Cour européenne des droits de l’homme
FIFTH SECTION
CASE OF SEDLETSKA v. UKRAINE
(Application no. 42634/18)
JUDGMENT
Art 10 • Freedom of expression
• Protection of journalistic
sources • Interference with applicant’s
rights due to judicially authorised access to her mobile
telephone communications data not
“necessary in a democratic
society”: grossly disproportionate
and not justified by an “overriding requirement in the
public interest”
STRASBOURG
1 April 2021
This judgment will become final
in the circumstances set out in Article
44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Sedletska v. Ukraine,
The European
Court of Human Rights (Fifth Section),
sitting as
a Chamber composed of:
Síofra O’Leary, President,
Stéphanie Mourou-Vikström,
Lətif Hüseynov,
Lado Chanturia,
Ivana Jelić,
Arnfinn Bårdsen, judges,
Sergiy Goncharenko, ad
hoc judge,
and Victor Soloveytchik, Section Registrar,
Having regard
to: the application (no. 42634/18) against Ukraine lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian
national, Ms Nataliya Yuriyivna Sedletska (“the
applicant”), on 10 September 2018;
the decision
to give notice of the application to the Ukrainian
Government (“the Government”);
the decision
to indicate an interim measure to the respondent Government under Rule 39 of the Rules of
Court;
the withdrawal
of Ganna Yudkivska, the judge
elected in respect of
Ukraine, from sitting in the case (Rule 28 § 3 of the
Rules of Court) and the decision of the President of the Section to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the
Convention and Rule 29 § 1 (a));
the observations
submitted by the respondent
Government and the observations in reply submitted by the applicant;
the comments submitted by the Media Legal Defence
Initiative and Human Rights
Platform, who were granted leave to intervene by the President of the
Section under Article 36 § 2
of the Convention and Rule 44 § 3 of the Rules of Court;
Having deliberated in private
on 9 March 2021,
Delivers the following judgment, which was adopted
on that date:
INTRODUCTION
1. The present
case concerns complaints raised under Articles 10 and 13
of the Convention of interference with the protection of journalistic
sources as a result of judicial authorisation being given to the investigative authorities to access the applicant’s
communications data stored
by her mobile telephone operator and lack of effective remedies in respect of her relevant complaint.
THE FACTS
2. The applicant
was born in 1987 and lives in Kyiv. She was represented by Mr S. Zayets and Ms L. Pankratova, lawyers practising in Irpin and Kyiv respectively.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts
of the case, as submitted
by the parties, may be summarised
as follows.
- THE CIRCUMSTANCES
OF THE CASE
- Background of
the case
5. The applicant
is a journalist at the Kyiv office of Radio Free Europe/Radio Liberty. She is also
the editor-in-chief of the “Schemes:
Corruption in Detail” television programme. The programme has been
running since 2014 and many
of its issues concern senior prosecutors and politicians.
6. In 2015 the National Anticorruption Bureau of Ukraine (“the NABU”) instituted criminal proceedings against a prosecutor,
K., on suspicion of unjust enrichment. In the framework of those
proceedings, in the period between May and July 2016, the NABU tapped
the telephone of Ms N., K.’s
partner.
7. In 2017 K. started working at the Prosecutor
General’s Office (“the PGO”).
8. On 13 November 2017
the Obozrevatel media website published an article stating that in the summer of 2017 the head of the NABU, S., had held a closed
meeting with some media representatives during which he had disclosed confidential
information about some ongoing
criminal investigations, including the one against K. It was apparent
from this article that, among other
things, the media representatives
had listened to a recording
of a taped telephone conversation
between Ms N. and her acquaintance, in which the two of them were discussing
details of Ms N.’s private life. The Obozrevatel article was accompanied
by an audio file presented as
the audio recording of that meeting, including the recording of Ms N.’s telephone conversation with her acquaintance.
9. The same
day M., a Member of Parliament,
complained to the Prosecutor General that the above article was unlawful
and had indicated that S. had also
breached the rules of confidentiality
pertaining to ongoing criminal proceedings, as well as
Ms N.’s right to respect for her private life in divulging
information about her to
the journalists.
10. On 15 November 2017 Ms N. also complained
to the PGO about the same matter, asking that criminal proceedings
be instituted against S.
and his colleagues for breaching her privacy and making
public the material of the ongoing
criminal investigations.
- Criminal investigation of alleged misconduct by S.
11. On 16 November 2017 the
PGO instituted criminal proceedings against S. under Articles 163, 182, 328 and 387 of the Criminal
Code for violation of privacy and disclosure
of confidential information concerning
ongoing criminal investigations.
12. On 22 November 2017 the
PGO requested that the
Security Service of Ukraine (“the SSU”) conduct a
voice recognition analysis
of those present at the purported meeting with S. using the audio recording featured
in the article on the Obozrevatel media
website.
13. On 4 December
2017 the SSU informed the PGO of the results of the voice recognition analysis. It was
mentioned that the voices
on the recording were likely
to belong to S., his deputy U. and two journalists, B. and the applicant.
There were also several other
voices which could not be identified.
14. On 19 December 2017 the applicant was summoned to the PGO for questioning. She informed the investigator, I. (“the investigator”) that, as a journalist,
she communicated with many law-enforcement officials, including S.
Information received from public events was used in her
professional work. As to
the information received confidentially,
she claimed that, under Article 65 of the
Code of Criminal Procedure, she
could not be interviewed as a witness if it
would lead to the identification
of her journalistic
sources. For the same reason,
she refused to answer questions related to the alleged meeting with
S. and to either confirm or
deny her own presence at
that meeting.
- PGO’s request for access to the applicant’s
communications data and ensuing
events
15. On 27 August 2018 a PGO
investigator submitted a request
to the Pecherskyy District
Court in Kyiv (“the District Court”) for access to
the applicant’s communications
data from 19 July 2016 (the date when
the results of Ms N.’s phone tapping were formally documented) to
16 November 2017 (the date of institution of the criminal
proceedings against S.) held by the mobile service provider JSC “Kyivstar”. The requested data included dates, times, call
durations, telephone numbers, sent
and received text messages
(SMS, MMS), and the location of the applicant at the time of each call or message. The information was requested in order to establish the exact time and
place of the meeting with S.
