SECOND SECTION

Application no. 22567/09 Claudio BRAMBILLA and others against Italy lodged on 21 April 2009

STATEMENT OF FACTS

The applicants, Mr Claudio Brambilla , Mr Daniele De Sal vo and Mr Fabrizio Alfano , born in 1954, 1976 and 1971 respectively, are Italian nationals. The first two applicants live in Merate (Lecco), and the third applicant lives in Robbiate (Lecco). They are represented before the Court by Mr Giorgio Enea Vigevani and Mr Carlo Melzi d ’ Eril , lawyers practising in Milan.

A. The circumstances of the case

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

1. C riminal proceeding s before the Lecco Court ( Tribunale di Lecco)

The first applicant is the director of a local online newspaper, while the other two applicants are journalists employed by th e newspaper .

In carrying out their journalistic duties the applicants would tune amateur radio receivers in to the radio frequencies of police operation centres and listen to communications between the lat ter and their patrol units. Such communications run on unencrypted radio frequencies assigned exclusively to the police by the Ministry of Defence .

O n 1 August 2002 the applicants listened in on a conversation of the Merate c arabinieri operation centre about sending a patrol unit to a place where, according to an anonymous informant, some illegally possess ed weapons were to be found. A patrol unit arrived at the scene , immediately followed by a vehicle driven by the second and third applicants.

With a search warrant, t he police officers carried out a search of the journalists ’ vehicle and seized two radio receivers . The search was then extended to the newspaper ’ s premises, where the officers seized as evidence two other fixed radio receivers cap able of pick ing up police radio communications. Those devices were tuned to the radio frequencies of the Merate c arabinieri operation centre and had the frequencies of other police operations centres stored in their memories.

The first and second applicant s subsequently stood trial for the offence of illegal ly installing devices for the interception of communication s between police operations centres and patrol units, pursuant to A rticle 617 §§ 1 and 3 and Article 617 bis §§ 1 and 2 , read in conjunction with A rticle 623 bis of the Criminal C ode (“the CC”– see Relevant domestic law and practice below ) . T he third applicant stood trial for the offence of fraudulent ly taking cognisance of the aforementioned communications .

On 9 November 2004 the Lecco Court ( Tribunale di Lecco) acquitted the applicants, relying on a narrow interpretation of the provisions of the criminal law, in particular Article 623 bis of the CC . According to the court, the relevant legal provisions had to be read in the light of Article 15 of the Constitution (see Relevant domestic l aw and prac tice below ) . The court emphasi s ed that only communications that were clearly intended to remain confidential and private were protected from external intrusion under the criminal law . Since the communications in question could not have been kept confidential , their interception did not amount to a criminal offence, all t he more so because purchas ing and us ing amateur radio receivers were not , in themselves , illegal activities.

2. Appeals of the Attorney General and Lecco Prosecutor

Both t he A ttorney G eneral and Lecco P rosecutor challenged the above-mentioned judgment, relying on several arguments.

It was their view that the court ’ s decision appeared at odds with the Supreme Court of Cassation ’ s settled case - law on interceptions ( for example, judgment no. 12655 of 29 March 2001 – see Relevant domestic law and practice below ).

Furthermore, t he confidentiality of the communications in question was self- evident , for reasons of security and public order . At the preliminary inquiries stage , communications were automatically covered by confidentiality in accordance with A rticle 329 of the Code of C riminal P rocedure ( “ the C C P” – see Relevant domestic law and practice below ) , to the extent that if so meone released the information , they would be commit ting a criminal offence ( Articles 326 and 684 of the CC – see Relevant domestic law and practice below ) .

Besides , t he police officers ’ willingness to keep the information confidential was made even clearer by the ir frequent use of a code language to disguise the meaning of their conversations, and by the fact that the radio frequencies in question were assigned exclusively to the m by the Ministry of Defence . In fact, t he applicants had to buy specific radio receivers, ordinary radio equipment being unsuitable for such purposes.

Moreover, the fact that such equipment could be purchased freely on the open market did not automatically mean it could be used unrestricted ly. In a Presidential Decree in force at the time of events ( D.P.R. 447/2001 – see Relevant domestic law and practice below) such devices , normally purchased for amateur radio purposes , c ould not be used for intercepting reserved radio frequencies , such as those in the present case.

Lastly, a M inisterial D ecree ( of 11 February 2003 ) which later implemented th ose regulations expressly prohibited radio amateurs from intercept ing communications they we re not entitled to receive . T he Supreme Court of Cassation had already expressly stated that interceptions of police forces communications w ere against the law ( for example , judgment no. 25488 of 8 June 2004 – see Relevant domestic law and practice below ) .

3. P roceeding s before the Court of A ppeal

On 28 October 2008 the Milan C ourt of A ppeal convicted the applicants, sentencing both the first and second applicant s to one year and three months ’ imprisonment, and the third applicant to six month s ’ imprisonment. All sentence s were suspended .

T he c ourt held that the Lecco Court had misinterpreted the scope of Article 623 bis of the C C, which had been incorporated into the Criminal Code and later spec ifically amended by Law no. 547 of 1993 , in accordance with the principle of legality in criminal law, with the purpose of exte nding criminal liability to the types of communications , such as those in the present case, which did not run through a wire connection or waveguide. T he ir confidentiality was evident, both subjectively and objectively, while the fact that such radio receivers could be bought freely on the open market could not automatically authorise their use for illegal purposes . This interpretation was in line with the Court of Cassation ’ s case - law on the matter.

4 . P roceeding s before the Court of Cassation

The applicants lodged an appeal on points of law before the Court of Cassation. They contended that the communications , which ran on unencrypted radio frequencies , could not be considered confidential . Furthermore, since they had committed the offences in carrying out their duties as journalists, their actions had to be considered justified under A rticle 51 of the CC, which could be relied upon to protect the freedom of the press (see Relevant domestic l aw and practice below ).

On 28 October 2008 the Court of Cassation rejected the appeal . It held that the communications were confidential , and that such a conclusion was consistent with its settled case-law (judgment s n o . 5299 of 15/01/2008 , and n o . 2 5 488 of 6 May 2004 – see Relevant domestic l aw and practice below ). As for the justification invoked by the applicants, the Court held that freedom of the press could only really exclude the m from criminal liability for slander but not the illegal interception of communications .

B . Relevant domestic law and practice

1. The Constitution

Article s 15 and 21 of the Constitution read as follows:

Article 15

“Freedom and confidentiality of correspondence and of any other form of communication is inviolable.

Restrictions thereon may only be imposed by a reasoned court order in accordance with the guarantees established by law. ”

Article 21

“ Everyone shall have the right to freely express their thoughts in speech , writing or any other form of communication.

The press may not be subjected to authorisation or censorship.

Seizure is permitted only by a reasoned court decision for offences express ly determined by the law on the press , or in case of violation of the obligation to identi f y the persons responsible for such offences.

In such cases, when there is absolute urgency and timely intervention of the courts is not possible, periodical publications may be seized by the criminal police, who shall immediately , and in any event within twenty-four hours, re fer the matter to the courts for validation . If the seizure order is not validated in the following twenty-four hours, the seizure shall be revoked and considered null and void.

The law may introduce general provisions, for the disclosure of financial sources of periodical publications .

Printed publications, public performances and events offensive to public morality shall be prohibited . Appropriate measures for the prevention and control of such violations shall be established by law . ”

2 . Criminal Code

Article 617 ( Unlawful taking cognisance of , interrupti ng or preventi ng telephonic or telegraphic communication s or conversation s )

“ Anyone fraudulently tak ing cognisance of , interrupt ing or prevent ing a telephonic or telegraphic communication or conversation between other s or otherwise not directed at him, shall be punished by between six months and four years ’ imprisonment.

Unless the act constitutes a more serious offen c e, the same penalt y appl ies to anyone who reveals, by any means of public ity , in whole or in part, the content of the above-mentioned communication or conversation.

Such offences are punishable upon complaint, however they are prosecuted ex officio and the punishment ranges from one to five years ’ imprisonment if the offence is committed against a public official or representative of a public service in or because of the perform ance of their public function or service ; if they are committed by a public official or by a representative of a public service in the abuse of their power s or in breach of the duties relating to the ir public function or service; or if they are committed by someone who works, even unlawfully, as a private detective . ”

Article 617 bis (Installation of devices for the interception or prevention of telephonic or telegraphic communication or conversation)

“ Anyone, except as otherwise permitted by law, wholly or partially install ing equipment or tools to intercept or prevent telegraphic or telephonic communications or conversations between others shall be punished by between one and four years ’ imprisonment.

The punishment shall range between one to five years ’ imprisonment if the offence is committed against a public official in or because of the performance of his or her public function ... ”

Article 623 bis

(Other communications and conversations)

This provision, which extends the scope of application of the above - mentioned criminal provisions to “any other remote transmission of sounds, images and other data”, was incorporated into the Criminal Code by Law no. 98 of 8 April 1974 and originally concluded by stating “through a wire connection or waveguide”. That sentence was however repealed by Law no. 547 of 23 December 1993.

