CEDH · PRESS;GENERAL;ENG — 15 juillet 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s560DCDD3 { margin-left:10.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s48F8B750 { font-size:8pt; display:none } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .sEE1EDB13 { font-family:Arial; font-weight:normal; font-style:italic } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .s6A184BC2 { font-family:Arial; font-weight:normal } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s23A41E03 { width:36pt; display:inline-block }   EUROPEAN COURT OF HUMAN RIGHTS     391   15.7.2003   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF ERNST AND OTHERS v. BELGIUM   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Ernst and Others v. Belgium (application no. 33400/96). The Court held unanimously that there had been   a violation of Article 10 (freedom of expression) of the European Convention on Human Rights; a violation of Article 8 (right to respect for private life) of the Convention; no violation of Article 6 § 1 (right to a fair hearing) of the Convention; no violation of Article 14 (prohibition of discrimination), taken together with Article 6 §   1 (access to a court) of the Convention; and no violation of Article 13 (right to an effective remedy) of the Convention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded each of the applicants 2,000 euros (EUR) for non-pecuniary damage and EUR 9,000 jointly for costs and expenses.   (The judgment is in French only.)   1.     Principal facts   The applicants are four Belgian nationals: Martine Ernst is a journalist with Radio Télévision de la Communauté Française de Belgique ( R.T.B.F. ), Alain Guillaume and René Haquin are journalists on the daily newspaper Le Soir , and Philippe Brewaeys is a journalist on the weekly Le Soir Illustré .   On 23 June 1995 the Serious Crimes Squad, acting under instructions from the investigating judge in charge of the case, carried out searches of the newspapers’ offices, the head office of the R.T.B.F. and the four journalists’ homes. The searches were performed in connection with the prosecution of members of the State legal service at the Liège Court of Appeal for breach of confidence following leaks in highly sensitive criminal cases.   On 20 September 1995 the applicants lodged a complaint with the investigating judge of the Brussels Court of First Instance against a person or persons unknown and applied to be joined to the proceedings as civil parties. They complained among other things that they had not been given relevant information concerning the reasons for, and aims and scope of, the measures ordered by the investigating judge, and argued that the massive searches carried out on 23 June 1995 had violated both the privilege attaching to journalists’ sources of information, in breach of Article 10 of the Convention, and their right to respect for their home and private life. On 16 October 1995 the Court of First Instance, sitting in private, noted that the complaints were implicitly directed against a member of the judiciary and so withdrew the case from the investigating judge and transferred it to the public prosecutor’s office. The case file was then forwarded to the Minister of Justice and subsequently to the Principal Public Prosecutor at the Court of Cassation.   In a judgment of 1 April 1996, the Court of Cassation held that, since the complaint was directed against a judge, who enjoyed immunity from jurisdiction, the applicants’ application to be joined as civil parties was inadmissible and had not, therefore, set the prosecution in motion. It further noted that the Principal Public Prosecutor at the Brussels Court of Appeal, who was the only person with power to institute criminal proceedings against a judge, had not done so either. On 26 April 1996 the Principal Public Prosecutor at the Brussels Court of Appeal informed the applicants that no further action would be taken on their complaint.   In the meantime, on 21 November 1995, the applicants had brought a civil action in the court of first instance seeking damages from the State for their losses resulting from the search and seizure operation. That action is still pending.   2.     Procedure and composition of the Court   The application [Note1] was lodged with the European Commission of Human Rights on 27   September 1996 and transferred to the Court on 1 November 1998. A hearing was held on 25 June 2002 following which the Chamber declared the application inadmissible in so far as it had been lodged by the Society of Professional Journalists at Le Soir and the Association of Professional Journalists in Belgium. Otherwise, it was declared admissible.   Judgment was given by a Chamber of 7 judges, composed as follows: [Note2]   Jean-Paul Costa (French), President , András Baka (Hungarian), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Volodymyr Butkevych (Ukrainian), Antonella Mularoni (San Marinese), judges , Paul Lemmens (Belgian), ad hoc judge , and also Lawrence Early , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained under Article 6 of the Convention that, as interpreted by the Court of Cassation, the investigating judge’s immunity from jurisdiction had produced a denial of justice and prevented them from referring their claim to a court that had jurisdiction to decide all matters of fact and law. They added that there had been various breaches of Article   6 in the proceedings: items of documentary evidence had not been disclosed, and others had not been communicated to them. They also complained that they had not had a hearing in public.   