16. The same
day P., an investigating judge
of the District Court (“the investigating
judge”) examined the investigator’s request and issued an order authorising the collection of the
data requested. It was noted in the order, in particular, that under Article 163 of
the Code of Criminal Procedure (CCP) it was possible
to examine the matter without the applicant being summoned, as there were
“sufficient reasons to believe that there
existed a real threat of the information sought being altered or destroyed”. The order stated that it
was not subject
to appeal and was valid for
one month.
17. On 1 September 2018 an article on
the Court Reporter media website stated that the PGO had started checking telephone calls made by [unnamed] journalists who had supposedly
been present at the purported meeting with S.
The site referred to the order
of the investigating judge
of 27 August 2018, and contained a link
to an anonymised version of
that order in the Unified State Register of Court Decisions. The article was accompanied by individual pictures of S. and a number
of journalists and human rights
activists, including the applicant.
18. On 4 September
2018 the PGO investigator wrote a letter
to the mobile service provider JSC “Kyivstar” referring to the District Court’s order of 27 August 2018
and informing the addressee
that data was only required about
the dates, times and location of the mobile
telephones of the applicant and one other person - apparently, B., - near the six specified streets and places
in Kyiv. It was also indicated that this information should be provided without any other
data being disclosed.
19. On 7 September
2018 the applicant and her lawyer asked the District Court for a copy of the order
of 27 August 2018. The request was
refused on 10 September
2018.
20. On 11 September
2018 the applicant, notwithstanding
the fact that the order of 27 August 2018 indicated
that it was
not possible to lodge an
appeal against it, challenged it before
the Kyiv City Court of Appeal (“the Court of Appeal”) and requested
its suspension.
21. On 15 September
2018 the Prosecutor General was asked
during a press conference about
the data sought from the mobile telephones of the applicant and B. He stated that while the freedom of journalistic activity was of paramount importance, some interference
with it was justified owing to the lack of alternative means of obtaining information about the
date on which the meeting of S. with journalists had taken place. He stated that information was only required from one cell of the mobile network, namely
that covering the NABU
offices. Nevertheless, he argued
that the period of sixteen months was justified. He also stated that
he was in principle ready
to show the reply from the mobile service provider to
make it apparent that no data identifying
any journalistic sources had been either
claimed or received.
22. On 18 September
2018 the Court of Appeal found it
possible to accept the applicant’s appeal against the order of 27 August 2018 for consideration.
It noted that court orders authorising “access to items and documents”
under Article 163 of the CCP were, as a general rule, not amenable to appeal. However, Article 309 of the CCP envisaged
an exception for cases, where such an order
would entail seizure of items or documents, without which an individual entrepreneur or a legal entity would
be unable to carry out their activity. Referring, in particular, to the importance
of the journalistic sources for the applicant’s professional
activity, the Court of Appeal decided that this exception
could be applied in her case. The court further noted, referring, in particular, to Article 8 of the
Convention and Section 17 of the State Support
of Mass Media and Social Protection of Journalists Act, that the investigating judge of the District Court had not given proper
reasons for the disputed order and had not
complied with the requirements
of domestic law, in violation of the applicant’s rights. The Court of Appeal considered,
however, that the scope of
the data requested in the investigator’s
letter of 4 September
2018 was not excessive. It quashed
the District Court’s order and made a new one authorising
access to data about the dates
and time of presence of the applicant’s
mobile telephone on six specified
streets and places in Kyiv during the period from 19 July 2016
to 16 November 2017. The relevant part of the order read as
follows:
“... as correctly noted by the appellant, and as the judicial panel agrees, the
investigative judge issued
the order for temporary
access ... without due reason,
failing to comply with
legislative requirements, in breach
of the [applicant’s] rights,
as a journalist, protected by law.
At the same
time, as the prosecutor explained
at the hearing, such measures were used
with a view to achieving efficiency in the aforementioned criminal proceedings, in particular, in order to establish more exactly the time
and place of the commission of an offence,
... since, being questioned as a witness, [the applicant] had refused to give a statement to the investigation in this regard.
In addition, it can be seen from the letter of [the PGO investigator] of 4 September 2018 ... that the latter was only
asking for permission to
access data concerning dates
and times and the location of the [applicant’s
telephone] between 19 July 2016
and 16 November 2017 within the boundaries of the base stations of the operator located in Kyiv on the [following]
streets: Surikova [Street], Bogdanivska [Street], Shovkunenka [Street],
... Lypkivskogo [Street], Khomova Lane, Povitroflotskiy Avenue, Solomyanska Square
and the [area covered by these
stations].
The judicial
panel considers that allowing the aforementioned request by the investigator in this
particular aspect shall correspond to the task of
the criminal investigation
to ensure a prompt, comprehensive
and unbiased inquiry and will sufficiently safeguard the protected rights and lawful interests of the [applicant] as a journalist.”
23. On 20 September 2018 the applicant
and her lawyer asked the mobile service provider JSC “Kyivstar”
and the PGO whether the investigation
had had access to the applicant’s mobile telephone data in accordance
with the orders of 27 August and 18 September 2018. Fifteen NGOs and the media made a “flash mob” requesting
the same information from the PGO. All these requests
were refused on the basis of the confidentiality
of the ongoing investigation.
- PROCEDURE BEFORE
THE COURT
24. On 10 September
2018 the applicant asked
the Court for the indication of an interim measure under Rule 39 of the Rules of the Court.
25. On 18 September
2018 the Court indicated to the Government under
Rule 39 of the Rules of the Court that, in the interests of the parties and the proper
conduct of the proceedings,
they should ensure that the public authorities abstain from accessing any of the data specified in the order of
27 August 2018 concerning the applicant.
26. On 27 September
2018, when interviewed during a visit to Parliament, the Prosecutor General stated
that no data had been received
from the mobile telephone operator, that they had complied
with the decision of the Court [regarding
the indicated interim measure]
but that they would need
the data to investigate a serious crime and would try to explain
this to the Court.
27. On 16 October 2018 the Court extended
the aforementioned interim measure indicating to the
Government of Ukraine to ensure that
the public authorities abstain
from accessing any data mentioned in the ruling of 18 September 2018
by the Kyiv City Court of Appeal concerning the applicant until further notice.
