CEDH · CASELAW;CLIN;ENG — 18 avril 2013

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Luxembourg - 26419/10 Judgment 18.4.2013 [Section V] Article 8 Article 8-1 Respect for home Search and seizure operation at newspaper to confirm identity of article author: violation   Article 10 Article 10-1 Freedom to impart information Freedom to receive information Order for search and seizure couched in wide terms that did not preclude discovery of journalist’s sources: violation   Facts – In December 2008 the newspaper Contacto , published by the applicant company Saint-Paul Luxembourg S.A., printed an article under the name “Domingos Martins”. The article described the situation of families who had lost the custody of their children, and named some of the persons concerned. In January 2009 the prosecuting authorities opened a judicial investigation concerning the author of the article for a breach of the legislation on the protection of minors and for defamation. In March 2009 an investigating judge issued a search and seizure warrant in respect of the registered office of the applicant company in its capacity as the newspaper’s publisher. In May 2009 police officers visited the newspaper’s premises. The journalist who had written the article gave them a copy of the newspaper, a notebook and various documents used in preparing the article, and one of the police officers inserted a USB key in the journalist’s computer. All the applications made by the applicant company and the journalist to have the warrant set aside and the search and seizure operation declared null and void were rejected. Law – Article 8: The search and seizure operation carried out at the applicant company’s premises had been intrusive, notwithstanding the fact that the journalist had cooperated with the police, who could have executed the measure by force had he refused to cooperate. The incident amounted to interference with the applicant company’s right to respect for its “home”. The interference had been in accordance with the law and had pursued several legitimate aims: first, the prevention of disorder and crime – as the measure had been designed to determine the true identity of a person facing criminal prosecution in the context of a judicial investigation and to elucidate the circumstances of a possible offence – and, second, the protection of the rights of others, as the article in question had implicated named individuals and reported on a relatively serious matter. The journalist had written the article under the name “Domingos Martins”. The list of officially recognised journalists in Luxembourg did not include that name, but it did include the name “De Araujo Martins Domingos Alberto”, a journalist working for the newspaper Contacto . The similarity between the names, the unusual combination of elements they contained and the link to the newspaper in question made the connection between the author of the article and the person on the list obvious. On the basis of that information, the investigating judge could initially have employed a less intrusive measure than a search in order to confirm the identity of the person who had written the article. The search and seizure operation had therefore not been necessary at that stage. Accordingly, the measures complained of had not been reasonably proportionate to the legitimate aims pursued. Conclusion : violation (six votes to one). Article 10: The warrant in question had constituted interference with the applicant company’s freedom to receive and impart information. That interference had been prescribed by law and had pursued a legitimate aim. Its purpose had been to find and seize “any documents or items, irrespective of form or medium, connected with the alleged offences …”. As the warrant had been worded in broad terms, the possibility that it was aimed at uncovering the journalist’s sources could not be ruled out. Furthermore, the police officers, who had conducted the search on their own in the absence of any safeguards, had been responsible for deciding which items it was necessary to seize. They had been able to access information which the journalist had not intended to publish and which could have enabled other sources to be identified. The extraction of the data from the computer using a USB key had allowed the authorities to gather information which was unrelated to the offence being prosecuted. The warrant had not been sufficiently limited in scope to avoid possible abuse. Since, according to the Government, the sole purpose of the search had been to discover the real identity of the journalist who had written the article, a more restrictive form of wording, referring solely to that purpose, would have sufficed. The search and seizure operation at the applicant company’s registered office had therefore been disproportionate to the aim sought to be achieved. Conclusion : violation (unanimously). Article 41: no claim made in respect of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes