Information Note on the Court’s case-law 50

February 2003

Roemen and Schmit v. Luxembourg - 51772/99

Judgment 25.2.2003 [Section IV]

Article 10

Article 10-1

Freedom of expression

Search of journalist’s home and office with a view to identifying sources: violation

Article 8

Article 8-1

Respect for home

Search of lawyer’s office and seizure of a letter: violation

Facts : In July 1998 the applicant, a journalist, published an article in a daily newspaper alleging that a Luxembourg minister had committed VAT frauds and had had a fiscal fine imposed on him as a result. The applicants produced documentary evidence in support of those allegations, in particular a decis ion antedating the publication of the article of the director of the Revenue Department ordering the minister to pay the fine in question. Following a criminal complaint by the minister, an inquiry was initiated for concealment of a breach of professional secrecy against the journalist and for violation of professional secrecy against a person or persons unknown. The Public Prosecutor's application to commence proceedings stated that the inquiry aimed to determine which officials of the Revenue Department h ad access to the relevant file and documents. The first two searches ordered by the investigating judge, one at the journalist's home and the other at his workplace, proved fruitless and actions for annulment brought by the applicant against the orders of the investigating judge were unsuccessful. During the search of the chambers of the second applicant, who was the first applicant's lawyer in the proceedings brought against him, the officers seized an internal, confidential letter from the director of the Revenue Department dating from after the publication of the article. The applicants explained that that letter had been forwarded anonymously to the editors of the applicant's newspaper and that the applicant had forwarded it immediately to his lawyer. Si nce that search was null and void, the document seized was returned. But on the same day, a new order of the investigating judge, the validity of which was confirmed, enabled it to be seized once again.

Article 10 – The searches conducted at the applicant's home and business premises with the aim of identifying the perpetrator of a breach of professional secrecy and hence the journalist's source constituted an interference with his rights guaranteed by Ar ticle 10. That interference, which was prescribed by law, had legitimate aims relating to the prevention of disorder or crime. The question was essentially whether that interference was necessary in a democratic society. The searches were intended to ident ify the potential perpetrators of a breach of professional secrecy and the possible unlawful act committed subsequently by the applicant in the performance of his duties; they therefore fell within the sphere of the protection of journalistic sources. The applicant's press article discussed a subject of general interest. The searches had been carried out first at the applicant's premises, whereas the investigation had been initiated concurrently against him and the officials. Measures other than searches of the applicant's premises might have enabled the investigating judge to identify the possible perpetrators of the offences and the Government had failed to show that, in the absence of searches of the applicant's premises, the national authorities would no t have been able to identify in the first place whether any breach of professional secrecy had been committed. Searches with the purpose of identifying the journalist's source – albeit fruitless – constituted an act more serious than an order to disclose t he identity of the source (see the judgment of 27 March 1996 in the case of Goodwin ). This was because investigators who, armed with a search warrant, surprise a journalist at his work place have very extensive powers of investigation owing to the fact tha t they have, ipso facto , access to all the documentation held by the journalist. However, the restrictions imposed on the confidentiality of journalistic sources required the Court to carry out the most careful examination. Whereas the reasons invoked by t he national courts might be regarded as "relevant", they were not "sufficient" to justify the searches carried out at the applicant's premises. Those searches were therefore disproportionate to the aims pursued.

Conclusion : violation (unanimously).

Artic le 8 – The search conducted at the applicant's lawyer's chambers, and the seizure of a document relating to her client's case-file, constituted an interference. That interference, which was prescribed by law, had a legitimate aim, namely that of preventing disorder and crime. As regards the necessity for the interference, whereas the search carried out in this case was accompanied by special procedural guarantees, the search warrant gave relatively wide powers to the investigators. Secondly and above all, t he aim of the search ultimately came down to identifying the journalist's source through the intermediary of his lawyer, with the result that the search of the lawyer's chambers affected the rights guaranteed to the applicant by Article 10 of the Conventio n. Furthermore, the search conducted at the second applicants' chambers was disproportionate to its aim, having regard in particular to the rapidity with which it was carried out.

Conclusion : violation (unanimously).

Article 41 – The Court awarded each applicant the sum of € 4 000 for non-pecuniary damage and awarded the first applicant € 11 629.41 for costs and expenses.

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

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