FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22107/05 by Sascha ADAMEK against Germany

The European Court of Human Rights (Fifth Section), sitting on 25 March 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 14 June 2005,

Having deliberated, decides as follows:

THE FACTS

The appl icant, Mr Sascha Adamek , is a German national who was born in 1968 and lives in Berlin . He was represented before the Court by Mr K. Baumeister , a lawyer practising in Berlin .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a journalist who worked as a freelance with the Eastern German Broadcasting Service ( Brandenburg ), which broadcasted in May 1998 a television programme to which the applicant contributed as the author of a report. His contribution concerned allegations that the police in Potsdam , when calling towing services, gave preference to certain enterprises. In the report, the applicant filmed an entrepreneur who parked his towing service car near the motorway to wait for a message from the police radio in order to be able to get to the scene of an accident or breakdown in time. The report then referred to a recording from the police radio ( Polizeifunk ) from which it could be understood that the police gave preference to a certain towing service. The phrases “I have now talked to the citizen. He would be willing to become a member of [the towing service association] at the scene of the accident” were broadcasted and referred to in the report as a recording from the police radio.

On 11 October 1999, the Potsdam District Court convicted the applicant of a violation of section 95 read in conjunction with section 86 of the Telecommunications Act (see “Relevant domestic law” below) and sentenced him to a fine of approx. 450 Euros (EUR). The District Court found that the applicant had unlawfully communicated the excerpts which he had intercepted from the police radio. Section 95 of the Telecommunications Act served to protect radio emissions of public authorities which were not intended for the general public in order to preserve the functioning of those authorities. It was compatible with the purpose of that provision that it did not provide for any exceptions, and that the provision did not limit the protection to only those messages which were transmitted by the authorities in the course of the lawful exercise of their powers. The District Court also considered the possibility of applying the defences to the charge provided for by Articles 193 and 201 of the Criminal Code (see “Relevant domestic law” below). However, it reasoned that there had been no loophole in the regulations of the Telecommunications Act which would justify the analogous application of those provisions, in particular because the Telecommunications Act had been enacted after the Criminal Code had entered into force. It could therefore be assumed that the legislator had intentionally refrained from including similar provisions in that Act. When assessing the applicant ’ s sentence, the District Court took into account that the applicant had felt obliged as a journalist to report to the public illegal conduct by the police.

On 25 January 2000, the Potsdam Regional Court declared the applicant ’ s appeal inadmissible as manifestly ill-founded. The District Court had correctly decided that the applicant ’ s conduct had not been justified by a privilege in the Criminal Code. The Regional Court found that it had not been necessary to reproduce the excerpts from the police radio message in order to report on the shortcomings in question.

On 11 December 2004, the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint. It reasoned that there had been interference with the applicant ’ s freedom to report by means of broadcasting (Article 5 § 1 of the Basic Law, see “Relevant domestic law” below), despite the fact that the applicant had unlawfully intercepted the police radio. Article 5 of the Basic Law also protected the communication of unlawfully obtained information which could be of significant interest to the general public, for example in cases of shortcomings on the part of the authorities. The interference was however justified under Article 5 § 2 of the Basic Law. Article 95 read in conjunction with section 86 of the Telecommunications Act laid down with sufficient precision the conditions for the applicant ’ s conviction. These norms were not rendered disproportionate by the fact that the protection of the information could have been achieved by less severe means (such as coding the police radio messages) than a general prohibition on their communication. The Federal Constitutional Court considered such technical means to be less efficient because their effect was more limited.

The application of those norms and the balancing of the competing interests in the present case by the ordinary courts were not objectionable from a constitutional point of view. The Regional Court had considered the importance of the secrecy of the police radio communications and decided that that deserved priority over the interest of the general public in the present case, in particular because the applicant could have reported on the shortcomings in a different manner. The freedom of the press included the right of journalists to decide in which manner information was presented to the public. However, if that manner was in conflict with other interests protected by the law, the ordinary courts could legitimately balance the consequences of the communication of secret information on the one hand, and the consequences of the prohibition for journalists to communicate such information on the other. The Federal Constitutional Court stressed that the Regional Court ’ s interpretation of the Telecommunications Act was not that the information should have been suppressed, but that restrictions applied to the manner in which it could be presented. Therefore, the norms in the Telecommunications Act did not prevent journalists from reporting shortcomings to the public as such.

B. Relevant dome stic law

1 . Relevant provision of the Basic Law ( Grundgesetz )

Article 5 of the Basic Law provides

(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal hono u r .

( ... )

2 . Relevant provisions of the Telecommunications Act of 25 July 1996 (Federal Gazette I, p. 1120)

Section 86 – Prohibition to Intercept, Obligation of Operators of Receiving Equipment to Maintain Secrecy

Interception by means of radio equipment of messages not intended for the radio equipment shall not be permitted. The content of such messages and the fact of their reception may not, even where reception has been unintentional, be communicated to other parties, even by persons who are not already committed to secrecy under section 85 of this Act. ( ... ) The right to receive radio emissions intended for the general public or an unspecified group of persons as well as the interception and retransmission of messages by virtue of special legal authorisation shall remain unaffected.

