CASE OF TILLACK v. BELGIUM
Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings (total)
András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
5. The applicant was born in 1961 and lives in Berlin. 6. He is a journalist on the German weekly magazine Stern. From 1 August 1999 until 31 July 2004 he was assigned to Brussels to report on the policies of the European Union and the activities of the European institutions. 7. On 27 February and 7 March 2002 Stern published two articles by the applicant based on confidential documents from the European Anti-Fraud Office (OLAF). The first article reported on allegations by a European civil servant concerning irregularities in the European institutions. The second concerned the internal investigations OLAF had carried out into those allegations. 8. A rumour began to circulate within OLAF that the applicant had paid 8,000 euros (EUR) or German marks (DEM) to a European civil servant in exchange for this information. 9. On 12 March 2002 OLAF, suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the European institutions, opened an internal investigation to identify the person who had disclosed the information to the applicant. 10. The minutes of an OLAF Supervisory Committee meeting held on 9 and 10 April 2002 stated in particular: “The members of the Supervisory Committee noted that the journalist’s articles were not at all aggressive in tone but hinted at the real situation, as was often the case with individuals. They were surprised that OLAF’s press release referred to a payment for such information. Consequently, they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard.” 11. In a letter of 24 March 2003 written in the course of his inquiry into a complaint (no. 1840/2002/GG) filed by the applicant against OLAF, the European Ombudsman indicated that the suspicions that the applicant had bribed an OLAF official had originated from “information from reliable sources, including members of the European Parliament”. 12. On 30 September 2003 OLAF issued a press release entitled “OLAF clarification regarding an apparent leak of information”. The press release was worded as follows: “On 27 March 2002, the European Anti-Fraud Office (OLAF) issued a press release announcing that it had opened an internal investigation under Regulation 1073/1999 into an apparent leak of confidential information included in a report prepared within OLAF. It stated that according to information received by the Office, a journalist had received a number of documents relating to the so-called ‘... affair’, and that it was not excluded that payment might have been made to somebody within OLAF (or possibly another EU institution) for these documents. OLAF’s enquiries have not yet been completed but to date, OLAF has not obtained proof that such a payment was made.” 13. On 30 November 2003 the European Ombudsman issued his decision. He had already submitted a draft recommendation to OLAF on 18 June 2003. The decision, which essentially reproduced the conclusions set out in the draft, stated in particular: “... 1.7 ... by publishing this press release, OLAF has not adequately implemented the Ombudsman’s draft recommendation. Instead of withdrawing the allegations of bribery, OLAF simply states that ‘to date’ it has not found sufficient evidence to support these allegations. The wording of this press release thus implies that OLAF considers it possible that evidence supporting these allegations could still emerge. In these circumstances, the action taken by OLAF is manifestly inadequate to remedy the instance of maladministration that the Ombudsman has identified. A critical remark will therefore be made in this respect. ... 4. Conclusion 4.1 On the basis of the Ombudsman’s inquiries into this complaint, it is necessary to make the following critical remark: By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration.” 14. On 11 February 2004 OLAF lodged a complaint with the Belgian judicial authorities, submitting a report on the internal investigation it had carried out. It also referred the matter to the German judicial authorities. 15. Consequently, on 23 February 2004, an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant. 16. On 19 March 2004, at the request of the investigating judge, the applicant’s home and workplace were searched by the Belgian judicial authorities. Almost all of the applicant’s working papers and tools were seized and placed under seal (sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet). It appears that the search warrant was not handed to the applicant but was read out to him. No inventory of the items seized was drawn up. On that occasion, the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by OLAF, which suspected him of having bribed a European civil servant in order to obtain confidential information. According to the applicant, the authorities subsequently lost a whole crate of papers, which was not found until more than seven months later, in November 2004. 17. On 29 March and 15 April 2004 the applicant applied to the Principal Public Prosecutor at the Brussels Court of Appeal for leave to consult the investigation file. His application was refused in a letter dated 17 June 2004. 18. The applicant applied again on 28 June 2004, to no avail. 19. In the meantime, on 24 March 2004, he had applied to the investigating judge to have the measures relating to the seizure discontinued. 20. By an order of 8 April 2004 the investigating judge rejected his application. 21. The applicant appealed, alleging, inter alia, a breach of Article 10 of the Convention. 22. The Indictment Division upheld the order on 22 September 2004, holding as follows: “The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom, and, if so, whether that right has an absolute value or is subject to restrictions, has not yet been established in law. The actual wording of Article 10 of the European Convention on Human Rights does not recognise the protection of journalistic sources, a right which has developed through the case-law of the European Court of Human Rights, albeit without having been enshrined as an absolute value according to legal authorities (see, to this effect, the judgment of the European Court of Human Rights in the case of Ernst and Others v. Belgium, 15 July 2003, no. 33400/96, Human Rights Information Bulletin no. 60, July-October 2003, pp. 4-5). Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information, although the exercise of this right does not give rise to immunity from prosecution or from civil liability (see in this connection the Bill granting journalists the right not to disclose their sources of information, passed by the Belgian House of Representatives on 6 May 2004, and the opinion of the National Council of Justice on the legislative proposals to grant journalists the right to protect their sources of information, approved by the General Assembly on 4 February 2004). The investigative measure complained of is, admittedly, an interference in the rights guaranteed by Article 10 of the ECHR. It was, however, lawfully ordered by the competent investigating judge in connection with the matter referred to him. It pursues legitimate aims since, in the context of the information in the case file brought to the attention of the court, whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information, its purpose is to ‘verify whether the protection of confidentiality applies to a lawful or unlawful source; the latter must be overridden by a superior value, namely the prevention of crime’ (written application by the Principal Public Prosecutor of 18 June 2004, p. 14). As is rightly noted by the investigating judge, it is not acceptable that the right to protect sources can be used to cover up offences, since this would deprive that right of its purpose, notably the provision of accurate and reliable information to the public, and would be likely to jeopardise public safety by creating de facto impunity (see to this effect the judgment of the European Court of Human Rights of 15 July 2003, JLMB, 2003, p. 1524). ... In the instant case, as the investigating judge noted in the order appealed against, in particular on page 3, paragraph 2.3.1, the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained, being justified by the ongoing duty to investigate, the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge. The arguments advanced by the applicant in his submissions to this court, which cannot substitute its own findings for those of the court below, do not give rise to any doubt in this respect. It follows that the appeal is unfounded.” 23. The applicant appealed on points of law. Relying in particular on Articles 6, 8 and 10 of the Convention, he submitted that freedom of expression included the freedom to seek out and collect information, essential aspects of journalistic activity. According to the applicant, that meant that journalists’ sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources. The applicant also complained that since he had not had access to the investigation file, he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search. 24. By a judgment of 1 December 2004 the Court of Cassation dismissed the appeal. It held that Article 10 of the Convention authorised restrictions on freedom of expression, that the search and seizure were provided for by the Code of Criminal Procedure and that the Indictment Division had given sufficient and adequate reasons for its decision. The Court of Cassation further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out. It was sufficient for the investigating judge to have evidence suggesting that that these premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant. Consequently, the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under Article 416 § 2 of the Code of Criminal Procedure, and was therefore inadmissible. 25. In the meantime, on 1 and 4 June 2004, the applicant had lodged two applications with the Court of First Instance of the European Communities. The first sought the annulment of the complaint filed by OLAF and compensation for the harm allegedly caused to the applicant’s career and reputation. The second sought a temporary injunction prohibiting OLAF from inspecting any document seized during the searches at issue. By an order of 15 October 2004 the President of the court dismissed the applications. The President ruled that OLAF’s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment. He stressed in particular that OLAF’s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings, given that the competent authorities remained free to decide on the action to be taken in relation to the report. As regards the applicant’s application for interim measures, he ruled that there was no causal link between the alleged harm and OLAF’s action and that it had not been established that OLAF had acted in breach of the principles of good administration and proportionality. 26. The applicant appealed. By an order of 19 April 2005 the President of the Court of Justice of the European Communities upheld the order. 27. In the context of those proceedings, the applicant received a copy of OLAF’s complaint but not of the other documents in the criminal file. At that time, he had not been charged in Belgium. On 17 November 2006 the Hamburg public prosecutor informed the applicant’s counsel that the investigation in Germany had been closed without any charges being brought. 28. On 12 May 2005 the European Ombudsman drafted a special report for the European Parliament following the draft recommendation he had addressed to OLAF in connection with a fresh complaint filed by the applicant (2485/2004/GG). In the complaint the applicant alleged that during the inquiry into complaint no. 1840/2002/GG, OLAF had provided incorrect information that was prone to mislead the Ombudsman; he requested the latter to conduct a new inquiry. 29. In his above-mentioned report, the Ombudsman stated that the alleged remarks by the members of the European Parliament (see paragraph 11 above) had probably never been made. They were rumours circulated by another journalist, Mr G., which the Director General of OLAF had not bothered to check with the members of the European Parliament concerned. 30. In his recommendation, the Ombudsman concluded that OLAF should acknowledge that it had made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter’s inquiry into complaint no. 1840/2002/GG. 31. Article 458 of the Belgian Criminal Code provides: “Medical practitioners, surgeons, health officers, pharmacists, midwives and all other persons who, by reason of their status or profession, are guardians of secrets entrusted to them and who disclose them, except where they are called to give evidence in legal proceedings (or to a parliamentary commission of inquiry) or where the law requires them to do so, shall be liable to imprisonment for between eight days and six months and a fine ranging from one hundred to five hundred francs.” 32. The relevant provisions of the Code of Criminal Procedure read as follows: “The investigating judge may, if required to do so or of his own motion, visit the home of the accused to search papers, effects and, in general, any items that may be deemed useful in establishing the truth.” “Similarly, the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden.” 33. Article 8 of Regulation EC No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF provides as follows in respect of confidentiality and data protection: “1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions. 2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities. Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity. ...” 34. Article 16 of the same Regulation provides that it is binding in its entirety and directly applicable in all Member States. 35. Paragraph 4 of Article 280 of the EEC Treaty states as follows; “The Council, acting in accordance with the procedure referred to in Article 251, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States. These measures shall not concern the application of national criminal law or the national administration of justice.”