The applicants further alleged that the search and seizure procedures to which they had been subjected constituted an interference with their freedom of expression, in breach of Article   10, and a breach of their right to respect for their home and private life, in breach of Article 8. They also complained under Article 14, taken together with Article 6, that they had been discriminated against by comparison to the position of a person lodging a complaint against someone other than a judge. Lastly, they alleged that, in breach of Article 13 of the Convention, they had no effective remedy for the failure to take action on their complaint.   Decision of the Court   Article 6 § 1 of the Convention   Right of access to a court The Court noted that the applicants had been given access to the Court of Cassation only to see their application to be joined as civil parties to the proceedings declared inadmissible on the ground that the defendant was a judge, and thus entitled to immunity from jurisdiction. Immunity from jurisdiction was a long-standing practice intended to ensure the proper administration of justice and was also to be found in other domestic and international legal systems. It pursued a legitimate aim, as it was a means of ensuring the proper administration of justice.   Under Belgian law it was the court of appeal that had jurisdiction to hear criminal proceedings against members of the judiciary, the power to bring such proceedings being vested solely in the principal public prosecutor at the court of appeal. In order to decide whether such immunity from jurisdiction was compatible with the Convention, the Court had to examine whether the applicants had had other remedies available to protect their rights under the Convention effectively.   In that connection, the Court noted that the applicants could have brought a civil action against the other persons referred to in their complaint, but thought it unlikely that they could have brought a civil action under the Judicial Code for damages against a judge for misuse of authority. It also noted that the applicants had brought a civil action in damages against the State in respect of the same matters as those set out in their complaint. Accordingly, they had not been deprived of an action to seek reparation. In the circumstances, the Court found that the restrictions on the right of access to a court, which were a consequence of the special nature of immunity from jurisdiction, had not infringed the very essence of the applicants’ right to a court and were not disproportionate, for the purposes of Article 6 § 1 of the Convention. Consequently, it held that there had been no violation of the Convention under that head.   Failure to communicate documentary evidence concerning the searches The Court noted that, in deciding whether the application to join the proceedings as civil parties was admissible, the Court of Cassation had relied on documentary evidence that had been disclosed to the applicants in accordance with the principles governing adversarial process. The Court of Cassation had not needed to refer to any other items of evidence in order to reach its decision and the fact that evidence in the hands of the principal public prosecutor had not been produced to the Court of Cassation or the applicants was of little consequence. The Court accordingly held that there had been no violation of the Convention under that head.   Lack of a public hearing or public delivery of the judgment The Belgian Constitution required hearings to be held and judgments to be delivered in public, except when they concerned investigation procedures. Thus, when a court decided an issue as an investigative tribunal, as in the instant case, the hearing was held in private and the decision was not delivered in public.   The applicants did not appear to have requested a public hearing or to have expressed reservations concerning the fact that the hearings would be held in private. The fact that the hearing of the admissibility of the applicants’ application to be joined to the proceedings as civil parties was held in private did not infringe the Convention. As regards the requirement for judgments to be delivered in public, having regard to its case-law and the fact that the applicants had not provided any information, the Court found that there had been no violation of Article 6 § 1 on that account. Accordingly, it held that there had been no violation of the Convention as regards the publicity requirements.   The refusal to refer a preliminary question to the Jurisdiction and Procedure Court The Court found that the decision to refuse to request a ruling on a preliminary question was sufficiently reasoned and did not appear to have been arbitrary. Consequently, it held that there had been no violation of the Convention on that account.   