5.  The first applicant, Ms Floare Cacuci, was born on 2 March 1939 and lives in Oradea. She is an accounting expert and the owner and general manager of the second applicant, S.C. Virra & Cont Pad SRL, a single‑member company based in Oradea. Both applicants were members of the Romanian Institute of Accounting Experts and Certified Accountants (Corpul experților contabili și contabililor autorizați din România). 6.  On 30 July 2001 the criminal department of the Bihor County Police ordered a forensic accounting report in a criminal case it was dealing with. The first applicant was appointed to produce this report, which concerned pecuniary damage to the State budget in the sum of 22,143,258,699 Romanian lei (ROL), allegedly caused by S.C. T.P. SRL, a private company. The first applicant’s fees in relation to that expert report amounted to ROL 497,250,000.
Claiming that she had not been fully paid for the report, on 25 January 2004 the first applicant submitted to the county police only approximately ninety-five pages of the report, which actually consisted of more than five hundred pages. She only submitted the conclusions of the report. The annexes justifying the conclusions were thus not appended on that occasion, but at a later date (see paragraph 22 below).
The first applicant alleged that, when asked by the Police to hand in the remaining pages of the report, she had replied that the report was on her computer, and that, since she had not received any payment for it, she was not able to print it, as it was extremely long. 7.  On 25 March 2005 the first applicant, together with two other accounting experts, was appointed by the Oradea District Court to produce a forensic accounting report in a criminal case concerning tax fraud, forgery and the use of forged documents – offences allegedly committed by two third parties, M.G.S. and C.V.C, in their capacity as managers of two private companies. A fourth expert, who was assisting M.G.S. and C.V.C., was also appointed to participate in producing the report.
The conclusions of the report, which was submitted on 15 September 2005 by the three experts and with which the assisting expert agreed, noted that no damage had been caused to the State budget by the managerial activities of M.G.S. M.G.S. and C.V.C were acquitted on 7 December 2005 by the Oradea District Court. That judgment was later upheld by the Bihor County Court on 28 May 2007 on appeal, and by the Oradea Court of Appeal on 22 May 2008 in an appeal on points of law. 8.  On 18 October 2005 the prosecutor’s office attached to the Oradea District Court proposed to initiate ex officio criminal investigations against the first applicant in relation to an offence of intellectual forgery (fals intelectual, defined by Article 289 of the Criminal Code) in connection with the second forensic accounting report. The prosecutor noted that the report was based solely on documents provided by M.G.S., in spite of the fact that it stated that the district court’s case file had been consulted. In the case file, there was no request from any of the experts to either consult the file or obtain copies of it. The conclusions of the report were therefore not based on all the documents on file, in spite of what the report stated. 9.  The prosecutor’s proposal also concerned the two other accounting experts, who were investigated for the same offence as the first applicant. 10.  The proposal to initiate criminal investigations in respect of the first applicant was confirmed by the prosecutor’s office on 19 October 2005. 11.  On 20 October 2005 the prosecutor’s office attached to the Oradea District Court filed an application with the court, asking it to issue a search warrant in respect of the first applicant’s home.
The prosecutor argued that there was a reasonable suspicion that the applicant had committed intellectual forgery while producing the second forensic accounting report, in order to help one of the defendants, M.G.S, avoid investigation. The grounds for this suspicion were: the report’s conclusions contradicted the conclusions of a previous report which had been produced by another accounting expert during the criminal investigation; the report objectives proposed by M.G.S. had most likely been copied and pasted into the report itself, the two documents having the same page settings, wording, spelling and grammar mistakes; and there was no proof that the first applicant had ever studied the case file in the court’s archives or requested copies of the documents in order to produce the expert report, therefore the report was probably based solely on information provided by M.G.S.
The prosecutor also stated that, in accordance with the decision of 19 October 2005, a criminal investigation had already been initiated in respect of the first applicant in relation to intellectual forgery.
The prosecutor further submitted that important evidence relating to the production of the second expert report – such as a computer, a printer, files and documents (whether on paper or on disc) – could be obtained from the first applicant’s home. 12.  On the same day the Oradea District Court – sitting as a single judge, Judge F.P. – allowed the prosecutor’s application and issued a warrant to search the first applicant’s home, with the aim of discovering evidence concerning the alleged offence of intellectual forgery. In accordance with the relevant domestic law, the decision was taken in camera, in the presence of the prosecutor and without summoning the parties.
The warrant was to last three days, the court stating that the search was to be carried out in compliance with Articles 101, 103-108 and 111 of the Romanian Code of Criminal Procedure (hereafter “the RCCP” – see paragraph 46 below). It was formulated as follows:
“Based on Article 100 of the RCCP, in view of the prosecutor’s application issued on 20 October 2005 and the investigative work which has been presented, namely: the minutes attesting to the decision of the prosecutor to initiate criminal investigations ex officio, confirmation of the proposal to initiate criminal investigations against Cacuci Floare in relation to the offence of intellectual forgery as set out in Article 289 of the Criminal Code, and the forensic reports included in the file, [the court] authorises that a home search (percheziție domiciliară) be performed at the suspect’s place of residence, [the suspect being] Cacuci Floare, daughter of ..., born on ..., in Oradea, ..., in the Bihor District.
The search shall be performed in compliance with Articles 101, 103-108 and 111 of the RCCP.
This warrant is to last three days from the day of issue.
Given in camera on 20 October 2005 at 3 p.m.” 13.   According to the first applicant, on 21 October 2005, while she was in the street, having just left her house, she was stopped by a police officer, who told her that he had a search warrant for her home. The first applicant asked to be assisted by her lawyer. The police officer then searched her bag, from which he seized some personal documents, including an orange notebook containing various phone numbers. Subsequently, a prosecutor entered the first applicant’s home in order to perform the home search, accompanied by three police officers, one of whom was an information technology (IT) specialist. 14.  According to the Government’s version of events – supported by the documents in the file, as issued by the criminal investigating authorities (see paragraph 42 below) – the search of the bag was carried out inside the first applicant’s home. 15.  The first applicant’s lawyer arrived at the beginning of the search, namely around ten minutes after the first applicant had been stopped in the street (see paragraph 13 above); two assistant witnesses, who were neighbours of the first applicant, were also present during the search. 16.  The prosecutor’s notes in the search report produced on that occasion at the place of residence of the first applicant state that the first applicant was asked to surrender the items used to commit the alleged offence of intellectual forgery, namely the computer, the printer, and the documents on which the second expert report was based (Articles 96-99 of the RCCP, see paragraph 45 below). The first applicant confirmed the existence of such items at her place of residence.
According to the search report, the first floor of the building was occupied by the first applicant’s office, where she claimed to keep the objects which had been requested and other objects essential to her professional duties.
Several items and documents were found, the first applicant claiming that everything belonged to the second applicant. She showed the prosecutor a lease contract concluded between herself and the second applicant in respect of the use of one half of the immovable property.
According to the report, the following objects were seized: the computer’s central processing unit, one printer, four files and documents concerning various forensic accounting reports, one CD, forty-two floppy discs, an orange notebook containing several notes written by the first applicant and telephone numbers – one of which belonged to M.G.S., see paragraph 7 above – and an empty printer cartridge box. 17.  The applicants argued that, while the copy of the search report handed to them at that moment had made no mention of the manner in which the seized items had been sealed, the copy in the criminal file contained supplementary information on page 4, mentioning that the objects had been put in a sealed cardboard box labelled MAI (the Ministry of Internal Affairs) 15980. 18.  At the end of the search the first applicant declared, in the presence of her lawyer, that she would submit written objections at a later stage. The witnesses had no objections concerning the manner in which the search had been carried out. 19.  According to the report, the search started at 8.45 a.m. and was finished by 12.30 p.m. 20.  On 18 November 2005, at the request of the prosecutor, the Oradea District Court issued a warrant for a search of the computer system and IT data seized from the applicants on 21 October 2005, namely one CD and forty-two floppy discs. The court gave reasons for its decision, accepting that there was sufficient indication that the IT data would prove that the impugned expert report had been partly copied from a document given to the first applicant by M.G.S (see paragraph 11 above).
The warrant was to last three days, starting on 21 November 2005. 21.  According to the applicant, on 18 November 2005 she was summoned to the Cluj District police headquarters to participate in the unsealing of the computer on 21 November 2005. She went there with her lawyer, where they noted that the sealed box was different to the box which had been used at her house during the search (see paragraphs 16-17 above). She therefore asked that the two witnesses who had been present at the search be summoned to attest that the box was different, but the request was refused. Consequently, together with her lawyer, she decided to leave the police headquarters without attending the unsealing and search procedure. 22.  On 5 December 2005 the first applicant submitted the missing 497 pages from the first expert report (see paragraph 6 above) to the Oradea District Court, following payment of 60% of her fee. 23.  On 8 November 2005, pursuant to Articles 275-2781 of the RCCP (see paragraph 47 below), the first applicant filed a complaint against the search carried out on 21 October 2004 (see paragraphs 13-19 above). She contested both the search itself and the manner in which it had been carried out.