28. On 12 February
2019 the PGO informed the Government’s
Agent within the framework of the present
proceedings that they had not
carried out any of the
actions authorised by the orders
of 27 August and 18 September 2018 in the applicant’s case, taking into account the requirements imposed under Rule 39.
RELEVANT LEGAL FRAMEWORK
- RELEVANT DOMESTIC
LAW
- Constitution
of Ukraine
29. Article 34
of the Constitution of Ukraine reads:
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression
of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise
of these rights may be restricted by law in the interests of national security, territorial
indivisibility or public order,
with the purpose of preventing
disturbances or crimes, protecting
the health of the population,
the reputation or rights of
other persons, preventing the publication of
information received confidentially,
or supporting the authority and impartiality
of justice.”
- Criminal Code
30. The relevant
provisions of the Code concern
the following offences:
- Article
163: Violation of privacy of mail, telephone conversations, telegraphs and other correspondence conveyed by means of communication or via computers;
- Article 182:
Violation of personal privacy;
- Article 328:
Disclosure of State secrets;
- Article 387:
Disclosure of information on pre-trial investigation or inquiry.
- Code of Criminal Procedure (“the CCP”)
31. The relevant
provisions of the Code provide
as follows:
Article 65 – Witness
“...
2. The following persons may not
be interviewed as witnesses:
...
(6) journalists,
about confidential
information of a professional nature provided on condition of non-disclosure of its author or source ...”
Article 163 – Consideration of a request for provisional access to
items and documents
“1. Upon receiving a request for provisional access to items and documents,
the investigating judge or
court shall summon the person in possession of the items
and documents, except in
the case specified in [paragraph
2] of this Article.
2. If the
party to criminal proceedings
that filed the request proves that there are sufficient grounds to believe that a real threat
exists of the items and documents
concerned being altered or destroyed, the request may be considered by the investigating judge or court without the person in possession of them being summoned
... ”
Article 309 – Rulings by an investigative judge, which can be appealed at the pre-trial investigation stage
“1. The following
rulings by an investigative judge may
be appealed at the pre-trial investigation stage:
10) [concerning] provisional access to
items and documents, which authorise seizure of items and documents, ... in absence of which an individual entrepreneur or a legal entity will be deprived of an opportunity to carry out their activity; ...
...
3. Other rulings by an investigative judge
may not be appealed against and objections against them may be submitted
during preparatory hearing
in court.”
- State Support
of Mass Media and Social Protection of Journalists Act of 23 September
1997
32. The relevant
part of section 17 of the Act provides
as follows:
Section 17 – Liability for trespass
or other actions against
the life and health of a journalist
and a journalist’s liability for non-pecuniary damage caused by him/her
“... The professional
activities of a journalist shall
not serve as grounds for his or her arrest
and detention, or for the seizure
of material collected, processed and prepared by him or her or technical [equipment] that he or she uses in his
or her work...”.
- RELEVANT
INTERNATIONAL MATERIAL
33. Several
international documents concern
the protection of journalistic
sources, including the Resolution
on Journalistic Freedoms
and Human Rights, adopted
at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and
the European Parliament’s
Resolution on Confidentiality
for Journalists’ Sources (18 January 1994, Official Journal of
the European Communities No. C 44/34).
34. Recommendation
No. R (2000) 7 on the right of journalists not to disclose their sources of
information was adopted by
the Committee of Ministers of the Council
of Europe on 8 March 2000. The appendix contains principles concerning the right of journalists not to disclose their sources of
information, including the following:
Definitions
“For the purposes
of this Recommendation:
a. the term ‘journalist’ means any natural or legal person who
is regularly or professionally engaged in the collection and dissemination of
information to the public via any means
of mass communication;
b. the term ‘information’ means any statement
of fact, opinion or idea in the form
of text, sound and/or picture;
c. the term ‘source’ means any person
who provides information to
a journalist;
d. the term ‘information
identifying a source’ means,
as far as this is likely
to lead to the identification of a source:
i. the name and personal data as well as
voice and image of a source,
ii. the factual
circumstances of acquiring
information from a source by a journalist,
iii. the unpublished
content of the information provided
by a source to a journalist, and
iv. personal data of journalists and their employers related to their professional work.
Principle 1 (Right of non-disclosure of journalists)
Domestic law and practice in member States should provide for explicit and
clear protection of the right
of journalists not to disclose information identifying
a source in accordance with Article
10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the
Convention) and the principles established
herein, which are to be considered as minimum standards
for the respect of this right.
...
Principle 3 (Limits to the right of
non-disclosure)
a. The right
of journalists not to disclose information identifying
a source must not be subject
to other restrictions than those mentioned
in Article 10 § 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10 §
2 of the Convention outweighs the public interest in not disclosing information identifying
a source, competent authorities
of member States shall pay particular regard to the importance of the right of non-disclosure and the pre‑eminence given to it in the case-law of the European Court of Human Rights,
and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest
and if circumstances are of
a sufficiently vital and serious nature.
b. The disclosure
of information identifying a source should not be deemed
necessary unless it can be convincingly established that:
i. reasonable
alternative measures to the disclosure
do not exist or have been exhausted
by the persons or public authorities
that seek the disclosure, and
ii. the legitimate
interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:
• an overriding
requirement of the need for
disclosure is proved,
• the circumstances
are of a sufficiently vital
and serious nature,
• the necessity
of the disclosure is identified as responding
to a pressing social need, and
• member
States enjoy a certain margin of appreciation in assessing this need, but this
margin goes hand in hand
with the supervision by the European
Court of Human Rights.
c. The above
requirements should be applied at all
stages of any proceedings where the right of non-disclosure might be invoked.
Principle 4 (Alternative evidence
to journalists’ sources)
In legal proceedings against a journalist on grounds of an alleged
infringement of the honour
or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise
of the allegation, all evidence which is available to them under national procedural law and may not
require for that purpose the disclosure of
information identifying a source by the journalist.
...
Principle 6 (Interception of communication, surveillance and judicial search and seizure)
a. The following measures should not be applied if their purpose
is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying
a source:
i. interception
orders or actions concerning
communication or correspondence
of journalists or their employers,
ii. surveillance
orders or actions concerning
journalists, their contacts or their employers, or
iii. search
or seizure orders or
actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.
b. Where
information identifying a source has
been properly obtained by police or judicial authorities by any of the above actions, although this might
not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.”
35. On 25 January 2011 the Parliamentary
Assembly of the Council of Europe adopted
Recommendation 1950 (2011), The protection of journalists’ sources, which, inter alia, indicated
as follows:
“5. Public authorities
must not demand the disclosure
of information identifying a source unless the requirements of Article 10, paragraph 2, of the
Convention are met and unless
it can be convincingly established that reasonable alternative measures
to disclosure do not exist or have been
exhausted, the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure,
and an overriding requirement
of the need for disclosure is proved.
6. The disclosure
of information identifying a source should therefore be limited to exceptional circumstances where vital public or individual interests are at stake and can be convincingly established. The competent authorities, requesting exceptionally the disclosure of a source, must specify
the reasons why such vital interest
outweighs the interest in
the non-disclosure and whether
alternative measures have been exhausted, such as other
evidence. If sources are protected against any disclosure under national law, their disclosure
must not be requested.
...
8. The right
of journalists not to disclose their sources applies also to sources from within the police or judicial authorities. Where such provision
of information to journalists was
illegal, police and judicial authorities must pursue internal investigations instead of asking journalists to disclose their sources.
...
12. The Assembly reaffirms that the confidentiality of journalists’ sources
must not be compromised by
the increasing technological
possibilities for public authorities
to control the use by journalists of mobile communication and Internet media. The interception
of correspondence, surveillance
of journalists or search
and seizure of information must not
circumvent the protection
of journalists’ sources. Internet service
providers and communication companies should not be obliged
to disclose information which
may lead to the identification
of journalists’ sources in violation
of Article 10 of the Convention.”
36. On 8 September
2015 the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
submitted a report to the UN General Assembly
(A/70/361), which stated, inter
alia (footnotes omitted):
“C. Nature and scope of protection
21. Some authorities
refer to a journalistic ‘privilege’ not to disclose a source’s identity, but both
reporter and source enjoy rights
that may be limited only according to article 19 (3). Revealing or coercing the revelation of the identity of a source creates disincentives for disclosure, dries up further sources to
report a story accurately and damages
an important tool of accountability. In the light of
the importance attached to
source confidentiality, any
restrictions must be genuinely
exceptional and subject to
the highest standards, implemented
by judicial authorities only. Such situations should be limited to investigations
of the most serious crimes
or the protection of the life of other
individuals.
22. National laws
should ensure that protections apply strictly, with extremely limited exceptions.
Under Belgian law, journalists and editorial staff may be compelled by a judge to disclose information
sources only if they are of a nature to prevent
crimes that pose a serious threat to the physical integrity of one or more persons,
and upon a finding of the
following two cumulative conditions:
(a) the information is of crucial
importance for preventing such crimes; and (b) the information cannot
be obtained by any other means. The same conditions apply to investigative measures, such as searches,
seizures and telephone tapping, with respect to journalistic sources.”
THE LAW
- ALLEGED VIOLATION
OF ARTICLE 10 OF THE CONVENTION
37. The applicant
complained that the court orders allowing the PGO to access
her mobile telephone communications
data had constituted an unjustified interference with her right to the protection of journalistic
sources. She relied on Article 10 of the Convention, which
reads as follows:
“1. Everyone
has the right to freedom of expression. This right shall
include freedom to hold
opinions and to receive and impart
information and ideas without
interference by public authority and regardless of frontiers. This Article shall
not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise
of these freedoms, since it carries
with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or
penalties as are prescribed
by law and are necessary in
a democratic society, in the interests
of national security, territorial integrity
or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights
of others, for preventing
the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.”
- Admissibility
38. The Government argued that the complaint was manifestly
ill‑founded, alleging
that the measures of interference complained of had been duly
justified under Article 10 § 2
of the Convention.
39. The Court finds that the complaint raises an issue which lends
itself to be examined on
the merits. It further notes that it is not
inadmissible on any other grounds listed in Article 35 of the Convention. It
must therefore be declared admissible.
- Merits
- Submissions by
the parties
(a) The applicant
40. The applicant
argued that the disputed court orders of
27 August and 18 September 2018, which had allowed
the PGO to access her mobile telephone communications data, had constituted an unjustified interference with her rights under Article 10.
41. She
considered that the applicable domestic law did not
contain sufficient procedural safeguards aimed at the protection
of the journalistic sources. In particular,
the applicant expressed her dismay with the fact that the order
of 27 August 2018 had been
taken at an ex parte hearing
and had not been served on her. If she
had not learned
of its existence by pure
chance, she would never have been
able to appeal against it and would not
have known that the integrity of her communications data and her sources could be compromised.
42. She
further argued that both of the aforementioned court orders had not been
necessary in a democratic society.
43. In particular,
there had been no pressing social need for
the disclosure of the applicant’s
communications data. Her purported participation in a confidential meeting
with S. of the NABU had been
a mere “probability”. Neither
the authenticity of the audio recording of that meeting nor the authenticity of her voice on it had been
established with certainty.
It had likewise
not been established that the PGO officials had exhausted
other, more targeted and less intrusive means of establishing the relevant facts. Among other
things, they could have started
by examining the NABU visitors’ log
book.
44. The applicant
further argued that, in any event, the scope of communications data which could be divulged to the PGO pursuant to the disputed court orders had been
grossly disproportionate.
In her view, the goal of protecting the reputation of Ms N. or prosecuting the
NABU officials for leaking confidential information could not be considered an “overriding interest” for the disclosure of her mobile communications over a sixteen-month
period. This information could lead to the identification
of the applicant’s sources in journalistic
investigations concerning
high-profile corruption.
The court orders had contained no restrictions concerning the use of this data,
making it potentially accessible, at the very least, to the sixteen members of the PGO
investigative team working on the case against S. The
risk of such disclosure having a detrimental effect had been all the more imminent as at least
seven of the applicant’s recent investigations concerned corruption within the ranks of the PGO.
In addition K., the subject
of the NABU investigation in which
the information had been leaked, had himself
worked at the PGO and could have had
an unhealthy interest in
the applicant’s data.