Section 95 – Administrative Fines Provision

A person who, in contravention of section 86 of this Act, intercepts a message or communicates to a third party any message content or the fact of reception thereof shall be liable to a term of imprisonment not exceeding two years or to a fine.

3 . Relevant provisions of the Criminal Code

Article 193 of the Criminal Code provides for a defence ( Rechtfertigungsgrund ) to a charge of insult. According to that provision, critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests as well as official reports or judgments by civil servants and similar cases are only punishable to the extent that the existence of an insult results from the form of the utterance or the circumstances under which it occurred.

Article 201 of the Criminal Code provides for the offence of the violation of the confidentiality of the spoken word, but makes an exception if the public communication was made for the purpose of safeguarding preeminent public interests.

COMPLAINT

The applicant complained under Article 10 (also read in conjunction with Article 14) of the Convention about his conviction under the Telecommunications Act and the subsequent court decision confirming it.

THE LAW

The applicant complained that his conviction under the Telecommunications Act violated Article 10 (also read in conjunction with Article 14) of the Convention. Article 10 of the Convention 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.”

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicant submitted that section 95 read in conjunction with section 86 of the Telecommunications Act had not been sufficiently precise in order to justify the interference with his right to freedom of expression. These norms even penalised the fact that the police radio had been intercepted. Contrary to the reasoning of the Regional Court and the Federal Constitutional Court , it remained unclear whether he would have violated these norms if he had merely referred to the excerpts from the police radio message instead of reproducing the recordings.

Moreover, his conviction had not been necessary in a democratic society. His contribution to the programme had reported on shortcomings within the police service which involved possible criminal offences committed by public officers and which were to the detriment of the public, in particular car drivers and the competitors of the towing service which had been favoured by the police. If the applicant was allowed to report the information to the public, the manner in which that information was reported could not be legitimately protected as confidential. The interference had also been disproportionate because the interest of a journalist in verifying information which was of general interest outweighed any abstract threat to the functioning of the police service. Moreover, the domestic courts had erroneously failed to apply the provisions contained in Articles 193 and 201 of the Criminal Code and had thereby discriminated against the applicant.

The Court notes that the applicant was convicted for his contribution to the Eastern German Broadcasting Service ’ s television programme. Consequently, there was interference with the exercise of his right protected by Article 10 of the Convention.

Such an interference gives rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a demo cratic society” to attain them.

The domestic courts based the applicant ’ s conviction on section 95 read in conjunction with section 86 of the Telecommunications Act, which provide that the communication of a message from the police radio to a third party is an offence under that Act. In the circumstances of the present case, the Court is satisfied that the domestic legislation laid down with sufficient precision the conditions for the applicant ’ s conviction . Consequently, the measure had been prescribed by law.

The applicant ’ s conviction was based on provisions of the Telecommunications Act, which ensures the protection of radio emissions of public authorities which are not intended for the general public in order to preserve the functioning of those authorities. T he Court therefore concl udes that the decisions upholding the applicant ’ s conviction were “in the interests of national security” and pursued the legitimate aim of “preventing the disclosure of information received in confidence” within the meaning of paragraph 2 of Article 10.

While having regard to the circumstances of the case, the Court has to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring the protection of radio emissions of public authorities, in particular the secrecy of police radio communications. In that connection, the Court reiterates that the press does not only have the task of imparting information and ideas on matters of public interest: the public also has a right to receive them (see, among other authorities, Observer and Guardian v. the United Kingdom , judgment of 26 November 1991, Series A no. 216, p. 30, § 59; and Fressoz and Roire v. France [GC], no. 29183/95, § 51 , ECHR 1999 ‑ I ). The Court further reiterates that 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 th e y use (see, for example, Handyside v. the United Kingdom , judgment of 7 December 1976, Series A no. 24, p. 23, § 49 in fine ). 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 ( Stoll v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007-... ).

The Court notes that the domestic courts considered the importance of the secrecy of police radio communications and decided that that deserved priority over the interest of the general public in the present case, in particular because the applicant could have reported on the shortcomings in a different manner without being in violation of the provisions of the Telecommunications Act. The Federal Constitutional Court found that that balancing of the competing interests had not been objectionable from a constitutional point of view and underlined that the ordinary court ’ s interpretation of the Telecommunications Act was not that the information should have been suppressed, but that restrictions applied to the manner in which the applicant could present it. The Court therefore finds that the interpretation by the domestic courts of the relevant provisions of the Telecommunications Act did not prevent the applicant from reporting on the shortcomings within the police service as such. The Court also notes that the domestic courts, when assessing the applicant ’ s sentence, took into account that the applicant had felt obliged as a journalist to report to the public illegal conduct by the police and sentenced him to a relatively low fine of 450 EUR. Moreover, the domestic courts ’ reasoning that an analogous application of the defences provided for in Articles 193 and 201 of the Criminal Code was not justified in the present case was neither manifestly erroneous nor arbitrary.

Having regard to the above circumstances, it cannot be said that the applicant ’ s conviction amounted to a disproportionate and hence un j ustified restriction of his right to freedom of expression.

The case does not raise any additional issues as far as Article 14 of the Convention is invoked in conjunction with Article 10 of the Convention.

It follows that this complaint must be re j ected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President