1. The applicant company
9. The applicant company is based in Hoofddorp. Its business is
publishing and marketing magazines, including the
weeklyAutoweek, which caters for readers who are interested in
motoring.
2. The street race
10. On 12 January 2002, an illegal street race was held in an
industrial area on the outskirts of the town of Hoorn. Journalists
of Autoweek attended this race at the invitation of its organisers.
11. The applicant company state that the journalists were given
the opportunity to take photographs of the street race and of the
participating cars and persons on condition that they guarantee that
the identities of all participants would remain undisclosed. The
Government, for their part, dispute the existence of any agreement
involving more than a small number of organisers or participants at
most.
12. The street race was ended by the police, who were present
and eventually intervened. No arrests were made.
13. The applicant company intended to publish an article about
illegal car races in Autoweek no. 7/2002 of 6 February 2002. This
article would be accompanied by photographs of the street race held
on 12 January 2002. These photographs would be edited in such a
manner that the participating cars and persons were unidentifiable,
thus guaranteeing the anonymity of the participants in the race. The
original photographs were stored by the applicant company on a
CD-ROM, which was kept in the editorial office of a different
magazine published by the applicant company (not Autoweek).
14. The police and prosecuting authorities were afterwards led to
suspect that one of the vehicles participating in the street race had
been used as a getaway car following a ram raid on 1 February
2001 (see paragraphs 27-29 below).
B. The summons to surrender the CD-ROM, the seizure of the CD-ROM and
ensuing proceedings
1. The summons to surrender the CD-ROM and the seizure of
the CD-ROM
15. On the morning of Friday 1 February 2002, a police officer
contacted the Autoweek editorial office by telephone, summoning
the editors to surrender to the police all photographic materials
concerning the street race of 12 January 2002. This police officer
was informed by the staff member whom she had called, namely the
features chief editor (chef reportage), that this request could not be
met as the journalists had only been given permission to take
photographs of the street race after having guaranteed the
anonymity of the participants in the race. The features chief editor
further told this police officer that he thought that the press was
reasonably protected against this kind of action and advised her to
contact the editorial office in writing.
16. In the afternoon of 1 February 2002, at 2.30 p.m., two police
detectives visited the Autoweek editorial office and, after having
unsuccessfully tried to obtain the surrender of the photographs,
issued Autoweek's editor-in-chief with a summons, within the
meaning of Article 96a of the Code of Criminal Procedure (Wetboek
van Strafvordering). This summons had been issued by the
Amsterdam public prosecutor; it ordered the applicant company to
surrender, in the context of a criminal investigation into offences
defined in Articles 310-312 of the Criminal Code (Wetboek van
Strafrecht) against an unspecified person, the photographs taken on
12 January 2002 during the illegal street race in Hoorn and all
related materials. On behalf of the applicant company, Autoweek's
editor-in-chief Mr Broekhuijsen refused to surrender the
photographs, considering this to be contrary to the undertaking
given by the journalists to the street race participants as regards
their anonymity.
17. Later that day, a telephone conversation took place between,
on the one side, two public prosecutors and, on the other, the lawyer
of the applicant company Mr Jansen. Mr Jansen was told by the
public prosecutors that “it concerned a matter of life and death”. No
further explanation was given and Mr Jansen's request for written
confirmation that the matter was one of “life and death” was not
entertained.
18. The police detectives and the public prosecutors threatened
to detain Mr Broekhuijsen during the weekend of 2 to 3 February or
even longer for having acted in violation of Article 184 of the
Criminal Code, i.e. the offence of failure to comply with an official
order (ambtelijk bevel), and to seal and search the whole of the
applicant company's premises, if need be for the entire weekend
period and beyond, and remove all computers. The threatened
search would entail financial damage for the applicant company as,
during that weekend, articles were to be prepared for publication on
the subject of the wedding of the Netherlands Crown Prince, due to
take place on 2 February 2002.
19. At 6.01 p.m. on 1 February 2002, Mr Broekhuijsen was
arrested on suspicion of having violated Article 184 of the Criminal
Code. He was not taken to the police station but remained on the
applicant company's premises. After the Amsterdam public
prosecutor had arrived on these premises and after he had been
brought before the prosecutor, Mr Broekhuijsen was released at 10
p.m.
20. The applicant company then consulted their counsel, Mr S.,
and a second lawyer, Mr D., the latter being a specialist in criminal
procedure. At some point the CD-ROM was transferred to the
lawyers' offices unbeknown to the public prosecutor and the police
investigators. Upon this, the public prosecutor and the other persons
involved went to the lawyers' offices.
21. Mr D. spoke with the public prosecutors involved for some
two hours, from 11.15 p.m. onwards. Taking the view that judicial
authorisation was required, he sought and obtained the agreement
of the public prosecutors to seek the intervention of the duty
investigating judge (rechter-commissaris) of the Amsterdam
Regional Court (rechtbank), who was then contacted by telephone.
After having spoken with Mr D., and after having been briefed by
one of the public prosecutors, the investigating judge expressed the
view that the needs of the criminal investigation outweighed the
applicant company's journalistic privilege. While recognising from
the outset that by law he lacked competence in the matter, he also
stated that, had he had the power to do so, he would have been
prepared to give an order to that effect and even to sanction a
search of the offices.
22. On 2 February 2002 at 1.20 a.m., the applicant company,
through Mr S. and Mr D. and under protest, surrendered the CDROM
containing the photographs to the public prosecutor, who
formally seized it. An official receipt issued by a police officer
describes it as a CD-ROM in purpose-made packaging, the
packaging labelled in handwriting “Photos Illegal Street Races,
ANWB [Royal Netherlands Tourist Association] driving simulator,
sidecar motorcycle with coffin”. The receipt stated that Mr S. had
handed over the CD-ROM under protest.
2. Proceedings in the Regional Court
23. On 15 April 2002 the applicant company lodged a complaint
under Article 552a of the Code of Criminal Procedure, seeking the
lifting of the seizure and restitution of the CD-ROM, an order to the
police and prosecution department to destroy copies of the data
recorded on the CD-ROM and an injunction preventing the police
and prosecution department from taking cognisance or making use
of information obtained through the CD-ROM.
24. On 5 September 2002 a hearing was held before the
Regional Court during which the public prosecutor explained why
the surrender of the photographs had been found necessary. The
summons complained of had been issued in the context of a criminal
investigation concerning serious criminals who had pulled cash
dispensers out of walls with the aid of a shovel loader, and there
was reason to believe that a car used by participants in the street
race could lead to the perpetrator(s) of those robberies.
25. In its decision of 19 September 2002 the Regional Court
granted the request to lift the seizure and to return the CD-ROM to
the applicant company as the interests of the investigation did not
oppose this. It rejected the remainder of the applicant company's
complaint. It found the seizure lawful and, on this point, considered
that a publisher/journalist could not, as such, be regarded as
enjoying the privilege of non-disclosure (verschoningsrecht) under
Article 96a of the Code of Criminal Procedure. Statutorily, the
persons referred to in Article 218 of the Code of Criminal Procedure
and acknowledged as enjoying the privilege of non-disclosure were,
amongst others, public notaries, lawyers and doctors. It considered
that the right to freedom of expression, as guaranteed by Article 10
of the Convention, included the right freely to gather news (recht
van vrije nieuwsgaring) which, consequently, deserved protection
unless outweighed by another interest warranting priority. It found
that, in the instant case, the criminal investigation interest
outweighed the right to free gathering of news in that, as explained
by the public prosecutor during the hearing, the investigation at
issue did not concern the illegal street race, in which context the
undertaking of protection of sources had been given, but an
investigation into other serious offences. The Regional Court was
therefore of the opinion that the case at hand concerned a situation
in which the protection of journalistic sources should yield to general
investigation interests, the more so as the undertaking to the
journalistic source concerned the street race whereas the
investigation did not concern that race. It found established that the
data stored on the CD-ROM had been used for the investigation of
serious offences and that it had been made clear by the prosecutor
that these data were relevant to the investigation at issue as all
other investigation avenues had led to nothing. It therefore
concluded that the principles of proportionality and subsidiarity had
been complied with and that the interference had thus been justified.
The Regional Court did not find that the seizure had been rash,
although more tactful action on the part of the police and the public
prosecutor might have prevented the apparent escalation of the
matter.
3. Proceedings in the Supreme Court
26. The applicant company lodged an appeal on points of law
with the Supreme Court (Hoge Raad), which on 3 June 2003 gave a
decision declaring it inadmissible. The Supreme Court held that, as
the Regional Court had accepted the applicant company's complaint
in so far as it related to the request to lift the seizure and to return
the CD-ROM, the applicant company no longer had an interest in its
appeal against the ruling of 19 September 2002. Referring to its
earlier case-law (Supreme Court,
4 October 1988, Nederlandse Jurisprudentie (Netherlands Law
Reports – “NJ”) 1989, no. 429, and Supreme Court, 9 January 1990,
NJ 1990,
no. 369), it held that this finding was not altered by the circumstance
that the complaint – apart from a request to return the CD-ROM –
also contained a request to order that any print-outs or copies of the
CD-ROM were to be destroyed and that data collected with the aid
of the CD-ROM could not be used: neither Article 552a nor any
other provision of the Code of Criminal Procedure provided for the
possibility of obtaining a declaratory ruling that the seizure or the
use of the seized item was unlawful once the item had been
returned.
C. Factual information submitted to the Court by the Government
27. The order issued under Article 96a of the Code of Criminal
Procedure was closely related to a criminal investigation into a
series of ram raids which had taken place on 20 September 2001, 6
November 2001 and 30 November 2001. In these ram raids, cash
dispensers were removed from walls using a shovel loader. A group
of suspects was identified, the main suspects being A and M.
28. A telephone conversation involving M, tapped in the context
of the investigation into those raids on 12 January 2002, revealed
that M and A had participated in an illegal street race in Hoorn with
an Audi RS4 motor car earlier that day.
29. On 1 February 2002 another ram raid took place. During the
incident, a bystander was threatened with a firearm. After ramming a
wall, the perpetrators removed a cash dispenser and hauled it off in
a lorry, which was followed closely by an Audi RS4. The police, who
had already been informed of the incident, saw the lorry stop and
the driver get into an Audi, which then drove away with three people
inside. The police followed, but the Audi accelerated to over 200
kilometres per hour and disappeared from view.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND
PRACTICE
A. The Code of Criminal Procedure
1. Article 96a of the Code of Criminal Procedure
30. Article 96a of the Code of Criminal Procedure reads as follows:
“1. If it is suspected that a crime within the meaning of Article 67 ァ 1 has been
committed, the investigating officer may order a person to surrender an object if it
is reasonable to suspect that the person has an object subject to seizure in his
possession.
2. The order shall not be issued to the suspect.
3. By virtue of their right to decline to give evidence, the following persons are
not obliged to comply with an order of this nature:
a. the persons described in Article 217;
b. the persons described in Article 218, insofar as surrender for seizure would
violate their duty of confidentiality;
c. the persons referred to in Article 219, insofar as surrender for seizure would
put them or their relatives at risk of prosecution for a criminal offence. ...”
31. Article 67 ァ 1 of the Code of Criminal Procedure lists the
offences in respect of which detention on remand may be ordered.
These include, among others, the offences defined in Articles 310-
312 of the Criminal Code (theft, theft under aggravating
circumstances, and robbery).
32. A failure to comply with an order under Article 96a constitutes
an offence as defined in, as relevant to the case, Article 184 (failure
to comply with an official order) of the Criminal Code. This is an
indictable offence (misdrijf) carrying a three-month maximum prison
sentence or a fine.
33. Persons who, by virtue of Articles 217-219 of the Code of
Criminal Procedure, enjoy the privilege of non-disclosure include
a. an accused's relatives, (former) spouse and (former) registered
partner (Article 217);
b. persons who, by virtue of their position, profession or office,
are bound to secrecy – albeit that their privilege of non-disclosure
only covers matters the knowledge of which has been entrusted to
them in that capacity (Article 218; this category is traditionally
considered to include doctors, advocates, clergy and notaries); and
c. persons who, by giving evidence, expose themselves, their
relatives to the second or third degree, their (former) spouse or their
(former) registered partner to the risk of a criminal conviction (Article
219).
34. Article 96a of the Code of Criminal Procedure entered into
force on 1 February 2000. Prior to this date, only the investigating
judge was competent to issue an order to surrender for the purposes
of seizure (former Article 105 of the Code of Criminal Procedure).
2. Article 552a of the Code of Criminal Procedure
35. Article 552a of the Code of Criminal Procedure reads as
follows:
“1. Interested parties may lodge a written complaint about seizure, the use of
seized objects, the failure to order the return, or the examination (kennisneming) or
use of information recorded by means of an automatised device and recorded
during a house search, and about the examination or use of information as
referred to in Articles 100,101, 114, 125i and 125j [i.e. letters and parcels sent by
post, Articles 100, 101 and 114; electronic data, such as internet traffic, recorded
by a third party, Articles 125i and 125j].
2. The written complaint shall be lodged as soon as possible after the seizure of
the object or the examination of the information at the registry of the trial court
before which the case is being prosecuted or was last prosecuted. The written
complaint shall not be admissible if it is lodged at a time when more than three
months have passed since the case prosecuted has been brought to a close.
...
5. The hearing in chambers (raadkamer) to examine the written complaint shall
be public.
6. If the court considers the complaint to be well-founded, it shall give the
appropriate order.”
B. Domestic case-law
36. Until 11 November 1977, the Netherlands Supreme Court did
not recognise a journalistic privilege of non-disclosure. On that date,
it handed down a judgment in which it found that a journalist, when
asked as a witness to disclose his source, was obliged to do so
unless it could be regarded as justified, in the particular
circumstances of the case, that the interest of non-disclosure of a
source outweighed the interest served by such disclosure. This
principle was overturned by the Supreme Court in a landmark
judgment of 10 May 1996 on the basis of the principles set out in the
Court's judgment of 27 March 1996 in the case of Goodwin v. the
United Kingdom (Reports of Judgments and Decisions 1996-II). In
this ruling, the Supreme Court accepted that, pursuant to Article 10
of the Convention, a journalist was in principle entitled to nondisclosure
of an information source unless, on the basis of
arguments to be presented by the party seeking disclosure of a
source, the judge was satisfied that such disclosure was necessary
in a democratic society for one or more of the legitimate aims set out
in Article 10 ァ 2 of the Convention (Nederlandse
Jurisprudentie (Netherlands Law Reports, “NJ”) 1996, no. 578).
C. Official instructions
37. Guidelines on the position of the press in relation to police
action (Leidraad over de positie van de pers bij politieoptreden) were
issued by the Minister of Justice (Minister van Justitie) on 19 May
1988. At the time of the events complained of, they provided, in
relevant part:
“7. Seizure of journalistic material
Journalistic material may be seized in cases described in the Code of Criminal
Procedure. Journalists may be faced with seizure in two ways.
A. The police may, on the instructions of a public prosecutor (officier van justitie)
or an assistant public prosecutor (hulpofficier van justitie) or not as the case may
be, arrest a journalist on suspicion of a criminal act and seize everything he has
with him on the spot.
There must then be a direct connection between a particular criminal act and the
journalistic material with which that act has been committed. In this situation, the
journalist is arrested like any ordinary citizen.
If a prosecution ensues, it will be for the independent judge eventually to decide
what is to be done with any seized – and unpublished – material.
B. Journalistic material may also be seized on the orders of an independent
judge (the investigating judge), if such material may – in the judge's opinion –
serve to clarify the truth in a preliminary judicial investigation (gerechtelijk
vooronderzoek).
...”
D. Developments in domestic law
1. Developments predating the events
38. On 4 December 2000, the boards of the Netherlands Society
of Editors-in-Chief (Nederlands Genootschap van
Hoofdredacteuren) and the Netherlands Union of Journalists
(Nederlandse Vereniging van Journalisten) set up a commission to
investigate and take stock of problems arising in relation to the
protection of journalistic sources and seizure of journalistic
materials. This commission – which was composed of a professor of
criminal law, the secretary of the Netherlands Union of Journalists, a
Regional Court judge and an editor of a national daily newspaper –
concluded in its report of 30 October 2001, inter alia, that specific
legislation was not necessary and that by way of making certain
procedural changes – such as a preliminary assessment procedure,
where it concerned the application of coercive measures in cases
where the protection of sources was in issue – a number of problem
areas could be resolved.
39. Already in 1993, Mr E. Jurgens – at the time a member of the
Netherlands Lower House of Parliament (Tweede Kamer) – had
submitted a private member's bill (initiatiefwetsvoorstel) to amend
the Code of Criminal Procedure and the Code of Civil Procedure in
order to secure the protection of journalistic sources and the
protection of journalists as regards disclosing information held by
them. On 2 March 2005, after remaining dormant, this bill was
eventually withdrawn without having been taken up in parliament.
2. Developments post-dating the events
a. Official instructions
40. On 15 January 2002, in the light of the case-law
developments in this area and Recommendation No. R(2000) 7
adopted by the Committee of Ministers of the Council of Europe on 8
March 2000 (see below), the Board of Procurators General (College
van procureurs-generaal) adopted an Instruction within the meaning
of Article 130 ァ 4 of the Judiciary (Organisation) Act (Wet op de
Rechterlijke Organisatie) on the application by the Public
Prosecution Department of coercive measure in respect of
journalists (Aanwijzing toepassing dwangmiddelen bij journalisten;
published in the Official Gazette (Staatscourant) 2002, no. 46),
which entered into force on 1 April 2002 for a period of four years.
This Instruction defines who is to be considered as a “journalist” and
sets out the pertinent principles and guidelines as regards the
application of coercive measures, such as inter alia an order under
Article 96a of the CCP, in respect of a journalist.
b. Case-law development
41. In a judgment given on 2 September 2005 concerning the
search of premises of a publishing company on 3 May 1996
(Landelijk Jurisprudentie Nummer [National Jurisprudence Number]
LJN AS6926), the Supreme Court held inter alia:
“The right of freedom of expression, as set out in Article 10 of the Convention,
encompasses also the right to freely gather news (see, amongst others, Goodwin
v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577;
and Roemen and Schmit v. Luxembourg,judgment of 25 February 2003 [ECHR
2003-IV]). An interference with the right to freely gather news – including the
interest of protection of a journalistic source – can be justified under Article 10 ァ 2
in so far as the conditions set out in that provision have been complied with. That
means in the first place that the interference must have a basis in national law and
that those national legal rules must have a certain precision. Secondly, the
interference must serve one of the aims mentioned in Article 10 ァ 2. Thirdly, the
interference must be necessary in a democratic society for attaining such an aim.
In this, the principles of subsidiarity and proportionality play a role. In that
framework it must be weighed whether the interference is necessary to serve the
interest involved and therefore whether no other, less far-reaching ways (minder
bezwarende wegen) can be followed along which this interest can be served to a
sufficient degree. Where it concerns a criminal investigation, it must be considered
whether the interference with the right to freely gather news is proportionate to the
interest served in arriving at the truth. In that last consideration, the gravity of the
offences under investigation will play a role.”
3. Proposed legislation
42. The Court's judgment in the Voskuil case (Voskuil v. the
Netherlands, no. 64752/01, 22 November 2007) has prompted the
Government to introduce new legislation. A bill now pending before
Parliament proposes to add a new Article to the Code of Criminal
Procedure (Article 218a) that would explicitly allow “witnesses to
whom information has been entrusted within the framework of the
professional dissemination of news (beroepsmatige berichtgeving)
or the gathering of information for that purpose, or the dissemination
of news within the framework of participation in the public debate, as
the case may be” – that is, professional journalists in particular – to
refuse to give evidence or identify sources of information. Such a
right would be more limited than that enjoyed by the categories
enumerated in Articles 217, 218 and 219 of the Code of Criminal
Procedure; it would be subject to the finding of the investigating
judge that no disproportionate harm to an overriding public interest
(zwaarderwegend maatschappelijk belang) would result from such
refusal. However, persons covered by the proposed new Article
218a would not be among those entitled to refuse outright to
surrender items eligible for seizure: the bill proposes to include them
in the enumeration contained in Article 96a ァ 3 (paragraph 30
above).
E. Relevant international materials
43. Several international instruments concern the protection of
journalistic sources, among others, the Resolution on Journalistic
Freedoms and Human Rights, adopted at the 4th European
Ministerial Conference on Mass Media Policy (Prague, 7-8
December 1994) and the Resolution on the Confidentiality of
Journalists' Sources by the European Parliament (18 January 1994,
Official Journal of the European Communities No. C 44/34).
44. Recommendation No. R(2000) 7 on the right of journalists
not to disclose their sources of information was adopted by the
Committee of Ministers of the Council of Europe on 8 March 2000
and states, in so far as relevant:
“[The Committee of Ministers] Recommends to the governments of member
States:
1. to implement in their domestic law and practice the principles appended to this
recommendation,
2. to disseminate widely this recommendation and its appended principles, where
appropriate accompanied by a translation, and
3. to bring them in particular to the attention of public authorities, police
authorities and the judiciary as well as to make them available to journalists, the
media and their professional organisations.
Appendix to Recommendation No. R (2000) 7
Principles concerning the right of journalists not to disclose their sources of
information
Definitions
For the purposes of this Recommendation:
a. the term 'journalist' means any natural or legal person who is regularly or
professionally engaged in the collection and dissemination of information to the
public via any means of mass communication;
b. the term 'information' means any statement of fact, opinion or idea in the form
of text, sound and/or picture;
c. the term 'source' means any person who provides information to a journalist;
d. the term 'information identifying a source' means, as far as this is likely to lead
to the identification of a source:
i. the name and personal data as well as voice and image of a source,
ii. the factual circumstances of acquiring information from a source by a journalist,
iii. the unpublished content of the information provided by a source to a journalist,
and
iv. personal data of journalists and their employers related to their professional
work.
Principle 1 (Right of non-disclosure of journalists)
Domestic law and practice in member States should provide for explicit and clear
protection of the right of journalists not to disclose information identifying a source
in accordance with Article 10 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter: the Convention) and the principles
established herein, which are to be considered as minimum standards for the
respect of this right.
Principle 2 (Right of non-disclosure of other persons)
Other persons who, by their professional relations with journalists, acquire
knowledge of information identifying a source through the collection, editorial
processing or dissemination of this information, should equally be protected under
the principles established herein.
Principle 3 (Limits to the right of non-disclosure)
a. The right of journalists not to disclose information identifying a source must not
be subject to other restrictions than those mentioned in Article 10 ァ 2 of the
Convention. In determining whether a legitimate interest in a disclosure falling
within the scope of Article 10 ァ 2 of the Convention outweighs the public interest in
not disclosing information identifying a source, competent authorities of member
States shall pay particular regard to the importance of the right of non-disclosure
and the pre-eminence given to it in the case-law of the European Court of Human
Rights, and may only order a disclosure if, subject to paragraph b, there exists an
overriding requirement in the public interest and if circumstances are of a
sufficiently vital and serious nature.
b. The disclosure of information identifying a source should not be deemed
necessary unless it can be convincingly established that:
i. reasonable alternative measures to the disclosure do not exist or have been
exhausted by the persons or public authorities that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly outweighs the public interest in
the non-disclosure, bearing in mind that:
- an overriding requirement of the need for disclosure is proved,
- the circumstances are of a sufficiently vital and serious nature,
- the necessity of the disclosure is identified as responding to a pressing social
need, and
- member States enjoy a certain margin of appreciation in assessing this need,
but this margin goes hand in hand with the supervision by the European Court of
Human Rights.
c. The above requirements should be applied at all stages of any proceedings
where the right of non-disclosure might be invoked.
Principle 4 (Alternative evidence to journalists' sources)
In legal proceedings against a journalist on grounds of an alleged infringement of
the honour or reputation of a person, authorities should consider, for the purpose
of establishing the truth or otherwise of the allegation, all evidence which is
available to them under national procedural law and may not require for that
purpose the disclosure of information identifying a source by the journalist.
Principle 5 (Conditions concerning disclosures)
a. The motion or request for initiating any action by competent authorities aimed
at the disclosure of information identifying a source should only be introduced by
persons or public authorities that have a direct legitimate interest in the disclosure.
b. Journalists should be informed by the competent authorities of their right not to
disclose information identifying a source as well as of the limits of this right before
a disclosure is requested.
c. Sanctions against journalists for not disclosing information identifying a source
should only be imposed by judicial authorities during court proceedings which
allow for a hearing of the journalists concerned in accordance with Article 6 of the
Convention.
d. Journalists should have the right to have the imposition of a sanction for not
disclosing their information identifying a source reviewed by another judicial
authority.
e. Where journalists respond to a request or order to disclose information
identifying a source, the competent authorities should consider applying measures
to limit the extent of a disclosure, for example by excluding the public from the
disclosure with due respect to Article 6 of the Convention, where relevant, and by
themselves respecting the confidentiality of such a disclosure.
