In the case of Nagla v. Latvia,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Ineta Ziemele,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 25 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
73469/10) against the Republic of Latvia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Latvian national, Ms Ilze Nagla (“the applicant”), on
13 December 2010.
The applicant was represented by Mr L. Liepa, a
lawyer practising in Riga. The Latvian Government (“the Government”) were
represented by their Agent, Mrs I. Reine, and, subsequently, Mrs K. Līce.
The applicant alleged that she had been compelled
to disclose information that had enabled a journalistic source to be identified,
in violation of her right to receive and impart information.
On 26 January 2012 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Riga.
The applicant, at the time of the material
events, was working for the national television broadcaster Latvijas
televīzija (“LTV”). She was a producer, reporter and host of the
weekly investigative news programme De facto, aired in prime time
every Sunday night.
A. Events leading up to and including the broadcast of
14 February 2010
On 10 February 2010 the applicant received an
e-mail from a person who called himself “Neo”, revealing that there were
serious security flaws in a database maintained by the State Revenue Service (Valsts
ieņēmumu dienests - “the VID”). Allegedly, these flaws made it
possible to access the data stored in the Electronic Declaration System (Elektroniskā
deklarēšanas sistēma - “the EDS”) without breaching any
security protocols. In support of his allegations, “Neo” attached some examples
of the data which he had downloaded in this manner (for example, salaries of
LTV employees), the veracity of which the applicant could confirm. The
applicant concluded that the data were genuine and that, most probably, there
was a serious security flaw in the system. She then proceeded to inform the VID
of a possible security breach.
“Neo” did not reveal his identity to the
applicant during their e-mail correspondence. He told her that there were more
data which showed that the austerity measures in the public sector did not
affect the highest-paid State officials. It transpired during their
correspondence that “Neo” did not wish to reveal his identity.
On 14 February 2010 the applicant, acting in her
capacity as a journalist, announced during the broadcast of De facto that
there had been a massive data leak from the EDS. She reported that the
information concerned the income, tax payments and personal identity details of
public officials, as well as private individuals and companies.
One week after the broadcast, “Neo” started to publish
data through his Twitter account concerning the salaries paid at various public
institutions, at State and municipal levels; in some cases the names of the officials
were included, and in others only the salaries were published. The information
received wide media coverage. On 18 April 2010 he stopped publishing it.
B. Criminal proceedings concerning the data leak
On 10 February 2010, upon an application by the
VID, criminal proceedings were instituted concerning the data leak.
On 19 February 2010 the police went to LTV to take
evidence from the applicant as a witness in the criminal proceedings. They
asked for a transcript of the 14 February 2010 broadcast, as well as access to the
e-mail correspondence with “Neo”. The applicant declined to disclose the
identity of her source or any information which could lead to its disclosure,
referring to the right of non-disclosure as set forth in section 22 of the Law
on Press and Other Mass Media.
On the same date another journalist was also
asked to disclose the identity of his journalistic source, as he had had a
public communication with “Neo”, which had been aired during another television
broadcast. He refused to testify since he did not consider that his source had
done anything wrong.
According to the Government, on 11 May 2010 the
investigating authorities established that two of the IP address which had been
used to connect to the EDS, had been used by a certain I.P. It was also
established that I.P. had made several phone calls to the applicant’s phone
number.
On 11 May 2010, at about 6.55 p.m., I.P. was
arrested in connection with the criminal proceedings; he was released from
custody a few months later.
On 12 May 2010 a police investigator informed
the investigating judge that on the previous day four urgent searches had taken
place at I.P.’s home, work and other premises. She also informed the judge of
an urgent search at the applicant’s home (see paragraph 21 et seq. below). She then requested, under section 180, paragraph 5 of the Criminal Procedure Law,
that the lawfulness of and the grounds for those searches be examined.
On 14 May 2010 the investigator ordered a
technical examination of the data storage devices that had been seized at the
applicant’s home on 11 May 2010. According to the Government, all these
devices were handed over to the relevant examination body within the State
Police in two sealed bags. These packs remained unopened until 17 May 2010,
when an expert opened them; their packaging or seals were not damaged. On 17
and 18 May 2010 the expert copied all the information from the data
storage devices onto another computer using a special software programme. On 19 May
2010 he sealed the bags and handed them back to the investigator. On 21 May
2010 the data storage devices were returned to the applicant.
On 15 June 2010 the technical examination was
completed and, according to the Government, the information that had been
copied was destroyed.
The criminal proceedings against I.P. concerning
the data leak appear to be pending at the pre-trial investigation stage.
C. The search at the applicant’s home on 11 May 2010
and subsequent judicial review
On 11 May 2010 the investigator drew up a search
warrant, which was authorised by a public prosecutor the same day. The relevant
parts of the warrant read as follows:
“It transpires from the case materials that [I.P.] was using
mobile phone number ... at the material time. According to the information
provided by the [mobile phone service provider], on 6 July 2009, the registered
date of the first attempt to download a nonexistent EDS XML file, and also on 8
July 2009 and 28 October 2009, the established dates on which separate EDS XML
files were downloaded via the anonymous ‘TOR’ servers, subscriber ... made
outgoing calls to the subscriber with number ... . Periodic communication took
place until 14 February 2010, when it ceased completely. According to the call
history printouts, on several occasions both subscribers were served by the
same electronic communications base stations, indicating the possibility that
the subscribers met.
It was established that [the applicant], identity code ...,
residing in ..., was using the phone number ... .
The facts and circumstances established in connection with the
criminal proceedings taken together serve as grounds for the conclusion that at
the time the criminal offence was committed [the applicant] had frequent
communication with [I.P.] and might possibly have information about the
unlawful activities of [I.P.] connected with the illegal downloading of EDS XML
files, and also on the processing, storage and distribution of these files, his
accomplices and other information in connection with the criminal proceedings.
Taking into account that the case materials give reasonable
grounds to consider that at [the applicant’s home] there might be data storage
devices that contain the XML files illegally downloaded from the EDS database
and any derivatives thereof, software for processing these files, information
about the obtaining and distribution of these files and other documents and
items containing information about the crime that could serve as evidence in the
criminal proceedings, it is necessary to carry out the search under the urgent
procedure to prevent the destruction, concealment or damaging of such evidence.
On the basis of sections 180(3) and 337 (2)(2) of the Criminal
Procedure Law:
DECIDED:
1. to search [the applicant’s home] with a view to
finding and seizing documents and data storage devices containing XML files
illegally downloaded from the EDS database and any derivatives thereof,
software for processing these files, information about the obtaining and
distribution of these files and any other items containing information about
the crime under investigation.”
On 11 May 2010,
from 9.34 to 10.30 p.m., the police conducted a search at the applicant’s home.
According to the applicant, upon her return home
that night a plain-clothes policeman approached her in the stairwell and,
without identifying himself, physically prevented her from closing the doors.
Only then did he present a search warrant and proceed to conduct the search
together with two other officers. During the search the following data storage
devices were seized: a personal laptop, an external hard drive, a memory card
and four flash drives. According to the applicant, these devices contained a
large body of her personal data as well as most of her work-related material.
The Government did not contest the applicant’s
version of the events.
On 12 May 2010 the investigating judge retrospectively
approved the search warrant of 11 May 2010 in the form of an “approval” written
on that warrant. No reasons were given.
On 14 June 2010 the President of the
first-instance court, upon a complaint by the applicant, upheld the
investigating judge’s decision and concluded that the search was lawful and
that the evidence obtained was admissible in the criminal proceedings. No
hearing was held. She examined the applicant’s written complaints, the criminal
case file and the investigator’s written explanation. The relevant part of the
decision, which was final, reads:
“Having considered the impugned decision of the investigating
judge on its merits, I find it to be in compliance with the legal norms and the
actual state of affairs. ...
The investigator has taken sufficient actions to protect the
rights of [the applicant] as a journalist. In particular, she assigned police
officers to question [the applicant] as a witness, and [the applicant] used her
right not to disclose her source.
According to the domestic case-law, in most cases the court
imposes an obligation on journalists to disclose sources of information only in
cases when, purely objectively, there are no other options for solving or
preventing a crime or in cases when any further crimes would substantially harm
public and national-security interests.
In the present proceedings, although the unlawful processing
and uncontrolled dissemination of the personal data of several thousand, even
hundreds of thousands of people is considered a substantial violation of the
rights of the general public, the investigating authority did not apply to the
investigating judge for an order to disclose the information source ... because
... it was decided not to pursue any investigative activities that would
concern journalists, in line with the principle of proportionality and the
rights of non-disclosure ...
Accordingly, as the material in the case file shows, the
further investigation focused on other leads, and the probable suspect was
established by processing and analysing the records of the EDS, that is, with
no disclosure of a journalist’s source. ...
There is no reasonable ground to believe that the search at
[the applicant’s] home was performed for the purpose of identifying the source
of the information, because the aim of the search was to find the XML files
downloaded from the EDS database and any derivatives thereof, software for
processing these files and information about the obtaining and distribution of
the files, and to stop any further unlawful dissemination of personal data. ...
The present criminal proceedings were opened in connection with
facts directly relating to the exchange of information in electronic form and
therefore it is important to take into account the specific features of
cybercrime, where the preservation, acquisition and recording of evidence in
electronic form is delicate owing to the fact that such evidence can be
modified or destroyed very quickly; it is also important to take into account
the mens rea of the crime. ... I find that in this particular case the
search under the urgent procedure was admissible. ...
Since [the applicant] is an in-house and not a freelance
journalist, there are no grounds to assume that material directly related to
her professional activity would definitely be stored at her home, especially if
she herself did not indicate that this was the case. If any such indications
had been given, the investigating judge would have had grounds to evaluate such
facts. ...
In view of the above, I find that the 12 May 2010 decision by
the investigating judge is justified and lawful and there are no grounds to
revoke it; I am also of the opinion that there are no reasons to consider that the
results of the actions under consideration are void.
At the same time it should be explained to [the applicant] that
any complaints of alleged breaches during the search or other investigative
activities ought to be submitted in accordance with the procedure laid down in
section 337 of the Criminal Procedure Law ...”
D. Other review by the domestic authorities
On 21 May 2010 a senior prosecutor replied to
the applicant’s complaints about the investigator’s decision to conduct the
search, its authorisation by the supervising prosecutor and the police officers’
actions while carrying it out. He stated that he could not examine the grounds
for the search; these had in any case been examined by the investigating judge
and the President of the court.
Moreover, he found that on 11 May 2010 the
supervising prosecutor had lawfully authorised the search warrant. As to the
return of the seized items, the matter was to be discussed with the competent
investigating authority. Finally, a note was added that the applicant could
lodge a complaint against the senior prosecutor’s reply with another branch of
the prosecutor’s office.
The Internal
Security Bureau of the State Police (Valsts policijas Iekšējās
drošības birojs), of its own motion, examined the police officers’
conduct during the search. On 20 July 2010 the applicant was informed that no
breaches of either the Criminal Procedure Law or the general principles of
police officers’ ethics had been found.
E. Review by the Ombudsman
On 13 May 2010 the Ombudsman opened an inquiry into
the search at the applicant’s home with a view to ascertaining whether the
search had interfered with her freedom of expression and whether the domestic
authorities had had sufficient regard to the assessment of the limitations
imposed on the freedom of the press.
On 28 September 2010 he delivered his opinion,
which was not binding on the domestic authorities. He examined not only whether
the alleged violation of the applicant’s freedom of expression had taken place,
but also whether there was an effective monitoring system in the country in
that regard. As concerns the alleged interference with freedom of expression,
and proportionality, he noted the following [emphasis as in the original]:
“The protection of journalistic sources is provided for under
section 22 of the Law [on Press and Other Mass Media] ... This does not mean the
absolute immunity of a journalist in criminal proceedings, but the necessity to
respect journalists’ professional interests and legal guarantees.
The decision of the competent investigating authorities to
search the applicant’s place of residence was based on the information made
public in the De facto broadcast. According to the list of objects
searched, it was important to secure the evidence and to clarify how the
journalist had received the information about the data “leak” from SRS EDS, and
who was guilty. The wording used in the search warrant - “information about the
obtaining and distribution” - clearly demonstrates the purpose of the competent
investigating authorities to identify the journalistic source.
That being so, the activities of the competent investigating
authorities in the particular case concern[ed] the protection of journalistic
sources and thus interfere[d] with the journalist’s freedom of expression.
At the same time, the protection of journalistic sources is not
absolute and may be restricted in certain cases in the public interest. This
means that the competent investigating authorities, when taking a decision
affecting a journalist, should evaluate the aspects of restriction of freedom
of expression and the proportionality of such action - is the disclosure of
such information truly necessary? Or maybe there are reasonable alternative
measures, as specified in Principle 3 of the Recommendation [No. R(2000) 7].
[Reference to sections 12, 154, 179 and 180 of the Criminal
Procedure Law] Therefore, there is a legal basis for disclosure of journalistic
sources, for searches and also for the lawful and proportionate restriction of
human rights in criminal proceedings. It follows that such restrictions are
prescribed by law.
To assess the proportionality of those restrictions and the
possibility of applying less harmful alternative means of achieving the aim,
the Ombudsman asked the responsible authorities whether, for the purpose of
obtaining information from the journalist, there had been sufficient grounds to
opt for an emergency search out of all options offered by the [Criminal
Procedure Law], rather than for a disclosure order under section 154 of the [Criminal
Procedure Law].
[The prosecutor’s office] replied that the purpose of the search
had been to substantiate and obtain evidence in criminal proceedings, and not
to identify the journalistic source, which was already known to the police; that
was why disclosure under section 154 of the [Criminal Procedure Law] was not
ordered. The prosecutor’s office held the view that it had no right to give any
opinion on the validity of the investigative action, since the activities of
the investigating judge who approved the search had been examined by the President
of the court.
The court substantiated the need for a search under the urgent
procedure by the fact that in criminal proceedings involving a flow of
electronic documents it was necessary to take into account the specifics of
cybercrimes, where the preservation, obtaining and recording of electronic
evidence was rather delicate because such evidence could be altered and
destroyed very quickly and irreversibly.
Such a statement should be considered critically, since the
officers of the State Police turned to the applicant with the request to
provide information on her source on 19 February 2010, but the search under the
urgent procedure was carried out on 11 May 2010. The materials submitted
by the State authorities and the court to the Ombudsman do not contain any
evidence of attempts by the journalist to continue unlawfully processing and
further distributing the data, or to destroy such information.
The need to conduct the search under the urgent procedure has
also not been explained in the assessment provided by the court, if the
materials of the case provided sufficient basis to consider that the applicant
most likely knew, supported or participated in the crime under investigation by
simultaneously using the information for journalistic purposes. If the
competent investigating authority had such information at the time of making
the decision on conducting the search, it is not clear why the police did not
apply the status of a suspect to the journalist before the search and did not
search the journalist’s place of work.
It is considered established that the decision of the court is
based upon assumptions, and in reaching the decision the court has not
respected the status of the journalist, whose immunity and protection against
disclosure of the information source are established in the law.
Consequently, it can be concluded that by approving the
search warrant issued by the competent investigating authority under the urgent
procedure, the supervising prosecutor and the court made no critical assessment
of the need for and validity of those actions.
The Ombudsman has reservations as to whether a search at the
applicant’s home under the urgent procedure was actually the most reasonable means
of putting a stop to the disclosure of information at that point in the
proceedings. In order to ensure compliance with the key principles of criminal
proceedings established under section 12 of the [the Criminal Procedure Law],
the competent investigating authority should have given more careful
consideration to whether the information necessary for the investigation could have
been obtained by means less harmful to the interests of the person.”
His final conclusions were as follows:
“Freedom of expression includes the right not to disclose
journalistic sources. Only a court, observing the principle of proportionality,
may order the disclosure of an information source to protect the essential
interests of private individuals or society.
By conducting the search in [the applicant’s] home, purportedly
in search, among other things, of information about the obtaining and
distribution of the EDS database XML files, the competent investigating
authority - in securing the evidence and disregarding the requirement to have a
court order - discovered the identity of the applicant’s source.
In authorising the search warrant issued by the investigator
under the urgent procedure, the supervising prosecutor and the court failed to effect
a critical examination of the urgency and the necessity of such a measure and
did not sufficiently evaluate the threat to freedom of expression.
Accordingly, the freedom of expression and the right not to
disclose journalistic sources enshrined in the Constitution and binding
international treaties have been violated.
Since the legally protected immunity of a journalist in
criminal proceedings is not incorporated in [the relevant chapter of the Criminal
Procedure Law] and the domestic case-law shows that the competent investigating
authorities do not pay sufficient attention to it, it would be advisable to
initiate a discussion on [legislative] amendments [to the relevant provision of
the Criminal Procedure Law]. In all likelihood the law should specify that it
is prohibited to perform investigative activities involving journalists on
premises belonging to them if there are reasonable grounds to consider that
this might restrict the scope of the rights guaranteed to journalists.”
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW
A. International and European law
. Several
international instruments concern the protection of journalistic sources, including
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 European Parliament’s Resolution on the Confidentiality of
Journalists’ Sources (18 January 1994, Official Journal of the European
Communities No. C 44/34).
32. 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 § 2 of the Convention. In
determining whether a legitimate interest in a disclosure falling within the
scope of Article 10 § 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.”
33. For the precise
application of the Recommendation, the explanatory notes specified the meaning
of certain terms. As regards the terms “source” and “information identifying a source”
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.
d. Information identifying a
source
18. In order to protect the
identity of a source adequately, it is necessary to protect all kinds of
information which are likely to lead to the identification of a source. The
potential to identify a source therefore determines the type of protected
information and the range of such protection. As far as its disclosure may lead
to an identification of a source, the following information shall be protected
by this Recommendation:
i. the name of a source and
his or her address, telephone and telefax number, employer’s name and other
personal data as well as the voice of the source and pictures showing a source;
ii. ’the factual circumstances
of acquiring this information’, for example the time and place of a meeting
with a source, the means of correspondence used or the particularities agreed
between a source and a journalist;
iii. ’the unpublished content
of the information provided by a source to a journalist’, for example other
facts, data, sounds or pictures which may indicate a source’s identity and
which have not yet been published by the journalist;
iv. ’personal data of
journalists and their employers related to their professional work’, i.e.
personal data produced by the work of journalists, which could be found, for
example, in address lists, lists of telephone calls, registrations of
computer-based communications, travel arrangements or bank statements.
19. This list is not
necessarily exhaustive. Paragraph c has to be read and interpreted in a manner
which allows an adequate protection of a source in a given case. The decisive
factor is whether any additional information is likely to lead to the
identification of a source.”
B. Domestic law
Section 22 of the Law on Press and Other Mass
Media (likums “Par presi un citiem masu informācijas
līdzekļiem”) lays down the principle of non-disclosure in Latvian
law. The mass media have a right not to disclose sources of information
(paragraph 1). An order to disclose a source of information may be made only by
a court, after considering proportionality, for the protection of the essential
interests of private individuals or society (paragraph 2).
Section 154 of
the Criminal Procedure Law (Kriminālprocesa likums) sets forth the
circumstances when a journalist or an editor is under obligation to disclose a
source of information. Such an order may be made only by a court (paragraph 1).
The investigating judge, upon an application by an investigator or a public
prosecutor, hears the parties and examines the material in the case file
(paragraph 2) and assesses the proportionality of the measure (paragraph 3).
The decision is amenable to judicial review by a higher-court judge, under a
written procedure, whose decision is final (paragraph 4).
Section 180 of
the Criminal Procedure Law lays down the procedure for issuing a search
warrant. Under the ordinary procedure, the investigating judge or court
authorises the search upon an application by the competent investigating
authority (procesa virzītājs), having examined the case file
(paragraph 1). Under the urgent procedure, when a delay could allow the
relevant documents or objects to be destroyed, hidden or damaged or the person
to abscond, the search warrant may be issued by the competent investigating
authority. Authorisation by a public prosecutor is necessary for a search
warrant issued by the investigator (paragraph 3). A search warrant issued under
the urgent procedure has to be submitted on the following day to the
investigating judge, who then examines the lawfulness of and the grounds for
the search; if an investigative action is unlawful, the investigating judge
declares such evidence inadmissible in the criminal proceedings and decides on
further action in relation to the evidence (paragraph 5).
Section 337 of the Criminal Procedure Law lays
down the procedure for submission of complaints. A complaint shall be addressed
to and lodged with the authority that is competent to decide on it; it can also
be submitted to an official whose action or decision is contested (paragraph
1). A complaint about an action or decision by an investigating judge shall be
forwarded for examination to the President of the court (paragraph 2,
part 4). When examining a complaint, the President of the court has to
decide on merits; his/her decision is final (paragraph 4).
