issued by the Registrar of the Court

ECHR 223 (2013)

16.07.2013

Latvian investigating authorities failed to adequately protect

journalistic sources in search of well-known journalist’s home

In today’s Chamber judgment in the case of Nagla v. Latvia (application

no. 73469/10), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been:

a violation of Article 10 (freedom of expression) of the European Convention on

Human Rights.

The case concerned the search by the police of a well-known broadcast journalist’s

home, and their seizure of data storage devices. Her home was searched following a

broadcast she had aired in February 2010 informing the public of an information leak

from the State Revenue Service database.

The Court emphasised that the right of journalist’s not to disclose their sources could not

be considered a privilege, dependent on the lawfulness or unlawfulness of their sources,

but rather as an intrinsic part of the right to information that should be treated with the

utmost caution. In this case the investigating authorities had failed to properly balance

the interest of the investigation in securing evidence against the public interest in

protecting the journalist’s freedom of expression.

Principal facts

The applicant, Ilze Nagla, is a Latvian national who was born in 1971 and lives in Riga

(Latvia). During the period when the search and seizure took place she was working for

the national television broadcaster Latvijas televīzija (LTV), producing and hosting the

weekly investigative news programme ‘De Facto’.

On 10 February 2010 Ms Nagla was contacted by an anonymous source who revealed

that there were serious security flaws in a database maintained by the State Revenue

Service (Valsts ieņēmumu dienests – VID), which allowed information concerning the

income, tax payments and personal identity details of public officials, private individuals

and companies to be accessed. Ms Nagla informed the VID of a possible security breach

and then publicly announced the data leak during a broadcast of De Facto.

One week after this broadcast, 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 18 April 2010.

The VID had criminal proceedings initiated and on 19 February 2010 the investigating

police interviewed Ms Nagla as a witness. She declined to disclose the identity of her

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

source, citing the right of non-disclosure as set forth in section 22 of the Law on Press

and Other Mass Media.

On 11 May 2010 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. The warrant cited

evidence of communication between Ms Nagla and an individual the police suspected was

‘Neo’, and suggested Ms Nagla may have information concerning the data leaks or the

processing, storage and dissemination of information obtained through those leaks. It

also noted the possibility that such evidence could be at risk of destruction or

concealment to support the application of a special, urgent search procedure whereby

the warrant could be retrospectively approved by the investigating judge. This approval

was granted on the day after the search of Ms Nagla’s home, and was subsequently

upheld by the President of the first instance court after the applicant filed a complaint.

In September 2010 the Ombudsman delivered a non-binding opinion in which he

concluded that the actions of the investigating authorities had breached Ms Nagla’s

freedom of expression and her right not to disclose journalistic sources, as enshrined in

the national Constitution and international treaties.

Complaints, procedure and composition of the Court

Relying on Article 10 (freedom of expression), Ms Nagla complained that the search of

her home meant that she had been compelled to disclose information that had enabled a

journalistic source to be identified, violating her right to receive and impart information.

The application was lodged with the European Court of Human Rights on 13 December

2010.

Judgment was given by a Chamber of seven judges, composed as follows:

David Thór Björgvinsson (Iceland), President,

Ineta Ziemele (Latvia),

Päivi Hirvelä (Finland),

Ledi Bianku (Albania),

Vincent A. de Gaetano (Malta),

Paul Mahoney (the United Kingdom),

Faris Vehabović (Bosnia and Herzegovina),

and also Françoise Elens-Passos, Section Registrar.

Decision of the Court

Article 10

The data storage devices seized during the search of Ms Nagla’s home contained

information capable not only of identifying the source of her information regarding the

data leaks, but also her other journalistic sources of information. Therefore the Court did

not accept the Government’s argument that the search did not relate to journalistic

sources, finding that the search at Ms Nagla’s home and the information capable of being

discovered there came within the sphere of protection under Article 10 of the

Convention.

Furthermore, it considered that there had been an interference with Ms Nagla’s freedom

to receive and impart information. That interference was “prescribed by law” and

pursued the legitimate aims of preventing disorder or crime and protecting the rights of

others.

The Court found that the reasons given by the domestic authorities for the search had

not been “relevant” and “sufficient”, nor did they constitute a “pressing social need”. The

subject matter on which Ms Nagla reported, and in connection with which the search was

conducted, made a twofold contribution to public debate. It kept the public informed

about salaries paid in the public sector in the context of a climate of economic crisis and

austerity, as well as exposing security flaws in the database of the State Revenue

Service. The Court emphasised that the right of journalists not to disclose their sources

could not be considered a privilege, dependent on the lawfulness or unlawfulness of their

sources, but rather as an intrinsic part of the right to information that should be treated

with the utmost caution.

Indeed, when the investigating authorities, almost three months after the broadcast and

after the applicant had agreed to testify, decided that a search at her home was

necessary, they proceeded under the urgent procedure without any judicial authority

having properly examined the relationship of proportionality between the public interest

of investigation, on the one hand, and the protection of the journalist’s freedom of

expression on the other. Taking into account that there was no information linking the

applicant to ‘Neo’ in any way other than in her capacity as a journalist and that their

communication had stopped on the day of the broadcast, only weighty reasons could

have justified the urgency of the search of Ms Nagla’s home.

Moreover, any search involving the seizure of data storage devices belonging to a

journalist raised the question of a journalist’s freedom of expression, including source

protection, and access to the information contained therein had to be protected by

sufficient and adequate safeguards against abuse. Although the investigating judge

reviewed the lawfulness of, and grounds for, the applicant’s search after it had actually

taken place, as provided for in domestic legislation, that judge 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 handing over of research material.

There had accordingly been a violation of Article 10.

Just satisfaction (Article 41)

The court held that Latvia was to pay the applicant 10,000 euros (EUR) in respect of

non-pecuniary damage, and EUR 10,000 in respect of costs and expenses.

The judgment is available only in English.

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