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FOURTH SECTION
CASE OF ROEMEN AND SCHMIT v.
LUXEMBOURG
(Application no. 51772/99)
JUDGMENT
STRASBOURG
25 February 2003
FINAL
25/05/2003
This judgment will become final in the
circumstances set out in Article 44 § 2 of
the Convention.
In the case of Roemen and Schmit v. Luxembourg,
The European Court of Human Rights (Fourth Section),
sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs E. Palm,
Mrs V. Strážnická,
Mr M. Fischbach,
Mr J. Casadevall,
Mr S. Pavlovschi, judges,
and Mr M. O’Boyle, Section Registrar,
Having deliberated in private on 4 February 2003,
Delivers the following judgment which was adopted on
that date:
PROCEDURE
1. The case originated in an application (no.
51772/99) against the Grand Duchy of Luxembourg lodged
with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Luxembourgish
nationals, Mr Robert Roemen (“the first applicant”)
and Ms Anne-Marie Schmit (“the second applicant”),
on 23 August 1999.
2. Before the Court, the applicants were
represented by Mr D. Spielmann, of the
Luxembourgish Bar. The Luxembourgish Government (“the
Government”) were represented by their Agent, Mr R. Nothar,
of the Luxembourgish Bar.
3. The first applicant alleged, in
particular, that his right, as a journalist, not to
disclose his sources had been violated. The second
applicant principally complained of an unjustified
interference with her right to respect for her home.
4. The application was allocated to the
Second Section of the Court (Rule 52 § 1 of the
Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 §
1.
5. By a decision of 12 March 2002 the
Chamber declared the application partly admissible.
6. The Court decided, after consulting the
parties, that no hearing on the merits was required (Rule
59 § 3 in fine) and the parties replied in writing to
each other’s observations on the merits.
7. On 1 November 2001 the Court changed the
composition of its Sections (Rule 25 § 1). This case
was assigned to the newly composed Fourth Section (Rule
52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants were born in 1945 in 1963
respectively and live in Luxembourg.
9. On 21 July 1998 the first applicant,
acting in his capacity as a journalist, published an
article in Lëtzebuerger Journal, a daily newspaper,
under the headline “Minister W. convicted of tax
fraud” (Minister W. der Steuerhinterziehung
überführt). He alleged in the article that the
minister had broken the Seventh, Eighth and Ninth
Commandments by committing value-added tax (VAT)
frauds. He went on to say that a politician from the
right might have been expected to take the rules so
carefully drawn up by Moses more seriously. He added
that a fiscal fine of 100,000 Luxembourg francs had
been imposed on the minister. He said in conclusion
that the minister’s conduct was particularly
shameful in that it involved a public figure, who
should have set an example.
10. The applicants produced documents
showing that the fine had been imposed on the minister
concerned on 16 July 1998 by the Director of the
Registration and State-Property Department (Administration
de l’enregistrement et des domaines), pursuant to
section 77(2) of the VAT Act of 12 February 1979. The
decision had been served on the minister on 20 July
1998. It also appears that on 27 July 1998 the
minister appealed to the District Court against the
fine. In a judgment of 3 March 1999, the District
Court ruled that the fine was not justified as the
offence under section 77(2) of the VAT Act of 12
February 1979 had not been made out. An appeal was
lodged against that judgment to the Supreme Court of
Justice. The parties have not furnished any further
information regarding developments in those
proceedings.
11. The decision of 16 July 1998 was the
subject of comment in other newspapers, such as the
daily Le Républicain Lorrain and the weekly d’Lëtzebuerger
Land. A Liberal member of Parliament also tabled a
parliamentary question on the matter.
12. Two sets of court proceedings were
issued following the publication of the first
applicant’s article.
13. On 24 July 1998 the minister brought an
action in damages in the District Court against the
first applicant and Lëtzebuerger Journal, arguing
that they had been at fault in publishing the
information concerning the fiscal fine and making
comments which he said constituted an attack on his
honour. In a judgment of 31 March 1999, the District
Court dismissed the minister’s action on the ground
that the article came within the sphere of freedom of
the press. In a judgment of 27 February 2002, the
Court of Appeal overturned the District Court’s
judgment.
14. On 4 August 1998 the minister lodged a
criminal complaint.
15. On 21 August 1998 the public prosecutor
requested the investigating judge to open an
investigation into a suspected offence by the first
applicant of handling information disclosed in breach
of professional confidence, and by a person or persons
unknown of breach of professional confidence. The
public prosecutor stated in his submissions: “The
investigation and inquiries should determine which
civil servant or civil servants from the Registration
and State-Property Department had any involvement in
the case and access to the documents.” The public
prosecutor also requested the investigating judge to
carry out or arrange for searches of the first
applicant’s home and any appurtenances, the offices
of Lëtzebuerger Journal and the Registration and
State-Property Department offices.
16. Various searches were then carried out.
A. The searches of the first applicant’s
home and workplace
17. On 19 October 1998 the investigating
judge issued two warrants for searches to be made of
the first applicant’s home and workplace, the
investigators being instructed to “search for and
seize all objects, documents, effects and/or other
items that [might] assist in establishing the truth
with respect to the above offences or whose use [might]
impede progress in the investigation”. The first
order specified that the places to be searched were
“Robert Roemen’s home and appurtenances, ..., any
place in which he may be found and cars belonging to
or used by him”.
18. Both warrants were executed on 19
October 1998, but no evidence was found.
19. On 21 October 1998 the first applicant
applied for orders setting aside the warrants issued
on 9 October 1998 and all the investigative steps
taken pursuant thereto, in particular the searches
carried out on 19 October 1998. In addition to
arguments based on domestic law, he alleged a
violation of Article 10 of the Convention, emphasising
that he was entitled to protect his journalistic
sources.
20. The District Court, sitting in closed
session, dismissed both applications in two orders of
9 December 1998. It noted that the minister had
complained of a number of matters, including the
unlawful disclosure of information to the first
applicant by Registration and State-Property
Department officials, which the first applicant had
allegedly gone on to use in a calumnious and
defamatory newspaper article. Those matters were
capable of falling within the definition of various
criminal offences, including breach of professional
confidence, breach of fiscal confidentiality, theft,
handling, calumny and criminal defamation. The
District Court said that civil servants were
prohibited by Article 11 of the Central and Local
Government Service Code (statut général des
fonctionnaires) from disclosing any information that
was confidential by nature which they had acquired in
the course of their duties. It was a criminal offence
under the General Tax Act to disclose confidential
fiscal information and an offence under Article 458 of
the Criminal Code for anyone receiving confidential
information as part of their professional duties to
divulge it. As to the handling offence, the District
Court said that Article 505 of the Criminal Code
applied to anyone who, by whatever means, knowingly
benefited from the proceeds of a serious crime (crime)
or other major offence (délit). According to legal
commentators and the leading cases, handling could
extend to intangible property, such as claims, but
also manufacturing secrets or material covered by
professional privilege. In that connection, the fact
that the circumstances in which the property had been
obtained had not been fully established was of little
relevance if the alleged handler was aware of its
unlawful origin; the classification of the primary
offence was immaterial. The District Court found that
the investigating judge in charge of the investigation
had been entitled to order an investigative measure to
obtain corroboration of the incriminating evidence
already in his possession. It added that there had
been no violation of Article 10 of the European
Convention on Human Rights, since the searches –
which had been ordered to assemble evidence of and
establish the truth concerning possible criminal
offences that may have led to or facilitated the
publication of a newspaper article – had not
infringed freedom of expression or freedom of the
press.
21. By two judgments of 3 March 1999, the
Court of Appeal, sitting in closed session, dismissed
appeals that had been lodged against the orders of 9
December 1998.
B. The search of the second applicant’s
office
22. On 19 October 1998 the investigating
judge issued a search warrant for immediate execution
at the offices of the second applicant, who was the
first applicant’s lawyer in the domestic proceedings.
23. In the course of the search, the
investigators seized a letter of 23 July 1998 from the
Director of the Registration and State-Property
Department to the Prime Minister bearing a handwritten
note: “To the Heads of Division. Letter transmitted
in confidence for your guidance.” The applicants
explained that the letter had been sent anonymously to
the editorial staff of Lëtzebuerger Journal and the
first applicant had immediately passed it on to his
lawyer, the second applicant.
24. On 21 October 1998 an application was
made to have the search warrant and all subsequent
investigative steps set aside.