Principle 6 (Interception of communication, surveillance and judicial search and
seizure)
a. The following measures should not be applied if their purpose is to circumvent
the right of journalists, under the terms of these principles, not to disclose
information identifying a source:
i. interception orders or actions concerning communication or correspondence of
journalists or their employers,
ii. surveillance orders or actions concerning journalists, their contacts or their
employers, or
iii. search or seizure orders or actions concerning the private or business
premises, belongings or correspondence of journalists or their employers or
personal data related to their professional work.
b. Where information identifying a source has been properly obtained by police or
judicial authorities by any of the above actions, although this might not have been
the purpose of these actions, measures should be taken to prevent the subsequent
use of this information as evidence before courts, unless the disclosure would be
justified under Principle 3.
Principle 7 (Protection against self-incrimination)
The principles established herein shall not in any way limit national laws on the
protection against self-incrimination in criminal proceedings, and journalists should,
as far as such laws apply, enjoy such protection with regard to the disclosure of
information identifying a source.”
For the precise application of the Recommendation, the
explanatory notes specified the meaning of certain terms. As
regards the term “sources” the following was set out:
“c. Source
17. Any person who provides information to a journalist shall be considered as
his or her 'source'. The protection of the relationship between a journalist and a
source is the goal of this Recommendation, because of the 'potentially chilling
effect' an order of source disclosure has on the exercise of freedom of the media
(see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39).
Journalists may receive their information from all kinds of sources. Therefore, a
wide interpretation of this term is necessary. The actual provision of information to
journalists can constitute an action on the side of the source, for example when a
source calls or writes to a journalist or sends to him or her recorded information or
pictures. Information shall also be regarded as being 'provided' when a source
remains passive and consents to the journalist taking the information, such as the
filming or recording of information with the consent of the source.”
F. Information submitted by the intervening third parties
45. Media Legal Defence Initiative, Committee to Protect
Journalists, Article 19, Guardian News & Media Ltd. andOpen
Society Justice Initiative, who were given leave by the President to
intervene in the written procedure, submitted inter alia the following
comparative-law information (footnote references omitted):
“Echoing the Goodwin Court's scrutiny of review procedures and the Committee
of Ministers' recommendation that non-disclosure of sources be sanctionable only
under 'judicial authorit[y]' (Rec. No. R(2000)7, Principle 5(c)), many national laws
state that only courts may compel disclosure of information identifying confidential
sources. The following can be taken as typical examples of legislation to this effect:
- Law on Radio and Television Broadcasting, Art. 7 (Romania), July 11, 2002,
Law No. 504 (revisions in force 3 December 2008) (Legii audiovizualului) (only law
courts may compel disclosure of a journalist's confidential sources);
- Media Act (Croatia), Art. 30, 5 May 2004, Official Gazette No. 59/2004 (Zakon
o medijima) (similar);
- Code of Criminal Procedure, Art. 180 (Poland), 6 June 1997, Law No.
97.89.555 (Kodeks Postepowania Karnego) (right to keep sources confidential is a
testimonial privilege);
- Law of the Republic of Armenia on the Dissemination of Mass Information, Art.
5, 13 December 2003, (...) (disclosure may be compelled only by a 'court decision,
in the course of a criminal proceeding' of certain serious crimes);
- Radio and Television Law, Section 15 (Bulgaria), 23 November 1998, Decree
No. 406 (as amended June 2009) (Закон за радиото и телевизията) (allowing
for disclosure only in 'pending court proceedings or a pending proceeding instituted
on an appeal from an affected person' where court issues appropriate order).
Courts have stressed the same. The Lithuanian constitutional court, investigating
the compatibility of that country's sources laws with the standards set by the
European Court of Human Rights, has held that 'the legislator ... has a duty to
establish, by law, also that in every case it is only the court that can decide
whether the journalist must disclose the source of information.'
In Germany, search and seizure warrants may be issued only by a judge. Only
when there is imminent risk may a prosecutor order such a search. The authorising
judge or prosecutor must always consider the impact of the proposed action on
press freedom; and whether a search or seizure has been ordered by a judge or
by a prosecutor, ex post facto judicial review must always be available.
In the United States, prior judicial review of efforts to compel information from
journalists is a baseline requirement. In nearly all circumstances, law enforcement
authorities must issue a subpoena to try to compel journalists to turn over
information, which the journalists may then challenge in court before providing the
information. In the very limited circumstances where police may proceed by search
warrant (as stated above, these include probable cause to believe the possessor
of the information 'has committed or is committing the criminal offense to which the
materials relate', or that the search or seizure is 'necessary to prevent death or
serious injury') a judge must issue the warrant.”
THE LAW
I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
46. In their request for referral to the Grand Chamber and again
in their written observations on the merits, in addition to restating
their complaint under Article 10 of the Convention the applicant
company alleged a violation of Article 13 in that there had been no
effective prior judicial control and in that the Supreme Court, by
dismissing the applicant company's appeal on points of law as
having become devoid of interest, had deprived an appeal on points
of law of its effectiveness as a remedy. Article 13 of the Convention
provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority notwithstanding
that the violation has been committed by persons acting in an official capacity.”
The Government's Agent, speaking at the hearing, asked the
Court to dismiss the applicant company's complaints under this
Article as being outside the scope of the case.
47. The Court reiterates that in the context of Article 43 ァ 3 the
“case” referred to the Grand Chamber embraces those aspects of
the application that have been declared admissible by the Chamber
(see, among other authorities, K. and T. v. Finland [GC], no.
25702/94, ァ 141, ECHR 2001-VII; and Šilih v. Slovenia [GC], no.
71463/01, ァ 120, 9 April 2009) and those only (see Kafkaris v.
Cyprus [GC], no. 21906/04, ァ 124, ECHR 2008-...; and Kovačić and
Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, ァ
194, ECHR 2008-...).
48. The complaints under Article 13 are new ones, made for the
first time before the Grand Chamber. They are thus not included in
the Chamber's decision on admissibility. It follows that the Court
cannot now consider them.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
49. The applicant company complained that they had been
compelled to disclose information to the police that would have
enabled their journalists' sources to have been revealed in violation
of their right to receive and impart information, as guaranteed by
Article 10 of the Convention. This provision provides as follows:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality
of the judiciary.”
The Government denied that there had been any such violation.
A. General considerations
50. Freedom of expression constitutes one of the essential
foundations of a democratic society and the safeguards to be
afforded to the press are of particular importance. Whilst the press
must not overstep the bounds set, not only does the press have the
task of imparting such information and ideas: the public also has a
right to receive them. Were it otherwise, the press would be unable
to play its vital role of "public watchdog" (Observer and Guardian v.
the United Kingdom, 26 November 1991, ァ 59, Series A
no. 216) The right of journalists to protect their sources is part of the
freedom to “receive and impart information and ideas without
interference by public authorities” protected by Article 10 of the
Convention and serves as one of its important safeguards. It is a
cornerstone of freedom of the press, without which sources may be
deterred from assisting the press in informing the public on matters
of public interest. As a result the vital public-watchdog role of the
press may be undermined and the ability of the press to provide
accurate and reliable information to the public may be adversely
affected.
51. The Court has always subjected the safeguards for respect of
freedom of expression in cases under Article 10 of the Convention to
special scrutiny. Having regard to the importance of the protection of
journalistic sources for press freedom in a democratic society, an
interference cannot be compatible with Article 10 of the Convention
unless it is justified by an overriding requirement in the public
interest (Goodwin v. the United Kingdom, cited above, ァ
39; Roemen and Schmit v. Luxembourg, no. 51772/99, ァ 46, ECHR
2003-IV; Voskuil v. the Netherlands, cited above, ァ 65).
