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VOSKUIL v. THE NETHERLANDS - 64752/01 [2007] ECHR 965 (22 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/965.html
Cite as:
50 EHRR 9,
(2010) 50 EHRR 9,
[2008] EMLR 14,
[2007] ECHR 965,
24 BHRC 306
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THIRD
SECTION
CASE OF VOSKUIL v. THE NETHERLANDS
(Application
no. 64752/01)
JUDGMENT
STRASBOURG
22
November 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Voskuil v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
Mrs W.
Thomassen, ad hoc judge,
and Mr S. Quesada, Section
Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 64752/01) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Netherlands national, Mr
Koen Voskuil, on 26 October 2000.
The
applicant was represented by Mr R.S. le Poole, an advocate practising
in Amsterdam. The Netherlands Government (“the Government”)
were represented by their Agent, Mr R.A.A. Böcker of the
Ministry for Foreign Affairs.
The
applicant, a journalist, alleged in particular that an order for his
detention intended to compel him to disclose the identity of an
informant violated Article 10 of the Convention. He also complained
under Article 5 § 1 of the Convention that his detention
had not been ordered in accordance with the procedure prescribed by
law.
On
25 November 2004 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
Mr
E. Myjer, the judge elected in respect of the Netherlands, withdrew
from sitting in the case (Rule 28). The Government accordingly
appointed Mrs W. Thomassen to sit as an ad hoc judge (Article
27 § 2 of the Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Particular circumstances of the case
The
applicant was born in 1975 and lives in Amsterdam.
On
30 March 2000 the Amsterdam Regional Court (arrondissementsrechtbank)
convicted three accused, Messrs K., Van S. and H., of arms
trafficking. In the criminal investigation into the offences at
issue, the Amsterdam police had stated that an arsenal of weapons had
been found by chance: the caretaker of a building situated on the
Nachtwachtlaan in Amsterdam had contacted the police when water was
leaking from one of the flats in the building, whose occupants were
absent. With the aid of two locksmiths, the police had gained entry
to the flat and in the subsequent search for the source of the leak,
the weapons had been found.
The
accused lodged an appeal against the judgment of the Regional Court.
On
12 and 13 September 2000 the daily newspaper Sp!ts published
two articles, written by the applicant and his colleague Ms S., in
which doubts were expressed about the amount of coincidence allegedly
involved in the finding of the weapons. The article of 13 September
2000, entitled “Chance Hit or Perfect Shot?”
(“Toevalstreffer of loepzuiver schot?”), quotes an
unnamed policeman of the Amsterdam force as commenting in respect of
the flooding, “That is what we made out of it. Sometimes
you just need a breakthrough in an investigation” (“Dat
hebben we er maar van gemaakt. Soms heb je net even een doorbraak
nodig in je onderzoek”).
In
the proceedings on appeal against K., Van S. and H., the applicant
and Ms S. were summonsed to appear as witnesses at the request of the
defence. At the first hearing before the Amsterdam Court of Appeal
(gerechtshof) on 22 September 2000 in the cases against Van S.
and K., the applicant – who was assisted by counsel –
stated inter alia that he knew that the policeman, whom he had
quoted verbatim in the article of 13 September 2000, had
been involved in a previous investigation against K. When the
applicant was asked whether that policeman was also involved in the
investigation of the flat or was aware of that investigation, he
invoked his right of non-disclosure (verschoningsrecht).
Counsel for the defence argued that both the individual interest of
the accused – on whom a custodial sentence had been imposed as
a result of the investigation carried out by the police – and
the interest of criminal justice in the Netherlands outweighed the
applicant's interest in not disclosing his source. The Advocate
General also expressed as his opinion that the applicant could not
invoke a right of non-disclosure. He stated in addition that the
source, if his name was made known, had nothing to fear from either
the police or the public prosecution service.
After
having deliberated, the Court of Appeal considered that, if the
statement made by the police officer to the applicant was correct,
this might affect the conviction of the accused. It also affected the
integrity of the police and judicial authorities. For these reasons,
the Court of Appeal held that the applicant was to reply to the
question whether his source had been involved in the investigation of
the flat and had been aware of that investigation. The President of
the court further reminded the applicant that the court was empowered
to order his detention for failure to comply with a judicial order
(gijzeling). Upon this, the applicant replied that his source
had both been aware of, and involved in, the investigation of the
flat.
Asked
by counsel for the accused to reveal the identity of his source, the
applicant once again invoked his right of non-disclosure. Counsel for
the applicant submitted that he was justified in so doing, given that
disclosing the identity of his source would render it impossible for
the applicant to work as a journalist in the future since sources
would no longer approach him. The interests of the journalist and of
freedom of expression outweighed other interests. Moreover, as the
criminal charges at issue concerned only arms trafficking and not,
for example, a multiple homicide, it was disproportionate to require
the applicant to name his source. It also went against the principle
of subsidiarity, since there were other ways in which the identity of
the source could be discovered.
In
reply, the Advocate General stated that journalists exposed obvious
wrongs (kennelijke misstanden) in society. Where they chose to
do so, they should also face the consequences. The applicant was the
only witness who could clarify whether or not the three accused had
been wrongly convicted. In the present case, where official records,
drawn up on oath of office (ambtseed) by police
officers, and the integrity of the judicial authorities were at
stake, the applicant must reveal the identity of his source. It could
not be the case that, in order to trace this identity, every member
of the Amsterdam police force should be heard, bearing in mind that
all officers in the case against K. had already been heard by the
investigating judge (rechter-commissaris).
Having
deliberated, the Court of Appeal decided that the applicant was to
reveal the identity of his source, for the same reasons as it had
held that he had to reply to the question of his source's involvement
in the investigation. The applicant invoked his right to remain
silent (zwijgrecht), upon which the court ordered his
immediate detention for a maximum of 30 days. No legal remedy
lay against the decision to detain the applicant (Article 294 §
3 of the Code of Criminal Procedure – Wetboek van
Strafvordering, “CCP”).
When
questioned by counsel for the accused, the applicant's colleague, Ms
S., stated that she was aware of the identity of the source, but that
she had never met him in person. Having regard to this last fact, as
well as to the fact that the journalist who had had direct contact
with the source – i.e. the applicant – had already
been placed in detention, the Court of Appeal considered that Ms S.
was not obliged to reveal the identity of the source.
The
applicant was served with an unreasoned decision on 25 September
2000. On 27 September 2000 he was handed a copy of the record of the
hearing of 22 September, containing the decisions made by the Court
of Appeal at that hearing and the reasons for them.
Late
on 22 September 2000 the applicant lodged a request with the Court of
Appeal to be released from detention. Prior to the examination of
this request on 27 September 2000, the applicant was able to consult
his lawyer only once, namely in the evening of 25 September. Requests
to visit the applicant on 22, 23, 24, (the afternoon of) 25, 26 and
27 September were refused. The request for release was dealt with by
the Court of Appeal in chambers (raadkamer), by the same
judges who had ordered his detention.
At
the hearing in chambers on 27 September 2000, the Advocate General
reported that, following the applicant's statements at the hearing on
22 September, a police inspector had carried out an internal
investigation, which had revealed that only eight police officers had
been involved in both the first and the second investigation into the
accused K. All these officers had made sworn affidavits to the effect
that they had never been in contact with the applicant.
Informed
of the outcome of the internal police investigation, the applicant
insisted that he did not want to reveal the identity of his source.
He stated that he was a journalist and that he might as well give up
on that career if he started revealing his sources; no sources
wanting to remain anonymous would any longer be willing to provide
him with tip-offs. The applicant was informed by the President of the
Court of Appeal that the right of non-disclosure was not absolute,
and that more weighty interests could be at stake. In the present
case, long prison sentences had been imposed on the three accused,
partly on the basis of official records drawn up by police officers.
The applicant replied that he was willing to state only that his
source was not one of the police officers who had made sworn
affidavits in the internal police investigation.
Counsel
for the applicant argued that the journalist should be the last,
rather than the first, means of arriving at the truth. The witnesses,
whose examination had been requested by the three accused, ought to
be heard first. Those witnesses could be confronted with the articles
published in Sp!ts as well as with the article which had
appeared in the weekly news magazine Vrij Nederland on 8
January 2000. This latter article had also suggested that the
flooding of the flat had been staged, and the author had informed
counsel for the applicant that the information contained in the
article had not come from the same source as the one relied on by the
applicant. Counsel for the applicant further posited that the State
Criminal Investigation Department (Rijksrecherche) could
carry out an investigation of the police force. Finally, it was for
the Court of Appeal to assess the value of the article written by the
applicant – that court could also decide to disregard it.
By
decision of 28 September 2000, the Court of Appeal refused the
applicant's request for his detention to be lifted. It repeated that
the interests of the accused and of the integrity of the police and
the judicial authorities outweighed the interest of the applicant in
not having to disclose the identity of his source. Having regard to
the outcome of the internal police investigation, as well as to the
fact that an appeal made by the police commissioner for the
applicant's source to come forward had not produced any results, the
Court of Appeal considered it unlikely that an investigation by the
State Criminal Investigation Department would clarify, within a
reasonable time, the cause of the flooding, quite apart from the fact
that such an investigation would seriously delay the criminal
proceedings against K., Van S. and H. The Court of Appeal similarly
rejected the suggestion to hear the witnesses proposed by the defence
first, given that those witnesses had already been heard extensively
about the point in issue. For these reasons, it could not be held
that the detention of the applicant breached the principles of
proportionality and subsidiarity.
The
Court of Appeal further considered that the applicant's objections
against the order for his detention as given at the hearing of
22 September 2000 did not require examination since no appeal
lay against such order. It also rejected the argument that the order
had not been served on the applicant within 24 hours, since –
as appeared from the record of that hearing of 22 September –
he had been informed of the order orally. Finally, the Court of
Appeal held that the possibilities for contact between the applicant
and his counsel were laid down in penitentiary legislation. It was
not for the Court of Appeal to assess the application of that
legislation.
The
applicant lodged an appeal on points of law to the Supreme Court
(Hoge Raad) against the decision of the Court of Appeal.
A
second hearing before the Court of Appeal in the criminal proceedings
against Van S. and H. took place on 9 October 2000. The applicant
once again refused to reveal the identity of his source. Upon this,
the Court of Appeal decided to lift the order for the applicant's
detention. It considered that no support for, or confirmation of, the
applicant's statement that he had received information from a police
officer who had been involved in both investigations against the
accused K. could be found in statements made by other persons and/or
in the contents of documents. On the contrary, the applicant's
statement had been contradicted by ten police officers. Therefore, no
credence could be attached to his statement. This being the case, the
applicant's detention no longer served any purpose.
At
the same hearing on 9 October 2000, and following the Court of
Appeal's decision to lift the applicant's detention, counsel for the
accused K. challenged (wraken) the Court of Appeal. A
different chamber of the Court of Appeal upheld that challenge, also
on 9 October 2000. It held that the opinion that the applicant's
statement was not credible, as expressed by the Court of Appeal in
the criminal proceedings against Van S. and H., might have a bearing
on decisions which that court would be called upon to take in the
criminal proceedings against K. This constituted an exceptional
circumstance, providing an important indication for the conclusion
that the accused's fear of a judge being prejudiced against him was
objectively justified.
The
criminal proceedings against the three accused continued on
30 October 2000 before the Court of Appeal in a new composition.
The applicant was again heard as a witness, as were seven other
journalists who had also published articles about the case against K.
and the possibility of the flooding having been staged. The Court of
Appeal also heard two plumbers and the caretaker of the building.
Subsequent
to the decision to lift the order for his detention, the applicant
withdrew his appeal on points of law as his release had rendered that
appeal devoid of interest.
According
to the Government, the criminal proceedings against K., Van S. and H.
have been brought to a conclusion.
B. Other press reports
The
applicant has submitted photocopies of two cuttings from print media.
The
first is of a report in the mass circulation daily newspaper De
Telegraaf, dated 24 September 1999. It is therein stated that
following reports of flooding from a second flat in Amsterdam, police
had found another large quantity of weaponry. Messrs K., Van S. and
H., the accused in the applicant's case, were not at that time
suspected of involvement; the weapons were thought to belong to a
terrorist organisation. The report drew attention to the similarity
between the Nachtwachtlaan case and this new case as regards the
circumstances in which the weapons were found. It cited “police
sources” as suggesting that intelligence services, possibly
foreign, had engineered events in order to protect their informants.
The
second, which is incomplete, is of an article that appeared on
8 January 2000 in the weekly magazine Vrij Nederland. It
links the two events and cites an unnamed source as stating that they
had in fact been engineered by the then Netherlands National Security
Service (Binnenlandse Veiligheidsdienst – “the
BVD”).
It
appears that the report in De Telegraaf and the article
in Vrij Nederland were both written by journalists other than
the applicant.
The
applicant has also submitted a printout of a page taken from the
internet web site of the Amsterdam daily newspaper Het Parool,
dated 27 September 2000. It quotes the two plumbers who were
called in to repair the water leak as dismissing as nonsense all
allegations that the damage had been caused deliberately; in actual
fact, such leaks were very common in older buildings.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. The Netherlands Code of Criminal Procedure
Provisions
of the Code of Criminal Procedure relevant to the case provide as
follows:
Article 218
“Persons who, by virtue of their position, their
profession or their office, are bound to secrecy may ... decline to
give evidence or to answer particular questions, but only in relation
to matters the knowledge of which is entrusted to them in that
capacity.”
Article 294
“1. If during the interrogation the
witness refuses, for no lawful reason, to answer the questions put to
him or to take the required oath or affirmation, the court shall, if
the investigation urgently so requires, order his detention
(gijzeling).
2. The witness and his counsel shall be heard
about the reasons for his refusal before the order is given.
3. The detention order shall be valid for no more
thirty days; the court shall at the same time order the time at which
the witness is to be presented before it anew. No remedy shall lie
against the order.
4. The court shall order the witness released
from detention as soon as he has fulfilled his obligations or the
investigation at the hearing is closed. It shall however have
competence to order the witness released from detention whatever the
state of the investigation, including at the request of the witness.
Article 223 § 3 shall apply.
Articles
224 and 225 shall apply.”
Articles
223, 224 and 225, which are thus declared applicable to witnesses at
the trial hearing, per se apply to witnesses heard by an
investigating judge.
Article
223 § 3 provides, in relevant part, that the detained witness
may appeal within three days after the official notification in
writing of the decision against any refusal to order his release from
detention and may appeal on points of law to the Supreme Court
against any such refusal given on appeal.
Article
224 provides that the witness shall receive notification in writing
within twenty-four hours of all decisions to order or extend his
detention or to refuse his release from detention.
Article
225 provides that the witness shall have the right to consult
counsel. His counsel shall have unrestricted access (vrije
toegang) to him, be allowed to see him in private and exchange
confidential correspondence with him, subject to detention rules and
provided that the criminal investigation in which his evidence was
sought not be delayed. Counsel shall also have access to any official
records relating to the questioning of the witness and, if the
criminal investigation admits of it, the remainder of the case file.
Although
these provisions by their wording apply to proceedings at first
instance before the Regional Court, by virtue of Article 415 they
apply by analogy to appeal proceedings before the Court of Appeal.
B. The Guidelines on the position of the press in
relation to police action
The
Guidelines on the position of the press in relation to police action
(Leidraad over de positie van de pers bij politieoptreden)
were issued by the Minister of Justice (Minister van Justitie)
on 19 May 1988. At the time of the events complained of, they
provided, in relevant part:
“7. Seizure of journalistic material
Journalistic material may be seized in cases described
in the Code of Criminal Procedure. Journalists may be faced with
seizure in two ways.
A. The police may, on the instructions of a
public prosecutor (officier van justitie) or an assistant
public prosecutor (hulpofficier van justitie) or not as the
case may be, arrest a journalist on suspicion of a criminal act and
seize everything he has with him on the spot.