Section 12 of the Criminal Procedure Law provides
as follows:
Section 12 - Human rights guarantees
“1. Criminal proceedings shall be performed in
compliance with internationally recognised human rights, without imposing unjustified
criminal procedural obligations or disproportionate interferences with a person’s
private life.
2. Human rights shall be restricted only for public
safety reasons and only in accordance with the procedure specified by this Law,
regard being had to the nature and danger of the criminal offence.
3. The application of security measures depriving people
of their liberty, and the infringement of the inviolability of private premises,
or of the confidentiality of correspondence and means of communication, shall
be allowed only with the consent of an investigating judge or court.
4. Officials involved in the conduct of criminal
proceedings shall protect the confidentiality of private life and of commercial
activities. The relevant information shall be obtained and used only if such
information is necessary to establish the truth.
5. An individual shall have the right to request the
exclusion from the criminal case of information concerning ... his or her
private life ... if such information is not necessary for the fair resolution
of the criminal proceedings.”
On 13 May 2010 the
Latvian Parliament (Saeima) adopted legislative amendments to the effect
that all public institutions were to make available on the internet information
about the salaries paid to their officials. These amendments took effect on 15
June 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant complained that she had been
compelled to disclose information that had enabled a journalistic source to be identified,
in violation of her right to receive and impart information as guaranteed by
Article 10 of the Convention. In her submission, the interference with her
freedom of expression was not prescribed by law, did not pursue a legitimate
aim and was not necessary in a democratic society. The applicant further asked
the Court to clarify the duties of the State under this provision in these
circumstances. Article 10 of the Convention reads 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 a
violation of that Article.
A. Admissibility
Firstly, the Government raised a preliminary
objection that the applicant had not supplied the Court
with any copies of her complaints lodged with the domestic authorities, and had
thus failed to demonstrate that the issues complained of before the Court had
been raised at least in substance at the national level. They considered that
she had thereby failed to comply with Article 34 of the Convention and had not
lodged her application properly, in conformity with the requirements of Rule 47 of the Rules of Court.
The applicant disagreed and insisted that her
application, together with the enclosed documents, had complied with Article 34
of the Convention and Rule 47 of the Rules of Court. She had submitted the
relevant available documents which, according to her, were the search warrant
and the final decision dismissing her complaints. The latter document as well
as the Ombudsman’s opinion contained a sufficient summary of her complaints at
the national level.
The Court reiterates that
it examines the applications lodged before it within the meaning of Article 34
of the Convention and Rule 47 of the Rules
of Court according to their content and their
meaning. It further notes that together with her application form the applicant
provided evidence that she had approached the domestic authorities and that she
had received the final domestic decision of 14 June 2010, which, together with
other relevant documents, set out the scope of her complaints at the domestic
level. The Court would also add that Rule 47 of the Rules of Court specifically
instructs the applicants to submit only “relevant documents” (in the French
text - “documents pertinents”).
. In
such circumstances the Court considers that the application form and the
evidence submitted by the applicant contained sufficient information for those
documents to be considered “an application” within the meaning of Article 34 of
the Convention and Rule 47 of the Rules of Court. It follows that the
Government’s objection in this regard should be dismissed.
. Secondly,
the Government raised a preliminary objection concerning the exhaustion of
domestic remedies, relying on the Court’s decision in Grišankova and
Grišankovs v. Latvia (no. 36117/02, ECHR-2003 II (extracts)). They
considered that the applicant should have lodged a complaint with the
Constitutional Court if she considered that the procedure under section 180 of
the Criminal Procedure Law as applied to her lacked sufficient procedural
guarantees, or that the failure to provide additional statutory safeguards in
respect of journalists regarding non-disclosure privilege (sections 121 and 122
of the Criminal Procedure Law) had interfered with her human rights. She should
have raised the issue of compliance of these legal provisions with the Latvian
Constitution and the Convention itself.
The applicant disagreed and submitted that the Latvian
model of a constitutional complaint was subject to several limitations,
relying, inter alia, on the Court’s decision in Liepājnieks v.
Latvia (no. 37586/06, 2 November 2010).
The Court reiterates that it has already on
several occasions dismissed a similar preliminary objection by the Latvian
Government as concerns the Constitutional Court in cases that relate to the interpretation
or application of a legal provision, or an alleged legislative gap (see Liepājnieks,
cited above, §§ 73-76; Savičs v. Latvia, no. 17892/03, §§ 113-117, 27 November 2012; and Mihailovs
v. Latvia, no. 35939/10, §§ 157-158, 22 January 2013). The
Court sees no reason to decide otherwise in the present case. It follows that
the Government’s objection in this regard should be rejected.
Finally, the Court notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
First of all, the applicant in substance
maintained that there had been an interference with her freedom of expression. She
pointed out that searches of journalists’ homes and workplaces undermined the
protection of sources to an even greater extent than direct orders to disclose a
source.
The applicant did not deny that there had been a
statutory basis for the interference under section 180 of the Criminal
Procedure Law. She denounced the quality of the law and argued that the law
should be both sufficiently accessible and foreseeable, that is, formulated
with sufficient precision to enable an individual - if need be with appropriate
advice - to regulate his conduct. She noted that Latvian law did not set any
limits as to the grounds for conducting a search of a journalist or the methods
used. The applicant referred in this regard
to the Court’s case-law under Article 10 of the Convention and to
Recommendation No. R (2000) 7 of the Committee of Ministers of the Council of
Europe on the right of journalists not to disclose their sources of information
(see paragraphs 32 and 33
above).
The applicant further specified that she did not
claim that absolute immunity from criminal proceedings should be granted to
journalists or that the existing regulation in Latvia was unconstitutional. She
argued that the law in its substantive sense and the actions taken by officials
had to be foreseeable.
According to the applicant, the Latvian legal
system did not provide her with adequate legal safeguards to allow an independent assessment of whether the interests of
the criminal investigation overrode the public interest in the protection of
journalistic sources. In the applicant’s case the search warrant did not
contain any exceptions or limitations on the search or the documents to be
seized that might safeguard her right not to disclose her sources or any
information leading to them. The applicant did not contest that a judicial
review as such was possible. She was rather of the opinion that it had not been
possible for the investigating judge to make a proper assessment as there were
no clear criteria or guidance in the domestic law as regards searches of
journalists, save for cases when a court order under section 154 of the
Criminal Procedure Law was issued, which was not the case here.
She insisted that the quality of Latvian law was
deficient in terms of the lack of foreseeability as there were no criteria in
the law or any other regulations to prevent officials from erroneously applying
or interpreting the law and from interfering with journalists’ right not to
disclose information directly or indirectly related to their sources. The
applicant argued that her case had not been an isolated incident, and referred
to a search of another journalist on 15 December 2011 as an example.
Secondly, the applicant argued that there had
been no legitimate aim for the interference with her freedom of expression. In the applicant’s view, the aim of the search had been to
identify her source and to obtain information or substantiate what the
authorities already knew about I.P. This could not possibly be considered as a
legitimate aim.
. The
applicant also disagreed with the Government that the interference had pursued the
legitimate aim of prevention of crime and protection of the rights of others.