25. The District Court, sitting in closed
session, granted that application on the ground that,
in breach of section 35 of the Lawyers Act, the report
of the police department that had executed the
warrants on 19 October 1998 did not contain the
observations of the Vice President of the Bar Council,
who was present during the search and seizure
operations. The District Court ruled that the seizure
carried out on 19 October 1998 was invalid and ordered
the letter of 23 July 1998 to be returned to the
second applicant.
26. The letter was returned on 11 January
1999.
27. However, on the same day the
investigating judge issued a fresh search warrant with
instructions to “search for and seize all objects,
documents, effects and/or other items that might
assist in establishing the truth with respect to the
above offences or whose use might impede progress in
the investigation and, in particular, the document
dated 23 July 1998 bearing the manuscript note to the
heads of division”. The letter was seized once again
later that day.
28. On 13 January 1999 the second applicant
applied for an order setting the warrant aside,
arguing, inter alia, that there had been a breach of
the principle guaranteeing the inviolability of a
lawyer’s offices and of the privilege attaching to
communications between lawyers and their clients. That
application was dismissed by the District Court,
sitting in closed session, on 9 March 1999. It noted,
firstly, that investigating judges were empowered to
carry out searches even at the homes or offices of
persons whose professional duties required them to
receive information in confidence and who were legally
bound not to disclose it and, secondly, that the
provisions of section 35 of the Lawyers Act of 10
August 1991 had been complied with. The search and
seizure operations had been executed in the presence
of an investigating judge, a representative of the
public prosecutor’s office and the President of the
Bar Council. In addition, the presence of the
President of the Bar Council and the observations he
had considered it necessary to make regarding the
protection of the professional confidence attaching to
the documents to be seized had been recorded in the
police department’s report.
29. In a judgment of 20 May 1999, the Court
of Appeal, sitting in closed session, dismissed an
appeal against the order of 9 March 1999.
C. The period following the searches
30. In a letter of 23 July 1999, the first
applicant enquired of the investigating judge as to
progress in the case. He complained that no other
steps had been taken and reminded the judge that he
was not supposed to disregard the provisions of
Article 6 of the Convention. He sent a similarly
worded reminder on 27 September 2000.
31. On 3 October 2000 the applicants
provided the Court with an article from the 29
September 2000 edition of the weekly newspaper d’Lëtzebuerger
Land, containing the following extract:
“... the inquiry in the W. case has thus just ended
with a search of the home of a Registration and
State-Property Department official, a member of the
Socialist Party, and the logging of the incoming and
outgoing telephone calls of at least two other members
of the [Socialist Party] ...”
32. On 18 April 2001 the first applicant
sent a further reminder to the investigating judge,
who stated in a reply of 23 April 2001: “The
judicial investigation is continuing.”
33. Following a letter from the first
applicant dated 13 July 2001, the investigating judge
informed him the same day that the police inquiries
had finished and that the investigation file had just
been sent to the public prosecutor for his submissions.
34. On 16 October 2001 the first applicant
referred the public prosecutor to the terms of Article
6 of the Convention and reminded him that although the
investigation in the case had taken three years, he
had yet to be charged.
35. On 13 November 2001 the first applicant
received a summons requiring him to attend for
questioning on 30 November 2001 in connection with the
offences referred to in the complaint. He was informed
that he was entitled to have a lawyer present.
36. The first applicant was charged by the
investigating judge on 30 November 2001 with “handling
information received in breach of professional
confidence”.
37. The applicants produced an article from
the 9 January 2002 edition of the newspaper Le
Quotidien, which revealed that the Prime Minister “considered
that the methods employed by the investigating judge
in the investigation into a breach of professional
confidence were ‘disproportionate’ ”.
38. An order made on 1 July 2002 by the
District Court, sitting in closed session, reveals
that the charges against the first applicant were
ruled to be null and void and that the case file was
sent to the investigating judge with jurisdiction with
instructions either to end or to continue the
investigation.
39. On 14 January 2003 the applicant sent
the Court a letter from the investigating judge dated
9 January 2003 informing him that “the judicial
investigation [had] just ended”.
II. RELEVANT DOMESTIC LAW
A. General rules governing searches and
seizures
40. Article 65 of the Criminal
Investigation Code provides: “Searches shall be
carried out in any place in which objects that would
assist in establishing the truth may be found.”
