EHRM, 14-09-2010, nr. 38224/03

The applicant company is based in Hoofddorp. Its business is publishing and marketing magazines, including the weekly Autoweek, which caters for readers who are interested in motoring.

On 12 January 2002, an illegal street race was held in an industrial area on the outskirts of the town of Hoorn. Journalists of Autoweek attended this race at the invitation of its organisers.

The applicant company state that the journalists were given the opportunity to take photographs of the street race and of the participating cars and persons on condition that they guarantee that the identities of all participants would remain undisclosed. The Government, for their part, dispute the existence of any agreement involving more than a small number of organisers or participants at most.

The street race was ended by the police, who were present and eventually intervened. No arrests were made.

The applicant company intended to publish an article about illegal car races in Autoweek no. 7/2002 of 6 February 2002. This article would be accompanied by photographs of the street race held on 12 January 2002. These photographs would be edited in such a manner that the participating cars and persons were unidentifiable, thus guaranteeing the anonymity of the participants in the race. The original photographs were stored by the applicant company on a CD-ROM, which was kept in the editorial office of a different magazine published by the applicant company (not Autoweek).

The police and prosecuting authorities were afterwards led to suspect that one of the vehicles participating in the street race had been used as a getaway car following a ram raid on 1 February 2001 (see paragraphs 27–29 below).

On the morning of Friday 1 February 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of 12 January 2002. This police officer was informed by the staff member whom she had called, namely the features chief editor (chef reportage), that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race. The features chief editor further told this police officer that he thought that the press was reasonably protected against this kind of action and advised her to contact the editorial office in writing.

In the afternoon of 1 February 2002, at 2.30 p.m., two police detectives visited the Autoweek editorial office and, after having unsuccessfully tried to obtain the surrender of the photographs, issued Autoweek's editor-in-chief with a summons, within the meaning of Article 96a of the Code of Criminal Procedure (Wetboek van Strafvordering). This summons had been issued by the Amsterdam public prosecutor; it ordered the applicant company to surrender, in the context of a criminal investigation into offences defined in Articles 310–312 of the Criminal Code (Wetboek van Strafrecht) against an unspecified person, the photographs taken on 12 January 2002 during the illegal street race in Hoorn and all related materials. On behalf of the applicant company, Autoweek's editor-in-chief Mr Broekhuijsen refused to surrender the photographs, considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity.

Later that day, a telephone conversation took place between, on the one side, two public prosecutors and, on the other, the lawyer of the applicant company Mr Jansen. Mr Jansen was told by the public prosecutors that ‘it concerned a matter of life and death’. No further explanation was given and Mr Jansen's request for written confirmation that the matter was one of ‘life and death’ was not entertained.

The police detectives and the public prosecutors threatened to detain Mr Broekhuijsen during the weekend of 2 to 3 February or even longer for having acted in violation of Article 184 of the Criminal Code, i.e. the offence of failure to comply with an official order (ambtelijk bevel), and to seal and search the whole of the applicant company's premises, if need be for the entire weekend period and beyond, and remove all computers. The threatened search would entail financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince, due to take place on 2 February 2002.

At 6.01 p.m. on 1 February 2002, Mr Broekhuijsen was arrested on suspicion of having violated Article 184 of the Criminal Code. He was not taken to the police station but remained on the applicant company's premises. After the Amsterdam public prosecutor had arrived on these premises and after he had been brought before the prosecutor, Mr Broekhuijsen was released at 10 p.m.

The applicant company then consulted their counsel, Mr S., and a second lawyer, Mr D., the latter being a specialist in criminal procedure. At some point the CD-ROM was transferred to the lawyers' offices unbeknown to the public prosecutor and the police investigators. Upon this, the public prosecutor and the other persons involved went to the lawyers' offices.

Mr D. spoke with the public prosecutors involved for some two hours, from 11.15 p.m. onwards. Taking the view that judicial authorisation was required, he sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge (rechter-commissaris) of the Amsterdam Regional Court (rechtbank), who was then contacted by telephone. After having spoken with Mr D., and after having been briefed by one of the public prosecutors, the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company's journalistic privilege. While recognising from the outset that by law he lacked competence in the matter, he also stated that, had he had the power to do so, he would have been prepared to give an order to that effect and even to sanction a search of the offices.

On 2 February 2002 at 1.20 a.m., the applicant company, through Mr S. and Mr D. and under protest, surrendered the CD-ROM containing the photographs to the public prosecutor, who formally seized it. An official receipt issued by a police officer describes it as a CD-ROM in purpose-made packaging, the packaging labelled in handwriting ‘Photos Illegal Street Races, ANWB [Royal Netherlands Tourist Association] driving simulator, sidecar motorcycle with coffin’. The receipt stated that Mr S. had handed over the CD-ROM under protest.

On 15 April 2002 the applicant company lodged a complaint under Article 552a of the Code of Criminal Procedure, seeking the lifting of the seizure and restitution of the CD-ROM, an order to the police and prosecution department to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD-ROM.

On 5 September 2002 a hearing was held before the Regional Court during which the public prosecutor explained why the surrender of the photographs had been found necessary. The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of walls with the aid of a shovel loader, and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s) of those robberies.

In its decision of 19 September 2002 the Regional Court granted the request to lift the seizure and to return the CD-ROM to the applicant company as the interests of the investigation did not oppose this. It rejected the remainder of the applicant company's complaint. It found the seizure lawful and, on this point, considered that a publisher/journalist could not, as such, be regarded as enjoying the privilege of non-disclosure (verschoningsrecht) under Article 96a of the Code of Criminal Procedure. Statutorily, the persons referred to in Article 218 of the Code of Criminal Procedure and acknowledged as enjoying the privilege of non-disclosure were, amongst others, public notaries, lawyers and doctors. It considered that the right to freedom of expression, as guaranteed by Article 10 of the Convention, included the right freely to gather news (recht van vrije nieuwsgaring) which, consequently, deserved protection unless outweighed by another interest warranting priority. It found that, in the instant case, the criminal investigation interest outweighed the right to free gathering of news in that, as explained by the public prosecutor during the hearing, the investigation at issue did not concern the illegal street race, in which context the undertaking of protection of sources had been given, but an investigation into other serious offences. The Regional Court was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests, the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race. It found established that the data stored on the CD-ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing. It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified. The Regional Court did not find that the seizure had been rash, although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter.

The applicant company lodged an appeal on points of law with the Supreme Court (Hoge Raad), which on 3 June 2003 gave a decision declaring it inadmissible. The Supreme Court held that, as the Regional Court had accepted the applicant company's complaint in so far as it related to the request to lift the seizure and to return the CD-ROM, the applicant company no longer had an interest in its appeal against the ruling of 19 September 2002. Referring to its earlier case-law (Supreme Court, 4 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports — ‘NJ’) 1989, no. 429, and Supreme Court, 9 January 1990, NJ 1990, no. 369), it held that this finding was not altered by the circumstance that the complaint — apart from a request to return the CD-ROM — also contained a request to order that any print-outs or copies of the CD-ROM were to be destroyed and that data collected with the aid of the CD-ROM could not be used: neither Article 552a nor any other provision of the Code of Criminal Procedure provided for the possibility of obtaining a declaratory ruling that the seizure or the use of the seized item was unlawful once the item had been returned.

Article 96a of the Code of Criminal Procedure reads as follows:

Article 67 § 1 of the Code of Criminal Procedure lists the offences in respect of which detention on remand may be ordered. These include, among others, the offences defined in Articles 310–312 of the Criminal Code (theft, theft under aggravating circumstances, and robbery).

A failure to comply with an order under Article 96a constitutes an offence as defined in, as relevant to the case, Article 184 (failure to comply with an official order) of the Criminal Code. This is an indictable offence (misdrijf) carrying a three-month maximum prison sentence or a fine.

Persons who, by virtue of Articles 217–219 of the Code of Criminal Procedure, enjoy the privilege of non-disclosure include

Article 96a of the Code of Criminal Procedure entered into force on 1 February 2000. Prior to this date, only the investigating judge was competent to issue an order to surrender for the purposes of seizure (former Article 105 of the Code of Criminal Procedure).

Article 552a of the Code of Criminal Procedure reads as follows:

On 4 December 2000, the boards of the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) and the Netherlands Union of Journalists (Nederlandse Vereniging van Journalisten) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials. This commission — which was composed of a professor of criminal law, the secretary of the Netherlands Union of Journalists, a Regional Court judge and an editor of a national daily newspaper — concluded in its report of 30 October 2001, inter alia, that specific legislation was not necessary and that by way of making certain procedural changes — such as a preliminary assessment procedure, where it concerned the application of coercive measures in cases where the protection of sources was in issue — a number of problem areas could be resolved.

Already in 1993, Mr E. Jurgens — at the time a member of the Netherlands Lower House of Parliament (Tweede Kamer) — had submitted a private member's bill (initiatiefwetsvoorstel) to amend the Code of Criminal Procedure and the Code of Civil Procedure in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them. On 2 March 2005, after remaining dormant, this bill was eventually withdrawn without having been taken up in parliament.

