FIFTH SECTIONCASE 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” STRASBOURG1 April 2021 FINAL 01/07/2021 This judgment has become final under 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:INTRODUCTION1. 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 FACTS2. 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 caseBackground of the case5. 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 events15. 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 Court24. 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 FRAMEWORKRelevant domestic lawConstitution of Ukraine29. 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 Code30. 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 199732. 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 Material33. 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, andiv. 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, andii. 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, oriii. 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 protection21. 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 LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION37. 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.”Admissibility38. 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.MeritsSubmissions by the parties(a)   The applicant40. 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.

Outcome for Article 10: violation