She emphasised that the information she had reported on served a legitimate
public interest and contributed to the public debate on solidarity regarding the
implementation of austerity measures. No personal information that did not
serve that purpose had been revealed and no claims had been lodged in that
regard by the individuals concerned. Therefore, there had been no reason to
consider that any further disclosure of data by the applicant would be in
breach of any Article 8 rights. After all, if the aim had been to prevent
further disclosure of personal data, why had the police, having copied all the
files, returned the data storage devices to the applicant without deleting any files
or information contained therein?
. If,
however, the aim of the search had been to prevent the applicant from further
disseminating information of legitimate public interest, under no circumstances,
she argued, could that be considered a legitimate aim. Similarly, the securing
of evidence for the purposes of detecting and prosecuting a crime could not
possibly override the rights and interests in the protection of journalistic
sources.
Thirdly, the applicant submitted that the interference had not been necessary in a democratic society
as it did not correspond to any pressing social need. The applicant
argued that a fair balance should have been struck in the present case between the
general public interest in the protection of journalistic sources and the
interests of the investigation. The criminal investigation had related to
alleged arbitrary access to the EDS database. It had never been disputed that poor
security had made the access possible. If any crime had been committed at all,
it was a minor one. It was not among the crimes listed in the above-cited
Recommendation as serious enough to justify the interference with the applicant’s
rights. Accordingly, the particular interests of the investigation were not
sufficiently vital and serious to prevail over the general public interest of
source protection.
In response to the Government’s argument that
the search had not been carried out with a view to establishing the identity of
the applicant’s source, the applicant noted that she had no way of knowing what
information had been at the disposal of the authorities before the search and
seizure were authorised and conducted. According to the information provided by
her source, “Neo” was the head of a group of people who claimed to have
discovered a means of downloading information from the EDS database without
cracking any passwords, thereby revealing gaps in the VID’s security system.
The applicant had publicly announced during the 14 February 2010 broadcast that
“Neo” claimed to be leading a group who called themselves “4ATA” and whose aim,
among other things, was to strive for a better future for Latvia by making sure
that public officials responsible for negligence and corruption were held to
account. The search warrant had also authorised the search for information
concerning other members of that group.
The applicant further argued that the
information contained in her data storage devices, to which the Government
referred as evidence, was covered by the journalist’s right to protect his sources.
She referred to principle 6 of the Recommendation and the terms used therein.
In her view the wording “information about the obtaining and distribution of
the files” used in the search warrant clearly demonstrated that the purpose was
to identify the source of information or at least to verify it. The Government’s
reference to a reasonable suspicion concerning the applicant’s connection with
the criminal offence showed a dangerous understanding and approach by the State
authorities. She referred to the Court’s case-law and emphasised that the right
not to disclose journalistic sources was not a mere privilege which could be
granted or taken away depending on the lawfulness or unlawfulness of their sources
(see Tillack v. Belgium, no. 20477/05, § 65, 27 November 2007).
The applicant submitted that as soon as she
received information from her source, she had informed the SRS about the
possible security breach and about the need to prevent further data leaks. She had
also verified the accuracy of the information. When there was no doubt that the
leak had taken place and that the information was true, the applicant - acting
in her capacity as a journalist and in good faith - had announced information
that was of legitimate public interest. She insisted that the mere fact that a
journalist had been in contact with the source or any other suspect could not
be enough to allege that he or she might be connected with the criminal offence
and deserved to be searched. Furthermore, the Government had not demonstrated
that there had been any grounds to assume - in order to justify the search
under the urgent procedure - that information or documents possessed by the
applicant would be altered or destroyed. The applicant had not demonstrated any
negative attitude towards the investigation other than exercising her right of
non-disclosure.
(b) The Government
The Government did not deny that there had been
interference. They believed, however, that the interference at issue was
prescribed by law, pursued a legitimate aim and was necessary in a democratic
society.
Firstly, they submitted that the search had a legal
basis in national law. They relied on section 180, paragraph 3 of the Criminal
Procedure Law and contended that the domestic procedural requirements for
conducting the search had been duly complied with.
As concerns the quality of law, the Government
agreed with the applicant that there were no specific procedures to be followed
for searches of journalists’ premises. The Government, however, had serious
doubts as to whether any statutory regulation of the sort was in place in the
rest, or at least in the majority, of the Council of Europe Member States. In
any event, they contended that the procedure envisaged by section 180 of the Criminal
Procedure Law provided the applicant with adequate legal safeguards to allow an
independent assessment of whether the interests of the criminal investigation
overrode the public interest in the protection of journalistic sources.
The Government referred to section 180,
paragraph 1 of the Criminal Procedure Law and noted that in Latvia, as a rule,
only an investigative judge or court could authorise a search, upon an
application by the competent investigating authority. Under this general
procedure any search, including those carried out on journalists, was subjected
to prior judicial review in keeping with the principles enshrined in section 12
of the Criminal Procedure Law.
At the same time, they also noted that section
180, paragraph 3, provided for an exception from the general rule in the event
of particular urgency, which was sufficiently precisely defined in their view.
The Government further explained that under both procedures the investigating
judge and the supervising prosecutor were presented with the criminal case file
in its entirety, and that they were obliged to have due regard to all the circumstances
of the case, and had to consider the impact of the search on the individual’s
human rights, including freedom of speech, in the light of the criteria set out
in section 12 of the Criminal Procedure Law. The Government argued that for the
purposes of the urgent procedure, the supervising prosecutor exercised his
judicial functions and was an independent and impartial decision-making body.
The Government believed that the system in place
in Latvia was in no way unusual. In their opinion it was doubtful that in all
the Council of Europe Member States prior judicial review was ensured in all
cases, without any exceptions in relation to searches carried out on journalists.
In any event, where a search was authorised by the supervising prosecutor,
there was a statutory requirement for immediate a posteriori judicial
review by the investigating judge (see paragraph 36 above). Thus, the
legislator had provided for two-tier scrutiny in cases where searches were
performed under the urgent procedure.
The Government also pointed out that the
investigating judge had sufficiently wide, binding and enforceable authority to
revoke the search warrant. As indicated by the the President of the court in
her decision of l4 June 2010, the investigating judge had the power and the
obligation to assess the scope of the information seized as a result of the
search, namely, whether the information seized could possibly be related to the
applicant’s professional activities. Thus, there existed a procedure for
identifying and withholding from disclosure information that could lead to the
identification of journalistic sources other than that which had value as
evidence for the purposes of the pending criminal proceedings.
In the light of the above considerations, the Government
considered the circumstances of the present case to be fundamentally different
from those of Sanoma Uitgevers B.V. v. the Netherlands [GC] (no. 38224/03, 14 September
2010), as a statutory obligation of a posteriori judicial review was in
place.
Secondly, the Government submitted that the
interference at issue had pursued the legitimate aim of preventing crime - that
concept encompassing the securing of evidence for the purposes of detecting and
prosecuting crime - and protecting the rights of others, by preventing the
further disclosure of personal data.
Thirdly, the Government insisted that the
interference had been “necessary in a democratic society”. In this regard they
referred to the general principles reiterated by the Court (in Kasabova v.