There must then be a direct connection between a
particular criminal act and the journalistic material with which that
act has been committed. In this situation, the journalist is arrested
like any ordinary citizen.
If a prosecution ensues, it will be for the independent
judge eventually to decide what is to be done with any seized –
and unpublished – material.
B. Journalistic material may also be seized
on the orders of an independent judge (the investigating judge), if
such material may – in the judge's opinion – serve to
clarify the truth in a preliminary judicial investigation
(gerechtelijk vooronderzoek).
...”
This
section of the Guidelines was replaced with effect from 1 April 2002
by the “Directive on the application of coercive measures to
journalists” (Aanwijzing toepassing dwangmiddelen bij
journalisten), issued by the Board of Procurators General
(College van procureurs generaal). This directive makes
extensive reference to the Court's case-law. If the protection of a
journalist's source is at issue, the use of coercive measures must be
in accordance with Article 10 § 2 with due regard to
requirements of proportionality and subsidiarity.
C. Relevant domestic case-law
In a civil case – brought by persons named in
connection with alleged bribery against two journalists who had
allegedly made use of information leaked by officials – the
Supreme Court, reversing earlier case-law, held (judgment of 10 May
1996, Nederlandse Jurisprudentie (Netherlands Law Reports)
1996, no. 578):
“It follows from the said judgment [i.e. Goodwin
v. the United Kingdom, judgment of 27 March 1996, Reports of
Judgments and Decisions 1996 II] that it must be accepted
that it follows from Article 10 § 1 of the Convention that in
principle a journalist has the right to refuse to answer a question
put to him if he were thus to risk disclosing his source, but that
the court does not have to honour a claim based on this right when it
considers that in the particular circumstances of the case disclosing
the source is necessary in a democratic society in pursuit of one or
more of the aims referred to in the second paragraph of the said
Convention provision, which must be stated and for which, if
necessary, a prima facie case must be made out by the person
who calls the journalist as a witness.
...
It is apparent from the decision of the Court of Appeal
and the other documents contained in the case file that the present
case is characterised in that, as stated by [the plaintiffs], the
'leaked' information relates to a criminal investigation into alleged
bribery of a number of local government officials in the province of
Limburg, in that information relating to the supposed involvement of
[the plaintiffs] in such cases of bribery has already been made
public and that [the plaintiffs] have sued [the newspaper] De
Limburger for damages which they claim resulted therefrom (...).
Accordingly, [the plaintiffs] have claimed no other interest in the
disclosure of [the defendants'] sources than that they wish to know
who has 'leaked', because they wish eventually to sue the State and
the persons concerned themselves for damages and also to obtain an
injunction against the persons concerned to restrain them from any
further 'leaking'. However, the said judgment of the European Court
of Human Rights compels the Supreme Court to find that this interest
in itself is insufficient to counterbalance the weighty public
interest which belongs to the protection of [the defendants']
sources.”
D. Recommendation No.
R(2000) 7 on the right of journalists not to disclose
their sources of information
Recommendation No. R(2000) 7 on the right of
journalists not to disclose their sources of information was adopted
by the Committee of Ministers of the Council of Europe on 8 March
2000. It states, in relevant part:
“[The Committee of Ministers] Recommends to the
governments of member States:
1. to implement in their domestic law and
practice the principles appended to this recommendation,
2. to disseminate widely this recommendation
and its appended principles, where appropriate accompanied by a
translation, and
3. to bring them in particular to the
attention of public authorities, police authorities and the judiciary
as well as to make them available to journalists, the media and their
professional organisations.
Appendix to Recommendation No. R (2000) 7
Principles concerning the right of journalists not to
disclose their sources of information
Definitions
For the purposes of this Recommendation:
a. the term 'journalist' means any
natural or legal person who is regularly or professionally engaged in
the collection and dissemination of information to the public via any
means of mass communication;
b. the term 'information' means any
statement of fact, opinion or idea in the form of text, sound and/or
picture;
c. the term 'source' means any person
who provides information to a journalist;
d. the term 'information identifying a
source' means, as far as this is likely to lead to the identification
of a source:
i. the name and personal data as well
as voice and image of a source,
ii. the factual
circumstances of acquiring information from a source by a
journalist,
iii. the unpublished content of the
information provided by a source to a journalist, and
iv. personal
data of journalists and their employers related to their professional
work.
