CEDH · PRESS;GCJUDGMENTS;ENG — 14 septembre 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s466FDBFB { margin-top:0pt; margin-bottom:0pt; text-indent:2.85pt; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sFD47A7EE { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9F0D231E { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid } .sC90828B6 { font-family:Arial; font-size:11pt; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .sB853CD25 { font-family:Arial; font-size:9pt } .s163D3B2F { font-family:Arial; font-size:9pt; text-decoration:underline; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } 651 14.09.2010   Press release issued by the Registrar   Grand Chamber Judgment [1]   Sanoma Uitgevers B.V. v. the Netherlands (application no.   38224/03)     SEIZURE OF JOURNALISTS’ CONFIDENTIAL SOURCE MATERIAL ILLEGAL   Violation of Article 10 (freedom of expression) of the European Convention on Human Rights     Principal facts   The applicant, Sanoma Uitgevers B.V., is a Dutch magazine publishing company, based in Hoofddorp (the Netherlands). The case concerned photographs, to be used for an article on illegal car racing, which the company was compelled to hand over to police investigating another crime, despite the journalists strong objections to being forced to divulge material capable of identifying confidential sources.   On 12 January 2002 an illegal car race was held in an industrial area on the outskirts of the town of Hoorn. The company maintained that journalists working for its magazine Autoweek – who were doing a feature article on illegal car racing - were given permission to cover the event, provided that they did not identify those involved. The photographs were to be touched up to prevent the identification of the cars or participants and then stored on a CD ‑ ROM. In the event, the race was stopped by the police, who were also present. No arrests were made.   The police later suspected that one of the cars (an Audi RS4) used in the race had also been used as the getaway car in a ram raid on 1 February 2001, during which a cash point machine was stolen and a bystander threatened with a firearm.   Later that day the police tried to order the applicant company to surrender the CD ‑ ROM containing the photographs for seizure. The applicant company refused, in order to protect the confidentiality of their journalistic sources. The Amsterdam public prosecutor then issued the company with a summons under Article 96a of the Code of Criminal Procedure (Article 96a) to surrender the photographs and any related material concerning the race. The magazine’s editor-in-chief refused, again invoking the journalists’ undertaking not to identify the participants. At 6.01 p.m. on 1 February 2002, he was arrested and brought before the Amsterdam public prosecutor. He was released at 10 p.m.   Sanoma Uitgevers B.V.’s lawyer obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge of Amsterdam Regional Court, who, although recognising from the outset that he had no legal competence in the matter, took the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege.   On 2 February 2002 at 1.20 a.m., the applicant company, under protest, surrendered the CD-ROM, which was then officially seized.   On 15 April 2002 the company lodged a complaint before the Regional Court, seeking the lifting of the seizure and restitution of the CD ROM, an order to the police and prosecution to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution from using information obtained through the CD-ROM. On 19 September 2002 the court granted only the request to lift the seizure and to return the CD-ROM.     Complaints, procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 1   December   2003.   Relying on Article   10, the applicant company complained that they had been compelled to disclose information to the police that would have revealed their journalists’ sources.   In its Chamber judgment in the case, notified on 31 March 2009, the Court found that, although in principle a compulsory handover of journalistic material might have a chilling effect on the exercise of journalistic freedom of expression, the Netherlands authorities were not prevented from balancing the conflicting interests involved in the case. In particular, the information contained on the CD-ROM had been relevant and capable of identifying the perpetrators of other crimes investigated by the police and the authorities had only used that information for those purposes. The Chamber therefore held, by four votes to three, that there had been no violation of Article 10.   On 14 September 2009 the case was referred to the Grand Chamber at the applicant company’s request.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France), President , Christos Rozakis (Greece), Nicolas Bratza (the United Kingdom), Peer Lorenzen (Denmark), Françoise Tulkens (Belgium), Karel Jungwiert (the Czech Republic), Rait Maruste (Estonia) Khanlar Hajiyev (Azerbaijan), Egbert Myjer (the Netherlands), Sverre Erik Jebens (Norway), Dragoljub Popović (Serbia), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Päivi Hirvelä (Finland), George Nicolaou (Cyprus), Zdravka Kalaydjieva (Bulgaria), Mihai Poalelungi (Moldova), judges , and also Michael O’Boyle , Deputy Registrar .     Decision of the Court   Article 10   Like the Chamber, the Grand Chamber saw no reason to disbelieve Sanoma Uitgevers B.V.’s claim that its journalists had promised not to identify the people involved in the illegal car race. The case concerned an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources. That sufficed for the Court to find that the order constituted, in itself, an interference with the company’s freedom to receive and impart information under Article 10 § 1.   Unlike the Chamber, however, the Grand Chamber found the interference was not “prescribed by law”.   All agreed that the interference in question had a statutory basis (Article 96a § 3 of the Code of Criminal Procedure). Discussion centred on the quality of the law, in particular on the procedural guarantees required.   The Court noted that orders to disclose sources potentially had a detrimental impact, not only on the source, whose identity might be revealed, but also on the newspaper or publication against which the order was directed, whose reputation might be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who had an interest in receiving information imparted through anonymous sources.   The most important safeguard was the guarantee of review by a judge or other independent and impartial decision-making body. It 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 existed prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it did not.   For urgent orders or requests, 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 arose and to weigh up the various interests involved. Any independent review that only took place subsequent to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality.   The judge or other independent and impartial body had therefore to be in a position to weigh the potential risks and respective interests prior to any disclosure and with reference to the material in question. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure could suffice. 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. In urgent cases, 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 carried no such risk.   In the Netherlands, since the entry into force of Article 96a, that decision was entrusted to the public prosecutor rather than an independent judge. In terms of procedure the public prosecutor was a “party”, who could hardly be seen as objective and impartial.   Neither was the Court satisfied that the involvement of the investigating judge in the case could be considered to provide an adequate safeguard; the investigating judge had only an advisory role and one without any legal basis - as the judge in the case himself admitted. 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. Such a situation was scarcely compatible with the rule of law. And, the Court added, it would have reached that conclusion on each of the two grounds mentioned, taken separately.   Those failings were not rectified 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.   In conclusion, the quality of the law in question was deficient in that there was no procedure with adequate legal safeguards available to the applicant company 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 had therefore been a violation of Article 10 in that the interference complained of was not “prescribed by law”.   Article 41   By way of just satisfaction, the Court ordered the Netherlands to pay the applicant a total of EUR   35,000 for costs and expenses.   Separate opinion   Judge Myjer, who had been one of the majority of the Chamber which had found no violation, expressed a separate opinion concurring with the Grand Chamber that there had been a violation. This opinion is annexed to the judgment.   ***   The text of the judgment exists in English and French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Emma Hellyer (tel: +33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70) Céline Menu-Lange (tel: + 33 3 90 21 58 77) Frédéric Dolt (tel: + 33 3 90 21 53 39) Nina Salomon (tel: + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention). All final judgments   are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .