CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant company is based in Hoofddorp. Its business is publishing and marketing magazines, including the weekly Autoweek, which caters for readers who are interested in motoring.

On 12 January 2002, an illegal street race was held in an industrial area on the outskirts of the town of Hoorn. Journalists of Autoweek attended this race at the invitation of its organisers.

The applicant company state that the journalists were given the opportunity to take photographs of the street race and of the participating cars and persons on condition that they guarantee that the identities of all participants would remain undisclosed. The Government, for their part, dispute the existence of any agreement involving more than a small number of organisers or participants at most.

The street race was ended by the police, who were present and eventually intervened. No arrests were made.

The applicant company intended to publish an article about illegal car races in Autoweek no. 7/2002 of 6 February 2002. This article would be accompanied by photographs of the street race held on 12 January 2002. These photographs would be edited in such a manner that the participating cars and persons were unidentifiable, thus guaranteeing the anonymity of the participants in the race. The original photographs were stored by the applicant company on a CD-ROM, which was kept in the editorial office of a different magazine published by the applicant company (not Autoweek).

The police and prosecuting authorities were afterwards led to suspect that one of the vehicles participating in the street race had been used as a getaway car following a ram raid on 1 February 2001 (see paragraphs 27-29 below).

On the morning of Friday 1 February 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of 12 January 2002. This police officer was informed by the staff member whom she had called, namely the features chief editor (chef reportage), that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race. The features chief editor further told this police officer that he thought that the press was reasonably protected against this kind of action and advised her to contact the editorial office in writing.

In the afternoon of 1 February 2002, at 2.30 p.m., two police detectives visited the Autoweek editorial office and, after having unsuccessfully tried to obtain the surrender of the photographs, issued Autoweek’s editor-in-chief with a summons, within the meaning of Article 96a of the Code of Criminal Procedure (Wetboek van Strafvordering). This summons had been issued by the Amsterdam public prosecutor; it ordered the applicant company to surrender, in the context of a criminal investigation into offences defined in Articles 310-312 of the Criminal Code (Wetboek van Strafrecht) against an unspecified person, the photographs taken on 12 January 2002 during the illegal street race in Hoorn and all related materials. On behalf of the applicant company, Autoweek’s editor-in-chief Mr Broekhuijsen refused to surrender the photographs, considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity.

Later that day, a telephone conversation took place between, on the one side, two public prosecutors and, on the other, the lawyer of the applicant company Mr Jansen. Mr Jansen was told by the public prosecutors that “it concerned a matter of life and death”. No further explanation was given and Mr Jansen’s request for written confirmation that the matter was one of “life and death” was not entertained.

The police detectives and the public prosecutors threatened to detain Mr Broekhuijsen during the weekend of 2 to 3 February or even longer for having acted in violation of Article 184 of the Criminal Code, i.e. the offence of failure to comply with an official order (ambtelijk bevel), and to seal and search the whole of the applicant company’s premises, if need be for the entire weekend period and beyond, and remove all computers. The threatened search would entail financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince, due to take place on 2 February 2002.

At 6.01 p.m. on 1 February 2002, Mr Broekhuijsen was arrested on suspicion of having violated Article 184 of the Criminal Code. He was not taken to the police station but remained on the applicant company’s premises. After the Amsterdam public prosecutor had arrived on these premises and after he had been brought before the prosecutor, Mr Broekhuijsen was released at 10 p.m.

The applicant company then consulted their counsel, Mr S., and a second lawyer, Mr D., the latter being a specialist in criminal procedure. At some point the CD-ROM was transferred to the lawyers’ offices unbeknown to the public prosecutor and the police investigators. Upon this, the public prosecutor and the other persons involved went to the lawyers’ offices.

Mr D. spoke with the public prosecutors involved for some two hours, from 11.15 p.m. onwards. Taking the view that judicial authorisation was required, he sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge (rechter-commissaris) of the Amsterdam Regional Court (rechtbank), who was then contacted by telephone. After having spoken with Mr D., and after having been briefed by one of the public prosecutors, the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. While recognising from the outset that by law he lacked competence in the matter, he also stated that, had he had the power to do so, he would have been prepared to give an order to that effect and even to sanction a search of the offices.

On 2 February 2002 at 1.20 a.m., the applicant company, through Mr S. and Mr D. and under protest, surrendered the CD-ROM containing the photographs to the public prosecutor, who formally seized it. An official receipt issued by a police officer describes it as a CD-ROM in purpose-made packaging, the packaging labelled in handwriting “Photos Illegal Street Races, ANWB [Royal Netherlands Tourist Association] driving simulator, sidecar motorcycle with coffin”. The receipt stated that Mr S. had handed over the CD-ROM under protest.

On 15 April 2002 the applicant company lodged a complaint under Article 552a of the Code of Criminal Procedure, seeking the lifting of the seizure and restitution of the CDROM, an order to the police and prosecution department to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD-ROM.

On 5 September 2002 a hearing was held before the Regional Court during which the public prosecutor explained why the surrender of the photographs had been found necessary. The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of walls with the aid of a shovel loader, and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s) of those robberies.

In its decision of 19 September 2002 the Regional Court granted the request to lift the seizure and to return the CD-ROM to the applicant company as the interests of the investigation did not oppose this. It rejected the remainder of the applicant company’s complaint. It found the seizure lawful and, on this point, considered that a publisher/journalist could not, as such, be regarded as enjoying the privilege of non-disclosure (verschoningsrecht) under Article 96a of the Code of Criminal Procedure. Statutorily, the persons referred to in Article 218 of the Code of Criminal Procedure and acknowledged as enjoying the privilege of non-disclosure were, amongst others, public notaries, lawyers and doctors. It considered that the right to freedom of expression, as guaranteed by Article 10 of the Convention, included the right freely to gather news (recht van vrije nieuwsgaring) which, consequently, deserved protection unless outweighed by another interest warranting priority. It found that, in the instant case, the criminal investigation interest outweighed the right to free gathering of news in that, as explained by the public prosecutor during the hearing, the investigation at issue did not concern the illegal street race, in which context the undertaking of protection of sources had been given, but an investigation into other serious offences. The Regional Court was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests, the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race. It found established that the data stored on the CD-ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing. It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified. The Regional Court did not find that the seizure had been rash, although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter.

The applicant company lodged an appeal on points of law with the Supreme Court (Hoge Raad), which on 3 June 2003 gave a decision declaring it inadmissible. The Supreme Court held that, as the Regional Court had accepted the applicant company’s complaint in so far as it related to the request to lift the seizure and to return the CD-ROM, the applicant company no longer had an interest in its appeal against the ruling of 19 September 2002. Referring to its earlier case-law (Supreme Court, 4 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1989, no. 429, and Supreme Court, 9 January 1990, NJ 1990, no. 369), it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD-ROM – also contained a request to order that any print-outs or copies of the CD-ROM were to be destroyed and that data collected with the aid of the CD-ROM could not be used: neither Article 552a nor any other provision of the Code of Criminal Procedure provided for the possibility of obtaining a declaratory ruling that the seizure or the use of the seized item was unlawful once the item had been returned.

The order issued under Article 96a of the Code of Criminal Procedure was closely related to a criminal investigation into a series of ram raids which had taken place on 20 September 2001, 6 November 2001 and 30 November 2001. In these ram raids, cash dispensers were removed from walls using a shovel loader. A group of suspects was identified, the main suspects being A and M.

A telephone conversation involving M, tapped in the context of the investigation into those raids on 12 January 2002, revealed that M and A had participated in an illegal street race in Hoorn with an Audi RS4 motor car earlier that day.

On 1 February 2002 another ram raid took place. During the incident, a bystander was threatened with a firearm. After ramming a wall, the perpetrators removed a cash dispenser and hauled it off in a lorry, which was followed closely by an Audi RS4. The police, who had already been informed of the incident, saw the lorry stop and the driver get into an Audi, which then drove away with three people inside. The police followed, but the Audi accelerated to over 200 kilometres per hour and disappeared from view.

Article 96a of the Code of Criminal Procedure reads as follows:

“1. If it is suspected that a crime within the meaning of Article 67 § 1 has been committed, the investigating officer may order a person to surrender an object if it is reasonable to suspect that the person has an object subject to seizure in his possession.

The order shall not be issued to the suspect.

By virtue of their right to decline to give evidence, the following persons are not obliged to comply with an order of this nature:

a. the persons described in Article 217;

b. the persons described in Article 218, insofar as surrender for seizure would violate their duty of confidentiality;

c. the persons referred to in Article 219, insofar as surrender for seizure would put them or their relatives at risk of prosecution for a criminal offence. ...”

Article 67 § 1 of the Code of Criminal Procedure lists the offences in respect of which detention on remand may be ordered. These include, among others, the offences defined in Articles 310-312 of the Criminal Code (theft, theft under aggravating circumstances, and robbery).

A failure to comply with an order under Article 96a constitutes an offence as defined in, as relevant to the case, Article 184 (failure to comply with an official order) of the Criminal Code. This is an indictable offence (misdrijf) carrying a three-month maximum prison sentence or a fine.

Persons who, by virtue of Articles 217-219 of the Code of Criminal Procedure, enjoy the privilege of nondisclosure include

a. an accused’s relatives, (former) spouse and (former) registered partner (Article 217);

b. persons who, by virtue of their position, profession or office, are bound to secrecy – albeit that their privilege of non-disclosure only covers matters the knowledge of which has been entrusted to them in that capacity (Article 218; this category is traditionally considered to include doctors, advocates, clergy and notaries); and

c. persons who, by giving evidence, expose themselves, their relatives to the second or third degree, their (former) spouse or their (former) registered partner to the risk of a criminal conviction (Article 219).

Article 96a of the Code of Criminal Procedure entered into force on 1 February 2000. Prior to this date, only the investigating judge was competent to issue an order to surrender for the purposes of seizure (former Article 105 of the Code of Criminal Procedure).

Article 552a of the Code of Criminal Procedure reads as follows:

“1. Interested parties may lodge a written complaint about seizure, the use of seized objects, the failure to order the return, or the examination (kennisneming) or use of information recorded by means of an automatised device and recorded during a house search, and about the examination or use of information as referred to in Articles 100,101, 114, 125i and 125j [i.e. letters and parcels sent by post, Articles 100, 101 and 114; electronic data, such as internet traffic, recorded by a third party, Articles 125i and 125j].

The written complaint shall be lodged as soon as possible after the seizure of the object or the examination of the information at the registry of the trial court before which the case is being prosecuted or was last prosecuted. The written complaint shall not be admissible if it is lodged at a time when more than three months have passed since the case prosecuted has been brought to a close.

The hearing in chambers (raadkamer) to examine the written complaint shall be public.

If the court considers the complaint to be well-founded, it shall give the appropriate order.”

Until 11 November 1977, the Netherlands Supreme Court did not recognise a journalistic privilege of non-disclosure. On that date, it handed down a judgment in which it found that a journalist, when asked as a witness to disclose his source, was obliged to do so unless it could be regarded as justified,, that the interest of non-disclosure of a source outweighed the interest served by such disclosure. This principle was overturned by the Supreme Court in a landmark judgment of 10 May 1996 on the basis of the principles set out in the Court’s judgment of 27 March 1996 in the case of Goodwin v. the United Kingdom (Reports of Judgments and Decisions 1996II). In this ruling, the Supreme Court accepted that, pursuant to Article 10 of the Convention, a journalist was in principle entitled to non-disclosure of an information source unless, on the basis of arguments to be presented by the party seeking disclosure of a source, the judge was satisfied that such disclosure was necessary in a democratic society for one or more of the legitimate aims set out in Article 10 § 2 of the Convention (Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 1996, no. 578).

Guidelines on the position of the press in relation to police action (Leidraad over de positie van de pers bij politieoptreden) were issued by the Minister of Justice (Minister van Justitie) on 19 May 1988. At the time of the events complained of, they provided, in relevant part:

“7. Seizure of journalistic material

Journalistic material may be seized in cases described in the Code of Criminal Procedure. Journalists may be faced with seizure in two ways.

A. The police may, on the instructions of a public prosecutor (officier van justitie) or an assistant public prosecutor (hulpofficier van justitie) or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot.

There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed. In this situation, the journalist is arrested like any ordinary citizen.

If a prosecution ensues, it will be for the independent judge eventually to decide what is to be done with any seized – and unpublished – material.

B. Journalistic material may also be seized on the orders of an independent judge (the investigating judge), if such material may – in the judge’s opinion – serve to clarify the truth in a preliminary judicial investigation (gerechtelijk vooronderzoek).

On 4 December 2000, the boards of the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) and the Netherlands Union of Journalists (Nederlandse Vereniging van Journalisten) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials. This commission – which was composed of a professor of criminal law, the secretary of the Netherlands Union of Journalists, a Regional Court judge and an editor of a national daily newspaper – concluded in its report of 30 October 2001, inter alia, that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure, where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved.

Already in 1993, Mr E. Jurgens – at the time a member of the Netherlands Lower House of Parliament (Tweede Kamer) – had submitted a private member’s bill (initiatiefwetsvoorstel) to amend the Code of Criminal Procedure and the Code of Civil Procedure in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them. On 2 March 2005, after remaining dormant, this bill was eventually withdrawn without having been taken up in parliament.

On 15 January 2002, in the light of the case-law developments in this area and Recommendation No. R(2000) 7 adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 (see below), the Board of Procurators General (College van procureurs-generaal) adopted an Instruction within the meaning of Article 130 § 4 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) on the application by the Public Prosecution Department of coercive measure in respect of journalists (Aanwijzing toepassing dwangmiddelen bij journalisten; published in the Official Gazette (Staatscourant) 2002, no. 46), which entered into force on 1 April 2002 for a period of four years. This Instruction defines who is to be considered as a “journalist” and sets out the pertinent principles and guidelines as regards the application of coercive measures, such as inter alia an order under Article 96a of the CCP, in respect of a journalist.