The first applicant submitted that the warrant had been issued only in respect of her home, and not in respect of the registered office of the second applicant. In spite of that, a search of the whole house had been carried out, including the space used by the second applicant. The seized items and documents belonged to the second applicant.
The first applicant also submitted that the search had not been necessary, and could have been avoided if she had been asked to submit the relevant items and documents, as set out in Article 98 of the RCCP (see paragraph 45 below). Furthermore, no reasons had been given to justify the search measure.
She argued that the limits of the search warrant had been exceeded by the search carried out in respect of her purse, which constituted a body search (percheziţie corporală), and by the fact that she had been prevented from using her mobile phone during the search.
She complained of the manner in which the electronic devices seized had been sealed on that occasion.
She further referred to the seizure of various items from her home, namely “personal documents and personal notebooks which had no connection to the criminal charge against her”, concluding that all the above circumstances constituted evidence of a breach of her right to a private life, personal inviolability, professional secrecy, and right of property. 24.  On 24 November 2005 the head prosecutor of the prosecutor’s office attached to the District Court of Oradea dismissed the first applicant’s claims, finding that the complaint against the search measure itself was inadmissible, given the lack of specific legal provisions allowing for such an appeal, while the complaint concerning the carrying out of the search was ill-founded. 25.  Concerning the appeal against the search measure itself, the prosecutor gave reasons for his inadmissibility decision, stating that it was inconceivable that any search warrant application would be debated in adversarial proceedings, as such a procedure would impede the very purpose of the search, namely the discovery and collection of specific evidence from a specific place without prior notice.
The prosecutor stated that the search at the applicant’s home had been conducted in accordance with the law. The warrant had been issued in respect of her residence as stated on her identification documents. The prosecutor submitted that the investigating authorities had had no obligation to check whether that residence was also the registered office of various private companies. In the impugned forensic expert report, the first applicant had given her identification details, including her place of residence, without mentioning that the report had been issued by or on behalf of the second applicant. Moreover, during the search, the first applicant had submitted a lease contract concluded between herself and the second applicant concerning one half of the immovable property, without specifying or determining which half belonged to which party.
The prosecutor also stated that the investigating authorities had been obliged to seize all pieces of physical evidence found at the search location, irrespective of who owned them, and that the pieces not belonging to the suspect had been returned to their owner at the end of the criminal trial. 26.  Concerning the body search, namely the search of the first applicant’s bag, the prosecutor submitted that the relevant forensic rules set out clearly and authoritatively that such a search had to be performed before the start of a home search, “so as to preclude any potential act of aggression against the authorities or self-aggression, but also so as to locate and collect any potential corpora delicti thus hidden by the searched person (in [this] case, documents)”.
The rules also provided that the investigating authorities were obliged to prevent any people inside the building in question from communicating with people outside, whether by phone or otherwise, which justified the fact that the first applicant had been temporarily prevented from using her mobile phone. 27.  In respect of the manner in which the seized electronic devices had been sealed, the prosecutor stated that the report produced on that occasion had been signed by both the first applicant and her lawyer, and no objections had been raised. As mentioned in the report, the central processing unit of the computer had been sealed in a cardboard box with the MAI seal. In any event, the manner in which the seized objects had been sealed could not affect the legality of the search, but possibly their use as evidence in the criminal proceedings. 28.  The first applicant contested that decision before both the prosecutor’s office attached to the County Court of Bihor and the Oradea District Court. 29.  It is unclear whether any response to that complaint was given by the prosecutor’s office. In any event, the same complaint was assessed by the domestic courts in two separate sets of proceedings, as detailed below. 30.  In the first set of proceedings, started by the first applicant on 23 December 2005, the Oradea District Court gave its judgment on 29 June 2006, dismissing the first applicant’s complaint as inadmissible in respect of the search measure itself, and ill-founded in respect of the manner in which the search had been carried out. The court stated that, in the event that she was indicted, the first applicant would be entitled to lodge with the criminal courts complaints regarding the search and the acts of the prosecutor. 31.  The first applicant appealed. On 28 November 2006 the Bihor County Court dismissed her appeal, upholding the first instance court’s decision. It considered that the search had been lawful and in compliance with the warrant issued by the Oradea District Court. Furthermore, at the material time, the first applicant, assisted by her lawyer, had not objected to either the search or the manner in which it had been carried out.
The court considered that it would be “abusive” to have an adversarial procedure for debating the necessity of a search, either before or after it was carried out. 32.  In the second set of proceedings, a complaint lodged by the first applicant on 4 January 2006 reiterated the same main arguments as those presented in the proceedings described above. In particular, it referred to the fact that the limits of the search warrant had been exceeded as follows: the warrant had only been issued in respect of her home, and not in respect of the registered office of the second applicant; no warrant had existed in respect of her purse or mobile phone; certain items, like her personal notebooks, had been seized even though they had no connection with the criminal charge. The computer had been seized without being appropriately sealed, therefore the first applicant had refused to take it back in the absence of verification and confirmation by an expert that the IT data had not been altered. The first applicant argued that the real aim of the prosecutor and the police had been to seize her computer in order to copy the 497 pages of annexes to the first accounting expert report (see paragraph 6 above).
In any event, the search had not been necessary, as she would have surrendered all required items and documents if she had been asked to. 33.  The complaint was allocated to a single judge for determination, Judge F.P., who on 21 February 2006 asked to recuse herself from the case, as it had been she who had examined and approved the application for a search warrant on 20 October 2005 (see paragraph 12 above).
That request was dismissed by the President of the Oradea District Court on the same day. It was noted that the first applicant had expressly confirmed that she was not challenging the search measure itself, but the manner in which it had been carried out. In such circumstances, there was no reason for Judge F.P. to withdraw from the case. 34.  In the context of the second set of proceedings, on 28 June 2006 the first applicant lodged an application calling into question the constitutionality of the provisions of Article 100 § 4 of the RCCP (see paragraph 46 below). She claimed that the impugned provisions breached a claimant’s defence rights, right to a fair trial and right to an effective remedy, as he or she was denied the right to participate in proceedings and contest a search measure. 35.  The application was dealt with by the Romanian Constitutional Court (“the Constitutional Court”), which gave its judgment on 30 November 2006, dismissing the objection as ill-founded. The Constitutional Court firstly found that the constitutionality of the impugned provisions had already been examined and found to be in accordance with the Constitution (the court referred to its decision of 21 October 2004, detailed in paragraph 52 below). The court reiterated that only the legislature could dictate the jurisdiction of the domestic courts and trial procedure.
Furthermore, the Constitutional Court held that the issuing of a search warrant was a procedural measure and not a trial in itself, and that therefore the summoning of parties was not obligatory, especially as a search was conducted in the presence of the interested parties and/or their representative. Moreover, interested parties had at their disposal several opportunities and means to contest any measure taken during a criminal investigation or criminal trial. 36.  The case was sent back to the Oradea District Court, which gave its judgment on 31 January 2007, dismissing the first applicant’s complaint. The court noted that a similar claim lodged by the first applicant in another set of proceedings had already been dismissed by a final judgment (see paragraph 31 above).
The court further stated that the search had been carried out in compliance with the domestic legal provisions and in the presence of the prosecutor, the applicant and her lawyer, and no objections had been raised at the material time.
It appears that the decision was not appealed against by the first applicant. 37.  In January 2006 the second applicant was struck off the list of the Romanian Institute of Accounting Experts and Certified Accountants; the first applicant was removed from the list from January 2006 until 7 April 2010, allegedly as a result of the criminal investigations against her. 38.  The first applicant was indicted on 27 September 2009, charged with perjury as a witness in a criminal trial, aiding and abetting a perpetrator (with specific reference to the criminal trial concerning M.G.S. and C.V.C.), and spoliation (the material alteration, thereby invalidation) of evidence.
The indictment referred to the items seized during the search of 21 October 2005, namely documents relating to the forensic accounting reports issued by the first applicant and relevant to several criminal proceedings against various suspects (C.V.C., A.D., F.K., G.P.); the prosecutor considered that such documents had been withheld by the first applicant for the purpose of obstructing justice.
The indictment stated that the criminal proceedings against the two other accounting experts (see paragraph 9 above) were to be terminated (scoatere de sub urmărire penală). 39.  By a judgment of 30 November 2010 the Oradea District Court acquitted the first applicant of all charges.
In relation to the charge of perjury, the court held that such a charge was relevant where an expert had been called before a court to give oral evidence, which had not been the case with regard to the first applicant. In relation to the written evidence given by the first applicant in the form of the forensic accounting report, the court held that the report was a collective piece of work produced by the three experts appointed in the case. Even if evidence had been adduced proving that only one of the experts had personally studied the file in the court’s archives, it could not be inferred that the work had been done by the first applicant exclusively and in the absence of consideration of all the relevant documents and consultation with the other experts.
