FREEDOM OF THE PRESS : COURT RULING HAS IMPLICATIONS FOR JOURNALISTS' RIGHTS.

The ruling by the Strasbourg-based European Court of Human Rights (ECHR) in the case of Tillack versus Belgium deserves close attention because it explicitly targets the EU institutions, unlike what the European Commission and the European Anti-Fraud Office (OLAF) initially affirmed. It also has an impact on European Union case law.

Hans Martin Tillack, a journalist with the German magazine Stern, was suspected in 2004 of having bribed Commission officials to obtain confidential information. His home and workplace were searched by Belgian judicial authorities following a complaint by the European Anti-Fraud Office. The investigation did not result in charges.

Tillack referred the matter to the European Court of Human Rights in May 2005. In its verdict handed down on 27 November, the ECHR concluded that the searches and seizures were "illegal" and that the suspicions of bribery were based on "vague and unconfirmed rumours" and therefore did not justify the searches.

SUPERIORITY OF THE ECHR

The ECHR is charged with protecting fundamental rights and as such, its authority is explicitly recognised as being superior to that of national courts and implicitly superior to that of EU courts. The EU Court of Justice has also acknowledged on a number of occasions that the rights recognised by the 1950 European Convention on Human Rights and Fundamental Freedoms, in accordance with the constitutional traditions common to the member states, have become general principles of Community law and must be protected by the Court of Justice in the area of the EU treaties. According to settled case law, the fundamental rights enshrined by the ECHR "form an integral part of the general principles of law whose observance the Court ensures". It does not necessarily follow that "the extent of protection of fundamental rights in the Community legal order is the same as that guaranteed by the ECHR" (since they have different scopes of competence). On the other hand, "measures which are incompatible with observance of the human rights recognised by the latter are not acceptable in the Community" (judgements of 12 June 2003, Schmidberger, C 112/00, point 71; 18 January 2007, Ocalan PKK, C-229/05 P). This is confirmed by the Court. In the absence of a preliminary referral system and since the Union is not a signatory to the ECHR, the Court of Justice refers to the Strasbourg court for the fundamental principles applicable in the Union. The Court of Justice also regularly...