Saint Paul Luxembourg S.A. c. Luxembourg

18 April 2013, European Court of Human Rights, Application no. 26419/10

Themes: Journalists and media workers

Sub-issues: Search and seizure of material

Test: Necessity in a democratic society

Penalty: search of publishing company's premises and seizure of journalist's materials

Decision: Violation of the right to Private and family life (Article 8), six votes against one; Violation of the right to freedom of expression (Article 10), Unanimity

Jurisdiction: European Court of Human Rights

Facts:

The applicant is a company publishing Contacto Seminario newspaper in Luxemburg.

In 2008 the newspaper published an article about families who had lost custody of their children after the intervention of social services. The journalist looked at the cases of two teenagers and the social worker in charge. The article was signed by "Domingos Martins".

Following a complaint for defamation by the social worker the prosecutor's office opened an inquiry on the basis of youth protection, libel and defamation. In view of the fact that the Luxemburg Press Council official list of journalists did not contain the name of Domingos Martin in 2009 the examining magistrate issued a search and seizure warrant for the company's head office. During the search the police identified the journalist who had written the allegedly defaming article. The journalist gave the policemen a copy of the newspaper, a notebook, and documents used to write the article, a computer file and a CD containing the article.

The applicant and the journalist requested the "arrondissement" tribunal to cancel the search and seizure warrant. They argued that the journalist's submission of the documents was not voluntary as he did not have any other choice but to cooperate.

The examining magistrate with "arrondissement" tribunal ordered the withdrawal of the seizure and the return of all documents and objects seized during the search. However the chamber council of the "arrondissement" tribunal declared that the request for annulling the search and seizure was not justified.

The applicant thus asked the European Court of Human rights to recognise that the search and seizure infringed its right to respect for private and family life, and its right to freedom of expression, guaranteed respectively by article 8 and 10 of the European Convention of Human Rights.

Concerning the violation of article 8 of the Convention, the applicant argued that the search of the newspaper office infringed the inviolability of the company domicile and was disproportionate. The Government contested the violation arguing first that the journalist voluntarily cooperated to the search and seizure, and secondly that the search was justified by the legitimate aims of defending public order and criminal offenses, the protection of rights and liberties of others. The Government claimed that the search was necessity to identify the author of the article as the name of the alleged author was not listed in the Press Council official register of journalists. It also submitted that the interference was not intrusive as all the documents were voluntary given by the journalist to the police.

Concerning the violation of article 10 of the Convention, the applicant argued that the search and seizure aimed at finding the journalist's sources and thus had an intimidating effect. The Government refuted that argument.

Held:

As to the violation of Article 8:

The Court found that it was provided by law and had pursued a legitimate aim. However the Court held that the search was unnecessary and disproportionate. According to the Court even if the identity of the journalist had been the aim of the search, the search was still disproportionate as the examining magistrate could have opted for a less intrusive measure than a search in order to confirm the identity of the article's author.

As to the violation of article 10:

The ECtHR recalled the key role of the protection of sources in guaranteeing the freedom of the press. It noted that the absence of such protection could dissuade journalistic sources to help the press informing the public on questions of public interest. This would then stop the press from being the "watchdogs" of democracies.

The Court, first, defined what information can allow identification of a source. It considered that these are "all circumstances around the obtaining of information by a journalist from a source" and "the unpublished part of the information given by a source to a journalist". It then noted that even if it did not appear that other sources than those already published in the article were revealed, the police -while searching the applicant's premises- was able to access information that the journalist did not intend to publish and susceptible to identify other sources. Following these two observations it decided that there had been an interference with "the applicant's right to receive or communicate information as found in article 10 of the Convention".

Next the ECtHR considered whether the interference was provided by the law, had a legitimate purpose and was necessary for a democratic society. According to the Court the first two requirements were met.

When considering whether the restriction was necessary, the judges noted that the formulation of the search warrant was too broad as it gave an extensive power to the police by leaving them the choice to decide what to seize. It also did not mention whether the aim of the search was to find the journalist's sources, thus not excluding this possibility. Finally, it allowed policemen to collect information not linked with the case. The Court concluded that the search and seizure were not necessary in a democratic society and violated the applicant's freedom of expression.

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