B. Whether there has been an “interference” with a right guaranteed by
Article 10
1. The Chamber's judgment
52. The Chamber accepted that at the time when the CD-ROM
was handed over the information stored on it had only been known
to the applicant company and not yet to the public prosecutor and
the police. It followed, in the Chamber's assessment, that the
applicant company's rights under Article 10 as a purveyor of
information had been made subject to an interference in the form of
a “restriction” and that Article 10 was applicable (see the Chamber's
judgment, ァ 50).
2. Arguments before the Court
a. The Government
53. The Government asked the Court not to accept as fact that
the applicant company, or their journalists as the case might be, had
actually promised to render the participants in the street race and
their cars unrecognisable in any photographs to be published in
order to secure their anonymity. Nothing was known of the persons
with whom such an agreement had purportedly been reached and
what exactly its content might have been. At all events, given the
sheer number of persons participating, it seemed unlikely that an
agreement of any description had been negotiated with every single
one of them.
54. The Government also pointed to the fact that the street race,
though illegal, had taken place in full public view. That being so, and
relying on British Broadcasting Corporation v. the United Kingdom,
no. 25794/94, Commission decision of 18 January 1996, they
argued that the applicant company could not possibly be under any
duty of confidentiality or secrecy.
55. Assuming there nonetheless to be a source deserving of
protection, the Government argued in the alternative that the
agreement of confidentiality, if agreement there were, could relate
only to the street race. Pursuing that hypothesis, the Government
accepted as plausible that the sources might have demanded
confidentiality to avoid being prosecuted for taking part in the race.
However, the order to surrender the photographs had been given in
an entirely different context; it had never been the intention of the
public prosecutor or the police to identify the sources themselves in
connection with their participation in the illegal street race. Nor
indeed had any prosecutions been brought related to the street race,
not even against A and M.
b. The applicant company
56. The applicant company replied that they could not realistically
have been required to produce a written agreement. Their journalists
had stated that in order to be allowed to take pictures, they had had
to promise the organisers of the street race – who were acting on
behalf of all participants – in advance that the identity of participants
would not be revealed in any way.
57. The applicant company countered that the location of the
street race was irrelevant. The police or other third parties would not
have had unrestricted access to the events; moreover, the fact that
the street race took place on the public highway did not alter the fact
that the applicant company's journalists had bound themselves not
to disclose the identity of any participants. They dismissed as
incorrect the distinction made in the Chamber's judgment between
the identification of journalistic sources and the compulsory
handover of journalistic material capable of identifying sources.
c. The intervening third parties
58. The intervening third parties noted that there were
photographs taken by the journalists of the illegal street race from
which any or all of the participants could be identified once the
photographs were in the hands of the authorities.
3. The Court's case-law
59. In its earlier case-law the Court has found various acts of the
authorities compelling journalists to give up their privilege and
provide information on their sources or to obtain access to
journalistic information to constitute interferences with journalistic
freedom of expression. Thus, in Goodwin v. the United Kingdom,
cited above, the Court held a disclosure order requiring a journalist
to reveal the identity of a person who had provided him with
information on an unattributable basis, and the fine imposed upon
him for having refused to do so, to constitute an interference with the
applicant's right to freedom of expression as guaranteed by
paragraph 1 of Article 10.
60. In the British Broadcasting Corporation decision referred to by
the Government (paragraph 54 above), the Commission
distinguished the case of Goodwin v. the United Kingdom case on
the grounds that Mr Goodwin had received information on a
confidential and unattributable basis, whereas the information which
the BBC had obtained comprised recordings of events that had
taken place in public and to which no particular secrecy or duty of
confidentiality could possibly attach”. The Court notes that
nothwithstanding this finding the Commission “assume[d] an
interference with the BBC's Article 10 rights in the case”.
61. In Roemen and Schmit v. Luxembourg, cited above, ァ
47; Ernst and Others v. Belgium, no. 33400/96, ァ 94, 15 July 2003;
and again in Tillack v. Belgium, no. 20477/05, ァ 56, ECHR 2007-
XIII, the Court found that searches of journalists' homes and
workplaces seeking to identify civil servants who had provided the
journalists with confidential information constituted interferences with
their rights guaranteed by paragraph 1 of Article 10. In Roemen and
Schmit, loc. cit., the Court also pointed out that the fact that the
searches proved unproductive did not deprive them of their purpose,
namely to establish the identity of the journalist's source.
62. In Voskuil v. the Netherlands, cited above, ァ 49, an
interference with the applicant's rights under Article 10 of the
Convention was found in that a journalist's refusal to name the
person who had presented him with information on alleged
wrongdoing by police officers in a criminal investigation led the
domestic court to order his detention in an attempt to compel him to
speak.
63. Most recently, in Financial Times Ltd and Others v. the
United Kingdom, no. 821/03, ァ 56, 15 December 2009, the Court
found an order for the disclosure of the identity of an anonymous
source of information addressed to four newspaper publishers and a
news agency to constitute an interference with their rights under
Article 10. Even though the order had not been enforced, that did
not remove the harm to the applicant company since, however
unlikely such a course of action might appear by the time the Court
delivered its judgment, the order remained capable of being
enforced.
4. Application of the case-law principles to the facts of the case
64. Turning to the present case, the Court is of the view that
although the question has been the subject of much debate between
the parties, it is not necessary to determine whether there actually
existed an agreement binding the applicant company to
confidentiality. The Court agrees with the applicant company that
there is no need to require evidence of the existence of a
confidentiality agreement beyond their claim that such an agreement
existed. Like the Chamber, the Court sees no reason to disbelieve
the applicant company's claim that a promise had been made to
protect the cars and their owners from being identified.
65. As the Government correctly state, in the present case the
authorities did not require the applicant company to disclose
information for the purposes of the identification of the street race
participants, but only to surrender photographs which in the
applicant company's submission might, upon examination, lead to
their identification. However, in Nordisk Film & TV A/S v.
Denmark (dec.), no. 40485/02, ECHR 2005-XIII the Court held that
the decision of the Danish Supreme Court to compel the applicant
company to hand over unedited footage constituted an interference
within the meaning of Article 10 ァ 1 of the Convention despite the
finding that the affected persons were not to be considered
“anonymous sources of information” within the meaning of the caselaw
of the Court (paragraphs 59 and 61 above). In its decision the
Court accepted the possibility that Article 10 of the Convention might
be applicable in such a situation and found that a compulsory
handover of research material might have a chilling effect on the
exercise of journalistic freedom of expression.
66. The Court further notes that in the present case the order
concerned was not intended to identify the sources themselves in
connection with their participation in the illegal street race and that
indeed, no prosecution had been brought in relation to this race or
even against A. and M., who were suspected of having committed
grave crimes. The Court, however, does not consider this distinction
to be crucial.
67. In earlier case-law the Court has considered the extent to
which the acts of compulsion resulted in the actual disclosure or
prosecution of journalistic sources irrelevant for the purposes of
determining whether there has been an interference with the right of
journalists to protect them. In the case of Roemen and Schmidt, the
information sought was not obtained as a result of the execution of
the order for search and seizure in the journalist's workplace. This
order was considered “a more drastic measure than an order to
divulge the source's identity... because investigators who raid a
journalist's workplace unannounced and armed with search warrants
have very wide investigative powers, as, by definition, they have
access to all the documentation held by the journalist. It thus
considers that the searches of the first applicant's home and
workplace undermined the protection of sources to an even greater
extent than the measures in issue in Goodwin” (loc. cit., ァ 57).
68. As previously observed, in the case of Financial Times Ltd
and Others v. the United Kingdom, cited above, ァ 56, the fact that
the disclosure order had not actually been enforced against the
applicant company did not prevent the Court from finding that there
had been an interference (see paragraph 63 above).
69. The Court observes, as the Chamber did, that unlike in other
comparable cases – Ernst and Others v. Belgium, cited
above; Roemen and Schmit v. Luxembourg, cited above; Tillack v.
Belgium, cited above – there was no search of the applicant
company's premises. However the public prosecutor and the police
investigators clearly indicated their intention to carry out such a
search unless the editors of Autoweek bowed to their will (see
paragraph 18 above).