Principle 1 (Right of non-disclosure of journalists)
Domestic law and practice in member States should
provide for explicit and clear protection of the right of journalists
not to disclose information identifying a source in accordance with
Article 10 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter: the Convention) and the principles
established herein, which are to be considered as minimum standards
for the respect of this right.
Principle 2 (Right of non-disclosure of other
persons)
Other persons who, by their professional relations with
journalists, acquire knowledge of information identifying a source
through the collection, editorial processing or dissemination of this
information, should equally be protected under the principles
established herein.
Principle 3 (Limits to the right of non-disclosure)
a. The right of journalists not to
disclose information identifying a source must not be subject to
other restrictions than those mentioned in Article 10, paragraph 2 of
the Convention. In determining whether a legitimate interest in a
disclosure falling within the scope of Article 10, paragraph 2 of the
Convention outweighs the public interest in not disclosing
information identifying a source, competent authorities of member
States shall pay particular regard to the importance of the right of
non-disclosure and the pre-eminence given to it in the case-law of
the European Court of Human Rights, and may only order a disclosure
if, subject to paragraph b, there exists an overriding
requirement in the public interest and if circumstances are of a
sufficiently vital and serious nature.
b. The disclosure of information
identifying a source should not be deemed necessary unless it can be
convincingly established that:
i. reasonable alternative measures to
the disclosure do not exist or have been exhausted by the persons or
public authorities that seek the disclosure, and
ii. the legitimate interest in the
disclosure clearly outweighs the public interest in the
non-disclosure, bearing in mind that:
- an overriding requirement of the need for
disclosure is proved,
- the circumstances are of a sufficiently
vital and serious nature,
- the necessity of the disclosure is
identified as responding to a pressing social need, and
- member States enjoy a certain margin of
appreciation in assessing this need, but this margin goes hand in
hand with the supervision by the European Court of Human Rights.
c. The above requirements should be
applied at all stages of any proceedings where the right of
non-disclosure might be invoked.
Principle 4 (Alternative evidence to journalists'
sources)
In legal proceedings against a journalist on grounds of
an alleged infringement of the honour or reputation of a person,
authorities should consider, for the purpose of establishing the
truth or otherwise of the allegation, all evidence which is available
to them under national procedural law and may not require for that
purpose the disclosure of information identifying a source by the
journalist.
Principle 5 (Conditions concerning disclosures)
a. The motion or request for
initiating any action by competent authorities aimed at the
disclosure of information identifying a source should only be
introduced by persons or public authorities that have a direct
legitimate interest in the disclosure.
b. Journalists should be informed by
the competent authorities of their right not to disclose information
identifying a source as well as of the limits of this right before a
disclosure is requested.
c. Sanctions against journalists for
not disclosing information identifying a source should only be
imposed by judicial authorities during court proceedings which allow
for a hearing of the journalists concerned in accordance with Article
6 of the Convention.
d. Journalists should have the right
to have the imposition of a sanction for not disclosing their
information identifying a source reviewed by another judicial
authority.
e. Where journalists respond to a
request or order to disclose information identifying a source, the
competent authorities should consider applying measures to limit the
extent of a disclosure, for example by excluding the public from the
disclosure with due respect to Article 6 of the Convention, where
relevant, and by themselves respecting the confidentiality of such a
disclosure.
Principle 6 (Interception of communication,
surveillance and judicial search and seizure)
a. The following measures should not
be applied if their purpose is to circumvent the right of
journalists, under the terms of these principles, not to disclose
information identifying a source:
i. interception orders or actions
concerning communication or correspondence of journalists or their
employers,
ii. surveillance orders or actions
concerning journalists, their contacts or their employers, or
iii. search or seizure orders or
actions concerning the private or business premises, belongings or
correspondence of journalists or their employers or personal data
related to their professional work.
b. Where information identifying a
source has been properly obtained by police or judicial authorities
by any of the above actions, although this might not have been the
purpose of these actions, measures should be taken to prevent the
subsequent use of this information as evidence before courts, unless
the disclosure would be justified under Principle 3.
