CYIL 2014

302

ALLA TYMOFEYEVA

CYIL 5 ȍ2014Ȏ

Given that the number of judgments regarding complaints under Article 8 lodged

by legal persons is very limited, we decided to include in the paper also cases, where

the applications were submitted by both, legal and natural persons, but the Court

has focused on the rights of individuals. The case of

Telegraaf Media Nederland

Landelijke Media B.V. and Others v. the Netherlands

concerned the surveillance of

journalists and an order for them to surrender documents capable of identifying

their sources. The case originated from an application lodged by a legal person and

individuals. The first applicant was a limited liability company incorporated under

Netherlands law. The second and the third applicants were Netherlands nationals

employed as journalists. Two associations with legal personality under Netherlands

law,

Nederlandse Vereniging van Journalisten

(Netherlands Association of Journalists)

and

Nederlands Genootschap van Hoofdredacteuren

(Netherlands Society of Editorsin

Chief ), also were among the applicants in the case. Nonetheless, the Court has

mentioned them only in the beginning of the judgment and did not refer to them

throughout the text of this judicial decision. As to the issue of secret surveillance,

the Court found a violation of Article 8 in conjunction with Article 10 in respect of

the second and third applicants. The applicant company did not raise a complaint

alleging a violation of its rights under this provision of the Convention.

Dealing with the complaints under Article 8 in this case the Court observed that,

although questions raised by surveillance measures were usually considered under

Article 8 alone, in the present case they were so intertwined with the Article 10

issue that the Court found it appropriate to consider the matter under Articles 8

and 10 concurrently. As a result, it concluded that there had therefore been a breach

of both of these Articles of the Convention. This conclusion was based on the fact

that the domestic law did not provide safeguards appropriate to the use of powers of

surveillance against journalists with a view to discovering their journalistic sources.

The applicants further argued that the order to surrender the original documents

intended to make possible the positive identification of the journalistic source and by

this means violated their freedom to impart information as guaranteed by Article 10

of the Convention. The Court confirmed these allegations and found a violation of

this provision in respect of the applicant company. Although the Court did not rule

on a violation of Article 8 of the Convention in respect of the applicant legal entity,

in view of the close connection between Articles 8 and 10 in the present case, it is

necessary to mention this case in the category of cases concerning the rights of legal

entities to respect for „home” and correspondence.

Retention of information obtained through undercover surveillance was also the

key issue in the case of

Association “21 December 1989” and Others v. Romania.

The Court has found a violation of Article 8 here. However, such a finding of an

infringement concerned only a natural person, not the applicant company itself. This

Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands

, no. 39315/06,

22 November 2012.

Association “21 December 1989” and Others v. Romania

, nos. 33810/07 and 18817/08, 24 May 2011.