70. This threat – accompanied as it was by the arrest, for a brief
period, of a journalist – was plainly a credible one; the Court must
take it as seriously as it would have taken the authorities' actions
had the threat been carried out. Not only the offices
of Autoweek magazine's editors but those of other magazines
published by the applicant company would have been exposed to a
search which would have caused their offices to be closed down for
a significant time; this might well have resulted in the magazines
concerned being published correspondingly late, by which time
news of current events (see paragraph 18 above) would have been
stale. News is a perishable commodity and to delay its publication,
even for a short period, may well deprive it of all its value and
interest (see, for example, Observer and Guardian v. the United
Kingdom, 26 November 1991, ァ 60, Series A no. 216; Sunday
Times v. the United Kingdom (no. 2), judgment of 26 November
1991, Series A no. 217, ァ 51; and Association Ekin v. France, no.
39288/98, ァ 56, ECHR 2001-VIII). This danger, it should be
observed, is not limited to publications or periodicals that deal with
issues of current affairs (cf. Alınak v. Turkey, no. 40287/98, ァ 37, 29
March 2005).
71. While it is true that no search or seizure took place in the
present case, the Court emphasises that a chilling effect will arise
wherever journalists are seen to assist in the identification of
anonymous sources (mutatis mutandis, Financial Times Ltd and
Others v. the United Kingdom, cited above, ァ 70).
72. In sum, the Court considers that the present case concerns
an order for the compulsory surrender of journalistic material which
contained information capable of identifying journalistic sources.
This suffices for the Court to find that this order constitutes, in itself,
an interference with the applicant company's freedom to receive and
impart information under Article 10 ァ 1.
C. Whether the interference was “prescribed by law”
1. The Chamber's judgment
73. The Chamber was satisfied that a statutory basis for the
interference complained of existed, namely Article 96a of the Code
of Criminal Procedure. While recognising that that provision did not
set out a requirement of prior judicial control, the Chamber gave
decisive weight to the involvement of the investigating judge in the
process. Although the Chamber found it unsatisfactory that prior
judicial control by the investigating judge was no longer a statutory
requirement, as it had been until Article 96a entered into force, it
saw no need to examine the matter further (ァァ 51-52 of the
Chamber's judgment).
2. Arguments before the Court
74. All agree that a statutory basis for the interference
complained of existed in domestic law, namely Article 96a of the
Code of Criminal Procedure.
75. The applicant company contended that the law in force lacked
foreseeability. Article 96a of the Code of Criminal Procedure gave
the public prosecutor and the police an unfettered discretion to
determine whether to order the surrender of information, without any
limits as to the grounds on which to do so or the methods to be
used. In particular, it was entirely silent on the subject of
interferences with the journalistic privilege of source protection.
76. Although admittedly Government or other official directives
addressed to subordinate authorities might be taken into account in
assessing foreseeability, in the present case such directives had not
been available. An official instruction issued by the Board of
Procurators General had entered into force only on 1 April 2002, that
is two months after the events complained of.
77. The absence of a statutory requirement of judicial control
constituted, in the applicant company's view, a separate violation of
the requirement of legality. They pointed to Principle 3(a) of
Recommendation No. R(2000) 7 of the Committee of Ministers of
the Council of Europe (see paragraph 44 above), according to which
“competent authorities” should assess the need for disclosure. They
asked the Grand Chamber to clarify the duties of the State in this
respect.
78. They also took issue with the Chamber's finding that the
intervention of the investigating judge had been sufficient in the
instant case to satisfy the requirements of Article 10. In general, the
unregulated involvement of an investigating judge could not make
up for the lack of a statutory guarantee.
79. The Government argued that Article 96a of the Code of
Criminal Procedure satisfied the requirements of foreseeability and
accessibility. In defining the groups entitled to specific protection, the
third paragraph of that Article referred to other Articles of that Code,
namely Articles 217, 218 and 219, none of which mentioned
journalists. Moreover, guidance as to the interpretation of that
provision was to be found in its drafting history and in a policy rule
accessible to the public.
80. The intervening third parties in their observations (see
paragraph 45 above) noted a tendency in countries in Europe and
elsewhere towards the introduction of safeguards, by statute and
case-law both. They cited examples of States that had made
interferences with the protection of journalistic sources subject to
prior judicial authorisation; in some of the jurisdictions named,
though not all, the police could exceptionally proceed with a search
in certain circumscribed cases of particular urgency. Some
jurisdictions provided for review post factum, in certain cases even if
source disclosure had been ordered ante factum by a judge.
3. The Court's assessment
a. Applicable principles
81. The Court reiterates its settled case-law according to which
the expressions “prescribed by law” and “in accordance with the law”
in Articles 8 to 11 of the Convention not only require that the
impugned measure should have some basis in domestic law, but
also refer to the quality of the law in question. The law should be
both adequately accessible and foreseeable, that is, formulated with
sufficient precision to enable the individual – if need be with
appropriate advice – to regulate his conduct.
82. For domestic law to meet these requirements it must afford a
measure of legal protection against arbitrary interferences by public
authorities with the rights safeguarded by the Convention. In matters
affecting fundamental rights it would be contrary to the rule of law,
one of the basic principles of a democratic society enshrined in the
Convention, for a legal discretion granted to the executive to be
expressed in terms of an unfettered power. Consequently, the law
must indicate with sufficient clarity the scope of any such discretion
conferred on the competent authorities and the manner of its
exercise (see, among many other authorities, the Sunday Times v.
the United Kingdom (no. 1) judgment of 26 April 1979, Series A no.
30, ァ 49; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, ァ
37, Series A no. 316-B; Rotaru v. Romania [GC], no. 28341/95, ァ
52, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no.
30985/96, ァ 84, ECHR 2000-XI; and Maestri v. Italy [GC], no.
39748/98, ァ 30, ECHR 2004-I).
83. Further, as regards the words “in accordance with the law”
and “prescribed by law” which appear in Articles 8 to 11 of the
Convention, the Court observes that it has always understood the
term “law” in its “substantive” sense, not its “formal” one; it has
included both “written law”, encompassing enactments of lower
ranking statutes and regulatory measures taken by professional
regulatory bodies under independent rule-making powers delegated
to them by Parliament, and unwritten law. “Law” must be understood
to include both statutory law and judge-made “law”. In sum, the “law”
is the provision in force as the competent courts have interpreted it
(Leyla Şahin v. Turkey [GC], no. 44774/98, ァ 88, ECHR 2005-XI,
with further references).
b. Application of these principles
i. Basis in domestic law
84. The Supreme Court's judgment of 10 May 1996 (NJ 1996,
no. 578) recognised in principle a journalistic privilege of source
protection in terms derived from the Court's Goodwin v. the United
Kingdom judgment, delivered shortly before.
85. At the time of the events complained of, the official instruction
issued by the Minister of Justice on 19 May 1988 (paragraph 37
above) was apparently still valid.
86. The Court accepts, as indeed do the parties, that Article 96a
of the Code of Criminal Procedure provided the statutory basis for
the interference here at issue.
87. There is no question of the above legal materials being
insufficiently accessible.
ii. Quality of the law
88. Given the vital importance to press freedom of the protection
of journalistic sources and of information that could lead to their
identification any interference with the right to protection of such
sources must be attended with legal procedural safeguards
commensurate with the importance of the principle at stake.
89. The Court notes that orders to disclose sources potentially
have a detrimental impact, not only on the source, whose identity
may be revealed, but also on the newspaper or other publication
against which the order is directed, whose reputation may be
negatively affected in the eyes of future potential sources by the
disclosure, and on members of the public, who have an interest in
receiving information imparted through anonymous sources
(see, mutatis mutandis, Voskuil v. the Netherlands, cited above, ァ
71).
90. First and foremost among these safeguards is the guarantee
of review by a judge or other independent and impartial decisionmaking
body. The principle that in cases concerning protection of
journalistic sources “the full picture should be before the court” was
highlighted in one of the earliest cases of this nature to be
considered by the Convention bodies (British Broadcasting
Corporation, quoted above (see paragraph 54 above)). The requisite
review should be carried out by a body separate from the executive
and other interested parties, invested with the power to determine
whether a requirement in the public interest overriding the principle
of protection of journalistic sources exists prior to the handing over
of such material and to prevent unnecessary access to information
capable of disclosing the sources' identity if it does not.
91. The Court is well aware that it may be impracticable for the
prosecuting authorities to state elaborate reasons for urgent orders
or requests. In such situations an independent review carried out at
the very least prior to the access and use of obtained materials
should be sufficient to determine whether any issue of confidentiality
arises, and if so, whether in the particular circumstances of the case
the public interest invoked by the investigating or prosecuting
authorities outweighs the general public interest of source
protection. It is clear, in the Court's view, that the exercise of any
independent review that only takes place subsequently to the
handing over of material capable of revealing such sources would
undermine the very essence of the right to confidentiality.
92. Given the preventive nature of such review the judge or other
independent and impartial body must thus be in a position to carry
out this weighing of the potential risks and respective interests prior
to any disclosure and with reference to the material that it is sought
to have disclosed so that the arguments of the authorities seeking
the disclosure can be properly assessed. The decision to be taken
should be governed by clear criteria, including whether a less
intrusive measure can suffice to serve the overriding public interests
established. It should be open to the judge or other authority to
refuse to make a disclosure order or to make a limited or qualified
order so as to protect sources from being revealed, whether or not
they are specifically named in the withheld material, on the grounds
that the communication of such material creates a serious risk of
compromising the identity of journalist's sources (see, for
example, Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02,
cited above). In situations of urgency, a procedure should exist to
identify and isolate, prior to the exploitation of the material by the
authorities, information that could lead to the identification of
sources from information that carries no such risk (see, mutatis
mutandis,Wieser and Bicos Beteiligungen GmbH v. Austria, no.
74336/01, ァァ 62-66, ECHR 2007-XI).
93. In the Netherlands, since the entry into force of Article 96a of
the Code of Criminal Procedure this decision is entrusted to the
public prosecutor rather than to an independent judge. Although the
public prosecutor, like any public official, is bound by requirements
of basic integrity, in terms of procedure he or she is a “party”
defending interests potentially incompatible with journalistic source
protection and can hardly be seen as objective and impartial so as
to make the necessary assessment of the various competing
interests.
94. According to the guideline of 19 May 1988, under B (see
paragraph 37 above), the lawful seizure of journalistic materials
required the opening of a preliminary judicial investigation and an
order of an investigating judge. However, following the transfer of
the power to issue surrender orders to the public prosecutor under
Article 96a of the Code of Criminal Procedure, this guideline no
longer served as a guarantee of independent scrutiny. As regards
the quality of the law, it is therefore of no pertinence to the case
before the Court.
95. It is true, nonetheless, that the applicant company asked for
the intervention of the investigating judge and that this request was
granted. For the respondent Government and the Chamber the
involvement of the investigating judge was considered to satisfy the
requirement of adequate procedural safeguards.
96. The Court, however, is not satisfied that the involvement of
the investigating judge in this case could be considered to provide
an adequate safeguard. It notes, firstly, the lack of any legal basis
for the involvement of the investigating judge. Being nowhere
required by law, it occurred at the sufferance of the public
prosecutor.
97. Secondly, the investigating judge was called in what can only
be described as an advisory role. Although there is no suggestion
that the public prosecutor would have compelled the surrender of
the CD-ROM in the face of an opinion to the contrary from the
investigating judge, the fact remains that the investigating judge had
no legal authority in this matter - as he himself admitted (see
paragraph 21 above). Thus it was not open to him to issue, reject or
allow a request for an order, or to qualify or limit such an order as
appropriate.
98. Such a situation is scarcely compatible with the rule of law.
The Court would add that it would have reached this conclusion on
each of the two grounds mentioned, taken separately.
99. These failings were not cured by the review post
factum offered by the Regional Court, which was likewise powerless
to prevent the public prosecutor and the police from examining the
photographs stored on the CD-ROM the moment it was in their
possession.
100. In conclusion, the quality of the law was deficient in that
there was no procedure attended by adequate legal safeguards for
the applicant company in order to enable an independent
assessment as to whether the interest of the criminal investigation
overrode the public interest in the protection of journalistic sources.
There has accordingly been a violation of Article 10 of the
Convention in that the interference complained of was not
“prescribed by law”.
D. Compliance with the other requirements of Article 10 § 2
101. Having reached the conclusion that, given the absence of
the requisite procedural safeguards, the compulsion by the
authorities to disclose information in the present case was not
“prescribed by law” as required by this provision, the Court need not
ascertain whether the other requirements of the second paragraph
of Article 10 of the Convention were complied with in the instant
case – namely, whether the interference pursued one of the
legitimate aims stated in that paragraph and whether it was
necessary in a democratic society in pursuance of such aim.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
102. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party concerned
allows only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
103. The applicant company made no claim in respect of
pecuniary or non-pecuniary damage.
B. Costs and expenses
104. The applicant company submitted the following claims,
supported by time-sheets, in respect of costs and expenses:
in respect of the domestic proceedings, 49,111.15 euros (EUR)
not including value-added tax;
in respect of the proceedings before the Grand Chamber, EUR
68,022.00 (the Court understands this sum not to include valueadded
tax).
The lawyers who represented the applicant company before the
Chamber waived all costs in respect of the Chamber proceedings.
The applicant company's total claims thus came to EUR
117,133.15.
105. The Government disputed the existence of a causal link
between these costs and expenses and the events now found by the
Court to have violated the Convention. They assumed that any
violation which the Court might find, if violation there were, would
relate to the lack of procedural safeguards. In their view, the seizure
of the journalistic materials as such was a distinct issue; the
decisions of the domestic authorities had not in themselves been
contrary to Article 10 of the Convention and could therefore not give
rise to an award of the sums claimed by the applicant company.
106. In the alternative, they submitted that the sums claimed
were excessive.
107. Speaking at the Court's hearing on 6 January 2010, the
Government's Agent drew attention to a press release suggesting
that the applicant company's representatives were paid by the nongovernmental
body Stichting Persvrijheidsfonds(Fund for the
Freedom of the Press).
108. Invited by the Court to respond to this statement in writing,
the applicant company acknowledged that they were supported by
that body inasmuch as it had promised to pay EUR 9,000 towards
legal costs in the event that the Court should deny them their claim;
however, they would be liable for the entire amount if they prevailed.
109. According to the Court's established case-law, costs and
expenses will not be awarded under Article 41 unless it is
established that they were actually and necessarily incurred, and
were reasonable as to quantum. Furthermore, legal costs are only
recoverable in so far as they relate to the violation found (see, as
recent authorities, Šilih, cited above, ァ 226,; Mooren v.
Germany [GC], no. 11364/03, ァ 134, ECHR 2009-...; and Varnava
and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90,
16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90,
ァ 229,
ECHR 2009-...).
110. The Court finds it established that the applicant company
actually incurred legal costs in the sense that they, as client, made
themselves legally liable to pay their legal representatives on an
agreed basis. The arrangements they made to cover their financial
obligations to their representatives are not material for the purposes
of Article 41. The situation in the present case is distinguishable
from that in which liability for legal costs is borne by a third party
(see Dudgeon v. the United Kingdom(former Article 50), 24 February
1983, ァァ 21-22, Series A no. 59).
111. Although the Court takes the Government's point that it has
not ruled on the substantive justification of the seizure complained
of, for the purpose of costs and expenses it cannot in the present
case separate procedure from substance. The proceedings initiated
by the applicant company were appropriate to their complaint of
inadequate procedural protection in that they offered the domestic
authorities a realistic opportunity to redress the substantive failings
alleged. Indeed, it is difficult to conceive that the Court would have
declared the application admissible had the applicant company not
made use of the possibilities offered by domestic law. A causal link
between the violation found and the costs claimed therefore exists;
in other words, the costs were “necessarily incurred”.
112. However, the Court agrees that the sums claimed are not
reasonable as to quantum either as regards the hourly rates applied
or as regards the number of hours charged.
113. Making its own assessment based on the information
contained in the case file, the Court considers it reasonable to award
EUR 35,000 in respect of costs and expenses, plus any tax that may
be chargeable to the applicant company.
B. Default interest
114. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 10 of the
Convention;
2. Holds
(a) that the respondent State is to pay the applicant company,
within three months, EUR 35,000 (thirty-five thousand euros),
plus any tax that may be chargeable to the applicant company, in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
3. Dismisses the remainder of the applicant company's claim for
just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 14 September 2010.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 ァ 2 of the Convention and Rule 74 ァ
2 of the Rules of Court, the separate concurring opinion of Judge
Myjer is annexed to this judgment.
J.-P.C.
