Searches of journalists’ home or workplace, accessing of the phone data and/or seizure of journalistic material
II. RELEVANT DOMESTIC LAW AND PRACTICE 23. The relevant provisions of the Law of 1 September 1988 on civil liability of the State and the public authorities reads as follows: Section 1 “The State and other public-law entities shall be liable, in the performance of their respective public service duties, for any damage caused by the defective functioning of their administrative and judicial services, subject to res judicata. However, where it would be unfair, having regard to the nature and purpose of the act causing the damage, to confer on the citizen responsibility for making good the damage suffered, compensation shall be payable even where a dysfunction in the service has not been proved, provided that the damage is extraordinary and exceptional and cannot be attributed to negligence on the part of the victim.” 24. The relevant provisions of the Youth Welfare Act of 10 August 1992 read as follows: Section 38 “It is prohibited to publish or disseminate the deliberations of the youth court in any manner whatsoever. The same applies to publishing or disseminating any facts which are liable to disclose the identity or personality of minors who are under prosecution or subject to one of the measures laid down in this Act. ... The offences described in this Article shall be punishable by a prison sentence of between eight days and six months and a fine of between EUR 251 and EUR 10,000, or either of these two penalties.” 25. The provisions of the Criminal Code on calumny and defamation read as follows: Article 443 “Anyone who, in the circumstances set out below, maliciously accuses another person of something which is liable to damage this person’s repuration or to expose him or her to public scorn, shall be guilty of calumny if, in cases where it is possible by law to prove the accusation, no such proof has been supplied. He or she shall be guilty of defamation if the law does not allow such proof to be adduced. The person responsible within the meaning of section 21 of the Law of 8 June 2004 on freedom of expression in the media shall not be ... guilty of calumny or defamation. 1) where, in cases where it is possible by law to prove the accusation, such proof has not been supplied but the person responsible within the meaning of the aforementioned section 21, provided that he or she has taken the requisite legal steps, proves by means of any available remedy that he or she had sufficient reason to conclude that the accusations reported were accurate and that there was an overriding public interest in disseminating the information in question; ...” 26. Section 21 of the Law of 8 June 2004 on freedom of expression in the media reads as follows: “Civil or criminal liability for any fault committed via the media shall be incurred by the specific employee, where he or she is known, failing which the editor or broadcaster shall be responsible.” 27. The Code of Criminal Procedure does not explicitly provide for the voluntary presentation of items when judicial investigations are initiated. Seizures ordered by a court constitute the normal mode of attachment of items required for the purposes of the investigation. The relevant provisions on searches and seizures in the Code of Criminal Procedure read as follows: Article 51 § 1 “The investigating judge shall, in accordance with the law, conduct all the investigative measures which he or she deems useful for establishing the truth. He or she shall collect and verify, with equal care, the facts and circumstances incriminating or exonerating the accused.” Article 65 § 1 “Searches shall be conducted in any place in which objects that would assist in establishing the truth may be found." Article 66 § 1 “The investigating judge shall carry out the seizure of any objects, documents, effects and other items referred to in Article 31 § 3.” Article 31 § 3 “The investigating judge shall seize the objects, documents and effects which were used to commit the crime or were intended to commit it, and those which constituted the object of the crime, as well as any apparent proceeds from the crime, and also, generally, anything which may assist in establishing the truth and whose use may impede progress in the investigation, or which is liable to confiscation or restitution.” THE LAW I. ADMISSIBILITY 28. The Government raised an objection of inadmissibility for non-exhaustion of domestic remedies. They submitted that the applicant company should have brought an action for damages against the State for the defective functioning of State judicial services, under section 1 of the Law of 1 September 1988 on the civil liability of the State and the public authorities (hereafter “the 1988 Law”). In support of this objection the Government relied on a judicial finding by a domestic court against the State for the excessive length of a set of judicial proceedings. The Government explained that the domestic courts could not have adduced the principle of res judicata in the case of the applicant company because decisions given by the chambre du conseil did not constitute res judicata. The Government also enclosed a 16 December 2005 judgment from the Luxembourg District Court and a judgment of 10 December 2009 in which the Court of Appeal had upheld the District Court’s judgment, declaring the Luxembourg State liable for the damage caused by a search, pursuant to section 1(1) of the 1988 Law. Otherwise the applicant company could always have sought compensation for the damage under section 1(1) of the 1988 Law, which provided for compensation for victims of damage, even where the functioning of State services had not been defective, in cases of flagrant injustice. 29. The applicant company argued that the objection of inadmissibility should be dismissed on the grounds that the effectiveness of the remedy mentioned by the Government was only established in respect of cases of unreasonable length of proceedings. Moreover, it submitted that section 1 of the 1988 Law included an explicit reservation concerning the res judicata principle which meant that courts dealing with actions for damages pursuant to this Law could not find against the State for any injustices suffered by litigants as the result of a judicial decision (such as the judgment given in the instant case by the chambre du conseil of the Court of Appeal on 27 October 2009) constituting res judicata. 30. The Court reiterates that only remedies whichof Article 35 § 1 of the Convention require to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Leandro Da Silva v. Luxembourg, no. 30273/07, § 42, 11 February 2010, and Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). 31. The Court considers that the examples given by the Government in which the remedy under section 1(1) of the 1988 Law proved successful differ from the instant case. In length of proceedings cases, the diligence of the courts is under scrutiny, not the quality of their judicial activity. On the other hand, the case which was determined with final effect by the 10 December 2009 judgment of the Court of Appeal concerned not the principle of the search but the manner of its execution. The Court of Appeal in fact stated that “ in proceedings seeking to prove State liability vis-à-vis the execution of a search ordered by the investigating judge, it is unacceptable to focus the deliberations on the issue of the lawfulness, expediency and necessity of this investigative measure ”. Accordingly, the Government have not proved that the courts applied to under the 1988 Law would have jurisdiction to assess the necessity of an investigative measure, as the evidence produced shows that only the investigating judge holds such jurisdiction. However, the Government did not establish that it would still have been possible to apply to the investigating judge on this matter. Furthermore, the Government provided no examples of litigants obtaining compensation pursuant to section 1(2) of the 1988 Law. The Government have therefore failed to demonstrate the existence of an effective remedy which was not attempted. 32. Under these circumstances, the objection of inadmissibility raised by the Government must be dismissed. 33. The Court notes that the application 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. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicant company alleged that the search conducted on the premises of a newspaper which it published and owned had infringed the inviolability of its registered office (its “home”) and was disproportionate in the light of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his ... home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 35. The Government contested this argument. They disputed the very fact that there could have been any interference, arguing that the journalist working for the applicant company had voluntarily cooperated in the measure in issue in order to demonstrate that he had taken the necessary steps within the meaning of Article 443 of the Criminal Code. In the alternative, the Government contended that the interference in question had been legally justified, had pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others, and that it had been necessary in a democratic society. Confronted with facts which had constituted prima facie evidence of offences, it had been incumbent on the judicial authorities to initiate the requisite investigation for ascertaining the circumstances of the case in hand. The Government submitted that publishing companies could not be exempted from the implementation of criminal legislation, and that the impugned article had been published under a name which did not appear in the list of journalists officially recognised in Luxembourg, a fact which had necessitated investigations in order to identify the author of the article. Moreover, the interference had been fairly unintrusive given that the police officers had not actively searched for documents, all the documents seized had been voluntarily handed over by the journalist and the search and seizure had actually been in the journalist’s and the publishing house’s best interests. Furthermore, the investigating judge had only being doing his duty, since he had been obliged to gather both incriminating and exonerating evidence and since seizure was the only way to take possession of objects, even where they were handed over voluntarily. 36. The applicant company, on the other hand, submitted that it had been forced to cooperate and that by its very nature a search constituted interference with its right to inviolability of its private address (“home”). In the instant case the search had been disproportionate because it had had to be justified by aims other than ascertaining the identity of the author of the article, who had been readily identifiable. Even if such identification really had been the aim of the search, the latter had been disproportionate because the courts had had other means of obtaining this information, such as writing to the editor-in-chief for confirmation of the journalist’s authorship. 37. The Court reiterates, first of all, that the the notion of “home” in Article 8 § 1 does not only encompass a private individual’s home. The word “ domicile ” in the French version of Article 8 has a broader connotation than “home” and may, for example, also refer to a professional person’s office. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual and a legal entity’s registered office, branches or other business premises (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005-I; see also Société Colas Est and Others v. France, no. 37971/97, § 41, ECHR 2002-III, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 43), as in the case of the applicant company. 38. The fact that the journalist and other employees of the applicant company cooperated with the police cannot be construed as making the search and the associated seizure less intrusive. The Court has already had occasion to find that cooperation under threat of a search cannot cancel out the interfering nature of such an act (see, mutatis mutandis, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 68 to 70, 14 September 2010). Nor has it been alleged in the present case that failure to cooperate would have prevented the police officers from executing the legal warrant entrusted to them. On the contrary, the police officers had made clear that they could carry out the measure by force in the event of a refusal to cooperate (see paragraph 14 above). 39. The Court therefore considers that the search and the seizure carried out in the applicant company’s registered office must be construed as “interference” in the exercise of the applicant company’s rights under Article 8 § 1 of the Convention (see, mutatis mutandis, Roemen and Schmit v. Luxembourg, no. 51772/99, § 65, ECHR 2003 ‑ IV). 40. Such interference will infringe Article 8 unless it satisfies the requirements of Article 8 § 2, that is to say, if it is in accordance with the law, pursues one of the aims set out in that paragraph and is necessary in a democratic society. 41. In the light of Articles 51, 65, 66 and 31 of the Code of Criminal Procedure, the Court agrees with the parties that the interference was “in accordance with the law”. 42. The Court further considers that the interference, which was geared to ascertaining the real identity of a person under prosecution in the framework of a judicial investigation and elucidating the circumstances surrounding the possible commission of an offence, pursued a “legitimate aim”, namely the prevention of disorder and crime. Moreover, the impugned article implicated a social worker, giving his name, as well as the names of the minors in question, on whom it provided fairly extensive details. From this angle, the interference also pursued a further legitimate aim, that is to say protecting the rights of others. 43. As to whether the interference was “necessary”, the Court reiterates that “the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case must be convincingly established” (see Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B). 44. The Court notes that in the instant case the journalist had signed his article “Domingos Martins”. Even though the list of officially recognised journalists in Luxembourg includes no such name, it does contain the name of “De Araujo Martins Domingos Alberto”, which comprises all the elements of the name under which the article in issue was published. Furthermore, no other name comprising these elements appears in the list. The list also points out that “De Araujo Martins Domingos Alberto” works for the newspaper Contacto. Therefore, the similarity in the names, the exclusiveness of the elements of the names and the connection with the newspaper in question forge an obvious link between the author of the impugned article and the person appearing on the list. Drawing on these elements, the investigating judge could have begun by ordering a less intrusive measure than a search in order to confirm the identity of the author of the article, if he had continued to deem such action necessary. Consequently, the search and seizure were unnecessary at that stage. 45. The measures complained of were therefore not reasonably proportionate to the pursuit of the legitimate aims in question. 46. There has therefore been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 47. The applicant company complained of a violation of its freedom of expression. The impugned measure was, in its view, objectionable in that it was geared to seeking out the journalist’s sources and had an intimidatory effect. It relied on Article 10 of the Convention, which provides: “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.” 48. The Government challenged this argument on essentially the same grounds as for the complaint under Article 8. They also submitted that the search had in no way been geared to seeking out the journalist’s sources, as these had already been ascertained. 49. The Court reiterates that protecting journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected (see, among many other authorities, Martin and Others v. France, no. 30002/08, § 59, 12 April 2012; Roemen and Schmit, cited above, § 46; Tillack v. Belgium, no. 20477/05, § 53, 27 November 2007; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 93, ECHR 2004 ‑ XI; and Sanoma Uitgevers B.V. v. Netherlands, cited above, § 50). 50. 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, in so 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 Telegraaf Media Nederland Landelijke Media B.V. and Others v. Netherlands, no. 39315/06, § 86, 22 November 2012). 51. The Court has previously held that searches of journalists’ homes and workplaces for the purpose of identifying civil servants who had provided the journalists with confidential information constituted interference with their rights under Article 10 § 1 (see Martin and Others v. France, no. 30002/08, § 70, 12 April 2012; Roemen et Schmit, cited above, § 47; Ernst and Others v. Belgium, no. 33400/96, § 94, 15 July 2003; Tillack, cited above, § 56; and Sanoma Uitgevers B.V., cited above, § 61). 