Information Note on the Court’s case-law 56

September 2003

Ernst and Others v. Belgium - 33400/96

Judgment 15.7.2003 [Section II]

Article 10

Article 10-1

Freedom of expression

Major searches and seizures with a view to identifying journalists’ sources: violation

Article 6

Civil proceedings

Article 6-1

Access to court

Rejection of an application to join criminal proceedings against judges as a civil party, o n the ground of the immunity enjoyed by judges: no violation

Public hearing

Confidentiality of investigation proceedings: no violation

Absence of public delivery of judgment of the Court of Cassation: no violation

Article 8

Article 8-1

Respect for home

Search and seizure in a press context: violation

Facts : At the material time, the press had revealed an increasing number of breaches of professional secrecy, some of which appeared to be attributable to a judge in the Principal Prosecutor’s Office at the Liège Court of Appeal. The judge responsible for cases involving breaches of professional secrecy issued search warrants in respect of the homes of the applicants, who are journalists, and of the office of their publication. In the case of two of the appli cants, the visits were followed by searches of their vehicles. Following the eight searches, numerous documents and also data disks and the hard disks of the applicants’ computers had been seized. The applicants were given no information about the proceedi ngs which had made the operation necessary and in which they were neither the accused nor civil parties; the operation did not lead to any charges being preferred. The applicants lodged a complaint against a party or parties unknown, together with an appli cation to join in the proceedings as parties claiming civil damages, alleging breach by public officials of the rights guaranteed by the Constitution. The courts held that as the allegations were made against the investigating judge, that is to say, agains t a person with immunity from jurisdiction, the application to join in the criminal proceedings as civil parties was inadmissible. Furthermore, the Court of Cassation dismissed their application for a preliminary question to be referred to the Jurisdiction and Procedure Court. In the meantime, the applicants had brought an action for damages against the State, claiming compensation for the harm sustained.

Law : Article 6 § 1 (access to a court): The immunity from jurisdiction applicable to judges, as a measu re ensuring the proper functioning of justice, pursued a legitimate aim. As regards proportionality, immunity from jurisdiction is not as such a disproportionate restriction on the right of access to a court. In order to determine whether immunity from jur isdiction is permissible under the Convention, it is necessary to consider whether the applicants had other reasonable means of effectively protecting their rights as guaranteed by the Convention. At the same time as applying to join in the criminal procee dings as civil parties, the applicants had brought an action for damages in respect of the same facts as those on which they relied in their complaint and claim for civil damages.  In addition, in the present case the inadmissibility of the applicants’ cla im for civil damages in the criminal proceedings and the decision to take no further action on their complaint did not have the consequence of depriving them of any action for damages.

Conclusion : no violation (unanimous).

The Court concludes unanimously that there has been no violation of Article 13.

Article 6 § 1 (public hearing): A hearing held in private may be justified by reasons relating to the protection of the private life of the parties to the case and to the interests of justice, within the mea ning of the second sentence of Article 6 § 1. The fact that the applicants’ application for damages in the  criminal proceedings was examined in private did not breach the publicity requirements.

Conclusion : no violation (unanimous).

Article 14 in conjunct ion with Article 6 § 1 – The immunity from jurisdiction enjoyed by judges, which draws a distinction between victims depending on whether offences are attributed to an individual or to a person covered by that immunity, pursues a legitimate aim, namely to protect judges from ill-considered proceedings and to allow them to exercise the judicial function undisturbed and independently. Since the applicants retained the right to bring an action in civil liability against the State, there was a reasonable relati onship of proportionality between the means employed by the Belgian legislature and the objective pursued.

Conclusion : no  violation (unanimous).

Article 10 –The searches may be analysed as an interference with the rights guaranteed by Article 10. The inte rference was prescribed by law and had legitimate aims, namely to prevent disclosure of confidential information, to protect the reputation of others and to guarantee the authority and impartiality of the judiciary. As regards the necessity for the impugne d measures, it is clear from the facts that the aim of the searches and seizures was to discover the journalists’ source of information. The Court questions whether measures other than large-scale searches and seizures at the applicants’ homes and at the o ffice of their publication, for example internal inquiries including the questioning of judges, would not have enabled the investigating judge to seek those responsible for the breaches of professional secrecy committed by judges and then that of the recei pt of that violation by the applicants. Recalling to mind the principles developed in regard to the confidentiality of journalists’ sources (see the Roemen and Schmitt judgment, ECHR 2003, and the Goodwin judgment, Reports 1996-II), the Court considers tha t even on the assumption that the grounds invoked were “relevant”, they were not “sufficient” to justify searches and seizures on such a scale. The measures in question were not reasonably proportionate to the legitimate aims pursued, given the interest of a democratic society in ensuring and maintaining the freedom of the press.

Conclusion : violation (unanimous).

Article 8 – It is not disputed that the searches of the applicants’ place of work, their private homes and in certain cases their motor vehicles , and the seizure of documents, constitute an interference in the right to respect for the home. The interference was prescribed by law and pursued at the same time the legitimate aims of preventing disorder or crime and protecting the rights and freedoms of others. In regard to combating the breach of the secrecy of the investigation, the legislation and practice of the Contracting States – which may entail visiting homes and seizing items – must offer adequate and sufficient guarantees against abuse. In t he present case, the searches were accompanied by certain procedural guarantees but the applicants were not charged with any offences and the various search warrants were drafted in broad terms. The warrants gave no information about the investigation in q uestion, about the precise places to be visited or about the items to be seized and thus conferred wide powers on the investigators. A large number of items, including computer disks and the hard disks of computers were seized; the contents of certain docu ments and magnetic media were copied. IN addition, the applicants were left in ignorance of the specific reasons for the searches. In short, the searches were not proportionate to the legitimate aims pursued.

Conclusion : violation (unanimous).

Article 41 – The Court awards compensation for non-pecuniary damage. It awards costs and expenses for the proceedings before the Convention organs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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