M.O'B
CONCURRING OPINION OF JUDGE MYJER
1. “An unsatisfactory feature of Protocol No. 11 to the Convention,
which ushered in the permanent Court in Strasbourg, is that a
national judge who has already been party to a judgment of a
Chamber in a case brought against his or her State is not only
entitled but, in practice, required, to sit and vote again if the case is
referred to the Grand Chamber. In his Partly Dissenting Opinion in
the case of Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR
2005-...), Judge Costa described the position of the national judge in
such circumstances as “disconcerting”, the judge having to decide
whether to adhere to his or her initial opinion on the case or “with
the benefit of hindsight [to] depart from or even overturn [that]
opinion”.
Where the case has already been fully argued and discussed at
the Chamber level and no new information or arguments have been
advanced before the Grand Chamber, national judges have,
unsurprisingly, normally adhered to their previous opinion, although
not necessarily to the precise reasoning which led to that opinion in
the Chamber.
In the present case, the material and arguments before the Grand
Chamber did not differ in any significant respect from those before
the Chamber. I have, nevertheless concluded, on further reflection,
that my previous view on the main issue was wrong and I have
voted with the majority in finding that the applicants' rights under
Article 8 were violated.”
Those were the words of my learned friend and colleague Sir
Nicolas Bratza in his concurring opinion in the case of Dickson v.
the United Kingdom [GC], no. 44362/04, ECHR 2007-XIII. A majority
of twelve to five of the Grand Chamber in that case found a violation
of Article 8. Sir Nicolas's change of opinion was the more
courageous for it. No one would have held it against him if he had
voted with the minority.
In the deliberations of the Grand Chamber in the present case
there was an overwhelming majority in favour of violation. In the
Chamber I was one of the majority of four to three who found no
violation.
It seems to be that any judge who is a lone voice against all
others in the Grand Chamber will have to come up with very
persuasive arguments indeed, but a national judge even more so. A
suspicion may well arise that that judge is incapable of taking the
necessary critical distance of legal practice in his or her country of
origin.
The fact is that I have not found sufficient convincing reason to
stick to my guns and vote for no violation. I was originally of the
opinion that this was a borderline case in which the circumstances of
the case ultimately tipped the scales towards the respondent. I am
still of the opinion that this is a borderline case, even after hearing
the views of the other members of the Grand Chamber, and I even
ask myself whether this case really raises “a serious question
affecting the interpretation or application of the Convention ... or a
serious issue of general importance” (Article 43 ァ 2 of the
Convention). The fact that the present judgment contains several
useful summing-ups of general applicable principles does not
change that view. Be that as it may, I am now prepared to cross the
room and join my colleagues in finding that there has been a
violation of Article 10.
2. I am deeply aware that in a case such as the present, there is
a huge difference between the perception of the police and the
prosecution and that of the applicant. The police and the prosecution
were faced with an emergency. There was an investigation ongoing
into a series of ram raids. The defining moment came when one of
the ram raiders threatened a bystander with a firearm. Faced with so
serious a threat to the public, the authorities had no longer any
alternative but to do their utmost to bring the perpetrators to book.
The make of the getaway car was known. Someone remembered an
intercepted telephone conversation which had yielded the
information that one of the suspected ram raiders had participated in
an illegal street race. It was known that a photographer
commissioned by the magazine Autoweek had taken pictures at the
time; it was felt necessary to check whether the getaway car was the
same as the car used by the suspected ram raider in the street race.
The public prosecutor immediately ordered the pictures to be
handed over. Autoweek's editorial team were not told what it was all
about. All they were told was that there was an investigation ongoing
into the illegal streetrace and it concerned a matter of life and death.
The applicant, publisher of Autoweek, was confronted with an
order to surrender journalistic materials. Neither the police nor the
prosecution were prepared to say any more than that the matter was
one of life and death. Invoking their journalistic privilege of nondisclosure
of the sources, the applicant company refused to
surrender the photographs and called in their lawyers.
A stalemate ensued. The police and the prosecution were
concerned to arrest the ram raiders as quickly as possible and
brought all their authority to bear. Time was pressing. They refused
to give any detailed explanation as to precisely why the photographs
were so important to them. They indicated only that they were
seeking to resolve a serious crime and not to prosecute the
participants of the illegal street race.
Eventually, Autoweek's lawyer suggested calling in the
investigating judge to mediate, as it were, in an attempt to break the
stalemate.
Having been informed by the public prosecutor of the background
of the case for which the photographs were needed, the
investigating judge took the view that there was in fact every reason
for the applicant company to be required to surrender the
photographs.
Autoweek's representative then handed over the photographic
material under protest.
The Regional Court later took the properly judicial view that there
had been ample reason for the authorities to demand the handover
of the photographs. It did, however, express itself critically on the
way in which the police and the prosecution had conducted
themselves in this case.
3. In the Chamber judgment too the majority, although they found
no violation, animadverted on the conduct of the police and the
prosecution in the case. In paragraph 63 of their judgment they
echoed the Regional Court of Amsterdam in expressing the view
that the actions of the police and the public prosecutor were
characterised by “a regrettable lack of moderation”. They also
expressed their disquiet at the salient feature of the case, namely
(from the Convention perspective) the fact that “the prior
involvement of an independent judge is no longer a statutory
requirement” (paragraph 62). Even so, they were able to state their
reasons for finding no violation of Article 10. These were the
following:
Unlike the cases of journalistic source protection which the Court
has been faced with until now, the police were not actually after the
identity of the sources. Their purpose was solely to use the material
in question to solve a serious and dangerous crime that had only
just been committed. I would think it safe to assume that the material
has been used for no other purpose.
Although in Netherlands law there was no longer provision made
for any prior review by an independent judge of orders for the
surrender of journalistic material, in the case at hand there had
actually such review in the end. Admittedly this had been done at
the insistence of the applicant's counsel himself, in order to defeat
the stalemate, but even so the judge who had been called in was an
independent judge. That means that Autoweek's publishers had the
benefit of protection going beyond the review post factum offered by
the Regional Court (which incidentally also concluded that there had
been reason enough to demand the surrender of the journalistic
material).
4. The Grand Chamber, for its part, is more impressed by the
absence of any statutory provision in Netherlands law for prior
judicial review before the police or the prosecution were allowed to
seize journalistic materials. As mentioned, the Chamber also
considered that disquieting but attached more importance to the fact
that ultimately a judge had given his prior opinion. The Grand
Chamber's argument that that judge lacked all official powers in the
matter does not convince me. I have every reason to believe that
since the public prosecutor had agreed with Autoweek's lawyer to
involve the judge, any opinion expressed by the latter to the effect
that the photographic material was not to be handed over would
have been respected and would have resulted in an immediate end
to the attempts to seize the materials that evening. That said, I am
convinced by the reasoning of the Grand Chamber in stressing the
need, even if prior review is provided for, to set out a clear decision
model requiring the judge to consider whether a more limited
interference with journalistic freedom will suffice (paragraph 92). It
certainly adds to the case-law to demand such a proportionality test
(or subsidiarity test, if one will) so clearly and explicitly.
5. “What would your answer have been if a similar case, with a
comparable show of force by the police and the prosecution service,
had been brought before us from one of the new democracies?” is a
question which I have been asked by a colleague from one of those
countries. “Would you still have allowed yourself to be satisfied by
the involvement, at the eleventh hour, of a judge who has no legal
competence in the matter?”
A remark of similar purport was made in the dissenting opinion
appended to the Chamber judgment: “In finding no violation, the
majority merely wags a judicial finger in the direction of the
Netherlands authorities but sends out a dangerous signal to police
forces throughout Europe, some of whose members may, at times,
be tempted to display a similar 'regrettable lack of moderation'.”
That was ultimately the push I needed to be persuaded to cross
the line and espouse an opinion opposite to that which I held earlier.
I am bound to admit that the Grand Chamber's judgment provides
clear guidance for the legislation needed and the way in which
issues like these should be addressed in future.
SANOMA UITGEVERS B.V. v. THE NETHERLANDS JUDGMENT
SANOMA UITGEVERS B.V. v. THE NETHERLANDS JUDGMENT
SANOMA UITGEVERS B.V. v. THE NETHERLANDS JUDGMENT – SEPARATE
OPINION
SANOMA UITGEVERS B.V. v. THE NETHERLANDS JUDGMENT – SEPARATE
OPINION