Handover of journalistic materials proportionate given the nature and seriousness of the crimes
31-03-2009 Print this page
No journalistic privilege: handover of journalistic materials proportionate given the nature and seriousness of the crimes: ramming wall with a shove. The actions of the police and the public prosecu-tors were characterised by a regrettable lack of moderation (paragraph 16 above). Even so, in the very particular circumstances of the case, the Court finds that the reasons advanced for the interference complained of were “relevant” and “sufficient” and “proportionate to the legitimate aims pursued”.
"57. In the present case the action complained of was not intended to identify the applicant company's sour-ces for prosecution. Rather, the seizure of the CD-ROM was intended to identify a vehicle used in crimes quite unrelated to the illegal street race. The Court does not dispute that a compulsory handover of journalistic ma-terial may have a chilling effect on the exercise of journalistic freedom of expression. However, it does not follow per se that the authorities are in all such ca-ses prevented from demanding such handover; whether this is the case will depend on the facts of the case. In particular, the domestic authorities are not prevented from balancing the conflicting interests served by pro-secuting the crimes concerned against those served by the protection of journalistic privilege; relevant consid-erations will include the nature and seriousness of the crimes in question, the precise nature and content of the information demanded, the existence of alternative pos-sibilities to obtain the necessary information, and any restraints on the authorities' obtention and use of the materials concerned (compare Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII).
58. The crimes were serious in themselves, namely the removal of cash dispensers by ramming the walls of buildings in public places with a shovel loader. Not on-ly did they result in the loss of property but they also had at least the potential to cause physical danger to the public. At a ram raid perpetrated on 1 February 2002 the perpetrators made use of a firearm to facilitate their crime (see paragraph 19 above). It was only after the threat of potentially lethal violence was made that the police and the public prosecutor were moved to de-mand from the applicant company the information which was known to be in their possession.
59. The Court is satisfied that the information con-tained on the CD-ROM was relevant to these crimes and, in particular, capable of identifying their perpetra-tors.
60. Given that the participation of the suspected vehi-cle in the street race only became known to the police after the race had taken place, the Court is satisfied that no reasonable alternative possibility to identify the ve-hicle existed at any relevant time.
61. It has not been stated, nor indeed is it apparent, that the authorities made use of the information obtained for any other purpose but to identify and prosecute the per-petrators of the ram raids. It may therefore be concluded that the applicant company's sources were never put to any inconvenience over the street race.
62. Finally, the Court has had regard to the extent of judicial involvement in the case. It is disquieting that the prior involvement of an independent judge is no longer a statutory requirement (paragraph 20 above). As it was, the public prosecutor obtained the approval of the investigating judge even without being so obli-ged by domestic law (paragraph 13 above); the Court considers this, as an addition to the applicant com-pany's entitlement under statute of review post factum of the lawfulness of the seizure by the Regional Court (paragraphs 15, 16 and 22 above), to satisfy the re-quirements of Article 10 in the present case.
63. The Court is bound to agree with the Regional Court that the actions of the police and the public pro-secutors were characterised by a regrettable lack of moderation (paragraph 16 above). Even so, in the very particular circumstances of the case, the Court finds that the reasons advanced for the interference com-plained of were "relevant" and "sufficient" and "proportionate to the legitimate aims pursued"."