41. Article 66 of that Code provides: “The
investigating judge shall carry out the seizure of all
objects, documents, effects and other items referred
to in Article 31 § 3”. Article 31 § 3 provides
that the following may be seized: “... and generally,
anything which may assist in establishing the truth,
whose use may impede progress in the investigation or
which is liable to confiscation or restitution.”
B. Searches and seizures at lawyers’
offices
42. Section 35(3) of the Lawyers Act of 10
August 1991 provides:
“Lawyers’ workplaces and all forms of
communication between lawyers and their clients shall
be inviolable. If in civil proceedings or a criminal
investigation a measure is taken against or in respect
of a lawyer in the circumstances defined by law, such
measure shall not be implemented other than in the
presence of the President of the Bar Council or his or
her representative or after they have been duly
convened.
The President of the Bar Council or his or her
representative may submit observations to the
authorities which ordered the measures regarding the
protection of professional confidence. A record of a
seizure or search shall be null and void unless it
contains a statement that the President of the Bar
Council and his or her representative were present or
had been duly convened and any observations they
considered it necessary to make.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
43. The first applicant argued that his
right as a journalist to refuse to reveal his sources
had been violated by the various searches. In that
connection, he relied on Article 10 of the Convention,
which provides:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold
opinions and to receive and impart information and
ideas without interference by public authority and
regardless of frontiers. This Article shall not
prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of
national security, territorial integrity or public
safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection
of the reputation or rights of others, for preventing
the disclosure of information received in confidence,
or for maintaining the authority and impartiality of
the judiciary.”
A. Submissions of the parties
1. The first applicant
44. The first applicant submitted that the
searches constituted an interference with his rights
guaranteed under Article 10 of the Convention. They
had been conducted in order to discover the identity
of the person responsible for the alleged breach of
professional confidence, in other words the journalist’s
source of information. The impugned measures had been
disproportionate and were liable to deter journalists
from performing their essential role as “watchdogs”
to keep the public informed on matters of public
interest. The identity of the person responsible for
the breach of professional confidence could have been
discovered by other means, for instance by questioning
officials from the Registration and State-Property
Department. In addition, ample proof that the searches
had not been necessary for the prevention of disorder
or crime was to be found in the investigating and
prosecuting authorities’ failure to take further
action once the searches had been carried out.
2. The Government
45. The Government said that, on the
contrary, the actions of the domestic authorities had
not interfered with the first applicant’s rights
under Article 10. The searches had been unproductive,
as the sole document seized was not one the first
applicant had used as a source for his newspaper
article. Any interference had, in any event, been
prescribed by law, namely Article 65 of the Criminal
Investigation Code, and pursued the legitimate aim of
preventing disorder or crime. It had also been
necessary in a democratic society and was
proportionate to the aim pursued. The approach
followed in Goodwin v. the United Kingdom (judgment of
27 March 1996, Reports of Judgments and Decisions
1996-II) could not be applied in the instant case.
Firstly, the first applicant had not been required to
reveal his source on pain of a fine, but had merely
been subjected to a search that had resulted in the
seizure of a single document. Secondly, the aim
pursued by the interference in the instant case was
far more important than that of protecting the
economic interests of a private undertaking, as in
Goodwin. The investigation into an allegation of
breach of professional confidence was of direct
relevance to the proper functioning of public
institutions. The prevention and punishment of that
offence thus constituted a “pressing social need”
that justified the interference.
B. The Court’s assessment
1. General principles
46. Freedom of expression constitutes one
of the essential foundations of a democratic society
and the safeguards to be afforded to the press are of
particular importance. The protection of journalistic
sources is one of the cornerstones of freedom of the
press. Without such protection, sources may be
deterred from assisting the press in informing the
public on matters of public interest. As a result the
vital public-watchdog role of the press may be
undermined and the ability of the press to provide
accurate and reliable information may be adversely
affected. Having regard to the importance of the
protection of journalistic sources for press freedom
in a democratic society, an interference cannot be
compatible with Article 10 of the Convention unless it
is justified by an overriding requirement in the
public interest. Limitations on the confidentiality of
journalistic sources call for the most careful
scrutiny by the Court. The Court’s task, in
exercising its supervisory function, is not to take
the place of the national authorities but rather to
review under Article 10 the decisions they have taken
pursuant to their power of appreciation. In so doing,
the Court must look at the “interference”
complained of in the light of the case as a whole and
determine whether the reasons adduced by the national
authorities to justify it are “relevant and
sufficient” (see Goodwin, cited above, pp. 500-01,
§§ 39-40).
2. Application of the above principles
47. In the present case, the Court finds
that the searches of the first applicant’s home and
workplace indisputably constituted an interference
with his rights guaranteed by paragraph 1 of Article
10. The measures were intended to establish the
identities of the Registration and State-Property
Department officials who had worked on the file
concerning the imposition of a fiscal fine on the
minister. In that connection, the Court considers that
the fact that the searches proved unproductive did not
deprive them of their purpose, namely to establish the
identity of the person responsible for the breach of
professional confidence, in other words, the
journalist’s source.
48. The question is whether that
interference can be justified under paragraph 2 of
Article 10. It is therefore necessary to examine
whether it was “prescribed by law”, pursued a
legitimate aim under that paragraph and was “necessary
in a democratic society” (see Lingens v. Austria,
judgment of 8 July 1986, Series A no. 103, pp. 24-25,
§§ 34-37).
49. The first applicant did not dispute the
Government’s assertion that the interference was “prescribed
by law”, in this instance Articles 65 and 66 of the
Criminal Investigation Code. The Court accordingly
sees no reason to reach a different view.
50. The Court considers that the
interference pursued the “legitimate aim” of the
prevention of disorder or crime.
51. The main issue is whether the impugned
interference was “necessary in a democratic society”
to achieve that aim. It must therefore be determined
whether the interference met a pressing social need,
whether it was proportionate to the legitimate aim
pursued and whether the reasons given by the national
authorities to justify it were relevant and sufficient.
52. The Court notes at the outset that the
searches in the instant case were not carried out in
order to seek evidence of an offence committed by the
first applicant other than in his capacity as a
journalist. On the contrary, the aim was to identify
those responsible for an alleged breach of
professional confidence and any subsequent wrongdoing
by the first applicant in the course of his duties.
The measures thus undoubtedly came within the sphere
of the protection of journalistic sources.
53. In dismissing the applicant’s
applications to have the searches set aside, the
domestic courts held that there had been no violation
of Article 10 of the Convention. They thus considered
that the searches – which had been ordered to
assemble evidence of and establish the truth
concerning possible criminal offences that had led to
and facilitated the publication of a newspaper article
– had not infringed freedom of expression or freedom
of the press.
54. The Court notes that in his newspaper
article the applicant published an established fact
concerning a fiscal fine that had been imposed on a
minister by decision of the Director of the
Registration and State-Property Department. There is,
therefore, no doubt that he was commenting on a
subject of general interest and that an interference
“cannot be compatible with Article 10 of the
Convention unless it is justified by an overriding
requirement in the public interest” (see Fressoz and
Roire v. France [GC], no. 29183/95, ECHR 1999-I).
55. The public prosecutor’s submissions
of 21 August 1998 indicate that investigations were
started simultaneously into allegations against
officials from the Registration and State-Property
Department and the applicant in order to establish the
identities of the person responsible for an alleged
breach of professional confidence and of the recipient
of the information so obtained. The searches of the
applicant’s home and workplace were carried out
shortly after those submissions were made. However, no
warrants were executed against officials from the
Registration and State-Property Department until a
later date.
56. The Court agrees with the applicant’s
submission – which the Government have not contested
– that measures other than searches of the applicant’s
home and workplace (for instance, the questioning of
Registration and State-Property Department officials)
might have enabled the investigating judge to find the
perpetrators of the offences referred to in the public
prosecutor’s submissions. The Government have
entirely failed to show that the domestic authorities
would not have been able to ascertain whether, in the
first instance, there had been a breach of
professional confidence and, subsequently, any
handling of information thereby obtained without
searching the applicant’s home and workplace.
57. In the Court’s opinion, there is a
fundamental difference between this case and Goodwin.
In the latter case, an order for discovery was served
on the journalist requiring him to reveal the identity
of his informant, whereas in the instant case searches
were carried out at the first applicant’s home and
workplace. The Court considers that, even if
unproductive, a search conducted with a view to
uncover a journalist’s source is a more drastic
measure than an order to divulge the source’s
identity. This is because investigators who raid a
journalist’s workplace unannounced and armed with
search warrants have very wide investigative powers,
as, by definition, they have access to all the
documentation held by the journalist. The Court
reiterates that “limitations on the confidentiality
of journalistic sources call for the most careful
scrutiny by the Court” (see Goodwin, cited above,
pp. 500-01, § 40). It thus considers that the
searches of the first applicant’s home and workplace
undermined the protection of sources to an even
greater extent than the measures in issue in Goodwin.
58. In the light of the foregoing, the
Court reaches the conclusion that the Government have
not shown that the balance between the competing
interests, namely the protection of sources on the one
hand and the prevention and punishment of offences on
the other, was maintained. In that connection, the
Court would reiterate that “the considerations to be
taken into account by the Convention institutions for
their review under paragraph 2 of Article 10 tip the
balance of competing interests in favour of the
interest of democratic society in securing a free
press (ibid., p. 502, § 45).
59. The Court is thus of the opinion that
while the reasons relied on by the domestic
authorities may be regarded as “relevant”, they
were not “sufficient” to justify the searches of
the first applicant’s home and workplace.
60. It therefore finds that the impugned
measures must be regarded as disproportionate and that
they violated the first applicant’s right to freedom
of expression, as guaranteed by Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
61. The second applicant complained that
the search carried out at her offices constituted an
unjustified interference with her right to respect for
her home. She also argued that the seizure of the
letter had infringed the right to respect for “correspondence
between a lawyer and his or her client”. She relied
on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for
his private and family life, his home and his
correspondence.
2. There shall be no interference by a
public authority with the exercise of this right
except as such as is in accordance with the law and is
necessary in a democratic society in the interests of
national security, public safety or the well-being of
the country, for the protection of health or morals,
or for the protection of the rights and freedoms of
others.”
A. Submissions of the parties
1. The second applicant
62. The second applicant said that the
search and the seizure of a document that had been
entrusted to her in connection with the first
applicant’s defence constituted an interference with
her rights guaranteed by paragraph 1 of Article 8 of
the Convention. That interference could not be
regarded as being “in accordance with the law”,
since the Lawyers Act did not satisfy the qualitative
requirements of Article 8. The second applicant said
that in any event the interference had not been
necessary. The search warrants had been drafted in
particularly wide terms. In what was, after all, an
ordinary – albeit highly politicised – case, the
means employed by the domestic authorities at the
beginning of the investigation had been
disproportionate, particularly when the investigating
judge’s subsequent failure to act was taken into
account.
2. The Government
63. The Government maintained that even
supposing that the search amounted to an interference
with the second applicant’s rights under Article 8,
it had been justified under paragraph 2 of that
provision. The interference was in accordance with the
law and pursued a legitimate aim, namely the
prevention and punishment of criminal offences. Lastly,
it had been necessary in a democratic society. The
search warrants had been drafted in narrow terms
covering only the search for and seizure of a single
document. The offences that had triggered the search
were serious ones, as they called into question the
very functioning of the State institutions, a factor
that justified the investigating judge’s taking any
measure which he considered would assist in
establishing the truth.
B. The Court’s assessment
64. The Court reiterates, firstly, that the
protection afforded by Article 8 may extend, for
instance, to the offices of a member of a profession (see
Niemietz v. Germany, judgment of 16 December 1992,
Series A no. 251-B, p. 34, § 30).
65. It accepts the second applicant’s
submission that the search of her law offices and
seizure of a document relating to her client’s file
constituted an interference with her rights, as
guaranteed under paragraph 1 of Article 8 of the
Convention.
66. It finds that that interference was “in
accordance with the law”, since Articles 65 and 66
of the Criminal Investigation Code deal with searches
and seizures in general, whereas section 35(3) of the
Act of 10 August 1991 lays down the procedure to be
followed for searches and seizures at a lawyer’s
office or home.
67. It also finds that the interference
pursued a “legitimate aim”, namely the prevention
of disorder or crime.
