CONCURRING OPINION OF JUDGE ZÃœND JOINED BY JUDGE SEIBERT-FOHR

1. In the present case the applicant, a journalist, published an interview with a deputy head of the regional Ministry of the Interior. Subsequently, a criminal case was opened against the latter for disclosing information about operational activities which, by law, was considered secret (see paragraphs 7 and 8 of the judgment). A search of the applicant’s flat and the seizure of devices containing information relating to the interview were performed with the authorisation of a judge (see paragraphs 10 and 11 of the judgment). According to the Government, these measures were justified because the applicant had refused to remove the interview from his Internet site and because the electronic devices might have contained relevant information for the criminal investigation (see paragraph 34 of the judgment), and also in order to prevent the further use of confidential information (see paragraph 35 of the judgment).

2. The Court finds in this judgment that the search was carried out in the absence of procedural safeguards against interference with the confidentiality of the applicant’s journalistic sources and that therefore there has been a violation of Article 10 of the Convention (see paragraph 64 of the judgment). In doing so, the Court reproaches the domestic authorities for having limited their review to the examination of the formal lawfulness of the search instead of assessing the necessity and proportionality of the investigating authorities’ actions (see paragraph 61 of the judgment). In this regard, the Court especially reproaches the domestic authorities for not having provided for a sifting procedure that could have protected the confidentiality of the applicant’s journalistic sources unrelated to the criminal case at hand (see paragraphs 62 and 63 of the judgment).

3. While I may agree in abstracto that a sifting procedure may be necessary if the search and seizure of electronic devices belonging to a journalist are concerned, I disagree that in the case at hand such a procedure could have been appropriate to the aim pursued. This is because in the present case, even the prerequisites for a house search were lacking. As the Court has stated, “protection of journalistic sources is one of the basic conditions for press freedom” (see Goodwin v. the United Kingdom , 27 March 1996, § 39, Reports of Judgments and Decisions 1996-II). Admittedly, a disclosure order or even a search and seizure order may be justified by an overriding public interest when such measures prove necessary for the investigation of very serious crimes (see, for instance, Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII, and contrast Jecker v. Switzerland , no. 35449/14, 6 October 2020). However, the reasons put forward by the Government and the domestic authorities bear no relation to any such crime. Rather, they relate to a breach of the confidentiality of proceedings without serious consequences for public order. Furthermore, the measures taken in the present case were explicitly intended to ensure that the applicant removed the interview from his Internet site and that he did not use the material for further publications. In my eyes, such goals cannot prevail. On the contrary, they are directed against freedom of expression. That is why, in my mind, the search and seizure measures were from the outset incompatible with Article 10 of the Convention on substantive grounds.

[1] Rectified on 7 February 2023: “who was granted leave to represent the applicant in accordance with Rule 36 of the Rules of Court” has been added.

[2] Rectified on 7 February 2023: “73. The Court notes that Mr E.A. Mezak did not seek leave to represent the applicant after the notification of the case to the Government, in accordance with Rule 36 §§ 2 and 4 (a) of the Rules of Court. The Court therefore rejects the applicant’s claim for legal fees in respect of Mr E.A. Mezak (see Y.S. and O.S. v. Russia, no. 17665/17, § 116, 15 June 2021)” has been deleted.

[3] Rectified on 7 February 2023: the text was “Further, according to…”.

[4] Rectified on 7 February 2023: the text was “The legal services agreement between the applicant and his representative does not have the above elements of a contingency fee agreement”.

[5] Rectified on 7 February 2023: the text was “It unequivocally establishes the applicant’s obligation to pay the agreed fee within thirty days”.

[6] Rectified on 7 February 2023: the text was “The Court will therefore proceed on the assumption that the sum claimed is actually payable by the applicant in accordance with the legal service agreement between him and Mr A. Laptev”.

[7] Rectified on 7 February 2023: the text was “In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,000, covering costs incurred before the Court, to be paid directly into the bank account of Mr A. Laptev, plus any tax that may be chargeable on that sum”.

[8] Rectified on 7 February 2023: the text was “(ii) EUR 6,000 (six thousand euros), to be paid directly into the bank account of Mr A. Laptev, plus any tax that may be chargeable on that sum to the applicant, in respect of costs and expenses”.