CEDH · CASELAW;CLIN;ENG — 14 septembre 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 133 August-September 2010 Sanoma Uitgevers B.V. v. the Netherlands [GC] - 38224/03 Judgment 14.9.2010 [GC] Article 10 Article 10-1 Freedom to impart information Freedom to receive information Police seizure of material that could have led to identification of journalistic sources: violation   Facts – The applicant company owned a car magazine which decided to publish an article on illegal road racing. Journalists from the magazine obtained permission from the organisers of one of these events to take photographs on condition that they did not disclose the participants’ identity. The original photographs were stored on a CD-ROM and the intention was to edit the photographs in the published version so as to conceal the identities of the cars and the participants. However, before the article could be published, the editor-in-chief of the magazine was served with a summons from a public prosecutor requiring the surrender of the photographs on the grounds that they were required in connection with a criminal investigation into a “matter of life and death”. When he refused, he was threatened with prosecution and detention and told that the company’s premises would be searched and its computers removed. A temporary closure of its premises would have entailed important financial losses for the company. The editor-in-chief was later detained on the company premises for a period of four hours. The CD-ROM containing the photographs was subsequently surrendered after a duty investigating judge, who had intervened at the company’s request and with the prosecutors’ agreement, expressed the view that the needs of the criminal investigation outweighed the company’s journalistic privilege. The seizure was ruled lawful by a regional court after it had heard evidence from the public prosecutor that the photographs were required to help identify a car suspected of having been used in ram raids on cash dispensers, and that the investigation did not concern the road race. That decision was upheld on appeal. Law – Article 10: The authorities had clearly indicated that a search of the applicant company’s premises would be carried out unless the CD-ROM was handed over. This would have entailed the temporary closure of its offices and delays in the publication of perishable news items. One of the magazine’s journalists had also been arrested for a brief period. Accordingly, even though no actual search or seizure had taken place, the case had concerned an order for the compulsory surrender of journalistic materials containing information capable of identifying journalistic sources. That order constituted, in itself, an interference with the applicant company’s freedom to receive and impart information. As to whether that interference had been “prescribed by law”, it was common ground that it had a statutory basis, namely Article 96a §   3 of the Code of Criminal Procedure. However, the Court reiterated that, in order to satisfy the “quality” of law requirement, any interference with the right to protection of journalistic sources and of information that could lead to their identification had to be attended with legal procedural safeguards commensurate with the importance of the principle at stake. First and foremost among these safeguards was the guarantee of a review by an independent and impartial body vested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources had existed prior to the handing over of any relevant material and to prevent unnecessary access to information capable of disclosing the sources’ identity if not. Such a review was preventive in nature and the review body had to be in a position to weigh up the potential risks and respective interests prior to any disclosure and with reference to the material whose disclosure was sought. Conducting the review ex post facto would undermine the very essence of the right to confidentiality. The review body’s decision should be governed by clear criteria, including as to whether less intrusive measures would suffice, and it should have the power to refuse disclosure or to make limited or qualified orders in order to protect sources, whether or not specifically named in the materials. Applying these principles to the applicant company’s case, the Court noted that since the entry into force of Article   96a of the Code of Criminal Procedure, the power to order disclosure had been entrusted to the public prosecutor, rather than to an independent judge. Although bound by the requirements of basic integrity, in procedural terms the prosecutor was a “party” defending interests potentially incompatible with the protection of journalistic sources and could hardly be seen as objective and impartial. Further, although the applicant company’s request for the involvement of the investigating judge had been granted, his intervention had been without legal basis and he had played only an advisory role, without any legal authority. Such a situation was scarcely compatible with the rule of law. Those failings had not been cured by the ex post facto review by the regional court, which had been powerless to prevent the public prosecutor and the police from examining the photographs stored on the CD-ROM once in their possession. In conclusion, the quality of the law in question had been deficient in the absence of a procedure attended by adequate legal safeguards enabling an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources. Accordingly, the interference had not been “prescribed by law”. 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