The Court's judgment in the Voskuil case (Voskuil v. the Netherlands, no. 64752/01, 22 November 2007) has prompted the Government to introduce new legislation. A bill now pending before Parliament proposes to add a new Article to the Code of Criminal Procedure (Article 218a) that would explicitly allow ‘witnesses to whom information has been entrusted within the framework of the professional dissemination of news (beroepsmatige berichtgeving) or the gathering of information for that purpose, or the dissemination of news within the framework of participation in the public debate, as the case may be’ — that is, professional journalists in particular — to refuse to give evidence or identify sources of information. Such a right would be more limited than that enjoyed by the categories enumerated in Articles 217, 218 and 219 of the Code of Criminal Procedure; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest (zwaarderwegend maatschappelijk belang) would result from such refusal. However, persons covered by the proposed new Article 218a would not be among those entitled to refuse outright to surrender items eligible for seizure: the bill proposes to include them in the enumeration contained in Article 96a § 3 (paragraph 30 above).

The Chamber accepted that at the time when the CD-ROM was handed over the information stored on it had only been known to the applicant company and not yet to the public prosecutor and the police. It followed, in the Chamber's assessment, that the applicant company's rights under Article 10 as a purveyor of information had been made subject to an interference in the form of a ‘restriction’ and that Article 10 was applicable (see the Chamber's judgment, § 50).

In its earlier case-law the Court has found various acts of the authorities compelling journalists to give up their privilege and provide information on their sources or to obtain access to journalistic information to constitute interferences with journalistic freedom of expression. Thus, in Goodwin v. the United Kingdom, cited above, the Court held a disclosure order requiring a journalist to reveal the identity of a person who had provided him with information on an unattributable basis, and the fine imposed upon him for having refused to do so, to constitute an interference with the applicant's right to freedom of expression as guaranteed by paragraph 1 of Article 10.

In the British Broadcasting Corporation decision referred to by the Government (paragraph 54 above), the Commission distinguished the case of Goodwin v. the United Kingdom case on the grounds that Mr Goodwin had received information on a confidential and unattributable basis, whereas the information which the BBC had obtained comprised recordings of events that had taken place in public and to which no particular secrecy or duty of confidentiality could possibly attach’. The Court notes that nothwithstanding this finding the Commission ‘assume[d] an interference with the BBC's Article 10 rights in the case’.

In Roemen and Schmit v. Luxembourg, cited above, § 47; Ernst and Others v. Belgium, no. 33400/96, § 94, 15 July 2003; and again in Tillack v. Belgium, no. 20477/05, § 56, ECHR 2007-XIII, the Court found that searches of journalists' homes and workplaces seeking to identify civil servants who had provided the journalists with confidential information constituted interferences with their rights guaranteed by paragraph 1 of Article 10. In Roemen and Schmit, loc. cit., the Court also pointed out that the fact that the searches proved unproductive did not deprive them of their purpose, namely to establish the identity of the journalist's source.

In Voskuil v. the Netherlands, cited above, § 49, an interference with the applicant's rights under Article 10 of the Convention was found in that a journalist's refusal to name the person who had presented him with information on alleged wrongdoing by police officers in a criminal investigation led the domestic court to order his detention in an attempt to compel him to speak.

Most recently, in Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 56, 15 December 2009, the Court found an order for the disclosure of the identity of an anonymous source of information addressed to four newspaper publishers and a news agency to constitute an interference with their rights under Article 10. Even though the order had not been enforced, that did not remove the harm to the applicant company since, however unlikely such a course of action might appear by the time the Court delivered its judgment, the order remained capable of being enforced.

Turning to the present case, the Court is of the view that although the question has been the subject of much debate between the parties, it is not necessary to determine whether there actually existed an agreement binding the applicant company to confidentiality. The Court agrees with the applicant company that there is no need to require evidence of the existence of a confidentiality agreement beyond their claim that such an agreement existed. Like the Chamber, the Court sees no reason to disbelieve the applicant company's claim that a promise had been made to protect the cars and their owners from being identified.

As the Government correctly state, in the present case the authorities did not require the applicant company to disclose information for the purposes of the identification of the street race participants, but only to surrender photographs which in the applicant company's submission might, upon examination, lead to their identification. However, in Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII the Court held that the decision of the Danish Supreme Court to compel the applicant company to hand over unedited footage constituted an interference within the meaning of Article 10 § 1 of the Convention despite the finding that the affected persons were not to be considered ‘anonymous sources of information’ within the meaning of the case-law of the Court (paragraphs 59 and 61 above). In its decision the Court accepted the possibility that Article 10 of the Convention might be applicable in such a situation and found that a compulsory handover of research material might have a chilling effect on the exercise of journalistic freedom of expression.

The Court further notes that in the present case the order concerned was not intended to identify the sources themselves in connection with their participation in the illegal street race and that indeed, no prosecution had been brought in relation to this race or even against A. and M., who were suspected of having committed grave crimes. The Court, however, does not consider this distinction to be crucial.

