CONCURRING OPINION OF JUDGE MYJER

1. “ An unsatisfactory feature of Protocol No. 11 to the Convention, which ushered in the permanent Court in Strasbourg, is that a national judge who has already been party to a judgment of a Chamber in a case brought against his or her State is not only entitled but, in practice, required, to sit and vote again if the case is referred to the Grand Chamber. In his Partly Dissenting Opinion in the case of Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005-...), Judge Costa described the position of the national judge in such circumstances as “disconcerting”, the judge having to decide whether to adhere to his or her initial opinion on the case or “with the benefit of hindsight [to] depart from or even overturn [that] opinion”.

Where the case has already been fully argued and discussed at the Chamber level and no new information or arguments have been advanced before the Grand Chamber, national judges have, unsurprisingly, normally adhered to their previous opinion, although not necessarily to the precise reasoning which led to that opinion in the Chamber.

In the present case, the material and arguments before the Grand Chamber did not differ in any significant respect from those before the Chamber. I have, nevertheless concluded, on further reflection, that my previous view on the main issue was wrong and I have voted with the majority in finding that the applicants ’ rights under Article 8 were violated.”

Those were the words of my learned friend and colleague Sir Nicolas Bratza in his concurring opinion in the case of Dickson v. the United Kingdom [GC], no. 44362/04, ECHR 2007 ‑ XIII . A majority of twelve to five of the Grand Chamber in that case found a violation of Article 8. Sir Nicolas ’ s change of opinion was the more courageous for it. No one would have held it against him if he had voted with the minority.

In the deliberations of the Grand Chamber in the present case there was an overwhelming majority in favour of violation. In the Chamber I was one of the majority of four to three who found no violation.

It seems to be that any judge who is a lone voice against all others in the Grand Chamber will have to come up with very persuasive arguments indeed, but a national judge even more so. A suspicion may well arise that that judge is incapable of taking the necessary critical distance of legal practice in his or her country of origin.

The fact is that I have not found sufficient convincing reason to stick to my guns and vote for no violation. I was originally of the opinion that this was a borderline case in which the circumstances of the case ultimately tipped the scales towards the respondent. I am still of the opinion that this is a borderline case , even after hearing the views of the other members of the Grand Chamber , and I even ask myself whether this case really raises “a serious question affecting the interpretation or application of the Convention ... or a serious issue of general importance” (Article 43 § 2 of the Convention). The fact that the present judgment contains several useful summing-ups of general applicable principles does not change that view. Be that as it may , I am now prepared to cross the room and join my colleagues in finding that there has been a violation of Article 10.

2. I am deeply aware that in a case such as the present, there is a huge difference between the perception of the police and the prosecution and that of the applicant. The police and the prosecution were faced with an emergency. There was an investigation ongoing into a series of ram raids. The defining moment came when one of the ram raiders threatened a bystander with a firearm. Faced with so serious a threat to the public, the authorities had no longer any alternative but to do their utmost to bring the perpetrators to book. The make of the getaway car was known. Someone remembered an intercepted telephone conversation which had yielded the information that one of the suspected ram raiders had participated in an illegal street race. It was known that a photographer commissioned by the magazine Autoweek had taken pictures at the time; it was felt necessary to check whether the getaway car was the same as the car used by the suspected ram raider in the street race. The public prosecutor immediately ordered the pictures to be handed over. Autoweek ’ s editorial team were not told what it was all about. All they were told was that there was an investigation ongoing into the illegal streetrace and it concerned a matter of life and death.

The applicant, publisher of Autoweek , was confronted with an order to surrender journalistic materials. Neither the police nor the prosecution were prepared to say any more than that the matter was one of life and death. Invoking their journalistic privilege of non-disclosure of the sources, the applicant company refused to surrender the photographs and called in their lawyers.

A stalemate ensued. The police and the prosecution were concerned to arrest the ram raiders as quickly as possible and brought all their authority to bear. Time was pressing. They refused to give any detailed explanation as to precisely why the photographs were so important to them. They indicated only that they were seeking to resolve a serious crime and not to prosecute the participants of the illegal street race.

Eventually, Autoweek ’ s lawyer suggested calling in the investigating judge to mediate, as it were, in an attempt to break the stalemate.

Having been informed by the public prosecutor of the background of the case for which the photographs were needed, the investigating judge took the view that there was in fact every reason for the applicant company to be required to surrender the photographs.

Autoweek ’ s representative then handed over the photographic material under protest.

The Regional Court later took the properly judicial view that there had been ample reason for the authorities to demand the handover of the photographs. It did, however, express itself critically on the way in which the police and the prosecution had conducted themselves in this case.

3. In the Chamber judgment too the majority , although they found no violation , animadverted on the conduct of the police and the prosecution in the case. In paragraph 63 of their judgment they echoed the Regional Court of Amsterdam in expressing the view that the actions of the police and the public prosecutor were characterised by “a regrettable lack of moderation”. They also expressed their disquiet at the salient feature of the case , namely (from the Convention perspective) the fact that “the prior involvement of an independent judge is no longer a statutory requirement” (paragraph 62). Even so , they were able to state their reasons for finding no violation of Article 10. These were the following:

Unlike the cases of journalistic source protection which the Court has been faced with until now , the police were not actually after the identity of t he sources. Their purpose was solely to use the material in question to solve a serious and dangerous crime that had only just been committed. I would think it safe to assume that the material has been used for no other purpose.

Although in Netherlands law there was no longer provision made for any prior review by an independent judge of orders for the surrender of journalistic material, in the case at hand there had actually such review in the end. Admittedly this had been done at the insistence of the applicant ’ s counsel himself, in order to defeat the stalemate, but even so the judge who had been called in was an independent judge . That means that Autoweek ’ s publishers had the benefit of protection going beyond the review post factum offered by the Regional Court (which incidentally also concluded that there had been reason enough to demand the surrender of the journalistic material).

4. The Grand Chamber , for its part , is more impressed by the absence of any statutory provision in Netherlands law for prior judicial review before the police or the prosecution were allowed to seize journalistic materials. As mentioned , the Chamber also considered that disquieting but attached more importance to the fact that ultimately a judge had given his prior opinion. The Grand Chamber ’ s argument that that judge lacked all official powers in the matter does not convince me. I have every reason to believe that since the public prosecutor had agreed with Autoweek ’ s lawyer to involve the judge , any opinion expressed by the latter to the effect that the photographic material was not to be handed over would have been respected and would have resulted in an immediate end to the attempts to seize the materials that evening. That said , I am convinced by the reasoning of the Grand Chamber in stressing the need , even if prior review is provided for , to set out a clear decision model requiring the judge to consider whether a more limited interference with journalistic freedom will suffice (paragraph 92). It certainly adds to the case-law to demand such a proportionality test (or subsidiarity test , if one will) so clearly and explicitly.

5. “What would your answer have been if a similar case , with a comparable show of force by the police and the prosecution service , had been brought before us from one of the new democracies?” is a question which I have been asked by a colleague from one of those countries. “Would you still have allowed yourself to be satisfied by the involvement , at the eleventh hour , of a judge who has no legal competence in the matter?”

A remark of similar purport was made in the dissenting opinion appended to the Chamber judgment: “In finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar ‘ regrettable lack of moderation ’ .”

That was ultimately the push I needed to be persuaded to cross the line and espouse an opinion opposite to that which I held earlier. I am bound to admit that the Grand Chamber ’ s judgment provides clear guidance for the legislation needed and the way in which issues like these should be addressed in future.