Radio communications
THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 32. Relying on Article 10 of the Convention, the applicants complained about the search of their vehicle and their editorial office, the seizure of their radio equipment and their conviction. They submitted that these measures had constituted disproportionate interference with their freedom of expression, particularly in relation to their access to information as journalists. This Article 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. ” ... B. Merits 1. The parties ’ submissions 47. The applicants submitted that the measures taken against them had not been proportionate to the aims referred to by the respondent Government and that the right to impart information should prevail in their case. They further contended that the custodial sentences imposed on them had been excessive. 48. The Government observed that, even assuming that there had been interference with the right relied on by the applicants, it had pursued legitimate aims, namely the protection of national security and public safety and the prevention of disorder and crime, and had been proportionate to those aims. 2. The Court ’ s assessment (a) Whether there has been an interference “ prescribed by law ” and the legitimate aims pursued 49. The Court reiterates its doubts as to whether there was an interference with the applicants ’ freedom of expression in the present case. Even assuming that Article 10 was applicable, it observes that the search and seizure operation and the custodial sentences imposed on the applicants were prescribed by law, namely by Article 247 of the Code of Criminal Procedure and Articles 253, 617, 617 bis and 623 bis of the Criminal Code. 50. The Court considers that the measures in question pursued legitimate aims for the purposes of Article 10 § 2 of the Convention, in particular the protection of the rights of others and, concerning more specifically the interception of police communications, the protection of national security and the prevention of disorder and crime. (b) Whether the measures taken against the applicants were necessary in a democratic society ( i ) General principles 51. The general principles concerning the necessity of an interference with freedom of expression were summarised in Pentikäinen [ v. Finland [GC], no. 11882/10, §§ 87-91, ECHR 2015]. 52. In that judgment the Court reiterated that the protection afforded by Article 10 of the Convention to journalists was subject to the proviso that they acted in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Kasabova v. Bulgaria, no. 22385/03, §§ 61 and 63-68, 19 April 2011; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009). 53. Furthermore, the concept of responsible journalism is not confined to the contents of information which is collected and/or disseminated by journalistic means. It also embraces, inter alia, the lawfulness of journalists ’ conduct, including their public interaction with the authorities when exercising journalistic functions (see Pentikäinen, cited above, § 90). 54. It should also be reiterated that “ notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence (see, among other authorities, mutatis mutandis, Stoll [ v. Switzerland [GC], no. 69698/01, § 102, ECHR 2007 ‑ V]; Bladet Tromsø and Stensaas, cited above, § 65; and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006-X). In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions ” (see Pentikäinen, cited above, § 91). 55. Furthermore, all persons, including journalists, who exercise their freedom of expression undertake “ duties and responsibilities ”, the scope of which depends on their situation and the technical means they use (see, for example, Handyside v. the United Kingdom, 7 December 1976, § 49 in fine, Series A no. 24). Thus, notwithstanding the vital role played by the press in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see Stoll, cited above, § 102, and Pentikäinen, cited above, § 110). 56. Lastly, the Court reiterates that in assessing the necessity of a specific interference with the exercise of freedom of expression, it has regard to several criteria, namely the assessment of the competing interests, the applicants ’ conduct, the review carried out by the domestic courts and the proportionality of the penalty imposed ( see Stoll, cited above, § 153; Pentikäinen, cited above, §§ 112- 13; and Boris Erdtmann v. Germany ( dec. ), no. 56328/10, 5 January 2016). ( ii ) Application of these principles in the present case 57. It should be noted at the outset that, unlike other cases where journalists have applied to the Court under Article 10 of the Convention ( including, among many other examples, Stoll, cited above ), the present case does not concern the prohibition of a publication but the taking of measures against journalists for actions that, according to the Italian legal system, contravened criminal law. 58. In order to assess the necessity of these measures, the Court observes that the interests to be weighed up in the present case are, firstly, the public interest in the proper functioning of the law-enforcement agencies, and secondly, the interest of readers in receiving information. 59. Although both these interests may be regarded as public in nature ( see, mutatis mutandis, Stoll, cited above, §§ 115-16), it should nevertheless be pointed out that the public interest in knowing about local news items cannot carry the same weight as the public interest in obtaining information about a matter of general and historical concern or of considerable media interest, subjects which the Court has already had occasion to examine. 60. In this connection, it notes that the Stoll case ( cited above ) concerned the dissemination of information about the compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts. The Pentikäinen case ( cited above ) concerned the dissemination of information about a demonstration taking place on an exceptional scale in national terms in protest against an Asia-Europe meeting. 61. In the present case, the Court observes that the applicants were not prohibited from bringing news items to the public ’ s attention. Their conviction was based solely on the possession and use of radio equipment in order to obtain relevant information more rapidly by intercepting police communications, which were confidential under domestic law. The limits of the prohibition are an important consideration in the assessment of its proportionality. 62. In this context, the Court considers that the decisions of the Milan Court of Appeal and the Court of Cassation to the effect that communications between law-enforcement officers were confidential and that the applicants ’ actions were therefore to be classified as criminal conduct, were properly reasoned. The decisions, relying on settled case-law of the Court of Cassation, accorded substantial weight to the protection of national security and the prevention of disorder and crime. 63. The Court further notes that, as it has previously held ( see Stoll, cited above, § 153, and Pentikäinen, cited above, §§ 112 - 13), the severity of the penalty imposed on the applicants is also a factor to be taken into consideration in assessing the proportionality of the interference complained of. In the present case, the penalty consisted of custodial sentences of one year and three months for the first two applicants and six months for the third, together with the seizure of their radio equipment. 64. The Court reiterates that the concept of responsible journalism requires that whenever a journalist ’ s conduct flouts the duty to abide by ordinary criminal law, the journalist has to be aware that he or she is liable to face legal sanctions, including of a criminal character (see Pentikäinen, cited above, § 110). 65. In the present case, while seeking to obtain information for publication in a local newspaper, the applicants acted in a manner that, according to domestic law and the settled approach of the Court of Cassation, contravened criminal law, which lays down a general prohibition on a person ’ s interception of any conversations not intended for him or her, including those between law-enforcement officers. The applicants ’ actions, moreover, involved a technique which they used routinely in the course of their activities as journalists (see paragraph 7 above). 66. Lastly, the Court notes that in its judgment of 15 May 2007 the Milan Court of Appeal suspended the applicants ’ sentences and that there is no evidence in the case file to show that they served them. Accordingly, the penalties imposed on the applicants do not appear disproportionate. 67. The courts made an appropriate distinction between the applicants ’ duty to abide by domestic law and their pursuit of their activities as journalists, which was not otherwise restricted. 68. Having regard to the above factors, the Court concludes that there has been no violation of Article 10 of the Convention in the present case.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. Stressing the notion of responsible journalism and noting that the decisions of the domestic courts had been duly reasoned and had focused primarily on the need to protect national security and prevent crime and disorder, the Court found in particular that the Italian courts had made an appropriate distinction between on the one hand the duty of the three journalists to comply with domestic law, which prohibited in general terms the interception by any persons of communications not addressed to them, including those of the law-enforcement agencies, and on the other hand the pursuit of their journalistic activities, which had not been restricted per se. The Court also noted that the penalties ordered by the domestic courts, consisting in the seizure of the radio equipment and the imposition of custodial sentences, had not been disproportionate, as the sentences of the three journalists had been suspended and the authorities had not prohibited them from bringing news items to the public’s attention.