CONCURRING OPINION OF JUDGE LEMMENS

(Translation)

1. I concur with the findings of the judgment, but, where the assessment of the violation of Article 8 of the Convention is concerned, I would have preferred the reasons put forward to have been slightly more nuanced.

2. Paragraph 43 of the judgment reiterates that the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them must be convincingly established.

In my view this reminder should be placed in a broader context. The instant case concerns the right to respect for the “home” of a legal entity. While I would not go so far as judge Jäderblom has gone in her dissenting opinion, I consider that in such a case the possibilities of interference are on the face of it greater than in a case concerning a natural person (see Niemietz v. Germany , 16 December 1992, § 31, Series A no. 251-B, and Société Colas Est and Others v. France , no. 37971/97, § 49, ECHR 2002-III). I consider that it is only with due regard to this aspect of the case that we can conclude that the exceptions to Article 8 § 2 are to be interpreted narrowly and that the need for them must be convincingly established.

3. According to paragraph 44 of the judgment, the investigating judge “could have” ordered a less intrusive measure. I am not convinced that it is incumbent on the Court to draw such a clear conclusion. I would have preferred a less affirmative wording. The Court could, for instance, have “wondered” whether the investigating judge could not, initially, have taken less intrusive action, and have noted that the Government had in any case not attempted to demonstrate that without the search and seizure complained of the investigating judge would have been unable to ascertain the identity of the author of the article (compare Ernst and Others v. Belgium , no. 33400/96, § 102, 15 July 2003, and Martin and Others v. France , no. 30002/08, § 86, 12 April 2012).

That does not alter the conclusion, because even if reasons put forward by the Government to justify the interference were considered relevant, they were nonetheless insufficient to justify the search and seizure in issue, or at least not at that stage (see Roemen and Schmit v. Luxembourg , no. 51772/99, § 59, ECHR 2003-IV; Ernst and Others , cited above, § 104; and Martin and Others v. France , cited above, § 88). Therefore, the interference was not necessary within the meaning of Article 8 § 2.