Bulgaria, no. 22385/03, § 54, 19
April 2011, and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 85-86, 7 February 2012). The Government also referred to the margin of
appreciation accorded to the States in striking the appropriate balance. The
balancing exercise in the present case involved the applicant’s right to
freedom of expression against the right of hundreds of thousands of individuals
in Latvia to the protection of their personal data.
. The Government affirmed that the aim
of the search had not been to reveal journalistic sources, and argued that the
present case should be distinguished from such cases as Goodwin v.
the United Kingdom (27 March 1996, Reports of Judgments and
Decisions 1996-II), Roemen and Schmit v. Luxembourg (no.
51772/99, ECHR 2003-IV), Voskuil v. the Netherlands (no.
64752/01, 22 November 2007) and Tillack (cited above). The Government pointed out that at the time of
the search at the applicant’s home the police had already discovered Neo’s
identity and had known by which means the data had been obtained. I.P. had been
subjected to searches and had been apprehended by the police prior to the
search at the applicant’s home. Nor was the search aimed at identifying or
disclosing other sources of information. It was the Government’s view that the
search warrant had demonstrated that its aim was both to find and seize XML
files or their derivatives downloaded from the EDS database, software for processing
these files, information concerning the acquisition of the files, as well as
other objects containing information about the criminal offence under
investigation, and to prevent further dissemination of the personal data of
hundreds of thousands of people. The Government insisted that regard should be
had to the nature of the offence under criminal investigation and the value
which the objects of the search might have had for the investigation.
. At the material time the state
authorities had been faced with the task of classifying the crime allegedly
committed by I.P., including establishing any aggravating or mitigating
circumstances: they had to establish whether it had been intentional or accidental,
whether there had been plans to hand the data over to any third persons, and
whether I.P. had acted alone or with accomplices. The Government also argued
that they had to establish the applicant’s role - whether she had reported on
the data in her capacity as a journalist, that is whether it “served legitimate
journalistic purposes”, or she was the organiser, or an abettor or accomplice
to the offence.
According to
the Government, prior to accepting the search warrant issued by the police
investigator, the supervising prosecutor had duly acquainted herself with the
criminal case file materials. It was her informed opinion that the authority
responsible for the criminal proceedings had reasonable suspicion that the
applicant’s home might contain important information that might serve as
evidence for the purposes of the criminal proceedings. The applicant had accordingly
been requested to hand over the data storage devices that might serve as
evidence in the criminal proceedings.
. The Government also pointed out that
at the initial stage of the criminal proceedings the competent investigating
authority could have resorted to the procedure under section 154 of the Criminal
Procedure Law and sought a disclosure order from a court. However, they chose
not to do this and other investigative activities followed and the alleged
perpetrator was identified by other means. The Government wished to emphasise
that the domestic authorities deliberately chose to pursue a more time-consuming
course of investigation, thus clearly demonstrating their respect for freedom
of expression and the rights of journalists not to disclose their sources. The
Government held the view that the competent authorities had properly balanced
the conflicting interests of the protection of journalistic privilege against
those of the criminal investigation.
. Furthermore, when the urgent search
was authorised the police had established that I.P.’s telephone conversations
with the applicant corresponded to the dates when the XML files from the EDS
database had been downloaded. Thus the police had reasonable suspicion that the
applicant might be connected with the criminal offence and that she possessed
the downloaded files or other evidence.
. Finally, the Government argued that
no alternative means of search and seizure had been available and that the
domestic authorities had feared the destruction, concealment or damaging of
evidence after I.P.’s arrest. The urgent procedure had therefore been necessary.
Nor could any other means have been employed than the seizure of the applicant’s
data storage devices, which the Government considered had been sufficiently
precisely defined in the search warrant. Referring to the technical
examination that followed the search at the applicant’s home, the Government affirmed
that only the expert had had access to the seized devices and that the
information had been deleted once the examination was completed.
2. The Court’s assessment
78. The Court
will start by addressing the Government’s argument that the search had not been
carried out with a view to establishing the identity of the applicant’s source
of information but rather to gather evidence in the criminal proceedings
against I.P., whose identity had already been established at that point in the
investigation. The Court considers that the issue to be determined in the
present case is whether the search at the applicant’s home, who was a well-known
journalist at the material time, in view of obtaining information in such
circumstances falls within the scope of Article 10 of the Convention.
. The
Court observes that the parties agree that I.P. was arrested on the same day,
one and a half hours before the search at the applicant’s home, in connection
with the criminal proceedings concerning the data leak. The Court does not have
any reason to doubt that the domestic authorities had a reasonable suspicion
that I.P. had some connection with the data leak at the time of the search at
the applicant’s home. However, the fact remains that the investigating
authorities searched the home of the applicant journalist on the basis of a
wide-reaching search warrant. The Court considers that the circumstances
invoked by the Government cannot exclude the applicability of Article 10 of the
Convention in the present case.
. The Court has already found that Article 10 of the
Convention does not only protect anonymous sources assisting the press to
inform the public about matters of public interest (see Nordisk Film
& TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII). In
that case the Court considered that Article 10 of the Convention applied even
when a journalist had worked undercover and had used a hidden camera to film
participants in a television programme, who could thus not be regarded as
“sources of journalistic information in the traditional sense”. It was rather
the compulsory handover of his research material that was susceptible of having
a chilling effect on the exercise of journalistic freedom of expression. In that case, the identity of the journalistic sources in the traditional sense was adequately protected, and the handing over of the
research material in relation to an alleged perpetrator, whose actions were
under criminal investigation and whose identity was known to the police, was
not deemed disproportionate to the legitimate aim pursued and the reasons given
by the national authorities were considered to be relevant and sufficient.
The Court’s
understanding of the concept of journalistic “source” is “any person who
provides information to a journalist”; it understands “information identifying
a source” to include, as far as they are likely to lead to the identification
of a source, both “the factual circumstances of acquiring information from a
source by a journalist” and “the unpublished content of the information
provided by a source to a journalist” (see Recommendation No.
R (2000) 7 and its explanatory notes, quoted in paragraphs 32 and 33 above).
. The
Court notes that the Government admitted that the search at the applicant’s
home had been aimed at gathering “information about the criminal offence under
investigation” and that it authorised not only the seizure of the files
themselves but also the seizure of “information concerning the acquisition of
these files”. While recognising the importance of securing evidence in criminal
proceedings, the Court emphasises that a chilling effect will arise
wherever journalists are seen to assist in the identification of anonymous
sources (see Financial Times Ltd and Others
v. the United Kingdom, no. 821/03,
§ 70, 15 December 2009). In the present case, irrespective of
whether the identity of the applicant’s source was discovered during the
search, as found by the Ombudsman, or at the very least confirmed during that
search, as submitted by the applicant, it nevertheless remains that the seized data
storage devices contained not only information capable of identifying her
source of information, pertaining either to “the factual circumstances of acquiring
information” from her source or to “the unpublished content” of that
information, but also information capable of identifying her other sources of
information. It does not need to be further demonstrated that the search
yielded any results or indeed proved otherwise productive (see Roemen
and Schmit, cited above, § 57, and Ernst and Others v. Belgium,
no. 33400/96, § 103, 15 July 2003). The Court
therefore does not accept the Government’s argument that the search did not
relate to journalistic sources.