In earlier case-law the Court has considered the extent to which the acts of compulsion resulted in the actual disclosure or prosecution of journalistic sources irrelevant for the purposes of determining whether there has been an interference with the right of journalists to protect them. In the case of Roemen and Schmidt, the information sought was not obtained as a result of the execution of the order for search and seizure in the journalist's workplace. This order was considered ‘a more drastic measure than an order to divulge the source's identity… because investigators who raid a journalist's workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. It thus considers that the searches of the first applicant's home and workplace undermined the protection of sources to an even greater extent than the measures in issue in Goodwin’ (loc. cit., § 57).

As previously observed, in the case of Financial Times Ltd and Others v. the United Kingdom, cited above, § 56, the fact that the disclosure order had not actually been enforced against the applicant company did not prevent the Court from finding that there had been an interference (see paragraph 63 above).

The Court observes, as the Chamber did, that unlike in other comparable cases — Ernst and Others v. Belgium, cited above; Roemen and Schmit v. Luxembourg, cited above; Tillack v. Belgium, cited above — there was no search of the applicant company's premises. However the public prosecutor and the police investigators clearly indicated their intention to carry out such a search unless the editors of Autoweek bowed to their will (see paragraph 18 above).

This threat — accompanied as it was by the arrest, for a brief period, of a journalist — was plainly a credible one; the Court must take it as seriously as it would have taken the authorities' actions had the threat been carried out. Not only the offices of Autoweek magazine's editors but those of other magazines published by the applicant company would have been exposed to a search which would have caused their offices to be closed down for a significant time; this might well have resulted in the magazines concerned being published correspondingly late, by which time news of current events (see paragraph 18 above) would have been stale. News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see, for example, Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216; Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, § 51; and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). This danger, it should be observed, is not limited to publications or periodicals that deal with issues of current affairs (cf. Alınak v. Turkey, no. 40287/98, § 37, 29 March 2005).

While it is true that no search or seizure took place in the present case, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources (mutatis mutandis, Financial Times Ltd and Others v. the United Kingdom, cited above, § 70).

In sum, the Court considers that the present case concerns an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources. This suffices for the Court to find that this order constitutes, in itself, an interference with the applicant company's freedom to receive and impart information under Article 10 § 1.

The Chamber was satisfied that a statutory basis for the interference complained of existed, namely Article 96a of the Code of Criminal Procedure. While recognising that that provision did not set out a requirement of prior judicial control, the Chamber gave decisive weight to the involvement of the investigating judge in the process. Although the Chamber found it unsatisfactory that prior judicial control by the investigating judge was no longer a statutory requirement, as it had been until Article 96a entered into force, it saw no need to examine the matter further (§§ 51–52 of the Chamber's judgment).

All agree that a statutory basis for the interference complained of existed in domestic law, namely Article 96a of the Code of Criminal Procedure.

The applicant company contended that the law in force lacked foreseeability. Article 96a of the Code of Criminal Procedure gave the public prosecutor and the police an unfettered discretion to determine whether to order the surrender of information, without any limits as to the grounds on which to do so or the methods to be used. In particular, it was entirely silent on the subject of interferences with the journalistic privilege of source protection.

Although admittedly Government or other official directives addressed to subordinate authorities might be taken into account in assessing foreseeability, in the present case such directives had not been available. An official instruction issued by the Board of Procurators General had entered into force only on 1 April 2002, that is two months after the events complained of.

The absence of a statutory requirement of judicial control constituted, in the applicant company's view, a separate violation of the requirement of legality. They pointed to Principle 3(a) of Recommendation No. R(2000) 7 of the Committee of Ministers of the Council of Europe (see paragraph 44 above), according to which ‘competent authorities’ should assess the need for disclosure. They asked the Grand Chamber to clarify the duties of the State in this respect.

They also took issue with the Chamber's finding that the intervention of the investigating judge had been sufficient in the instant case to satisfy the requirements of Article 10. In general, the unregulated involvement of an investigating judge could not make up for the lack of a statutory guarantee.

The Government argued that Article 96a of the Code of Criminal Procedure satisfied the requirements of foreseeability and accessibility. In defining the groups entitled to specific protection, the third paragraph of that Article referred to other Articles of that Code, namely Articles 217, 218 and 219, none of which mentioned journalists. Moreover, guidance as to the interpretation of that provision was to be found in its drafting history and in a policy rule accessible to the public.

The intervening third parties in their observations (see paragraph 45 above) noted a tendency in countries in Europe and elsewhere towards the introduction of safeguards, by statute and case-law both. They cited examples of States that had made interferences with the protection of journalistic sources subject to prior judicial authorisation; in some of the jurisdictions named, though not all, the police could exceptionally proceed with a search in certain circumscribed cases of particular urgency. Some jurisdictions provided for review post factum, in certain cases even if source disclosure had been ordered ante factum by a judge.