45. The applicant
also pointed out that she had
never been able to know with certainty whether either of the judicial orders had been enforced.
She submitted that the PGO’s written assurances to the contrary (see paragraph 28
above) were not sufficiently convincing. She pointed out that on 4 September 2018 the PGO had
in fact asked her mobile telephone operator to disclose
the impugned data and that
the latter had subsequently refused to inform her whether
this request had been satisfied
– accordingly, it was not possible
to exclude that it had been
(see paragraphs 18
and 23 above). Furthermore,
it could be discerned from the statements made
by the Prosecutor General at a press conference on
15 September 2018 that
the operator had in fact responded to the PGO’s request (see paragraph 21
above). In any event, even if the two
disputed court orders had remained unenforced,
this had only been due to the indication of an interim measure
by the Court, and not because
the domestic authorities had intervened to protect the applicant’s rights. She also
expressed her fear that the PGO would keep seeking
other ways of accessing her communications data, as was evident
from the statement by the Prosecutor General himself (see paragraph 26
above).
46. According
to the applicant, both the measure of interference authorised by domestic courts and the persistent uncertainty as to whether or not the respective court orders had been enforced
and whether the confidentiality
of the applicant’s sources could
be compromised had had a prohibitive chilling effect on her activity as an investigative journalist.
(b) The Government
47. The Government argued that there
had been no breach of the applicant’s rights under Article 10 in
the present case.
48. They submitted the written assurances given by the PGO that neither of the two disputed court orders had been enforced.
They also noted that the order of 27 August 2018 had been replaced by the order of 18 September 2018
and the latter had expired on the same date as the District Court’s order would
have, that is, on 27 September 2018.
Therefore, neither of them could still
be enforced. Notwithstanding
the above, the Government acknowledged
that the aforementioned
court orders had amounted to an interference with
the applicant’s right to impart and receive information
under Article 10 of the Convention.
49. The Government argued that the judicial authorisation given to the PGO to access the applicant’s
communications data in accordance
with the provisions of the CCP had
been lawful. They further argued
that the disputed interference had pursued legitimate aims, in particular, investigation of a serious
crime and protection of the rights
of Ms N.
50. Access to the applicant’s communications data had been necessary
to establish the place and date of the meeting during which the NABU officials, in breach of the law, had leaked
information protected by the confidentiality
of the ongoing criminal investigation and encroaching upon the private life and correspondence
of Ms N. Before seeking the disputed authorisation, the PGO officials had exhausted other,
less intrusive measures, which could lead to the establishment
of the relevant facts crucial for the investigation into the apparent serious crime. In particular,
they had questioned the applicant as a witness, but
she had refused
to provide any information,
referring to journalistic privilege against the disclosure of sources.
51. The Government further argued that any shortcomings
in the District Court’s order of 27 August 2018 (which,
according to them, remained unenforced) had been remedied
by the order issued by the
Court of Appeal on 18 September 2018 to replace it. In particular, the Court of Appeal had taken into account the fact that the applicant
was a journalist and was not herself
party to the criminal proceedings
at issue. It had also
restricted the scope of the authorisation to the geolocation data concerning the applicant’s presence within a particular perimeter, which had corresponded to the “cell” covering the NABU. The period covered by the authorisation had been limited only to the period of time within which the apparent offence could have
been committed. In addition, the authorisation itself could only
be enforced during a very limited ten-day period (until 27 September 2018).
52. The Government considered that the applicant’s allegations that the disputed measure could result
in the identification of her
journalistic sources and that
her communications data could be used for ulterior motives were unsubstantiated and very general.
(c) The third parties
53. The Media Legal Defence Initiative and Human Rights Platform submitted that the problem of interference with the confidentiality
of journalistic sources transcended
all member States of the Council of Europe, posing new legal challenges in view of technological advances and the emergence of new types of media, communications and information processing. They suggested that that pre-eminence
of the protection of “journalistic
sources” in the broadest sense
was crucial to the preservation of the “public watchdog” function
of the modern media and that
the principles enunciated
in Recommendation No. R (2000) 7 (see paragraph 34 above) and the Court’s case law remained the guidelines to be followed. The interveners also expressed concern that the Court’s judgment in the case of Becker v. Norway could be perceived as lowering
the source protection standard as
compared to the earlier Tillack v. Belgium judgment. In particular, it could read
as suggesting that the level of source protection might depend on such factors as unscrupulous
or illegal conduct of a journalist and, vice versa,
that a journalist’s right to protection of sources might depend on the conduct of a source. In the interveners’ view, the appropriate test should
not depend on the status of
a particular “social communicator”,
the conduct of such a communicator or the source. Instead,
the crucial question should be whether a particular person acted for the purpose of informing the public of a matter
of legitimate public interest.
- The Court’s assessment
(a) General principles concerning the protection
of journalistic sources
54. The Court reiterates at the outset that the protection of journalistic
sources is one of the cornerstones
of freedom of the press. Without
such protection, sources may be deterred from assisting the press in informing
the public about matters of
public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of
the press to provide accurate and reliable
information may be adversely
affected (see, among other authorities, Goodwin
v. the United Kingdom, 27 March 1996, § 39, Reports
of Judgments and Decisions 1996‑II
and Sanoma Uitgevers B.V.
v. the Netherlands [GC], no. 38224/03, § 50, 14 September 2010).
55. The Court’s
understanding of the concept of journalistic
“source” covers “any person
who provides information to
a journalist” and the “information identifying a source” has been considered to include any information likely to lead to
the identification of a source, both
“the factual circumstances
of acquiring information from a source by a journalist” and “the unpublished content of the information provided
by a source to a journalist” (see,
for example, Telegraaf Media
Nederland Landelijke Media
B.V. and Others v. the Netherlands, no. 39315/06, § 86,
22 November 2012 and Saint-Paul Luxembourg S.A. v.
Luxembourg, no. 26419/10, § 50, 18 April 2013). A chilling effect on the freedom of the press will arise wherever journalists are seen to assist in
the identification of anonymous
sources (see Sanoma Uitgevers B.V., cited above, § 71).
