Resolution CM/ ResDH (2010)39 [1]

Execution of the judgment of the European Court of Human Rights

Ernst and others against Belgium

(Application No. 33400/96, judgment of 15 July 2003, final on 15 October 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern searches carried out in the homes and business premises of journalists and associations of journalists, which infringed their right to freedom of expression (violation of Article 10) and their right to respect for their home and private life (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2010)39

Information about the measures to comply with the judgment in the case of

Ernst and others against Belgium

Introductory case summary

This case concerns searches carried out in 1995 in the homes and business premises of the applicants, four professional journalists and two associations of professional journalists. These searches were carried out as part of preliminary investigations in cases where no charge had been brought against the applicants (the cases concerned violations of professional secrecy, some of which seemed attributable to one or more members of the public prosecutor ’ s office).

The European Court found an infringement of the applicants ’ right to freedom of expression (violation of Article 10), because the measures aimed at discovering their journalistic sources and were not proportionate to the intended legitimate aims (among other things, preventing the disclosure of confidential information), particularly in the light of the inadequacy of the grounds for the searches and their massive character.

The Court also found an infringement of the applicants ’ right to respect for their home and private life because of the inadequacy of the grounds for the searches, the broad wording of the terms of the search warrants, the great number of objects seized and the absence of information to the applicants regarding the legal proceedings that made the operation necessary (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8 000 EUR

9 000 EUR

17 000 EUR

Paid on 10/11/2003

b) Individual measures

T he applicants ’ lawyer has confirmed to the Belgian authorities that some of the objects and documents seized had been returned, that the rest were no longer of interest, and that none of the applicants has any further claim in this respect. Consequently, no further individual measure seems to be required in this respect.

II. General measures

On 07/04/2005 the Belgian Parliament adopted a law on the protection of journalistic sources ( Moniteur belge of 27/04/2005), making it illegal to seek such information, in particular through searches or seizures. The only exception to this prohibition is that a judge may ask for a search of journalists ’ sources of information if such information is likely to prevent the commission of offences constituting a serious physical threat to a person or a group of persons, and if the information sought is of crucial importance in avoiding the commission of such offences and cannot be obtained by other means.

Furthermore, in view of the direct effect granted to the Convention in Belgium , further measures have been taken to draw the attention of the competent authorities to the Ernst judgment, so that they can take it into account in practice. Thus, this judgment - like all other judgments of the European Court concerning Belgium - has been published in the three official languages on the internet site of the Ministry of Justice and was sent on 11/02/2004 to the Secretariat of the College of Prosecutors General, the Federal Police and the Court of Cassation.

III. Conclusions of the respondent state

The government considers that the measures adopted in respect of the applicants have fully remedied the consequences of the violations of the Convention found by the European Court in this case, that the direct effect granted in Belgium to the Convention and the European Court ’ s case-law will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies