European Court of Human Rights: Seizure of Dutch journalist’s confidential photographs illegal

The European Court of Human Rights (ECHR) decided in a Grand Chamber judgment on 14 September 2010, that the seizure of a journalist’s confidential photographs by the Dutch police was illegal.

Sanoma Uitgevers B.V., a Dutch publishing company, took their case to the ECHR after police seized photographs taken during an illegal car race, which was being covered by one of their magazines, Autoweek.

Autoweek had been invited to cover the illegal car-racing event in 2002, providing that they would not identify those involved and retouch the photographs so that license plates and individuals would not be recognizable.
The Dutch police raided the event, but no arrests were made. Later, when the police learned that Autoweek had photographs of the event, they demanded that these be handed over. When Autoweek refused to do so, the magazine’s editor-in-chief was arrested and the CD-ROM was seized by the police.

Sanoma took its case to the ECHR in 2003, which ruled that although the seizure could have a ‘chilling effect’ on the journalistic freedom of expression, the Dutch authorities were pursuing a legitimate aim in seizing the CD-ROM, which contained relevant information that could lead to the identification of the perpetrators of the illegal street race. Sanoma then requested that the case be referred to the Grand Chamber.

The Grand Chamber did not agree with the Chamber judgment. According to the Grand Chamber, the seizure had not been ‘prescribed by law’ and therefore qualified as a breach of Article 10 of the European Convention on Human Rights. More specifically, it found that an independent review by an impartial decision-making body was lacking. This review should be carried out by parties independent from those with a direct interest in the case. According to Dutch law, the public prosecutor is the party that carries out such a review, which, according to the Grand Chamber, does not constitute an objective and impartial party. The additional involvement of the investigating judge in reviewing the situation still did not qualify as an adequate safeguard for independence, according to the Grand Chamber.

This led the Grand Chamber to decide that

the quality of the law was deficient in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources. There has accordingly been a violation of Article 10 of the Convention in that the interference complained of was not “prescribed by law”. (para. 100)

The Netherlands was subsequently ordered to pay Sanoma EUR 35,000 for costs and expenses.