83. Accordingly,
the Court concludes that the search at the applicant’s home and the information
capable of being discovered therefrom comes within the sphere of the protection under
Article 10 of the Convention.
(a) Interference
The parties agree that
there has been an “interference” with the applicant’s freedom to receive and
impart information. The Court sees no reason to hold otherwise.
(b) Prescribed by law
The Court refers to the applicable principles
under Article 10 of the Convention (see Sanoma
Uitgevers, cited above, §§ 81-83).
The Court notes that the parties agree that the
search at the applicant’s home had a statutory basis, namely, section 180,
paragraph 3 of the Criminal Procedure Law. The applicant, relying to a large
extent on the Grand Chamber judgment in the above-cited Sanoma Uitgevers case,
argued that the law in Latvia concerning urgent searches in relation to
journalists lacked foreseeability. The Government, however, drew a distinction
between the two cases on the facts, because in the present case the law had
provided for the investigating judge’s involvement.
The Court reiterates that the above-cited Sanoma
Uitgevers case concerned the quality of Dutch law and the lack of
adequate legal safeguards to enable an independent
assessment of whether the interests of the criminal investigation overrode the
public interest in the protection of journalistic sources. The situation in
Latvia in this respect, as noted by the Government, is quite different. Indeed,
in accordance with the ordinary procedure under section 180 of the Criminal
Procedure Law, the investigating judge weighs the
potential risks and respective interests prior to authorising a search. Also,
under section 154 of the same Law the investigating judge makes this assessment
prior to issuing a disclosure order. Therefore, it appears that in principle there
are procedural safeguards in place in Latvia by virtue of prior judicial scrutiny
by the investigating judge for searches under the ordinary procedure and for
disclosure orders.
88. The Court notes,
however, that the present applicant alleged the lack of adequate legal
safeguards for searches under the urgent procedure, which was applied to her on
the basis of section 180, paragraph 3 of the Criminal Procedure Law. The Court
has already acknowledged 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 (see Sanoma Uitgevers, cited above, § 91).
The Court observes that under Latvian law the
investigating judge examines “the lawfulness of and the grounds for the search”
carried out under the urgent procedure on the day following the search. It
cannot therefore be said that there are no safeguards that render the relevant
legal provision foreseeable as such. Although it appears that the investigating
judge’s approval of the search warrant was not made in a separate decision in
the present case, but rather was limited to an “approval” written on the search
warrant itself, the reasons for that decision were explained in writing by the President
of the court upon examining the applicant’s complaint against the decision.
The Court notes that unlike in the Sanoma
Uitgevers case, the investigating judge has the authority under Latvian
law to revoke the search warrant and to declare such evidence inadmissible (see
paragraph 36 above). Moreover, according to the information submitted by the
Government, which the applicant did not dispute, the investigating judge also
has the power to withhold the disclosure of the identity of journalistic
sources (ibid.). The Court considers that the last two elements
pertaining to the investigating judge’s involvement in an immediate post
factum review are sufficient to differentiate this case from the
above-mentioned Sanoma Uitgevers case (see also Telegraaf
Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no.
39315/06, § 120, 22 November 2012, where a similar distinction was
made). The Court, therefore, does not deem it necessary to examine the
Government’s submissions concerning the role of the supervising prosecutor in
authorising searches under the urgent procedure.
In these circumstances the Court considers that
the interference complained of was “prescribed by law” within the meaning of Article 10 §
2 of the Convention.
(c) Legitimate aim
The parties disputed this element, but the Court
could accept that the interference was intended to prevent disorder or crime
and to protect the rights of others, both of which are legitimate aims.
(d) Necessary in a democratic society
The Court refers to the applicable principles
under Article 10 of the Convention (see Financial
Times Ltd and Others, cited above, §§ 59-63, and, more
recently, Telegraaf Media Nederland Landelijke Media B.V. and Others,
cited above, §§ 123-126). In exercising its supervisory function, the Court’s task is not
to take the place of the national authorities, but rather to review, in the
light of the case as a whole, whether the decisions they have taken pursuant to
their power of appreciation are compatible with the provisions of the
Convention relied upon (see Axel Springer AG v. Germany [GC], no.
39954/08, § 86, 7 February 2012).
. The
Court must accordingly examine the reasons given by the authorities for the applicant’s
search, together with the scope of the search warrant, in order to ascertain
whether those reasons were “relevant” and “sufficient” and thus whether, having
regard to the margin of appreciation afforded to the national authorities, the
interference was proportionate to the legitimate aims pursued and whether it
corresponded to a “pressing social need”.
. The
Court notes, at the outset, that there is a fundamental difference between this
case and other cases, where disclosure orders have been served on journalists
requiring them to reveal the identity of their sources (see the above-cited
cases of Goodwin, Voskuil, Financial Times Ltd and Others and
Telegraaf Media Nederland Landelijke Media B.V. and Others). The distinguishing feature lies not, as the Government
suggested, in the fact that I.P.’s identity had been known to the investigating
authorities prior to the applicant’s search, which fact does not remove the
applicant’s protection under Article 10 of the Convention (see paragraphs 78-83 above). The Court has
already held that a search conducted with a view to identifying a journalist’s
source is a more drastic measure than an order to divulge the source’s identity
(see the above-cited cases Roemen and Schmit, § 57, and Ernst and
Others, § 103). The Court considers that it is even more so in the
circumstances of the present case, where the search warrant was drafted in such
vague terms as to allow the seizure of “any information” pertaining to the
crime under investigation allegedly committed by the journalist’s source,
irrespective of whether or not his identity had already been known to the
investigating authorities. As the Court has already noted in Roemen and
Schmit and Ernst and Others, investigators who raid a journalist’s
workplace or home unannounced and are armed with search warrants have very wide
investigative powers, as, by definition, they have access to all the
documentation held by the journalist. The Court reiterates that limitations on
the confidentiality of journalistic sources call for the most careful scrutiny
by the Court.
. As
to the reasons for the search of 11 May 2010, the Court notes that according to
the search warrant, issued by the investigator under the urgent procedure, the factual
basis for the search was the applicant’s communication with I.P., by phone and
possibly in person, on several occasions prior to the broadcast of 14 February
2010. The Government have submitted to the Court that the investigating
authorities were faced with the task of classifying the crime allegedly
committed by I.P. and establishing the applicant’s role. The Court, however,
does not consider that the reasons given by the domestic authorities are
“relevant” and “sufficient” in the circumstances of the present case or correspond
to a “pressing social need”.
. The Court notes that the subject-matter on which the applicant
reported and in connection with which her home was searched made a twofold
contribution to a public debate. It was primarily aimed at keeping the public
informed about the salaries paid in the public sector at a time of economic
crisis, when a variety of austerity measures had been introduced. It is not
insignificant that, around the same time, legislative amendments were being
drafted to make information concerning salaries in public institutions
available to the general public (see paragraph 39 above). In addition, the applicant’s broadcast also exposed
security flaws in the database of the State Revenue Service, which had been
discovered by her source. Admittedly, the actions of her source are subject to
a pending criminal investigation. The applicant herself, however, for the
purposes of this investigation was questioned as a witness; it appears that her
procedural status remained unaltered throughout this investigation. The Court
emphasises that the right of journalists not to disclose their sources cannot
be considered a mere privilege to be granted or taken away depending on the
lawfulness or unlawfulness of their sources, but
is part and parcel of the right to information, to be treated with the utmost
caution (see Tillack, cited above, §
65). Given the multiple interests in issue, the Court emphasises that the
conduct of the source will merely operate as one factor to be taken into
consideration in carrying out the balancing exercise required under
Article 10 § 2 of the Convention (see Financial Times Ltd and Others,
cited above, § 63).
. The
Court observes that the broadcast during which the applicant informed the
public about the data leak from the EDS was aired on 14 February 2010,
that is, nearly three months before the search at the applicant’s home.
According to the investigator, since that date there had been no further
communication between the applicant and her source. In this respect, the Court
notes that when the investigating authorities, almost three months after the
broadcast and after the applicant had agreed to testify, decided that a search
at her home was necessary, they proceeded under the urgent procedure without
any judicial authority having properly examined the relationship of
proportionality between the public interest of investigation, on the one hand,
and the protection of the journalist’s freedom of expression, on the other
hand.
. The
Court will now turn to the reasons advanced for the search under the urgent
procedure. According to national law, such search could be envisaged only if
the delay could allow the relevant documents or objects to be destroyed, hidden
or damaged or the person to abscond (see paragraph 36 above). In the case at hand, the reasons spelled out in the
search warrant for the urgency was “to prevent the destruction,
concealment or damaging of evidence” without further explanation or reference
to particular facts or any other indication. It is not clear from the case
materials on what grounds the above-mentioned assertion was made and in what
context. The Government insisted that the applicant’s role had not been clear
at the time of the search. However, it has not been suggested that during the
preliminary investigation any information was acquired linking the applicant to
I.P. in any other way than in her capacity as a journalist; her status as a
witness in the criminal proceedings only further evidences that. On the
contrary, it was noted in the search warrant itself that the applicant’s last
communication with I.P. had been on the day of the broadcast. In these
circumstances only weighty reasons could have justified the urgency of the
applicant’s search.
The Court has already noted above that it may
be impracticable for the prosecuting authorities to state elaborate reasons for
urgent searches; in such circumstances the necessary assessment of the
conflicting interests could be carried out a later stage, but in any event at the very least prior to the access and use of the obtained
materials (see paragraph 88 above). In Latvia, according to the Government, the assessment
is carried out by the investigating judge on the next day following an urgent
search. In the present case, however, no further reasons were given either by
the investigating judge or by the President of the court who subsequently
examined the applicant’s complaint against the decision of the investigating
judge. Both judges limited themselves to finding that the search did not relate
to the journalist’s sources at all, so they did not proceed to examine the
conflicting interests. For the reasons explained above (see paragraphs 78-83) the Court cannot subscribe
to such a finding.
. The
Court considers that any search involving the seizure of data storage devices
such as laptops, external hard drives, memory cards and flash drives
belonging to a journalist raises a question of the journalist’s freedom of
expression including source protection and that the access to the information
contained therein must be protected by sufficient and adequate safeguards
against abuse. In the present case, although the investigating judge’s
involvement in an immediate post factum review was provided for in the
law, the Court finds that the investigating judge failed to establish that the
interests of the investigation in securing evidence were sufficient to override
the public interest in the protection of the journalist’s freedom of
expression, including source protection and protection against the handover of
the research material. The scarce reasoning of the President of the court as to
the perishable nature of evidence linked to cybercrimes in general, as the
Ombudsman rightly concluded, cannot be considered sufficient in the present
case, given the investigating authorities’ delay in carrying out the search and
the lack of any indication of impending destruction of evidence. Nor was there any suggestion that the applicant was responsible
for disseminating personal data or was implicated in the events other than in
her capacity as a journalist; she remained “a witness” for the purposes of
these criminal proceedings. If the case materials did include any indication in
that regard, it was the investigating judge’s responsibility to carry out the
necessary assessment of the conflicting interests, which was not done.
. The
foregoing considerations are sufficient to enable the Court to conclude that
“relevant and sufficient” reasons for the interference complained of were not
given. There has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant also complained that the search
constituted unjustified interference with her right to respect for her home and
private life, as protected by Article 8 of the Convention. She noted that her
laptop, which had been seized, contained private information which she did not
consider was necessary for the purposes of the investigation. She objected, in
that regard, to the wide scope of the search warrant.
The Court notes that the applicant has failed
to mention, even in a summary fashion, the type of
information stored in her personal laptop or other data storage devices and the
extent of the alleged interference with her private life. In so far as the
applicant’s right to respect for her home is concerned, the Court has already
examined the factual circumstances surrounding that search under Article 10 of
the Convention. It does not consider it necessary to examine the admissibility
and merits of this complaint separately under Article 8 of the Convention in
the circumstances of the present case (compare and contrast with the above-cited
case of Telegraaf Media Nederland Landelijke Media B.V. and Others,
where two journalists were subject to
surveillance measures, such as interception and recording of their
telecommunications, which necessitated concurrent examination under Articles 8
and 10 of the Convention; in the same case the order to surrender documents was
examined solely under Article 10 of the Convention; compare and contrast also with
the above-cited case of Ernst and Others, where four
journalists’ homes were searched in what was a much wider operation).
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 50,000 euros (EUR) in
respect of non-pecuniary damage she allegedly suffered. She submitted
that the search had been a traumatic experience and had damaged her reputation
in the eyes of existing and potential sources of information.
The Government contested this claim.
Ruling on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant EUR 10,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed 12,679.53 Latvian lati
(approximately EUR 18,114) for the costs and expenses incurred before the
domestic courts and before the Court excluding VAT. This claim was supported by
time sheets.
The Government considered these claims
unfounded. They submitted that some of the costs incurred in the domestic
proceedings were not related to the violation of Article 10 of the Convention
(in connection with the Ombudsman’s review and other discussions between the
applicant and her lawyer). They also considered that the applicant had not
adduced adequate details of the breakdown of the work carried out in relation
to the domestic and Strasbourg proceedings. Lastly, the Government argued that
the amount claimed for legal services was unreasonably high.
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, among
many other authorities, Sanoma Uitgevers B.V., cited above, §
109). In the present case, regard being had to the documents in its possession
and the above criteria, the Court considers it reasonable to award the sum of
EUR 10,000 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate 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. Declares the complaint under Article 10 of
the Convention admissible;
2. Holds that there has been a violation of
Article 10 of the Convention;
3. Holds that no separate issues arise under
Article 8 of the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into the currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable to the applicant, 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
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos David Thór Björgvinsson
Registrar President