68. As to the “necessity” for the
interference, the Court reiterates that “the
exceptions provided for in paragraph 2 of Article 8
are to be interpreted narrowly, and [that] the need
for them in a given case must be convincingly
established” (see Crémieux v. France, judgment of
25 February 1993, Series A no. 256-B, p. 62, §
38).
69. The Court notes that, unlike Niemietz,
the search in the present case was accompanied by
special procedural safeguards. The warrant was
executed in the presence of an investigating judge, a
representative of the public prosecutor and the
President of the Bar Council. In addition, the
President of the Bar Council’s presence and the
observations he considered it necessary to make on the
question of the protection of professional confidence
were recorded in the police department’s report.
70. On the other hand, the Court is bound
to note that the search warrant issued on 11 January
1999 was drafted in relatively wide terms. In it, the
investigating judge instructed the investigators to
“search for and seize all objects, documents,
effects and/or other items that might assist in
establishing the truth with respect to the above
offences or whose use might impede progress in the
investigation and, in particular, the document dated
23 July 1998 bearing the manuscript note to the heads
of division”. It thus granted them relatively wide
powers (see Crémieux, cited above).
71. Above all, the ultimate purpose of the
search was to establish the journalist’s source
through his lawyer. Thus, the search of the second
applicant’s offices had a bearing on the first
applicant’s rights under Article 10 of the
Convention. Moreover, the search of the second
applicant’s offices was disproportionate to the
intended aim, particularly as it was carried out at
such an early stage of the proceedings.
72. In the light of the foregoing and for
reasons analogous in part to those set out in Part I
of this judgment, the Court holds that there has been
a violation of the second applicant’s rights under
Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
73. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned
allows only partial reparation to be made, the
decision of the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
74. The applicants each claimed 5,000 euros
(EUR) for the non-pecuniary damage they had suffered.
They said that the searches had proved a traumatic
experience that had attracted considerable media
attention and damaged their reputations.
75. The Government disputed the figures put
forward by the applicants.
76. Ruling on an equitable basis, as
required by Article 41, the Court awarded each of the
applicants EUR 4,000 for non-pecuniary damage.
B. Costs and expenses
77. The first applicant claimed EUR
35,176.97 for costs and expenses. He produced two fee
notes. The first, dated 17 January 2002 and containing
a statement of the legal fees paid to Ms Schmit for
the proceedings in the domestic courts, came to EUR
25,547.56. The second was dated 3 April 2002 and
was for EUR 9,629.41 for fees incurred in the
proceedings before the Court. The first applicant
argued that he would also have to pay legal fees for
the remainder of the proceedings before the Court and
sought a payment on account of future costs and
expenses in the sum of EUR 1,000.
78. The second applicant made no claim for
costs or expenses.
79. The Government disputed the amounts
claimed by the first applicant.
80. The Court reiterates that an applicant
may recover his costs and expenses only in so far as
they have been actually and necessarily incurred and
are reasonable as to quantum (see Bottazzi v. Italy [GC],
no. 34884/97, § 30, ECHR 1999-V). In the present
case, on the basis of the information in its
possession and the above-mentioned criteria, the Court
considers the sum of EUR 11,629.41 to be reasonable
and awards the first applicant that amount.
C. Default interest
81. The Court considers it appropriate to
base the rate of the default interest to be paid on
outstanding amounts on the marginal lending rate of
the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of
Article 10 of the Convention with respect to the first
applicant;
2. Holds that there has been a violation
of Article 8 of the Convention with respect to the
second applicant;
3. Holds
(a) that the respondent State is to pay the
first applicant, within three months from the date on
which the judgment becomes final according to Article 44
§ 2 of the Convention, the following amounts:
(i) EUR 4,000 (four thousand euros) for
non-pecuniary damage;
(ii) EUR 11,629.41 (eleven thousand six
hundred and twenty-nine euros forty-one cents) for
costs and expenses;
(b) that the respondent State is to pay the
second applicant, within three months from the date on
which the judgment becomes final according to Article 44
§ 2 of the Convention, EUR 4,000 (four thousand euros)
for non-pecuniary damage;
(c) that from the expiry of the
above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the
European Central Bank during the default period plus
three percentage points;
4. Dismisses the remainder of the
applicants’ claims for just satisfaction.
Done in French, and notified in writing on 25 February
2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Michael O’Boyle
Sir Nicolas Bratza
Registrar
President
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