The court further stated that there was insufficient proof that the first applicant had favoured M.G.S. The accounting expert report had been produced with the other experts appointed in the case. The first applicant had been selected as an expert in the impugned criminal proceedings from a list of six experts, and it had therefore been impossible for her to plan to help M.G.S in any way.
With reference to the documents found at the first applicant’s residence during the search carried out on 21 October 2005, the court stated that they had not been in her possession unlawfully, as all of them had been given to her by the police for the purpose of allowing her to produce the relevant forensic accounting reports. It could therefore not be inferred that the applicant had withheld the documents with the intention of obstructing justice. The court ordered that all IT equipment seized from the first applicant should be returned to her once the judgment became final. 40.  By a judgment of 21 April 2011 the Oradea Court of Appeal dismissed an appeal lodged by the prosecutor and upheld the first-instance court’s judgment, stating essentially that the presumption of innocence in respect of the first applicant had not been rebutted. The only dissenting opinion of the Oradea Court of Appeal considered that the case should have been remitted to the first-instance court for a re-trial, as the first-instance judgment had lacked appropriate reasoning. 41.  The first applicant filed several criminal complaints against the relevant prosecutors and police officers who had requested and carried out the search of 21 October 2005 with various domestic authorities (the Romanian Senate, the High Council of the Judiciary and the Ministry of Internal Affairs), accusing them of abuse of office for carrying out the search in breach of Articles 100-111 of the RCCP (see paragraph 46 below). She reiterated her arguments: a special warrant and a separate report had been needed for the body search (Article 106), and another warrant had been necessary for the search of the company’s registered office (Article 111). 42.  Those complaints were joined and assessed in a unique case file, being dismissed as ill-founded by the Oradea Court of Appeal on 20 September 2006. The court upheld the prosecutor’s decision. In respect of the complaint concerning the body search, it found that the search of the applicant’s bag had been carried out inside her house, as a preliminary step of the actual search measure. Furthermore, the home search warrant had been issued in respect of an address, not in respect of a person or company. The court concluded that all the complaints were ill-founded.
That decision was upheld by the High Court of Cassation and Justice on 10 November 2006. 43.  The first applicant also submitted to the Court a copy of another undated criminal complaint, which was addressed to the prosecutor’s office attached to the High Court of Cassation and Justice. In the complaint, the first applicant claimed that the search report had been forged with regard to the manner in which the computer had been sealed (see paragraphs 16-17 above). She also stated that, at some point after the search, she had noticed that the data on her computer relating to various forensic accounting reports which she had produced had been altered while at the police headquarters, so as to provide evidence to incriminate her.
In the absence of any registration number or reference to a domestic file number, it is unclear if and when that complaint was lodged with the domestic authorities; assuming that it was, it is equally unclear whether the first applicant received any response.


5.  The applicants, Mr K.S. and his wife Mrs M.S., were born in 1939 and 1942 respectively and live in Lauf. 6.  In 2006 the German secret service (Bundesnachrichtendienst) bought a data carrier from a certain K. for a considerable amount of money. The data carrier contained financial data from the Liechtenstein L. Bank relating to 800 people. K., who had formerly been an employee of the L. Bank, had illegally copied the data. The data carrier was submitted to the German tax investigation authorities, which subsequently instigated proceedings against, inter alia, the applicants, in relation to tax evasion crimes. 7.  On 10 April 2008 the Bochum District Court (“the District Court”), following an application from the Bochum prosecutor’s office, issued a search warrant in respect of the home of the applicants, who were suspected of having committed tax evasion between 2002 and 2006. The search warrant allowed the seizure of papers and other documents concerning the applicants’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002. 8.  The search warrant indicated that, in the course of investigations against another suspect, the prosecution had obtained information that the applicants had established the “K. Foundation” on 17 January 2000 and the “T.U. S.A.” on 14 June 2000. The applicants were suspected of having made financial investments via these two associations with the L. Bank in Liechtenstein, for which they were liable for tax in Germany. According to the search warrant, the applicants had failed to declare about 50,000 euros (EUR) of the yearly interest accrued from the capital of both the K. Foundation and T.U. S.A. in their tax returns for the years 2002 to 2006. It indicated that the applicants had evaded tax payments of EUR 16,360 in 2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and EUR 18,000 in 2006. The search warrant stated that the house search was urgently needed in order to find further evidence and that, weighing the seriousness of the alleged crimes against the constitutional rights of the applicants, the house search was proportionate. 9.  On 23 September 2008 the applicants’ flat was searched and one envelope containing L. Bank documents and five computer files were seized. 10.  The applicants appealed against the search warrant. They argued that the warrant had not been granted in accordance with the law. It had been based on material which had been acquired in breach of international law, especially the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, because the data had been stolen from the L. Bank and had been bought by the secret service. The acquisition of the data had also violated domestic law, as the secret service had no authorisation to obtain tax data. In fact, such an act was a criminal offence under German law, as it infringed section 17(1) and section 17(2)(2) of the Unfair Competition Act (“divulgence of official secrets” (Geheimnisverrat)). Furthermore, the secret service was not authorised to forward tax data to the financial authorities and the prosecution, as this infringed the German legal principle of separation of the secret service and the police/prosecution (Trennungsprinzip). 11.  On 8 April 2009 the Bochum District Court dismissed the appeal. It was of the view that the house search had been legal as it had been based on a lawful search warrant. The court had no doubt that it had been lawful to base the search warrant on the information contained in the Liechtenstein data carrier, as, in its view, the data had neither been seized in direct violation of international law nor by circumventing international treaties. 12.  The District Court was also of the view that the search warrant in question could be issued on the basis of the information in the data carrier, as the secret service had only played a passive role in acquiring it. According to the court, there was no indication that the secret service had incited a third person to steal the data, and it had merely accepted the data from a third person when this person had offered it. The fact that the secret service might have remunerated the seller did not, in the court’s view, change the fact that the secret service had only played a passive role. In the court’s opinion, it was within the secret service’s remit to acquire the data carrier in the prescribed way and hand the data over to the prosecution, as the data carrier contained 9,600 sets of data concerning international cash flows. 13.  On 7 August 2009 the Bochum Regional Court dismissed the applicants’ appeal. It held that the search warrant had been lawful, even if it was true that the German authorities had infringed domestic criminal law in obtaining the evidence. Even assuming that the German authorities might have committed the criminal offences of acting as an “accessory to a criminal offence” (Begünstigung, Article 257 § 1 of the German Criminal Code) and an “accessory to the divulgence of official secrets” (Beihilfe zum Geheimnisverrat, section 17(1) and section 17(2)(2) of the Unfair Competition Act, in conjunction with Article 27 of the German Criminal Code) in buying the Liechtenstein data from K., and that K. might have committed the offence of “industrial espionage” (Betriebsspionage, section 17(2)(1) of the Unfair Competition Act), it considered the search warrant to have been lawful. With regard to the applicants’ allegation that the data had been acquired in breach of international law, the Regional Court doubted any such breach. 14.  As regards the question whether illegally obtained evidence could be used in criminal proceedings, the Regional Court referred to a decision of the same court of 22 April 2008, where it had held in a similar case and with regard to the same data carrier that the interest in prosecuting the suspects outweighed the possible infringements of criminal law, as the principal criminal act of “data theft” had been committed by a third party and not by the German authorities. According to the well-established case-law of the Federal Court of Justice, evidence that had been illegally acquired by a third party could generally be used in criminal proceedings, unless it had been acquired through coercion or force. It also had to be considered that the use of the “stolen” data had not infringed the core of the applicants’ private sphere, but their business affairs. Furthermore, the “data theft” had not primarily infringed the rights of the applicants, but the data-protection rights of the bank from which it had been “stolen”. Thus, the Liechtenstein data was not excluded as evidence and the search order could be based on it. As to the presumed breach of international law, the court added that such a breach would not lead to the unlawfulness of the search warrant, firstly because international law did not grant the applicants any personal rights and secondly because the use of the evidence did not in itself constitute a breach of international law. 15.  On 11 September 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They were of the view that the Regional Court and the District Court should have decided that the search warrant had not been in accordance with the law, as the use of the Liechtenstein data as a basis for a search warrant had violated international treaties and the sovereignty of Liechtenstein, which had protested against the use of the data. 16.  Furthermore, they argued that their right to respect for their home under Article 13 of the Basic Law had been infringed, as the search warrant had been based on evidence that had been acquired by the secret service and passed on to the prosecution in violation of domestic law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data. Furthermore, the transfer of the Liechtenstein data from the secret service to the financial authorities and the prosecution had violated the principle of the separation of the secret service and the prosecution in Germany. The infringement of domestic law had been so severe that the criminal courts should have come to the conclusion that the Liechtenstein data could not have formed the basis of a search warrant. They would thus have been obliged to declare the search warrant illegal. 17.  On 9 November 2010 the Federal Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the fact that the search warrant had been based on the Liechtenstein data did not infringe Article 13 of the Basic Law. 18.  The Federal Constitutional Court reiterated that there was no absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings (compare paragraph 28 below). The court further pointed out that it had to be borne in mind that the case at hand did not concern the question of whether evidence could be admitted in a criminal trial, but only concerned the preliminary question of whether evidence that might have been acquired in breach of procedural rules could form the basis of a search warrant in criminal investigation proceedings. Even if evidence was considered inadmissible in criminal proceedings, this did not automatically mean that the same was true for all stages of criminal investigations. 19.  Furthermore, the court reiterated that it was not its role to substitute itself for the authorities in the interpretation and application of domestic law, but to review, in the light of the Basic Law, the decisions taken by the authorities in the exercise of their margin of appreciation. 20.  In applying these general principles to the case at hand, the Federal Constitutional Court ruled, at the outset, that it was not necessary to decide upon the question whether the acquisition of the data had been in breach of national or international law or violated the principle of the separation of the secret service and the prosecution in Germany, as the Regional Court had departed in its decision from the applicants’ allegation that the evidence might in fact have been acquired in breach of domestic and international law, including criminal law. 21.  The Federal Constitutional Court found that the fact that the Regional Court based its legal assessment on the assumption that the acquisition of the data had been in breach of domestic and/or international law was not arbitrary and hence could not be found to be in violation of Article 13 of the Basic Law. Its finding that the applicants could not invoke international law in their favour only showed a different legal opinion without disregarding the applicants’ basic rights. Furthermore, the Federal Constitutional Court considered reasonable the District and Regional Court’s legal assessment that the principle of separation of the secret service and the prosecution had not been infringed, as the facts of the case did not show that the secret service had either ordered or coordinated the “data theft”, but had been offered the data on K.’s own initiative. Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation, and hence could not render a search warrant unconstitutional. 22.  With regard to the Regional Court’s finding that the search order could be based on the Liechtenstein data the Federal Constitutional Court found that the Regional Court’s legal assessment sufficiently took into account the applicants’ basic rights as the Regional Court had departed from the applicants’ allegation that the evidence had been obtained in breach of domestic law and thus based its decision on, what was, for the applicants, the best possible assumption. 23.  The Federal Constitutional Court further considered that the Regional Court had struck a fair balance between the different interests at stake. The alleged breach of national and/or international law did not entail an imperative prohibition to use the evidence in the proceedings at issue. Furthermore, the Regional Court had rightly pointed out that the data did not relate to the core area of the applicants’ private life, but to their business activities. It had recognized the decisive interest at stake, namely the applicants’ right to inviolability of their home, and took it sufficiently into account, as nothing showed that German authorities purposely and systematically breached international or domestic law in obtaining the data carrier. 24.  On 2 August 2012 the Nuremberg District Court acquitted the applicants of the charges of tax evasion, finding that it had not been proven beyond reasonable doubt that the capital of the foundation in question had been invested in an interest-bearing way.


8.  Since 1994 the first applicant company, Satakunnan Markkinapörssi Oy collected data from the Finnish tax authorities for the purpose of publishing information about natural persons’ taxable income and assets in the Veropörssi newspaper. Several other publishing and media companies also publish such data which, pursuant to Finnish law, are accessible to the public (see paragraph 39 below for an explanation of the Finnish access to information regime). 9.  In 2002 Veropörssi appeared 17 times, with each issue concentrating on a certain geographical area of the country. The data published comprised the surnames and forenames of approximately 1.2 million natural persons whose annual taxable income exceeded certain thresholds, mainly from 60,000 to 80,000 Finnish marks (approximately 10,000 to 13,500 euros (EUR)), as well as the amount, to the nearest EUR 100, of their earned and unearned income and taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and organised according to municipality and income bracket. 10.  The first applicant company worked in cooperation with the second applicant company, Satamedia Oy, and both were owned by the same shareholders. In 2003 the first applicant company started to transfer personal data published in Veropörssi, in the form of CD-ROM discs, to the second applicant company which, together with a mobile telephone operator, started a text-messaging service (SMS service). By sending a person’s name to a service number, taxation information could be obtained concerning that person, on the requesting person’s mobile telephone, if information was available in the database or register created by the second applicant company. This database was created using personal data already published in the newspaper and transferred in the form of CD-ROM discs to the second applicant company. From 2006 the second applicant company also published Veropörssi. 11.  It transpires from the case file that in 1997 the Minister of Justice requested that the police instigate a criminal investigation into the publishing activities of the applicant companies. No information is contained in the file as to the outcome of this request or of any subsequent investigation. 12.  In September 2000 and November 2001, the applicant companies ordered taxation data from the Finnish National Board of Taxation (verohallitus, skattestyrelsen). Following the first order, the Board requested an opinion from the Data Protection Ombudsman, on the basis of which the Board invited the applicant companies to provide further information regarding their request and indicating that the data could not be disclosed if Veropörssi continued to be published in its usual form. The applicant companies subsequently cancelled their data request and paid people to collect taxation data manually at the local tax offices. 13.  On an unspecified date, probably in 2003, the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) contacted the applicant companies and advised them that, although accessing and publishing taxation data were not prohibited as such, they had to cease publishing such data in the manner and to the extent that had been the case in 2002, when they had published data concerning the 2001 tax year. The applicant companies refused to abide by this request, which they considered violated their right to freedom of expression. 14.  By a letter of 10 April 2003 the Data Protection Ombudsman asked the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in 2002 and from passing those data to the SMS service. He claimed that under the Personal Data Act the companies had no right to collect, store or pass on personal data and that the derogation provided by that Act concerning journalism did not, in his view, apply to the present case. The collecting of taxation information and the passing of such information to third parties were not for journalistic purposes and therefore were not covered by the derogation in the Personal Data Act, but rather constituted the processing of personal data in which the applicant companies had no right to engage. 15.  On 7 January 2004 the Data Protection Board dismissed the Data Protection Ombudsman’s request. It found that the derogation laid down in the Personal Data Act concerning journalism applied to the present case. As regards the SMS service, the data used in the service had already been published in Veropörssi and therefore the Act did not apply to it. 16.  By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) reiterating his request that the applicant companies be prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from passing such data to the SMS service. 17.  On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation laid down in the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted (OJ 1995 L 281, p. 31, hereafter “the Data Protection Directive”), should not be interpreted too strictly, as an overly strict interpretation would favour protection of privacy over freedom of expression. That court considered that Veropörssi had a journalistic purpose and that it was also in the public interest to publish such data. It emphasised, in particular, that the published data were already accessible to the general public. The journalism derogation thus applied in the circumstances of the present case. As regards the SMS service, the Administrative Court agreed with the Data Protection Board that, as the information had already been published in the newspaper, the Act did not apply to it. 18.  By letter dated 26 October 2005 the Data Protection Ombudsman lodged an appeal with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Helsinki Administrative Court. 19.  On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Communities (which became the Court of Justice of the European Union on 1 December 2009, hereafter the “CJEU”) on the interpretation of Directive 95/46/EC. 20.  On 16 December 2008 the Grand Chamber of the CJEU handed down its judgment (see Case C-73/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, EU:C:2008:727). It found, first of all, that the activities in question constituted “processing of personal data” within the meaning of Article 3(1) of Directive 95/46. According to the CJEU, activities involving the processing of personal data such as those relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive (see paragraphs 37 and 49 of the judgment). The object of the derogation in Article 9 of the Directive for the processing of personal data carried out solely for journalistic purposes was to reconcile the protection of privacy with freedom of expression. In order to take account of the importance of the latter in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between those two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data had to apply only in so far as were strictly necessary (see paragraphs 54 and 56 of the judgment). Journalistic activities were not limited to media undertakings and could be undertaken for profit-making purposes (see paragraph 61). Furthermore, when interpreting the journalistic purposes derogation, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. Activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under domestic legislation, could be classified as “journalistic activities” if their sole object was the disclosure to the public of information, opinions or ideas, irrespective of the medium which was used to transmit them. Whether or not that was the case, was for the national court to determine (see paragraphs 60-62 of the judgment). 21.  On 23 September 2009 the Supreme Administrative Court, applying the ruling of the CJEU and with reference to the case-law on Article 10 of the Convention, quashed the impugned decisions of the Data Protection Board and the Helsinki Administrative Court and referred the case back to the Data Protection Board for a fresh examination with a view to issuing an order pursuant to section 44(1) of the Personal Data Act. The Supreme Administrative Court requested the Board to prohibit the processing of taxation data by the applicant companies in the manner and to the extent carried out in 2002. 22.  In its legal assessment, the Supreme Administrative Court gave the following reasoning:
“Scope of the matter
The present case does not concern the question of the extent to which taxation data and official documents concerning taxation are public under the Act on the Public Disclosure and Confidentiality of Tax Information.
Nor does it concern the right to publish taxation data as such but only the processing of personal data. Therefore, there is no issue of possible prior interference with the content of the publications, but rather an assessment of whether the legal conditions set for personal data processing and protection of privacy are fulfilled.
The reconciliation of protection of privacy with freedom of expression is part of the legal assessment of personal data processing in the matter.
...