(b) Application of the above principles in the present case
(i) Whether
there was an interference with the applicant’s
freedom of expression
56. In the present case, the national courts
authorised the PGO to access the applicant’s
communications data stored
by her mobile telephone operator. The parties agreed that the impugned authorisation, regardless of whether either of the two relevant court orders had been enforced,
had amounted to an “interference” with the applicant’s
rights under Article 10 of
the Convention. The Court sees no reason
to hold otherwise.
57. The Court must therefore examine whether the interference was justified under the second paragraph of Article 10 of
the Convention, that is, whether it was
“prescribed by law”, pursued one or more legitimate aims and was “necessary
in a democratic society” (see,
among other authorities, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 141, 27 June 2017).
(ii) Whether
the interference was justified
(1) Whether
there was “a legitimate aim” for the interference
58. The Court first notes that the aforementioned authorisation was given for the purpose of furthering the investigation concerning the leak of confidential
information regarding ongoing
criminal proceedings and
the private life of Ms N. The Court is therefore satisfied
– and it has not been disputed
by the parties – that the interference
at issue pursued some of the “legitimate aims” listed in Article 10 § 2, in particular,
“the prevention of ... crime” and “protection of the reputation or rights of others” (compare Becker
v. Norway, no. 21272/12, § 60, 5 October 2017).
(2) Whether
the interference was “prescribed by law”
59. In considering
whether the interference at issue was
“prescribed by law”, the
Court observes that access
to the applicant’s communications
data was authorised by the
national judicial authorities
under Article 163 of the CCP (see paragraph 31 above). The measure in question therefore had some basis in domestic law. In so far as the applicant complained that the relevant law lacked
procedural safeguards, notably as the court decision in her case had been taken
at an ex parte hearing, it appears that,
under the CCP, ex parte hearings
are only allowed in exceptional cases. Under Article 163 § 2, in order
to obtain an ex parte hearing,
the party who files a request
for access to “items and documents” must prove “that there are sufficient grounds to believe that a real threat
exists of the items and documents
concerned being altered or destroyed”. In all other cases,
as it appears
from Article 163 § 1, the national courts are required to summon the persons concerned by such access requests to the hearings. In the Court’s view, this
general requirement constitutes
an important procedural safeguard for all persons potentially concerned by data access requests,
including journalists.
60. It
appears that in the applicant’s case, this safeguard was not
implemented owing to
the particular interpretation of
Article 163 of the CCP by the District Court. Rather than enunciating
specific reasons for considering the PGO’s request without summoning the applicant, the District Court made a formulaic reference to the “threat of the
information sought being altered or destroyed” (see paragraph 16 above). In the Court’s view, giving more ample reasons for justifying the above finding was of significant importance, in particular, because the data in question, stored by the applicant’s mobile
operator, was not in her personal possession. As a consequence of the District Court’s decision to apply Article 163 § 2, the applicant
was also not notified by it that the PGO had obtained an authorisation to access her communications data and, once she
learned about that authorisation from other sources, the District Court
refused to provide her with a copy of its respective order (see paragraphs 17 and 19 above). It appears
that had it not been
for a pure chance that the applicant
became aware of that order, she
might not have been able
to make use of any procedural
safeguards existing in the domestic law for protecting her rights. The Court is deeply concerned with this possibility, which would be tantamount to arbitrariness. However, given that in this particular
case, the applicant did in fact learn about
the existence of the disputed
order and the Court of Appeal found
it possible to accept her appeal for consideration and to quash the order, the Court finds that the crux of the applicant’s remaining argument before it concerns the relevance and sufficiency of the reasons provided by the judicial authorities for authorising the interference with
her protected data. The
Court therefore finds it necessary to continue its examination of the case by turning to the question whether the interference was necessary in
a democratic society (compare Nagla v. Latvia, no. 73469/10, §§ 87‑91, 16 July 2013;
and Becker, cited above,
§§ 63-64).
(3) Whether
the interference was “necessary in a democratic
society”
‒ General principles
61. The Court reiterates that its task in assessing the “necessity” of the interference is not to take the place of the
national authorities, but rather to review, in the light of the case as a whole, whether
the decisions they have taken pursuant
to their power of appreciation
were compatible with the provisions of the Convention relied
upon (see, among other authorities, Telegraaf Media Nederland Landelijke Media B.V. and Others, cited above, § 124).
The Court must accordingly examine
the reasons given by the judicial authorities for authorising access to information together
with the scope of that access, in order
to ascertain whether those reasons were
“relevant” and “sufficient”
and thus whether, having regard to the margin of appreciation afforded to the national authorities,
the interference was proportionate to the legitimate aims pursued and whether it corresponded
to a “pressing social need” (see,
among other authorities, Nagla, cited above, § 94).
62. Having
regard to the importance of
the protection of journalistic
sources for press freedom in a
democratic society, the Court has
repeatedly stated that limitations on the confidentiality of journalistic
sources call for the most careful
scrutiny (see, among other authorities, Roemen and Schmit v.
Luxembourg, no. 51772/99, § 46, ECHR 2003‑IV, and Saint-Paul
Luxembourg S.A., cited above,
§ 58). An interference potentially leading to disclosure of a source cannot be considered “necessary” under Article 10 § 2 unless
it is justified
by an overriding requirement
in the public interest (see,
among other authorities, Roemen and Schmit, cited above, § 46; Voskuil v.
the Netherlands, no. 64752/01, § 65, 22 November 2007; and Becker,
cited above, §§ 65-66,
with further references). The
Court has previously held that to establish
the existence of an “overriding
requirement” it may not be sufficient
for a party seeking disclosure
of a source to show merely that
he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases the claim: the considerations to be taken into account by the Court for its
review under Article 10 § 2 tip the balance of competing interests in favour of the interest of democratic society in
securing a free press (see Goodwin,
cited above, § 45; compare
also Roemen and Schmit, cited above, § 58; Voskuil,
cited above,
§ 72; Martin and Others v. France, no. 30002/08, § 87, 12 April 2012; and Ressiot and Others v. France, nos. 15054/07 and 15066/07, § 126, 28 June 2012).
In this connection, the right
of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending
on the lawfulness or unlawfulness
of their sources, but is part and parcel of the right to information, to be treated
with the utmost caution (see, among other
authorities, Tillack v.
Belgium, no. 20477/05, § 65, 27 November 2007).
63. In a series
of cases concerning searches of journalists’ homes and workplaces and the seizure of journalistic material, the Court recognised that such measures,
even if unproductive,
constituted a more drastic type of interference than a targeted order to divulge the source’s identity, since such measures
had allowed the relevant authority to obtain
access to a broad range of the material
used by the journalists in discharging their professional functions (see, among other
authorities, Roemen and Schmit, cited above, § 57; Ernst and Others v. Belgium, no. 33400/96, § 103, 15 July
2003; Nagla, cited
above, § 95; and Görmüş and
Others v. Turkey, no. 49085/07, § 73, 19 January 2016).
Similar conclusions were reached by the Court in a case where the seizure also concerned,
among other things, the journalists’ communications data (see Ressiot and Others, cited above, § 125).
‒ Application of those principles in the present case
64. Examining
the present case in the light of the aforementioned principles, the
Court considers that the reasons given by the domestic judicial authorities for the interference
with the applicant’s rights
under Article 10 were not sufficient to demonstrate that the interference was proportionate and that it corresponded to a pressing
social need.
65. In this
connection, the Court notes firstly that the District Court’s order of
27 August 2018 authorised the PGO to collect a wide range of the applicant’s
protected communications
data concerning her
personal and professional contacts
over a sixteen-month period.
The disputed authorisation included, in particular,
access to information concerning the time and
duration of the applicant’s communications
and the telephone numbers of her
contacts (see paragraphs 15-16 above). This data could possibly include identifiable
information concerning the applicant’s
confidential sources which had no relevance to the criminal proceedings regarding the alleged misconduct of S. (compare and contrast Weber
and Saravia v. Germany (dec.),
no. 54934/00, § 151, ECHR 2006‑XI). The risk of detriment to the interests protected by Article 10 was all the greater
as the focus of the applicant’s
work as a journalist had been on investigating
high-profile corruption, including corruption within the PGO itself. The District Court’s order contained no safeguards excluding the possibility that information potentially leading to the identification of any such sources would become available to a wide circle of PGO officials and could be used for purposes unrelated to the criminal investigation concerning S. These elements are sufficient for the
Court to conclude that the scope of the data access authorisation in the court order
of 27 August 2018 was grossly
disproportionate to the legitimate
aims of investigating a purported leak of classified
information by S. and protecting Ms N.’s private life.
66. The
Government argued that
the flaws in the District Court’s order had
been rectified since the Court of Appeal had accepted the applicant’s appeal
for consideration and had quashed that order,
which remained unenforced. However, the Court considers that the first order nevertheless provides relevant and important context in the present case.
67. It
notes in this respect that the wording of the aforementioned order indicated that it was not
amenable to appeal. Notwithstanding
that on 18 September 2018
the Court of Appeal quashed it,
having exceptionally accepted the applicant’s appeal
for consideration, between
27 August and 18 September 2018 the order was considered
final and enforceable. It is evident
from the case file that the PGO made at least one attempt,
namely, on 4 September 2018,
to collect some of the applicant’s
data with reference to the order
in question (see paragraph 18 above). Subsequently, the PGO officials gave inconclusive information as
to whether or not the
applicant’s mobile operator had
responded to that letter and whether it had divulged
any of the applicant’s
data.
68. For instance,
on 15 September 2018, the Prosecutor General indicated at a press-conference that he was, in principle, ready to show the reply
from the mobile operator to reassure the applicant and the public that no data identifying any journalistic sources had been received
by the PGO (see paragraph 21
above). His statement created an appearance that the PGO had obtained some sort of communication
from the mobile operator and that that
communication could be accessed by those interested. However, on 20 September 2018 the PGO refused
to provide either the aforementioned reply purportedly received from the
operator, or any information as
to whether or not any such reply
had been received (see paragraph
23 above). Next, on 27 September 2018,
in his interview at the Parliament, the Prosecutor General denied
having received any reply from the mobile
operator (see paragraph 26 above). Finally, on 12 February 2019 the PGO indicated
to the Government’s Agent, within
the framework of the present proceedings,
that, overall, they had not carried
out any actions authorised
by either of the two disputed court orders (see paragraph 28 above). Based on the aforementioned submissions viewed in the light of other available material, the Court is unable to draw
a definite conclusion as to
whether or not the integrity of the applicant’s communications data was preserved during the period of validity of the District Court’s order.
69. The Court agrees that the new data access authorisation given on 18 September 2018 by the Court of Appeal, which replaced the District Court’s authorisation and was limited essentially to the collection of her geolocation data over a sixteen-month period, could remove the aforementioned threat of identification of the applicant’s
sources unrelated to the proceedings
against S., assuming that the PGO had not previously received any such
data from the applicant’s mobile operator, as alleged by the Government. However, it is
notable that S. was himself treated
by the PGO authorities as
the applicant’s journalistic
source. They sought access
to the applicant’s data precisely
to test an assumption that
S. had met with the applicant in order to provide her with confidential information relevant
to her activity as an
investigative journalist and, if
so, to use her data as evidence in criminal proceedings against him. The fact that
the name of the applicant’s purported
source was known to the authorities and that he was implicated in
a criminal offence did not as
such remove the applicant’s own protection under Article 10
of the Convention (compare Nagla,
§ 95, and Becker, §§ 72 and 82, both
cited above).
70. Accordingly,
for the purposes of Article 10
of the Convention, the Court of Appeal was still bound to demonstrate that the seizure of her geolocation data was justified by an overriding requirement in the public interest.
In other words, the Court of Appeal had to indicate why the interest in obtaining the applicant’s geolocation data sought by the PGO was of a vital nature for combatting serious crime; to ascertain that there were
no reasonable alternative measures
for obtaining the information sought
by the PGO; and to demonstrate that
the legitimate interest in
the disclosure clearly outweighed the public interest in
the non-disclosure (compare Goodwin, § 45,
and Ressiot and Others,
§§ 122 and 126, both cited
above).
71. The
Court finds that
the text of the Court of Appeal’s ruling did not sufficiently
respond to these requirements. Firstly, this
ruling authorised access to the applicant’s
protected geolocation data
over a sixteen-month period.
In view of the length of that period and the size of the geographical area of the city centre of Kyiv in respect of which the geolocation data was sought[1], the applicant’s telephone could have been registered
there on a number of occasions which had no relevance to the case
under investigation by the PGO. Secondly,
by way of justifying the pressing social need for the interference with
the applicant’s rights, the
Court of Appeal referred only
to the purpose of “achieving
efficiency” in a criminal investigation and establishing “more exactly the
time and place” of the purported confidential
meeting (see paragraph 22
above) without providing any indication
why these considerations outweighed the
public interest in non-disclosure
of the applicant’s protected
geolocation data. Thirdly, based on the case file, at the relevant time there remained considerable uncertainty that any information pertinent to the proceedings against S. would be retrieved from the applicant’s communications data. It appears from the material in the Court’s possession that at the relevant time it had not
been unequivocally established that S.’s alleged meeting with the journalists had been held on the NABU’s premises or some other premises located within the geographical area targeted by the
PGO for the collection of the applicant’s
geolocation data, or that
the applicant had indeed been a participant
in the meeting. Even so, the applicant
might not have necessarily had her telephone with her at the time. Fourthly, it does
not appear that the Court of Appeal delved into the question whether there were
other more targeted means of obtaining the
information which the investigative authority had hoped to retrieve
from the applicant’s communications
data.
72. In
view of the above
considerations, the Court is
not convinced that the data access authorisation
given by the domestic courts was justified
by an “overriding requirement
in the public interest” and, therefore,
necessary in a democratic society (see Goodwin,
cited above,
§ 45; Voskuil, cited above, § 72; and Becker, cited above, § 83).
73. There
has accordingly been a breach of Article 10 of the Convention in the present case.
- ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION
74. The applicant
also argued that the same considerations
as those which she had
mentioned in respect of Article 10 also gave basis for finding a violation of Article 13 of the Convention concerning
the absence of effective remedies for her complaints under Article 10.
75. The Government argued that there
had been no breach of Article 13 in the present case. They submitted that while the data access authorisation
issued by the District
Court had been too broad, the applicant had been
able to have it quashed on appeal.
76. The Court considers that in view of its relevant
findings under Article 10
of the Convention, it is not necessary to address this complaint
in the present case.
- RULE 39 OF
THE RULES OF COURT
77. Regard being had
that the authorisation to
access the applicant’s communications
data given by the domestic courts to the PGO has expired, the Court considers that it is
appropriate to discontinue the interim measure indicated to the Government under Rule 39 of the Rules
of Court (see Konovalchuk v.
Ukraine, no. 31928/15, § 100, 13 October 2016).
- APPLICATION OF
ARTICLE 41 OF THE CONVENTION
78. Article 41
of the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall,
if necessary, afford just satisfaction to the injured party.”
- Damage
79. The applicant
claimed EUR 10,000 euros
(EUR) in respect of non‑pecuniary
damage.
80. The Government submitted that the applicant’s claim for damage was unsubstantiated.
81. The Court, ruling on an equitable basis, awards the applicant EUR 4,500 in respect
of non-pecuniary damage,
plus any tax that may be chargeable.
- Costs and expenses
82. The applicant
also claimed EUR 2,350
for the costs and expenses incurred
before the Court, comprising
legal fees of
EUR 1,400 and EUR 950 for her representation by Mr S. Zayets and Ms L. Pankratova respectively. The
applicant provided time sheets stating that her representatives
spent 14 and 9.5 hours on working on the present case and each charged EUR 100 per hour.
83. The Government submitted that the applicant’s claim was not supported
by the appropriate documents. In particular,
she had not
provided copies of legal
services contracts with Mr Zayets and Ms Pankratova.
84. According
to the Court’s case-law, an
applicant is entitled to the reimbursement of
costs and expenses only in
so far as it has been shown
that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the documents in the Court’s possession, the Court considers
it reasonable to award the applicant
EUR 2,350 for legal fees,
plus any tax that may be chargeable on that amount.
- Default interest
85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European
Central Bank, to which should
be added three percentage points.
- ARTICLE 46 OF THE
CONVENTION
86. The applicant
also asked the Court to
indicate to the Government, under Article 46 of
the Convention, to implement general measures addressing the protection of journalistic
sources, for example, by amending
legislation. The applicant did not make any
further concrete proposals
in this regard.
87. The Government argued that the Ukrainian legislation had sufficient safeguards for the protection of journalistic sources and there was no need for amending it.
88. The Court points out that by Article 46 of the
Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers.
It follows, inter alia, that a judgment in which the Court finds a breach of the Convention imposes
on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction,
but also to choose, subject to supervision by the Committee of Ministers,
appropriate individual measures
to fulfil its obligations to secure the rights
of an applicant (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 294, 27 August 2019, with further references).
89. The Court reiterates that its judgments are essentially declaratory in nature
and that, in general, it is primarily for the State concerned to choose, subject to supervision by the
Committee of Ministers, the means
to be used in its domestic legal order in order to discharge its obligation
under Article 46 of the Convention, provided that such
means are compatible with
the conclusions set out in the Court’s
judgment (ibid., § 295).
90. Only
exceptionally, with a view
to helping the respondent
State to fulfil its obligations under Article 46, will the Court seek to indicate
the type of measure that might be taken
in order to put an end to a violation
it has found
(ibid., § 296).
91. Regard
being had to the circumstances of the present case
and the submissions by the parties, the Court does not consider
it necessary to indicate any individual or general measures that the State has to adopt for the execution of the present judgment.
FOR THESE REASONS, THE COURT,
UNANIMOUSLY,
- Declares the complaint under Article 10 of the Convention admissible;
- Holds that there has been a violation of Article 10 of
the Convention;
- Holds that it is
not necessary to examine the complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted
into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five
hundred euros), plus any tax that may
be chargeable, in respect
of non-pecuniary damage;
(ii) EUR 2,350 (two thousand three
hundred and fifty euros), plus any tax that may be chargeable
to the applicant, in respect
of legal fees;
(b) that
from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above amounts at
a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three percentage points;
- Dismisses the
remainder of the applicant’s claim
for just satisfaction.
Done in English, and notified
in writing on 1 April 2021, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik Síofra O’Leary
Registrar President
[1] According to the maps, Povitroflotskiy Avenue alone extends
for over six kilometres