Article 13 of the Convention   The Court noted that this complaint overlapped with the complaint under Article 6 of the Convention. The applicants had not put forward any argument establishing a violation of the right to an effective remedy. The Court also reiterated that when the question of access to a court arose, the guarantees under Article 13 were absorbed by the guarantees set out in Article 6. It found that the right to access to a court had not been violated and, for the same reasons, that there had been no violation of Article 13.   Article 14 of the Convention   The distinction complained of by the applicants pursued a legitimate aim, namely to shield members of the judiciary from ill-considered proceedings and to allow them to perform their judicial duties dispassionately and independently. Since the applicants retained a right to bring a civil action against the Belgian State, the Court found that the requirement for there to be a reasonable relationship of proportionality between the means used by the Belgian legislature and the aim pursued was satisfied. Accordingly, it held that there had been no violation of Article 14, taken together with Article 6 § 1, of the Convention.   Article 10 of the Convention   The searches constituted an interference with the applicants’ right to freedom of expression, which interference was prescribed by the Criminal Investigation Code. Having regard to the particular circumstances of the case, the Court found that the interference was intended to prevent the disclosure of information received in confidence, to protect the reputation of others and more generally to maintain the authority and impartiality of the judiciary.   It had at no stage been alleged that the applicants had written articles containing secret information about the cases that had led to the searches being made. The Court considered that those measures, which were intended to assemble information that would assist in establishing the truth, came within the sphere of the protection of journalistic sources.   The Court was struck by the large scale of the searches that had been performed in eight almost simultaneous operations apparently involving some 160 police officers. It noted that the Belgian Government had not stated in what way the applicants were alleged to have been involved in the offences concerned or what measures had been taken directly against members of the State legal service believed to have been responsible for the leaks. The Court questioned whether other means could not have been employed to identify those responsible for the breaches of confidence and noted that the Government had not shown that, without the search and seizure procedures, the authorities would have been unable to establish whether the applicants were implicated in the offences.   The investigators, whose role was to discover the source of the journalists’ information, had wide investigative powers and had carried out searches of the journalists’ homes and places of work. It was reiterated in that connection that limitations on the confidentiality of journalistic sources called for the most careful scrutiny by the Court.   In the circumstances, the Court found that the Belgian Government had not shown that a fair balance between the competing interests had been struck. Even though the reasons relied on were “relevant”, they were not “sufficient” to justify searches and seizures on such a large scale. When the interest of democratic societies in ensuring and maintaining freedom of the press were taken into account, the means employed had not been reasonably proportionate to the legitimate aims pursued. Consequently, the Court held that there had been a violation of Article 10 of the Convention.   Article 8 of the Convention   The searches of the applicants’ places of work, homes and, in some instances, cars amounted to an interference with their right to respect for their homes. That interference, which was in accordance with various provisions of the Criminal Investigation Code and the Searches (Residential Premises) Act of 7 June 1969, pursued legitimate aims, namely the prevention of disorder or crime and the protection of the rights and freedoms of others.   The searches had been accompanied by certain procedural safeguards. However, the applicants had not been accused of any offence, and the search warrants were drafted in wide terms. The purpose of the warrants was stated to be to search for and seize “any document or object that might assist the investigation”, without limitation, and gave no information about the investigation concerned, the premises to be searched or the objects to be seized. Furthermore, the Government had acknowledged that the applicants were not informed of the reasons for the searches.   In the circumstances, the Court found that the searches had not been proportionate to the legitimate aims pursued and held that there had been a violation of Article 8 of the Convention.   Judge Loucaides expressed a partly concurring opinion and Judge Lemmens a partly concurring and a partly dissenting opinion. These are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court. [Note1]   For transitional-period cases before the Commission on 1 November 1998. [Note2]   For Mr Caflisch, add the following footnote: “Elected as the judge in respect of Liechtenstein.”