Reconciliation of the protection of privacy and freedom of expression
Interpretation of the exception concerning journalistic purposes in the Data Protection Directive. The Court of Justice of the European Communities emphasised that the purpose of the Data Protection Directive is to ensure that when processing their personal data, the Member States guarantee individuals’ fundamental rights and freedoms, and in particular their right to privacy, while allowing the free movement of such information. The Court further emphasised that these fundamental rights must be reconciled to a certain extent with the fundamental right to freedom of expression, and that this task belongs to the Member States.
...
It therefore appears from the aforementioned ruling of the Court of Justice of the European Communities that the concept of journalism must, as such, be interpreted broadly within the meaning of Article 9 of the Directive, that, on the other hand, the protection of privacy can be derogated from only in so far as it is strictly necessary, and that this task of reconciliation of the two fundamental rights is the task of the Member States. Ensuring proper balance between the rights and interests at stake, including the fundamental rights guaranteed in the Communities’ legal order, is the task of the domestic authorities and courts (see also case C-101/01 Lindqvist).
Interpretation of the exception in the Personal Data Act concerning journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp) that the purpose of the adoption of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, provided it remained within the limits imposed by the Data Protection Directive. Therefore, in order to conclude that processing of personal data is conducted for journalistic purposes within the meaning of the Personal Data Act, inter alia, that data must be used solely for journalistic activities and the data must not be made available to persons other than those involved in those journalistic activities.
When interpreting section 2(5) of the Personal Data Act, particular regard must be had to the fact that it concerns the reconciliation of two fundamental rights, namely the freedom of expression and the protection of privacy.
...
The case-law of the European Court of Human Rights has also adopted a position on reconciling freedom of expression with the protection of privacy. The Court has held, inter alia in its von Hannover judgment of 24 June 2004, that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest.
On the other hand, the Court also held in the above-mentioned judgment that increased vigilance as regards the protection of private life was necessary in order to contend with the new communications technologies which make it possible to store and reproduce personal data.
According to the Court, when balancing the protection of private life against freedom of expression, the decisive criterion had to be the contribution made by publishing the data to a debate of public interest. If a publication is only meant to satisfy the curiosity of a certain audience, freedom of expression must be interpreted more narrowly.
In the present case, it must be assessed to what extent the impugned processing of personal data as carried out in the course of the companies’ activities falls within the scope of the exception concerning journalistic purposes that is provided for in section 2(5) of the Personal Data Act. The starting point is whether the aim of their activities was to disclose information, opinions or ideas to the public. In this assessment, account must be taken of whether or to what extent those activities can be seen as contributing to a debate in a democratic society rather than solely satisfying the curiosity of certain individuals.
Processing of personal taxation data in the background file of Satakunnan Markkinapörssi Oy and in the Veropörssi newspaper
Satakunnan Markkinapörssi Oy collected for the Veropörssi newspaper taxation data from different tax offices in which individuals’ names appear together with information on their taxable income.
As mentioned above, the case concerns the processing of personal data to which the general requirements in Chapter 2 of the Personal Data Act are applicable, unless the Act allows for an exception from the application of these provisions. It must first of all be assessed whether the processing of personal data in the company’s background file before the publication of such data in the Veropörssi newspaper falls within the scope of the exception concerning journalistic purposes.
From the preparatory work on the amendment of the Personal Data File Act (HE 311/1993 vp), which was the Act in force before the Personal Data Act, it transpires in particular that the press considers that the right to freely disclose information also requires journalists to be able, in advance, to freely collect and store information. Restricting the processing of personal data at this stage, that is to say before publication, could in practice mean that a prior decision is taken on what can be published. Such an outcome would be incompatible with the fundamental right guaranteeing freedom of expression.
The issue at stake in the present case concerns publicly accessible personal data received from the tax authorities. The collection and processing of such data in the company’s internal files for the purpose of the company’s publishing activities can, on the basis of above-mentioned grounds, be regarded as processing of personal data for journalistic purposes. The processing of large quantities of such data from the various municipal taxation records may well be necessary as background information for the purpose of the editing of a publication concerning taxation and from the point of view of free communication and open debate. At this stage of activities the protection of the privacy of the persons concerned can also be sufficiently secured, provided that the data collected and stored in the file are protected against unlawful processing as required by section 32 of the Personal Data Act.
Satakunnan Markkinapörssi Oy has published the personal data collected from the tax offices as wide-ranging municipality-based catalogues in the Veropörssi newspaper. As already stated above, in this regard too it is a question of processing personal data within the meaning of section 3(2) of the Personal Data Act. As part of the case file, the Supreme Administrative Court had at its disposal Veropörssi newspaper no. 14/2004, published by Satakunnan Markkinapörssi Oy and covering the Helsinki metropolitan area.
In this respect it must be decided whether a derogation is possible from the requirements relating to the processing of personal data on the basis of section 2(5) of the Act, that is to say whether the impugned processing of personal data by publishing those data in the Veropörssi newspaper came within the scope of the exception provided for journalistic purposes.
...
It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp) that the processing of data in the background file referred to in the Personal Data File Act must relate solely to journalistic activities and that the processed data must not be made available to any persons not engaged in journalistic activities. The purpose of section 2(5) of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, within the limits allowed by the Data Protection Directive. Therefore, the purpose of the Personal Data Act in this respect can be seen as guaranteeing the possibility for free journalistic work prior to the publication of information.
The term “processing of personal data for journalistic purposes” cannot be regarded as covering the large–scale publication of the journalistic background file, almost verbatim, as catalogues, albeit split into different parts and sorted by municipality.
Since the disclosure of registered data on such a scale is equivalent to the disclosure of the entire background file kept for journalistic purposes by the company, such disclosure does not represent solely an expression of information, opinions or ideas. As stated above, with a view to reconciling the requirements of freedom of expression with the protection of privacy, the collection of data before publication has been made permissible under section 2(5) of the Personal Data Act without any requirement of compliance with general conditions set out in section 8 of the Act. By contrast, the processing of personal data collected in the company’s background file by publishing it and by rendering it available to the general public to the extent that has been done in the present case, and beyond the scope of the minimum requirements set out in section 2(5) of the Act, cannot be regarded as compatible with the purpose of the Personal Data Act.
Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the disclosure of the personal data of specific individuals in the manner and to the extent described above. When regard is also had to the foregoing comments on the narrow interpretation of section 2(4) of the Personal Data Act and the fact that a strict literal interpretation of that provision would result in a situation incompatible with the purpose of the Act as regards protection of personal data, the processing of personal data with a view to publishing them in the Veropörssi newspaper, and as far as the contents of this publication itself are concerned, was not conducted for journalistic purposes within the meaning of the Personal Data Act.
...
Having regard to sections 2(5) and 32 of the Personal Data Act and Article 9 of the Data Protection Directive, as interpreted by the Court of Justice of the European Communities in its preliminary ruling, the collection of personal data prior to its publication in the Veropörssi newspaper and its processing in the background file of Satakunnan Markkinapörssi Oy cannot as such be regarded as contrary to the regulations concerning the protection of personal data, provided that, inter alia, the data have been protected properly. However, with reference to all the clarifications on how and to what extent the personal data in the background file were further processed in the Veropörssi newspaper, Satakunnan Markkinapörssi Oy did in fact process personal data concerning natural persons in violation of the Personal Data Act.
Handover of data in a CD-ROM
Satakunnan Markkinapörssi Oy handed over a CD-ROM containing the published data to Satamedia Oy so that the latter could start up an SMS service using that data. As mentioned above, that action amounts to the processing of personal data within the meaning of section 3(2) of the Personal Data Act.
Having regard to the preliminary ruling of the Court of Justice of the European Communities and its effect on the interpretation of section 2(4) of the Personal Data Act, as well as all that has been said above about the processing of personal data in the Veropörssi newspaper, the handover to Satamedia Oy of personal data collected in the background file of Satakunnan Markkinapörssi Oy, even though they were published in the Veropörssi newspaper, cannot be regarded as processing of personal data for journalistic purposes within the meaning of Personal Data Act. Nor can the processing of personal data in such a manner be regarded as having been effected for journalistic purposes within the meaning of Article 9 of the Data Protection Directive. Therefore, in that regard too, Satakunnan Markkinapörssi Oy processed personal data in violation of the Personal Data Act.
Processing of personal data for the realisation of a SMS service by Satamedia Oy
As stated above in the “Facts” section, Satamedia Oy handed over the above-mentioned personal data to a third company in order to start up a SMS service, which company operated the SMS service on behalf of Satamedia Oy.
It was pointed out above that Satakunnan Markkinapörssi Oy had no right under the Personal Data Act to process the personal data at issue by handing it over to Satamedia Oy. Consequently, Satamedia Oy also had no right under the Personal Data Act to process personal data received in this manner.
In addition, it follows from the preliminary ruling of the Court of Justice of the European Communities that the exception provided for in the Data Protection Directive, which concerns the processing of personal data for journalistic purposes, requires the disclosure of data to the public. According to section 2(1) of the Act on the Exercise of Freedom of Expression in Mass Media, the term “the public” in that Act refers to a group of freely determined message recipients. Satamedia Oy’s SMS service involves the company processing personal data relating to the taxation of a specific individual on the basis of a request by another individual. It therefore does not concern disclosure of data to the general public, as explained above, but replying to a request by an individual concerning the personal data of another individual.
Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the possibility of processing the personal data of specific individuals as has been done in this case. Freedom of expression does not require any derogation from the protection of privacy in such a situation.
The Court of Justice of the European Communities further stated in its preliminary ruling that the technical means used for the transfer of information is not relevant when assessing whether there is any question of activities undertaken solely for journalistic purposes. As regards the SMS service operated by Satamedia Oy, it is irrelevant that the data were transferred via mobile phones and text messages. Therefore, this is not a case of treating this mode of transmission of data differently from other modes of transmission. The assessment would be the same if the company processed, on the basis of a request by an individual, the personal data of another individual by using some other mode of transmission.” 23.  Pursuant to the above-mentioned judgment of the Supreme Administrative Court, on 26 November 2009 the Data Protection Board prohibited the first applicant company from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. It found that the collection of personal data prior to its publication in Veropörssi and its processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had been published in Veropörssi, the first applicant company had processed personal data concerning natural persons in violation of the Personal Data Act. The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company’s database and published in Veropörssi. 24.  By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what action they were envisaging in response to the Board’s decision. In their reply, the applicant companies asked for the Data Protection Ombudsman’s views on the conditions under which they could continue to publish public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated, with reference to the decision of the Data Protection Board of 26 November 2009, that “when data on taxable income were collected in a database and published in large catalogues almost as it stood, the Personal Data Act was applicable...”. He reminded them of his duty to report any breach of the Personal Data Act to the police. 25.  By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court, which transferred the case to the Turku Administrative Court. They complained that the decision violated the Constitutional prohibition of censorship as well as their right to freedom of expression. According to the applicants, under domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to rely on the “public interest” as a criterion for preventing publication where preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest. 26.  On 28 October 2010 the Turku Administrative Court rejected the applicant companies’ appeal. It found that the Supreme Administrative Court had stated in its decision of 2009 that the case concerned neither the public accessibility of taxation data nor the right to publish such information per se. As the court was now examining only the 2009 decision rendered by the Data Protection Board, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its 2009 decision. As the Board’s decision corresponded to the content of the latter decision, there was no reason to change it. 27.  By letter dated 29 November 2010 the applicant companies further appealed to the Supreme Administrative Court. 28.  On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Turku Administrative Court, reiterating that the case concerned neither the right to publish taxation information as such, nor preventive censorship. 29.  According to the information submitted by the applicants, the SMS service was shut down after the 2009 decision of the Supreme Administrative Court was served on the applicant companies. The newspaper continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the newspaper has not appeared. The Government, on the other hand, submitted that, according to the applicant companies’ website, Veropörssi was still being published on a regional basis in 2010 and 2011. Moreover, an Internet service continued to operate allowing anyone to request a natural person’s tax data concerning the year 2014 by filling in a form on the website in question. The requested tax information would then be delivered to the customer by phone call, text message or e-mail. 30.  The editor-in-chief of Veropörssi lodged an application with the Court in 2010, complaining that the impugned decision of the Supreme Administrative Court violated his right to freedom of expression. On 19 November 2013 the application was declared inadmissible as being incompatible ratione personae with the provisions of the Convention (see Anttila v. Finland (dec.), no. 16248/10, 19 November 2013). 31.  The first applicant company was declared bankrupt on 15 March 2016. The bankruptcy administration did not oppose the continuation of the present proceedings before the Court (see paragraph 94 below).


5.  The applicant was born in 1948 and lives in Plovdiv. 6.  In January 2000 the applicant, who had been diagnosed with invasive ductal carcinoma, underwent mastectomy of her left breast. 7.  In the beginning of 2002 the applicant began to experience pain in the left side of her chest, for which in February 2002 she underwent a bone scintigraphy. The scintigraphy found a pathological uptake of radioactive tracer in her sixth left rib. Another bone scintigraphy in May 2002 confirmed that finding. However, a computerised axial tomography scan carried out later in May 2002 showed a suspected metastasis in the area of the eighth and ninth left ribs rather than the sixth one. The doctor who performed the scan recommended a further bone scintigraphy. Two such scintigraphies, in August 2002 and in January 2003, showed the same findings as the previous two. A radiography in February 2003 showed a suspected pathological lesion in the sixth left rib. But a second computerised axial tomography scan later in February 2003 found again that the suspected metastasis was in the area of the eighth and ninth left ribs. 8.  On 26 February 2003 a panel of five medical doctors decided that the suspected metastasis was to be surgically removed. 9.  Worried that the exact location of the suspected metastasis had not been fully established, the applicant asked the surgeon who was to operate on her, Dr K.M., whether further tests were required before the operation. According to the applicant, he told her that the available imaging results were sufficient and that he would be able to identify the metastasis once he had opened up her thorax. The applicant then approached the medical doctor who had performed the mastectomy in January 2000 (see paragraph 6 above). He told her that the suspected metastasis was very small, could not be localised visually, and had to be precisely localised before any surgery. The applicant shared her misgivings in that respect with Dr K.M. and reiterated her request for further tests before the operation. However, he reassured her that the available imaging results were sufficient. 10.  Having assented to the operation by signing an informed consent form, the applicant underwent surgery on 13 March 2003. In the course of that surgery Dr K.M. removed fragments of her fourth and fifth left ribs, rather than her sixth, eighth or ninth left ribs. However, the operation report erroneously said that he had removed fragments of the eighth and ninth ribs. When talking to the applicant the next day, Dr K.M. likewise told her that he had removed fragments of those ribs, and that he had inspected her lungs. 11.  The removed rib fragments were sent for histological testing, the results of which were ready on 25 March 2003 and showed that they did not contain cancerous tissue. 12.  When seeing her hospitalisation report upon her discharge from hospital on 24 March 2003, the applicant was surprised to find that her sixth left rib had been left in place and that, instead, fragments of her fourth and fifth left ribs, where no lesions had been detected by the scans and where no cancerous tissue was present according to the histological tests, had been removed. She approached Dr K.M., who denied having made a mistake but agreed to prescribe a further bone scintigraphy, which was carried out in September 2003 and found an increased uptake of radioactive tracer in the sixth left rib and also in the fourth and fifth left ribs. A computerised axial tomography scan carried out the same month found that parts of the fourth and fifth left ribs had been removed and that the sixth left rib was fractured. 13.  The applicant asked Dr K.M. to explain all that, and he apparently again denied having made any mistake. 14.  For years after the operation, the applicant was undergoing radiotherapy and hormonal therapy. 15.  In late 2003 the applicant complained about the operation to the Ministry of Health. The Ministry ordered the Plovdiv Regional Health Inspectorate to carry out an inquiry and, based on its findings, on 23 January 2004 informed the applicant that in view of the inconclusive results of the medical imaging tests, the operating team had chosen to make a wide opening in the thorax, enabling them to inspect the left side of the thoracic wall from the fourth to the ninth ribs. They had decided to remove parts of the fourth and fifth ribs because they had observed macroscopic changes on them; they had not found pathological changes in the sixth rib. The reference to the eighth and ninth ribs in the operation report had been a clerical mistake. 16.  The results of the inquiry, coupled with a complaint filed by the applicant with the hospital, prompted the hospital’s ethical commission to review the case. It did not find any misconduct on the part of Dr K.M. 17.  On 27 January 2004 the applicant brought a claim for damages against Dr K.M. and the hospital in which he was employed, a State-owned limited liability company. She alleged that he had (a) erroneously removed parts of two healthy ribs, the fourth and the fifth on the left, without having obtained her consent; (b) inspected her lungs, which had been unnecessary and unjustified; (c) fractured her sixth left rib; and (d) failed to remove the metastasis, which had been the very purpose of the operation. 18.  On 14 April 2004 the Plovdiv Regional Court admitted a number of medical documents, including the consent form signed by the applicant before the operation. At the request of the applicant, the court ordered an expert report, to be drawn up by an oncologist, nominated by the applicant, a thoracic surgeon, nominated by Dr K.M., and a radiologist, nominated by the court, on a number of points raised by counsel for the applicant. At the request of Dr K.M., the court ordered a second expert report, to be drawn up by another thoracic surgeon. 19.  On 2 July 2004 the court appointed a new oncologist because the one initially chosen had declined the task, ordered the applicant to present herself for examination by the experts, admitted her medical files, and heard as witnesses a surgeon who had taken part in the operation alongside Dr K.M. and another surgeon who had monitored the applicant in the hospital after the operation. 20.  The two expert reports were filed in October 2004. 21.  The report drawn up by the three experts described the different methods for detecting bone metastases, including bone scintigraphy, emphasising that their results had to be assessed cumulatively; said that when operating on cancer patients it was mandatory to inspect adjoining organs by palpation; described the extent, in their view limited, to which the removal of parts of the fourth and fifth left ribs had affected the applicant’s body movements; said that rib fractures were almost inevitable and very frequent in thoracotomies; said that the main principle when operating on cancer patients was that all decisions were to be made by the entire team; and opined that it would be possible to operate on the applicant again, should the need arise. 22.  The thoracic surgeon’s report said that the operating team had not erred from a medical point of view when carrying out the operation, and that the applicant’s prognosis and quality of life would have been much worse had the operation not taken place. 23.  On 20 October 2004 the court heard the four experts, including their answers to questions put by counsel for the applicant. The experts stood by their conclusions. The court then reserved judgment. However, on 5 January 2005 the court, finding that the applicant had not specified whether her preferred defendant was Dr K.M. or the hospital, reopened the proceedings and instructed her to do so. 24.  On 23 March 2005 the court asked the thoracic surgeon to deal with additional questions. He filed his supplementary report in June 2006. 25.  On 17 June 2005 the court admitted further written evidence and heard two witnesses called by the applicant. At the request of counsel for the applicant, it disqualified the thoracic surgeon on the basis that he was employed by the defendant hospital (see paragraph 51 below). The court then appointed a new expert. 26.  In his report the new expert, a thoracic surgeon from Sofia, said that the operating team had not breached good medical practice by removing parts of the applicant’s fourth and fifth left ribs based on their visual and tactile inspection in the course of the operation, bearing in mind that histological testing of bone tissue required time and therefore no histological conclusion could be obtained during the operation; that they had correctly inspected the applicant’s lungs by palpation; that rib fractures in the course of such operations were almost inevitable; that the removal of the rib fragments had not unduly affected the applicant because they had later partly regenerated; and that it could not be categorically said that the applicant had a metastasis in her sixth rib, especially bearing in mind that no further metastases had been detected for many years after the operation. 27.  On 26 October 2005 the court heard the new expert, including his answers to questions put by counsel for the applicant. He explained in detail why he stood by his conclusions. Counsel for the applicant requested a further expert report on the need for the operation. The court turned down the request on the basis that it went beyond the scope of the case. 28.  In a judgment of 11 January 2006, the Plovdiv Regional Court dismissed the applicant’s claim. It referred to the conclusions of the experts but said that it would not take into account the reports drawn up by the expert who had been disqualified (see paragraphs 22, 24 and 25 above). Based on those conclusions, the court found that the precise location of the suspected metastasis had not been fully established before the operation. It went on to say that the allegation that Dr K.M. had removed parts of the applicant’s fourth and fifth left ribs without her consent was baseless, since the written consent form that she had signed before the operation, following an explanation on the proposed procedure, had not specified the rib to be operated upon. The court further held, with reference to the expert opinions, that Dr K.M. had not erred by removing parts of the fourth and fifth left ribs, as he had observed on them tissue which he had suspected to be cancerous. The fact that the histological test had later showed otherwise had not retrospectively rendered his assessment flawed. Nor had he erred by inspecting the applicant’s lungs by palpation – that was standard practice in that type of operation. Furthermore, the evidence did not categorically prove that the applicant still had a metastasis in her sixth left rib, especially bearing in mind the lack of other metastases after the operation. In particular, the experts were agreed that the medical imaging results submitted by the applicant could not be conclusive on that point in the absence of a fresh histological test. Lastly, the court found that it had not been proved that the applicant’s sixth rib had been fractured in the course of the operation and that, in any event, such a fracture was a habitual risk in that sort of operation. 29.  The applicant appealed to the Plovdiv Court of Appeal. 30.  On 10 April 2006, at the request of counsel for the applicant, the court instructed the replacement thoracic surgeon who had acted as expert in the proceedings before the lower court (see paragraph 26 above) to draw up a supplementary report in which to address several points raised in the appeal. Counsel for the applicant also requested a fresh expert report, to be drawn up by three thoracic surgical oncologists. They asked that one of those be Dr V.T. Counsel for Dr K.M. opposed the request, arguing that Dr V.T. would be biased in favour of the applicant because he had known her for years. The court did not order the report. 31.  The thoracic surgeon’s supplementary report said that the applicant had correctly been subjected to surgery; that the operating team had not erred by acting on the basis of the visual and tactile findings made in the course of the operation, especially bearing in mind the uncertain results of the prior medical imaging tests; that there was no universally reliable method to establish the presence of bone metastases; that it had been impossible to mark the precise spot of the suspected metastasis before the operation; and that Dr K.M. had had the requisite qualifications to operate on the applicant. 32.  On 29 May 2006 the court admitted the report and heard the thoracic surgeon. The applicant submitted a private expert opinion which said that the removal of parts of her fourth and fifth left ribs had been needless and erroneous. This opinion could not be admitted because it had not been drawn up by court-appointed experts. The applicant however reiterated her earlier request for a fresh expert report (see paragraph 30 above), and the court acceded to it, appointing as experts two thoracic surgeons, one of whom was Dr V.T., and a thoracic surgical oncologist, all from Sofia. 33.  The experts were divided. Dr V.T., who filed a minority report, was of the view that the operation had not been necessary and had been carelessly carried out, with the removal of parts of two healthy ribs. The other two experts expressed the same views as those set out in the thoracic surgeon’s supplementary report (see paragraph 31 above), and came to the conclusion that the operation had been required and that the operating team had not acted out of line with good medical practice. 34.  On 18 September 2006 the court admitted the reports and heard the three experts, who each stood by the views expressed in their respective reports. On 2 October 2006 it admitted further written evidence and heard the parties’ oral argument. 35.  On an unknown later date in 2006 the Plovdiv Court of Appeal upheld the lower court’s judgment. It said that it credited all expert opinions save that of the expert disqualified in the proceedings before the lower court (see paragraphs 22, 24 and 25 above) and that of Dr V.T. (see paragraph 33 above), which went against the remainder of the evidence. It went on to hold, by reference to the other experts’ conclusions, that the operation had been necessary, and that by removing parts of the applicant’s fourth and fifth left ribs on the basis of a visual and tactile examination Dr K.M. had acted in line with established medical practice, even though it had later transpired that they did not contain cancerous tissue. The court came to the same conclusions as the lower court with respect to the inspection of the applicant’s lungs by palpation, the alleged fracture of her sixth rib, and the question whether it had been proved that she had cancer after the operation (see paragraph 28 above). On that basis, the court held that the medical team which had operated on the applicant had not acted negligently and that it had not been categorically established that the applicant had suffered damage as a result of their actions. 36.  The applicant appealed on points of law. 37.  In a judgment of 29 July 2008 (реш. № 393 от 29.07.2008 г. по гр. д. № 2227/2008 г., ВКС, I г. о.), the Supreme Court of Cassation quashed the lower court’s judgment and remitted the case. It held that that court had failed duly to elucidate the facts and in particular to take on an active role in the formulation of the questions to the experts. It had thus not fully clarified whether it had been necessary to operate on the applicant, whether her sixth left rib had been fractured in the course of the operation, and why it had been necessary to remove parts of her fourth and fifth left ribs. It had likewise failed to explain fully why it had disregarded Dr V.T.’s opinion; simply saying that it went against the rest of the evidence was not enough. On remittal, the lower court had to re-visit these points by taking into account the history of the applicant’s medical condition, and inquire into the need for the operation, the presence of metastases in her ribs, and the alleged worsening of her health after the operation. In so doing, it had to obtain a fresh medical expert report and enable the parties to take part in the formulation of the questions to the experts. 38.  On remittal, the Plovdiv Court of Appeal ordered a fresh expert report, to be drawn up by two thoracic surgeons from Sofia and a medical imaging specialist from Plovdiv. 39.  The report said that it had been imperative to carry out the operation; that the fracture of the sixth rib had been there before the operation and had been due to the rib’s heightened fragility resulting from previous anti-cancer treatment; that the removal of parts of the fourth and fifth ribs had not been an error in view of the inconclusive prior medical imaging data, which had its limitations, and the visual observation of tissue that could at the time have been suspected to be cancerous; that there was no categorical medical data proving the presence of a metastasis in the sixth rib before or after the operation – the bone scintigraphies had only showed an increased uptake of radioactive tracer there – in spite of the medical treatment undergone by the applicant after the operation; that the applicant could be operated upon again, should the need arise; and that the applicant’s medical condition would have been much worse had she indeed had an untreated metastasis in her sixth, eighth or ninth rib for years after the operation. 40.  On 26 November 2008 the court admitted the report and heard the three experts, including their replies to questions posed by counsel for the applicant. The experts stood by their conclusions. The court also admitted other evidence submitted by the applicant. 41.  On 11 May 2009 the Plovdiv Court of Appeal again upheld the lower court’s judgment. It held, by reference to the reports of the three experts that it had appointed, the three experts appointed in the proceedings before the lower court, and three of the experts appointed in the first appeal proceedings (see paragraphs 21, 31, 33 and 39 above), that the operation had been required. It said that it could not follow the opinion of Dr V.T. on this point (see paragraph 33 above) because, even though the question whether it had been advisable to operate in such circumstances could be debated theoretically, the medical team treating the applicant had been faced with an exigently practical situation: the medical imaging tests had showed the presence of a suspected isolated tumour whose exact location was uncertain, and there had been for this reason only one course of action: localise the tumour using the methods of surgical diagnostics and immediately remove it. The court agreed with the experts’ conclusions that the operating team had not erred by removing parts of the applicant’s fourth and fifth ribs on the basis of their suspicion that they contained cancerous tissue, even though that had turned out not to be the case. The mention of the eighth and ninth ribs in the operation report had been a clerical mistake without incidence for the applicant’s health. Again by reference to the experts’ conclusions, the court fully agreed with the lower court’s findings with respect to the inspection of the applicant’s lungs by palpation, and held that it had not been proved that her sixth rib had been fractured in the course of the operation, or that a metastasis in that rib had erroneously not been removed. On that basis, it concluded that Dr K.M. had not acted negligently. 42.  The applicant again attempted to appeal on points of law. 43.  In a decision of 10 November 2009 (опр. № 1537 от 10.11.2009 г. по гр. д. № 1275/2009 г., ВКС, IV г. о.), the Supreme Court of Cassation refused to admit the appeal for examination, holding that there was no divergent case-law on the points of law decided by the lower court and that the appeal in effect concerned that court’s findings of fact.


6.  The applicant was born in 1956 in the Tambov Region. Before his arrest he lived in St Petersburg. 7.  The applicant was arrested on 23 August 2007. He remained in detention throughout the investigation and trial. 8.  On 9 November 2009 the Kuybyshevskiy District Court of St Petersburg found him guilty of aggravated fraud and money laundering committed within an organised criminal group and sentenced him to fourteen years’ imprisonment. That judgment was upheld on appeal by the St Petersburg City Court on 30 March 2010. 9.  On 6 March 2012, in another set of criminal proceedings, the Kuybyshevskiy District Court, found the applicant guilty of two counts of aggravated extortion committed within an organised criminal group and imposed a cumulative prison sentence of fifteen years. The judgment became final on 12 July 2012 when endorsed by the City Court. 10.  In 1994 the applicant lost his right arm. He suffered heart attacks in 2000 and 2007 and a kidney affected by cancer was removed in 2003. At the time of his arrest the applicant’s diagnoses listed: ischemic disease, exertional angina of the second functional group, atherosclerotic and post infarction cardiosclerosis, third-stage hypertension with a high risk of vascular complications; cardiac failure of the second functional group; chronic post-traumatic pericarditis with effusion; remote cancer metastases requiring permanent supervision; kidney stones; concretion of the right kidney; chronic pyelonephritis; chronic kidney failure of the first degree; adenocarcinoma of the prostate gland; chronic prostatitis; chronic cystitis, and constantly recurrent multidrug-resistant infection of the urinary tract. To keep his medical condition under control, the applicant followed a daily complex drug regimen comprising up to ten medicaments and underwent an in-depth medical examination every two months in a hospital where he received necessary treatment in respect of his oncological illnesses. 11.  On 24 August 2007 upon his admission to remand prison no. IZ‑77/1 in Moscow the applicant informed the prison medical authorities of his condition, submitting the full list of his diagnoses. 12.  In September 2007 he started complaining about a number of symptoms such as a heart pain, fatigue, difficulty in breathing, and frequent urination. He received basic treatment which alleviated a part of his health problems, but the urinary condition worsened. In November 2007 he complained of a pain in the low abdomen and inability to urinate. On 20 November 2007 a surgeon recommended urinary catheterisation, that is to say the insertion of a tube into the patient’s bladder via the urethra. That procedure was performed approximately 250 times during the first year of detention. In the meantime the urinary condition became more acute. 13.  On 4 December 2008 the applicant was examined by a urologist for the first time whilst in detention. The doctor recommended treatment with antibiotics, regular urological supervision and to avoid catheterisation in so far as possible. 14.  Throughout 2009 the applicant’s urinary condition persisted. He urinated up to thirty-seven times per day and his nocturnal sleep was interrupted every hour or two. He had to continue resorting to urinary cauterisation. On several occasions he had a consultation with a urologist. 15.  On 12 October 2009, at the request of the applicant’s lawyer, three medical experts prepared a report assessing the capability of the custodial authorities to properly treat the applicant. Having examined the medical file on the applicant compiled in the civilian hospital, submissions by the custodial authorities and the applicant’s own comments, the experts concluded that he required systematic treatment with amendments to the chemotherapy regimen and periodic admissions to a specialised cardiology hospital for instrumental examinations and necessary amendments to drug regimen. Given the absence of proper medical supervision, the experts also warned of a possible deterioration of the applicant’s urinary and oncological problems and a risk of those illnesses advancing to a stage requiring surgery, or to a stage with no prospects of the applicant being cured or even his life being saved. The experts observed that the medical unit of the detention facility where the applicant was kept was not equipped for treating patients in such a medical condition. 16.  On 28 December 2009, 19 March, 15 June, 26 July, 25 August and 30 November 2010 the applicant was examined in the Moscow Scientific Institute of Urology (hereinafter “the Urology Institute”), having been diagnosed with neurogenic bladder dysfunction. The treatment provided slightly improved his condition. 17.  On 21 December 2010 the doctors from the Urology Institute performed a surgery on the applicant. A suprapubic catheter was inserted into his bladder through a cut in the abdomen. The applicant was discharged from the hospital to a remand prison under the supervision of the resident doctor. 18.  Three days later the applicant complained of continuous bleeding from the abdominal incision. The next day, having lost more than one litre of blood, he was sent back to the Institute, where his condition was brought under control. 19.  In April 2011, in the remand prison, the applicant developed an acute inflammation of the urethra, which was successfully treated in the Institute. 20.  From 2012 to 2014 the applicant’s urinary condition remained stable. He continued using the suprapubic catheter to remove the urine. 21.  In the meantime, in December 2009 the applicant brought a court claim against the detention authorities, seeking that the lack of appropriate medical treatment be declared unlawful. 22.  On 28 June 2010 the Preobrazhenskiy District Court of Moscow dismissed his claim. The court found as follows:
“From the [applicant’s] medical file submitted by the [remand prison] it is apparent that ... [the authorities] provided him with medical aid, subjected him to medical testing, and prescribed treatment. In particular, on 4 December 2008, 25 September and 15 November 2009 he was seen by a urologist... On 28 December 2009 he was examined in the [Urology Institute]. It is not apparent from the medical file that the authorities refused to provide [the applicant] with the medical assistance or that he was deprived of the requisite medication”. 23.  On 24 March 2011 the Moscow City Court upheld that decision on appeal.


5.  The applicant was born in 1962 and lives in Moscow. 6.  On 1 February 1994 F. bought a 19.3 square metre flat at 22-2-68 Nagatinskaya Naberezhnaya, Moscow. On 23 July 1997 F. died intestate and without heirs. According to the Government, his flat was locked and sealed by the housing maintenance company. 7.  On an unspecified date N. brought a civil action seeking recognition as F.’s heir-at-law. The City of Moscow authorities took part in the proceedings as a respondent. On 8 February 2010 the Simonovskiy District Court of Moscow granted her claim and recognised her title to F.’s flat. The judgment came into force on 19 February 2010. 8.  On 14 May 2010 N. sold the flat to K. The transaction was registered by the Federal Registration Service. 9.  On 24 June 2010 the Moscow City Court quashed the judgment of 8 February 2010 on appeal and dismissed N.’s claims. 10.  On 6 July 2010 K. sold the flat to the applicant. On 21 July 2010 the Federal Registration Service registered the sale agreement and the transfer of the title to the flat to the applicant. 11.  On an unspecified date the Housing Department brought a civil action claiming that N. had been erroneously recognised as F.’s heir-at-law and that the City of Moscow should inherit his property instead. 12.  On 8 November 2012 the District Court granted the Housing Department’s claims. It ordered the transfer of title to the flat to the City and the requisition of the flat from the applicant. The court also considered that the applicant had not demonstrated due diligence when buying the flat from K. and could not be recognised as a bona fide purchaser. 13.  On 4 February 2013, following an appeal by the applicant, the Moscow City Court upheld the judgment of 8 November 2012. 14.  On 15 April 2015 the District Court granted the Housing Department’s claims against the applicant and ordered her eviction. 15.  According to the Government, the applicant has not been evicted and continues to reside in the flat. 16.  On 9 December 2013 the Perovskiy District Court of Moscow granted a claim by the applicant for damages against K. and awarded her, inter alia, 4,060,006 Russian roubles (RUB). K. appealed. 17.  On 20 March 2014 the Moscow City Court upheld the judgment of 9 December 2013 on appeal. 18.  According to the Government, the bailiff failed to establish K.’s whereabouts or locate any of his assets. The judgment in the applicant’s favour remains unenforced. The enforcement proceedings are still pending.