CASE OF BRAMBILLA AND OTHERS v. ITALY
No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information)
Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
5. The applicants were born in 1954, 1976 and 1971 respectively and live in Lecco. 6. The first applicant is the editor of a local online newspaper in the province of Lecco. The other two applicants are journalists working for the newspaper. 7. In the course of their activities, the applicants used radio equipment to access frequencies used by the police or the carabinieri. This enabled them to learn of any communications transmitted in that way, so that they could arrive quickly on the scene when wishing to report on specific incidents. 8. On 1 August 2002 the applicants listened in on a conversation during which the Merate carabinieri operations centre decided to send a patrol to a location where, according to anonymous sources, weapons had been stored illegally. 9. The carabinieri accordingly went to the location mentioned, and the second and third applicants arrived on the scene immediately afterwards. 10. Having obtained a search warrant, the carabinieri searched the applicants’ car, finding two frequency-modulation transmitter/receivers that were capable of intercepting police radio communications. 11. The carabinieri then went to the two journalists’ editorial office and seized two fixed radio receivers, which were tuned to the frequencies used by the carabinieri. Other frequencies used by police operations centres were stored in the devices’ memory. 12. Criminal proceedings were instituted against the first and second applicants for illegally installing equipment designed to intercept communications between law-enforcement agencies’ operations centres and patrols (Articles 617, 617 bis and 623 bis of the Criminal Code). The third applicant was charged with accessing the aforementioned communications (Articles 617 and 623 bis of the Criminal Code). 13. On 9 November 2004 the Lecco District Court acquitted the applicants. It held that the relevant Articles of the Criminal Code were to be interpreted in the light of Article 15 of the Constitution, which only protected communications of a confidential nature. 14. The District Court observed that the radio device used by the law-enforcement agencies was unable to ensure the confidentiality of the information it transmitted. Accordingly, the interception of the communications in question did not constitute an offence. Moreover, the possession and use of radio receivers were not prohibited as such. 15. The Milan principal public prosecutor and the Lecco public prosecutor appealed. They argued that the Lecco District Court’s interpretation was inconsistent with the Court of Cassation’s case-law in such matters (citing in particular judgment no. 12655 of 23 January 2001) and that the communications in issue were clearly confidential, bearing in mind the aims of ensuring public safety and protecting public order. In addition, the communications concerned the initial investigations following the commission of an offence. They were therefore subject to a confidentiality requirement pursuant to Article 329 of the Code of Criminal Procedure. 16. The confidential nature of the communications was also obvious from the fact that the carabinieri used coded language for communications concerning the location and the type of intervention, clearly seeking to ensure that no third parties had knowledge of the information being exchanged. In addition, the radiofrequencies involved had been exclusively assigned to operations centres by the Ministry of Defence. 17. Furthermore, in order to listen in on the conversations, the applicants had had to purchase special radio equipment, as ordinary equipment could not be used for this purpose. On the other hand, the fact that such devices were freely available on the market did not justify their use for intercepting conversations between law-enforcement officers. 18. In addition, in accordance with Presidential Decree no. 447/2001, as in force at the material time, devices of this kind were intended to be purchased by amateur radio operators but could not be used to intercept police radiofrequencies. Lastly, the Ministry of Communications’ decree of 11 February 2003 had expressly prohibited amateur radio operators from intercepting communications which they were not entitled to receive. 19. In a judgment of 15 May 2007 the Milan Court of Appeal found the first and second applicants guilty and sentenced them to one year and three months’ imprisonment. The third applicant was sentenced to six months’ imprisonment. The Court of Appeal suspended the applicants’ sentences. 20. It observed that Article 623 bis of the Criminal Code, as amended by Law no. 547 of 23 November 1993, had extended the scope of criminal responsibility to cover all remote data transmission, thus including the interception of conversations between the law-enforcement agencies’ operations centres and patrols. 21. Such communications were, moreover, clearly confidential. Reiterating all the arguments put forward by the Milan and Lecco public prosecutors, particularly regarding the aims of ensuring public safety and protecting public order, the Court of Appeal held that Article 329 of the Code of Criminal Procedure was also at issue in the present case. 22. The applicants appealed to the Court of Cassation. They contended that the communications in question had been transmitted on unencrypted frequencies and thus could not be treated as confidential. Furthermore, they had been acting in a professional capacity as journalists, and their actions were therefore justified under Article 51 of the Criminal Code and in terms of freedom of the press. 23. In a judgment of 28 October 2008 the Court of Cassation found against the applicants, upholding the Court of Appeal’s position as to the confidential nature of the communications and reiterating that this interpretation was consistent with its own approach in similar cases, particularly in judgments no. 25488 of 6 May 2004 and no. 5299 of 15 January 2008. 24. Addressing the applicants’ argument concerning freedom of the press, the Court of Cassation stated that the right to impart information, which they had relied on, might have prevailed over the public interests protected by criminal law in a case of alleged defamation. However, that right could not take precedence in a case concerning the illegal interception of communications between law-enforcement officers. ...