Article 326

(Disclosure and unlawful use of official secrets)

Under this provision, a public official or representative of a public service who, in breach of his or duty or in the abuse of his or her powers, intentionally reveals information which should remain confidential or by any means facilitates their knowledge shall be punished by between six months and three years ’ imprisonment. If he or she reveals it mistakenly, the punishment is up to one year ’ s imprisonment, while if such a revelation has been made for financial gain, the punishment is between two and five years ’ imprisonment. If it is caused with intention to damage others or for non-financial gain it is punished by up to two years ’ imprisonment.

Article 684

(Arbitrary publication of acts of criminal proce e dings)

Under this Article, anyone publishing, in whole or in part , for summary or as mere information, records or documents of criminal proceedings whose publication is forbidden by law shall be punished by up to thirty days ’ arrest or issued with a fine of between 51 and 258 euros (EUR).

Article 595 § 3

(Aggravated Slander)

Under Article 595 § 3 anyone commit ting the offence of slander through any means of publicity is punished by between six months and three years ’ imprisonment or issued with a fine of at least EUR 516.

Article 51

(Exercise of a right)

Article 51 excludes criminal liability for acts committed in the exercise of a right established by law. The freedom of the press, under Article 21 of the Constitution, is commonly considered to be one of those rights.

3 . Criminal Procedure Code

Under Article 329 , which concerns the obligation for confidentiality during an investigation, the acts carried out by the public prosecutor and by the criminal police shall remain confidential until the defendant can have knowledge of them and, in any event, no later than the end of the preliminary investigation.

4 . Presidential Decree 447/2001 ( in force at the material time of events)

The Decree, which concerns general authorisations and individual licences for the private use of telecommunications services, stipulates in its relevant parts, that amateur radio activities are subjected to a general licence ( A rticles 33 and 34) , that listening is only unrestricted on frequencies specifically assigned to such amateur radio activities ( A rticle 43) , and that only electrical radio receivers which have not been set to receive assign ed and protected frequencies may be used unrestrictedly ( A rticle 6 § 2 b).

5 . Ministerial Decree of 11 February 2003 (published in the Official Journal on 24 February 2003 – not in force at the material time of events)

The Decree, issued by the Ministry of Communication for the implementation of Presidential Decree no. 447/2001 , prohibits radio amateurs from intercept ing communications they are not entitled to receive . I t also expressly prohibits them from reveal ing to other people the content and existence of any messages which they might have involuntarily intercepted (Article 12 § 8) .

6 . Court of Cassation ’ s judgment no. 12655 of 23 January 2001 (filed with the Registry on 29 March 2001 )

In this case, which involved a husband set ting a device on his home telephone in order to intercept his wife ’ s conversations , the Court of Cassation held that the setting of devices for the interception of telephonic communications constitutes a criminal offence whenever such an instal lation is aimed at intercepting conversations in which the subject does not take part.

7 . Court of Cassation ’ s judgment no. 25488 of 6 June 2004 (filed with the Registry on 8 June 2004 )

In this case, the Court of Cassation held that setting radio devices in order to intercept the communications of police operations centres constitutes a criminal offence in accordance with A rticle 617 bis of the C riminal C ode.

8 . Court of Cassation ’ s judgment n o . 5299 of 15 January 2008 (filed with the Registry on 1 February 2008)

In this case, the Court of Cassation held that in view of the amendments made to A rticle 623 bis of the C C by A rticle 8 of Law no. 547 of 1993, which eliminated any reference to transmissions “ through a wire d connection or wave guide ” , the scope of the aforementioned provision has been widened . Hence, installing radio devices in order to intercept police radio communications constitutes a criminal offence under A rticle 617 bis of the C riminal C ode rather than A rticle 18 § 4 of R.D. no. 1067 of 1923 (which punishes whoever, without the competent Ministry ’ s authorisation , intercepts or disseminates by any means the content of radiotelephonic or radiotelegraphic communications).

COMPLAINT

Invoking Article 10 of the Convention, the applicants claim a violation of their freedom of expression , contending that t he search of their vehicle and of the online newspaper ’ s premises, the seizure of the radio receivers and their subsequent conviction, amount to a n unlawful and unnecessary interference , which hampers their access to journalistic sources.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant s ’ freedom of expression , in particular their right to access to sources of information , within the meaning of Article 10 § 1 of the Convention?

2. If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?