52. In Roemen and Schmit (cited above, § 47), the execution of the search and seizure warrant on the premises used by the journalists concerned had failed to secure the desired information. The Court therefore considered (§ 57) that this warrant was 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. 53. In the present case, the Government denied that the aim of the search and seizure in issue had been to ascertain the journalist’s sources. 54. The Court notes that the case file does not indicate that any sources were found other than those already published in the article. Nevertheless, in the light of the Court’s understanding of information likely to identify a source, and in view of the extent of the power bestowed by the search on the authorities searching the registered office of the applicant company, the Court considers that in the present case the police officers were capable, thanks to the warrant in issue, of accessing information which the journalist did not wish to publish and which was liable to disclose the identities of other sources. 55. This is sufficient for the Court to conclude that in this case there was “interference” with the applicant company’s freedom to receive and impart information within the meaning of Article 10 § 1 of the Convention. 56. The question therefore arises whether such interference can be justified under Article 10 § 2. The Court must accordingly consider whether the interference was “in accordance with the law”, pursued a “legitimate aim” under this paragraph and was “necessary in a democratic society”. 57. Having regard to its conclusion under Article 8 (see paragraphs 41 and 42 above), the Court considers that the interference was in accordance with the law and pursued a legitimate aim. 58. As to the necessity of such interference in a democratic society, the Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court (see Roemen and Schmit, cited above, § 46). 59. The Court notes that in the present case the impugned warrant was aimed at searching and seizing “any documents and items, in whatever form and on whatever medium, connected with the offences charged ...”. 60. The Court notes the relatively broad wording of this assignment. The search warrant conferred fairly extensive powers on the investigators (compare in this connection Roemen and Schmit, cited above, § 70). From this angle, the Court notes that the police officers, who were alone in carrying out the search, without any safeguards, were responsible for assessing the need to seize any given items. 61. Even though the Court cannot deduce from the evidence provided by the parties whether the purpose of the search was to disclose the journalist’s sources, the wording of the warrant is clearly too broad to rule out that possibility. The Court cannot accept the Government’s explanation that the sources were already mentioned in the impugned article. The fact of some sources having been published did not rule out the discovery of other potential sources during the search. The Court considers that the impugned search and seizure were disproportionate inasmuch as they enabled the police officers to search for the journalist’s sources. The Court notes that the insertion of a USB memory stick into a computer is a procedure which can facilitate the retrieval of data from the computer’s memory, thus supplying the authorities with information unrelated to the offence in question. The warrant of 30 March 2009 was not sufficiently narrow in scope to prevent possible abuse. In view of the Government’s contention before the Court that the sole aim of the search was to ascertain the real identity of the journalist who had written the article, a more succinct wording only mentioning this aim would have been sufficient. 62. In view of the foregoing, the Court finds that, in the particular circumstances of the case, the search and seizure carried out at the registered office of the applicant company were disproportionate to the aim pursued. 63. There has therefore been a violation of Article 10 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. 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.” 65. The applicant company did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award it any sum on that account. A. Costs and expenses 66. On the other hand, the applicant company claimed EUR 8,210 for the costs and expenses incurred before the domestic courts and EUR 5,635 for those incurred before the Court. 67. The Government left the assessment of these claims to the Court’s discretion. 68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court notes that the bills produced include costs other than those related to the application to have the warrant in issue declared void. Although the applicant company is only claiming partial reimbursement, it has failed to provide documentary evidence of the amount claimed. The Court therefore decides to make no award to the applicant company in respect of this part of its claim. As to the costs and expenses for the proceedings before the Court, based on a separate bill, the Court considers that they should be charged in their entirety to the respondent State. Accordingly, having regard to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 5,635 for the proceedings before the Court and awards that sum to the applicant company. B. Default interest 69. 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.
The Court found a violation of Article 8 (right to respect for private life) and a violation of Article 10 of the Convention. It held in particular that the search and seizure warrant had not been reasonably proportionate to the aim pursued, namely to verify the identity of the journalist who had written the article, and that it had been insufficiently limited in scope to prevent possible abuse by the investigating officers, for instance in the form of attempts to identify the journalist’s sources.