In a judgment given on 2 September 2005 concerning the search of premises of a publishing company on 3 May 1996 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] LJN AS6926), the Supreme Court held inter alia:

“The right of freedom of expression, as set out in Article 10 of the Convention, encompasses also the right to freely gather news (see, amongst others, Goodwin v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577; and Roemen and Schmit v. Luxembourg, judgment of 25 February 2003 [ECHR 2003IV]). An interference with the right to freely gather news – including the interest of protection of a journalistic source – can be justified under Article 10 § 2 in so far as the conditions set out in that provision have been complied with. That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision. Secondly, the interference must serve one of the aims mentioned in Article 10 § 2. Thirdly, the interference must be necessary in a democratic society for attaining such an aim. In this, the principles of subsidiarity and proportionality play a role. In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other, less far-reaching ways (minder bezwarende wegen) can be followed along which this interest can be served to a sufficient degree. Where it concerns a criminal investigation, it must be considered whether the interference with the right to freely gather news is proportionate to the interest served in arriving at the truth. In that last consideration, the gravity of the offences under investigation will play a role.”

The Court’s judgment in the Voskuil case (Voskuil v. the Netherlands, no. 64752/01, 22 November 2007) has prompted the Government to introduce new legislation. A bill now pending before Parliament proposes to add a new Article to the Code of Criminal Procedure (Article 218a) that would explicitly allow “witnesses to whom information has been entrusted within the framework of the professional dissemination of news (beroepsmatige berichtgeving) or the gathering of information for that purpose, or the dissemination of news within the framework of participation in the public debate, as the case may be” – that is, professional journalists in particular – to refuse to give evidence or identify sources of information. Such a right would be more limited than that enjoyed by the categories enumerated in Articles 217, 218 and 219 of the Code of Criminal Procedure; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest (zwaarderwegend maatschappelijk belang) would result from such refusal. However, persons covered by the proposed new Article 218a would not be among those entitled to refuse outright to surrender items eligible for seizure: the bill proposes to include them in the enumeration contained in Article 96a § 3 (paragraph 30 above).

Several international instruments concern the protection of journalistic sources, among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on the Confidentiality of Journalists’ Sources by the European Parliament (18 January 1994, Official Journal of the European Communities No. C 44/34).

Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 and states, in so far as relevant:

“[The Committee of Ministers] Recommends to the governments of member States:

to implement in their domestic law and practice the principles appended to this recommendation,

to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and

to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.

Appendix to Recommendation No. R (2000) 7

Principles concerning the right of journalists not to disclose their sources of information

Definitions

For the purposes of this Recommendation:

a. the term ‘journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;

b. the term ‘information’ means any statement of fact, opinion or idea in the form of text, sound and/or picture;

c. the term ‘source’ means any person who provides information to a journalist;

d. the term ‘information identifying a source’ means, as far as this is likely to lead to the identification of a source:

i. the name and personal data as well as voice and image of a source,

ii. the factual circumstances of acquiring information from a source by a journalist,

iii. the unpublished content of the information provided by a source to a journalist, and

iv. personal data of journalists and their employers related to their professional work.

Principle 1 (Right of non-disclosure of journalists)

Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.

Principle 2 (Right of non-disclosure of other persons)

Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.

Principle 3 (Limits to the right of non-disclosure)

a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10 § 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10 § 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and

ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:

- an overriding requirement of the need for disclosure is proved,

- the circumstances are of a sufficiently vital and serious nature,

- the necessity of the disclosure is identified as responding to a pressing social need, and

- member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.

c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.

Principle 4 (Alternative evidence to journalists’ sources)

In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.

Principle 5 (Conditions concerning disclosures)

a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.

b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.

c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.

d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.

e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.

Principle 6 (Interception of communication, surveillance and judicial search and seizure)

a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:

i. interception orders or actions concerning communication or correspondence of journalists or their employers,

ii. surveillance orders or actions concerning journalists, their contacts or their employers, or

iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.

b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.

Principle 7 (Protection against self-incrimination)

The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.”

For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out:

“c. Source

Any person who provides information to a journalist shall be considered as his or her ‘source’. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the ‘potentially chilling effect’ an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being ‘provided’ when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”

Media Legal Defence Initiative, Committee to Protect Journalists, Article 19, Guardian News & Media Ltd. and Open Society Justice Initiative, who were given leave by the President to intervene in the written procedure, submitted inter alia the following comparative-law information (footnote references omitted):

“Echoing the Goodwin Court’s scrutiny of review procedures and the Committee of Ministers’ recommendation that non-disclosure of sources be sanctionable only under ‘judicial authorit[y]’ (Rec. No. R(2000)7, Principle 5(c)), many national laws state that only courts may compel disclosure of information identifying confidential sources. The following can be taken as typical examples of legislation to this effect:

- Law on Radio and Television Broadcasting, Art. 7 (Romania), July 11, 2002, Law No. 504 (revisions in force 3 December 2008) (Legii audiovizualului) (only law courts may compel disclosure of a journalist’s confidential sources);

- Media Act (Croatia), Art. 30, 5 May 2004, Official Gazette No. 59/2004 (Zakon o medijima) (similar);

- Code of Criminal Procedure, Art. 180 (Poland), 6 June 1997, Law No. 97.89.555 (Kodeks Postepowania Karnego) (right to keep sources confidential is a testimonial privilege);

- Law of the Republic of Armenia on the Dissemination of Mass Information, Art. 5, 13 December 2003, (...) (disclosure may be compelled only by a ‘court decision, in the course of a criminal proceeding’ of certain serious crimes);

- Radio and Television Law, Section 15 (Bulgaria), 23 November 1998, Decree No. 406 (as amended June 2009) (Закон за радиото и телевизията) (allowing for disclosure only in ‘pending court proceedings or a pending proceeding instituted on an appeal from an affected person’ where court issues appropriate order).

Courts have stressed the same. The Lithuanian constitutional court, investigating the compatibility of that country’s sources laws with the standards set by the European Court of Human Rights, has held that ‘the legislator ... has a duty to establish, by law, also that in every case it is only the court that can decide whether the journalist must disclose the source of information.’

In Germany, search and seizure warrants may be issued only by a judge. Only when there is imminent risk may a prosecutor order such a search. The authorising judge or prosecutor must always consider the impact of the proposed action on press freedom; and whether a search or seizure has been ordered by a judge or by a prosecutor, ex post facto judicial review must always be available.

In the United States, prior judicial review of efforts to compel information from journalists is a baseline requirement. In nearly all circumstances, law enforcement authorities must issue a subpoena to try to compel journalists to turn over information, which the journalists may then challenge in court before providing the information. In the very limited circumstances where police may proceed by search warrant (as stated above, these include probable cause to believe the possessor of the information ‘has committed or is committing the criminal offense to which the materials relate’, or that the search or seizure is ‘necessary to prevent death or serious injury’) a judge must issue the warrant.”


Violation of Art. 5-3;No violation of Art. 6-1;No violation of Art. 6-3-d

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall

The applicant was born in 1977 and lives in Šiauliai.

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

On 9 November 1998 the applicant was arrested on suspicion of armed robbery. While remanded in custody the applicant was held in Šiauliai Remand Prison, Šiauliai Police Detention Facility and other remand establishments.

On 11 November 1998 the Šiauliai City District Court authorised the applicant's remand in custody until 19 November 1998. In ordering the detention, the court referred to the nature and gravity of the charges against the applicant, and stated that “it was likely that the applicant could attempt to abscond from investigators and the trial as well as obstruct the establishment of the truth in the case”. The applicant and his defence counsel were present at the hearing.

On 18 November 1998 the Šiauliai City District Court extended the term of the applicant's detention until 18 January 1999 due to the fear “that he would abscond”. The applicant's lawyer was present at the hearing.

On 24 December 1998 the applicant appealed against that ruling.

Having received the appeal on 4 January 1999, on 7 January 1999 the Šiauliai Regional Court dismissed it, arguing that the applicant “had been charged with a serious crime and if released would obstruct the investigation and the establishment of the truth”. The applicant's counsel was present at the hearing.

On 15 January 1999 the Šiauliai City District Court extended the term of the applicant's detention until 18 March 1999. Having briefly summed up the charges against the applicant the court stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court, obstruct the establishment of the truth and commit fresh crimes”. The applicant and his lawyer were present at the hearing.

On 18 February 1999 the applicant appealed against the order to extend his detention. On 26 February the appeal was received by the Šiauliai Regional Court, which on 2 March 1999 dismissed the applicant's appeal, his defence counsel being present. The court again stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court and would obstruct the investigation”.

On 17 March 1999 the Šiauliai City District Court extended the term of the applicant's detention until 9 May 1999. Listing the charges against the applicant the court stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he would try to abscond from the investigators, commit fresh crimes and influence witnesses”. The applicant and his lawyer were present.

On 7 May 1999 the Šiauliai Regional Court extended the term of the applicant's detention until 9 July 1999 on the ground that “he had been charged with a serious crime, therefore there was a reason to believe that if at liberty he would commit fresh crimes and obstruct the establishment of the truth”. The applicant and his defence counsel were present at the hearing. The applicant appealed, stating, inter alia, that he had to undergo surgery.

The applicant's appeal was dismissed by the Court of Appeal on 25 May 1999, with his defence counsel present. The court stated that “the applicant had been charged with serious crimes, he had not confessed and his guilt was based on statements by numerous witnesses, therefore there was a reason to believe that if at liberty he would try to influence witnesses and would obstruct the establishment of the truth in this case”.

On 8 July 1999 the Šiauliai Regional Court extended the term of the applicant's remand in custody until 30 September 1999. The court again listed the charges against the applicant and stated that “the applicant had been charged with a serious crime. There is a reason to believe that if at liberty he would obstruct the establishment of the truth in the case and would commit fresh crimes”. The applicant and his lawyer were present at the hearing.

The applicant appealed, arguing that the investigation had been delayed and that the authorities had not exercised due diligence in investigating the case. The applicant also submitted that he had no criminal record and had a permanent place of residence. There was no evidence that he would try to abscond from the investigation or commit fresh crimes.

On 29 July 1999 the applicant's appeal against the order of 8 July 1999 was dismissed by the Court of Appeal, with the applicant's defence counsel being present. For the court, the reasons for extending the applicant's detention were that “the evidence in the case allowed the conclusion that the applicant had committed the crimes he had been charged with. Given that the applicant denied his guilt, the lower court had correctly concluded that if released the applicant would obstruct the establishment of the truth in the case that is to say he could influence witnesses, either himself or through others. He might also abscond from the investigation or commit fresh crimes”.

On 29 September 1999 the Šiauliai Regional Court extended the term of the applicant's detention until 1 December 1999. Stating the charges against the applicant in three sentences, the court noted that “the applicant was accused of two crimes, one of which was serious. The data in the case file allowed the presumption that the applicant had committed those crimes. Given that the applicant denied his guilt, it was reasonable to believe that, if at liberty, he could obstruct the establishment of the truth in the case and influence witnesses and co-accused, either himself or though third parties. He might also hide from investigators or commit other crimes”. The applicant and his defence counsel were present at the hearing.

The applicant appealed, reiterating that he had a permanent place of residence and that there were no grounds to believe that he might abscond or obstruct the course of justice. The charges had already been presented to him. Moreover, notwithstanding the requirements of Article 104 of the Code of Criminal Procedure to demonstrate the need to keep a person in detention, the prosecutor had presented no such evidence to the court. As regards the applicant, the fact that he had not confessed to the crimes he had been charged with was not a reason to assume that he would commit fresh crimes or attempt to obstruct the establishment of the truth in his case. Lastly, he mentioned that he had no prior convictions and had a permanent place of residence, his parents' flat.

On 18 October 1999 the Court of Appeal dismissed the applicant's appeal, endorsing the reasons given by the lower court. The applicant's lawyer was present at the hearing.

The Šiauliai Regional Court further extended the term of the applicant's detention by the following orders:

- order of 29 November 1999: until 30 January 2000;

- order of 28 January 2000: until 30 March 2000;

- order of 30 March 2000: until 9 May 2000.

For that court, the reasons to keep the applicant in detention were that the applicant, if released, would “attempt to obstruct the establishment of the truth in his case”, “influence witnesses”, “hide from investigators” and “commit fresh crimes”.

The applicant and his defence counsel were present at all the hearings at which his detention was extended.

On 28 August 2002 the prosecution approved the bill of indictment concerning the charges of armed robbery against the applicant and four other co-accused. The case was sent to court.

On an unknown date the Panevėžys District Court requested the Šiauliai Regional Prosecutor's Office to ensure that D.R. and M.S., two of the applicant's accomplices who had testified against him and had been released from criminal liability by the prosecutors, were brought before the court for questioning. On 11 April and 16 June 2003 the State Border Guard Service and the Šiauliai Police Commissariat informed the prosecutors that, according to the information they had gathered, D.R. and M.S. had left Lithuania and their place of residence was unknown.

On 3 November 2003 the Panevėžys District Court convicted the applicant of complicity in armed robbery (Articles 24 § 6 and 180 § 3 of the Criminal Code). The court based its conclusion, inter alia, on the evidence given by D.R. and M.S., whose statements as recorded during the pre-trial investigation were read out. The applicant was sentenced to two years' imprisonment, towards which the court counted the period from 9 November 1998 to 9 May 2000, when the applicant had been in pre-trial detention.

The applicant appealed, complaining that the proceedings were unreasonably long. He also alleged that the trial court should not have admitted the submissions of D.R. and M.S. in evidence, as he had not been afforded an opportunity to challenge these witnesses in open court. The applicant alleged a violation of Article 6 of the Convention.

Invoking Article 5 § 3 of the Convention the applicant also submitted that he had already been in pre-trial detention four years and ten months (from 9 November 1998) and argued that the detention had been extended on numerous occasions without lawful grounds. The prosecutors had joined his case to other cases and disjoined it later. During all that time he was detained, the courts would dismiss his appeals to impose another, milder remand measure. Given that on 4 September 2003 the Court of Appeal had acquitted him [in the second set of criminal proceedings] and he had been released from pre-trial detention only on that day, in its judgment of 3 November 2003 the Panevėžys District Court had wrongly assessed the time which needed to be counted towards the punishment.

By a ruling of 26 February 2004 the Court of Appeal ordered the Šiauliai Police Commissariat to bring D.R. and M.S. to court for questioning. However, the police informed the court that it was not possible to summon D.R. and M.S. as they had left Lithuania. Moreover, the relatives of D.R. and M.S. had moved house, therefore it was not possible to question them in order to establish where the former were living.

On 9 March 2004 the Court of Appeal inquired of the State Border Guard Service as to whether M.S. and D.R. had crossed the State border and whether they had returned to Lithuania. On 16 March 2004 the State Border Guard Service informed the Court of Appeal that M.S. and D.R. had left the country.

On 31 March 2004 the Court of Appeal upheld the conviction. It noted that the trial court had based its conclusion on various pieces of evidence, namely the submissions of the applicant's co-defendant and a witness, both of whom had been questioned at the trial. In the opinion of the appellate court, D.R. and M.S. had only provided information which was also known from other sources. Having analysed those other sources at length and in depth, alone and against each other, the Court of Appeal concluded that even without the testimony of D.R. and M.S. there was sufficient proof of the applicant's guilt.

Lastly, the Court of Appeal concluded that the trial court was impartial towards the applicant, given that it had substituted the charges against the applicant with a lesser charge, by convicting him as a person who had merely assisted in the commission of a crime and not as the organiser.

In contrast, the Court of Appeal agreed with the applicant's argument that all the time he had spent in pre-trial detention should be counted towards his sentence:

“The chamber notes the not entirely correct nature of the information given in the bill of indictment, to the effect that L. Balčiūnas was arrested on 9 November 1998, remanded in custody on 11 November 1998 and the detention continued only until 9 May 2000; and that afterwards detention was imposed in another criminal case, adjudicated by the Šiauliai Regional Court.

From supplementary information the Court of Appeal has received (the 1 May 2000 ruling of the Šiauliai Regional Court) it transpires that in another criminal case, in which L. Balčiūnas was convicted and acquitted (...) [paragraphs 48-50 hereinafter], new pre-trial detention has not been imposed on the applicant; it was the detention of 11 November 1998 which was being continued.”

The Court of Appeal upheld the applicant's sentence of two years' imprisonment. However, the applicant was deemed to have completed the sentence in view of the time spent remanded in custody – from 9 November 1998 to 4 September 2003.

The applicant lodged a cassation appeal, complaining that his conviction had been based on the submissions of witnesses who had not been questioned by him or the courts. He also alleged that the Court of Appeal had not examined the issue concerning the allegedly excessive length of the proceedings and the lawfulness of his remand in custody.

On 12 October 2004 the Supreme Court dismissed the applicant's cassation appeal. The cassation court noted that the evidence leading to the applicant's conviction had been properly handled and assessed by the lower courts. His guilt had been based to a substantial degree on the evidence given by a witness and two of his co-defendants, who had all been examined in open court. The trial court was entitled to refer to the submissions by D.R. and M.S., which had been recorded during the pre-trial investigation. The authorities had taken all the necessary measures to summon D.R. and M.S. to the hearing, but had failed to obtain their attendance in view of the fact that their place of residence was unknown. The Supreme Court acknowledged that the appellate court had not answered the applicant's allegation that the investigation and his pre-trial detention had lasted an unreasonably long time. It noted however that these circumstances did not constitute sufficient grounds to find that the Court of Appeal had failed to respect the relevant procedural requirements. Lastly, the Supreme Court noted that the Court of Appeal had rectified the trial court's mistake and correctly counted the period of pre-trial detention towards the time of the punishment.

On an unspecified date, another set of criminal proceedings was instituted against the applicant. In particular, it was suspected that he had been a member of a criminal organisation, and that in January 1998 he had been involved in organising two explosions in public places, causing a number of injuries to others. Five other persons were charged alongside the applicant; the charges related to events which took place in 1996-98.

On 19 April 2000, upon approval of the bill of indictment, the case was transmitted to the Šiauliai Regional Court.

On 1 May 2000 the Šiauliai Regional Court ordered the applicant's detention to be “continued” until 10 July 2000, referring to the risk that he would abscond, commit new offences and obstruct the investigation. The applicant and his defence counsel were present at the hearing.

The applicant appealed. However, on 18 May 2000 the Court of Appeal dismissed his appeal, referring to the gravity of the charges against the applicant. The applicant's counsel was present at the hearing.

Subsequently the applicant's detention was extended by court orders of 12 June, 6 September, 9 November and 7 December 2000 and of 2 May, 4 July and 4 October 2001. The applicant's lawyer was present at the hearings. The courts referred to the risk of the applicant reoffending, influencing witnesses and obstructing the investigation. All his appeals were unsuccessful.

On 6 February 2002 the Šiauliai Regional Court ordered the Šiauliai Regional Prosecutor's office to summon D.R. and M.S. to the hearing for questioning.

By the same ruling the Šiauliai Regional Court extended the term of the applicant's detention until 9 May 2002 on the ground that he might influence witnesses and commit fresh crimes. The applicant's lawyer was present at the hearing. The applicant appealed, requesting a variation of the remand. He submitted, inter alia, that the lengthy stay in custody had negatively affected his health. He also alleged that the pre-trial investigation had been concluded, and that there were no grounds to believe that he might abscond from the trial or influence witnesses.

