European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

Nagla v. Latvia - 73469/10

Judgment 16.7.2013 See: [2013] ECHR 688 [Section IV]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Urgent search at journalist’s home involving the seizure of data storage devices containing her sources of information: violation

 

Facts - The applicant worked for the national television broadcaster where she produced and hosted a weekly investigative news programme “De Facto”. In February 2010 she was contacted by an anonymous source who revealed that there were serious security flaws in a database maintained by the State Revenue Service (VID). She informed the VID of a possible security breach and then publicly announced the data leak during a broadcast of De Facto. A week later her source, identifying himself as “Neo”, began to use Twitter to publish information concerning the salaries of state officials in various public institutions, and continued to do so until mid-April 2010. The VID initiated criminal proceedings and in February 2010 the investigating police interviewed the applicant as a witness. She declined to disclose the identity of her source. In May 2010 the investigating authorities established that one I.P. had been connected to the database and had made several calls to the applicant’s phone number. I.P. was arrested in connection with the criminal proceedings. The same day the applicant’s home was searched, and a laptop, an external hard drive, a memory card, and four flash drives were seized after a search warrant was drawn up by the investigator and authorised by a public prosecutor.

Law - Article 10: The seized data storage devices contained not only information capable of identifying the journalist’s source of information but also information capable of identifying her other sources of information. Accordingly, the search at the applicant’s home and the information capable of being discovered therefrom came within the sphere of protection under Article 10. There had been interference with the applicant’s freedom to receive and impart information which interference was prescribed by law and pursued the aims of preventing disorder or crime and of protecting the rights of others.

The search warrant was drafted in such vague terms as to allow the seizure of “any information” pertaining to the offence allegedly committed by the journalist’s source and was issued under the urgent procedure by an investigator faced with the task of classifying the crime allegedly committed by I.P. and establishing the applicant’s role. These reasons were not, however, “relevant” and “sufficient” and did not correspond to a “pressing social need”.

The subject-matter on which the applicant reported and in connection with which her home was searched made a twofold contribution to a public debate: keeping the public informed about the salaries paid in the public sector at a time of economic crisis and about the database of the VID which had been discovered by her source. Although it was true that the actions of her source were subject to a pending criminal investigation, the right of journalists not to disclose their sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right to information, to be treated with the utmost caution.

When, three months after the broadcast, the investigating authorities decided that a search of the applicant's home was necessary, they proceeded under the urgent procedure without any judicial authority having properly examined the proportionality between the public interest in the investigation and the protection of the journalist’s freedom of expression. According to the national law, such a search could be envisaged only if delay might allow relevant documents or objects to be destroyed, hidden or damaged or the suspect to abscond. The ground given for an urgent search in the warrant was “to prevent the destruction, concealment or damaging of evidence” without further explanation. Information was acquired linking the applicant to I.P. in her capacity as a journalist. The applicant’s last communication with I.P. was on the day of the broadcast. In these circumstances, only weighty reasons could have justified the urgency of the search. However, the assessment was carried out by the investigating judge on the day following the search and the judges who subsequently examined the applicant’s complaint against the investigating judge's decision confined themselves to finding that the search did not relate to the journalist’s sources at all without weighing up the conflicting interests.

Although the investigating judge’s involvement in an immediate post factum review was provided for in the law, he failed to establish that the interests of the investigation in securing evidence were sufficient to override the public interest in the protection of the journalist’s freedom of expression, including source protection and protection against the handover of the research material. The court's reasoning concerning the perishable nature of evidence linked to cybercrimes in general could not be considered sufficient, given the investigating authorities’ delay in carrying out the search and the lack of any indication of the impending destruction of evidence. Nor was there any suggestion that the applicant was responsible for disseminating personal data or implicated in the events other than in her capacity as a journalist; she remained “a witness” for the purposes of these criminal proceedings. In sum, he domestic authorities had failed to give “relevant and sufficient” reasons for the interference complained of.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

 

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