On 27 February 2002 the Court of Appeal dismissed his appeal, endorsing the grounds indicated in the order of 6 February 2002. The court acknowledged that the applicant had been in detention “for a long time already” and observed that after the case was transferred to court, some delays had been caused by “organisational matters of the court”. Nonetheless, in the view of the Court of Appeal, the length of the applicant's detention was justified by the complexity of the case (multiple charges against several co-defendants, numerous victims and witnesses) and a voluminous case file. The case had been adjourned several times at the request of the defence to examine certain additional evidence, or due to the failure by certain witnesses or defence lawyers to appear at the hearing. The circumstances justifying the applicant's detention persisted. The applicant and his defence counsel were present at the hearing.

On 9 May 2002 the Šiauliai Regional Court further extended the applicant's detention until 9 August 2002 on the same grounds. The applicant's lawyer was present at the hearing.

The applicant appealed, requesting a variation of the remand. He argued, inter alia, that the pre-trial investigation had been terminated, most of the victims and witnesses had been questioned in court, and it remained only for the court to evaluate the evidence and pass a judgment. Thus it was not likely that the applicant would influence witnesses or obstruct the establishment of the truth in the case, given that he had not done so for three and a half years.

On 24 May 2002 the Court of Appeal dismissed the applicant's appeal against the order of 9 May 2002. The court acknowledged that the applicant had been detained for a prolonged period. However, in view of the circumstances, such as the complexity and volume of the case and the number of charges against various co-defendants, the court concluded that the applicant's continuing detention was justified. The grounds for the applicant's detention thus continued to persist - it was necessary in order to guarantee that he would appear before the court, as well as to prevent the commission of new offences.

On 19 July 2002 the Šiauliai Regional Court convicted the applicant of being a member of a criminal organisation which possessed explosives (Article 227 § 2 of the Criminal Code), illegal possession of explosives (Article 234 § 1), attempts at aggravated murder (Articles 16 § 2, 105 §§ 2, 4, 8, 13), and destruction of property (Article 278 § 2). He was sentenced to fifteen years' imprisonment and fined, and his property was confiscated.

On 4 September 2003 the Court of Appeal acquitted the applicant. The court noted that the conviction was based to a decisive extent on the submissions of two witnesses, D.R. and M.S., who had not been examined in open court. The applicant was released in the courtroom.

On 2 March 2004 the Supreme Court dismissed an appeal by the prosecution.

On an unknown date the applicant lodged a complaint with the Ombudsman, arguing that the conditions of his detention at the Šiauliai Remand Prison were inadequate. In particular, the applicant contended that the facility was overcrowded and that the cell he had been placed in was constantly damp, the mats were wet and a sanitary unit did not work properly.

In the report of 1 July 2003 the Ombudsman partly agreed with the applicant's complaints, noting that the Šiauliai Remand Prison suffered from overcrowding (760 persons were held there, the limit being 454) and from a shortage of properly set up sanitary units. In the report the Ombudsman also observed that:

“the fact that the applicant was detained for more than four and a half years could demonstrate a significant risk that a violation of his right to a trial within a reasonable time or to release pending trial, that is to say a violation of Article 5 § 3 of the Convention, would be found. It could be said that a lengthy period of detention during judicial proceedings could have a disproportionate impact on his other rights: for example, the restriction on longer visits for those in pre-trial detention, no opportunity to take exercise, and other restrictions”.

In the operative part of the report the Ombudsman urged the responsible authorities to resolve the problem of overcrowding and to evaluate the hygiene conditions at the Šiauliai Remand Prison.

“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged. ...

The grounds for the detention shall be specified. The grounds ... shall be the reasonable suspicion that the accused will:

(1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences ... whilst suspected of crimes provided in Articles ... 105 [aggravated murder], ... 227 [founding a criminal organisation], ... 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... .

Where there is a reasonable risk that the accused will abscond from the investigation and trial, detention on remand may be ordered, taking into account the accused's family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”.

“... After the case has been transmitted to the court ... [a judge] can order, vary or revoke the detention. ...”

“Detention on remand cannot last longer than six months. A specific term of detention shall be fixed by the judge issuing the remand order; this term can be extended by the same judge or another judge of the same district court, but only for a period not exceeding six months.

In view of the particular complexity or size of a case, a judge of a regional court may extend the maximum term specified in the first paragraph of this Article for a period not exceeding three months. The extension may be repeated, but the total length of the term at the stage of the pre-trial investigation may not exceed eighteen months ...

For the purpose of extending the term of detention at the pre-trial stage ... a judge must convene a hearing to which defence counsel and the prosecutor and to which, if necessary, the detained person shall be summoned ... .”

“A person remanded in custody or his defence counsel shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against detention or the extension of its term ... . A judge or appellate court must examine the appeal within seven days of its receipt. With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel or counsel alone shall be summoned. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal ... .

A further appeal shall be determined when examining the extension of the term of the detention.”

“A judge, individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the selection of a remand measure is appropriate.”

“After deciding that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ...”

“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”

According to Article 16 of the Law on Pre-Trial Detention (Kardomojo kalinimo įstatymas), the administration of the relevant remand institution can allow detainees visits of up to two hours with family members.