Principle 7 (Protection against self-incrimination)
The principles established herein shall not in any way
limit national laws on the protection against self-incrimination in
criminal proceedings, and journalists should, as far as such laws
apply, enjoy such protection with regard to the disclosure of
information identifying a source.”
For
the precise application of the Recommendation, the explanatory notes
clarify the meaning of certain terms. As regards the term “sources”
the explanation reads as follows:
“c. Source
17. Any person who provides information to a journalist
shall be considered as his or her 'source'. The protection of the
relationship between a journalist and a source is the goal of this
Recommendation, because of the 'potentially chilling effect' an order
of source disclosure has on the exercise of freedom of the media
(see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996,
para. 39). Journalists may receive their information from all kinds
of sources. Therefore, a wide interpretation of this term is
necessary. The actual provision of information to journalists can
constitute an action on the side of the source, for example when a
source calls or writes to a journalist or sends to him or her
recorded information or pictures. Information shall also be regarded
as being 'provided' when a source remains passive and consents to the
journalist taking the information, such as the filming or recording
of information with the consent of the source.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained of the denial of his right as a journalist not
to disclose his source of information and the order to detain him in
order to compel him to do so. He relied on Article 10 of the
Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
The
Government denied that there had been any such violation.
A. Admissibility
The Government initially objected in limine that
since the applicant had failed to pursue his appeal on points of law
to a conclusion (see paragraph 27 above) it followed that he had not
exhausted the domestic remedies available. However, by a letter of 2
March 2006 they withdrew that objection on the ground that the
Supreme Court would have dismissed the appeal as inadmissible given
that the applicant had already been released.
The Court notes that the applicant's complaint under
Article 10 is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Whether there has been an “interference”
with the applicant's rights under Article 10 of the Convention
Both
parties agreed that there had been an interference with the
applicant's rights under Article 10 of the Convention. Indeed it is
clear that the applicant was subjected to “formalities,
conditions, restrictions or penalties” in that his refusal to
name his source led the Court of Appeal to order his detention in an
attempt to compel him to speak.
2. Whether the interference was “prescribed by
law”
The
Government argued that the applicant's detention had a statutory
basis in the form of Article 294 of the Code of Criminal Procedure as
clarified by the case-law of the Supreme Court. Moreover, procedural
safeguards were sufficient.
The
applicant disagreed: in his view the Court of Appeal had failed to
establish any real need for his detention, let alone an “urgent”
need, even though Article 294 § 1 made urgency a precondition
for any decision to detain a witness on grounds of refusing to give
evidence.
The
Court considers that the applicant's argument does not concern the
lawfulness of the interference so much as the question of its
“necessity in a democratic society”. It is more
appropriately considered under that head.
The
Court further notes that the applicant's detention was ordered on the
basis of Article 294 § 1 of the Code of Criminal Procedure. For
the purposes of Article 10 of the Convention, the Court finds that
the basis in domestic law for the applicant's detention was adequate.
3. Whether the interference pursued a “legitimate
aim”
The
Government stated that the interference was intended for “the
protection of the reputation or rights of others”, namely the
integrity of the judiciary and the Amsterdam police. They also
referred to legitimate purposes such as “public safety”
and “the prevention of disorder or crime”.
The
applicant argued that in the circumstances of his case, the integrity
of the judiciary and the Amsterdam police required him to expose
abuses of official authority while keeping the identity of his source
a secret. Moreover, he had been called as a witness in criminal
proceedings at the request of the defence; the integrity of the
judiciary or the police had not in themselves been at issue in the
proceedings.
The
Court is satisfied that the interference was intended at any rate to
further the prevention of crime.
4. Whether the interference was “necessary in a
democratic society”
The
Government referred to the exception mentioned in principle 3 of
Committee of Ministers Recommendation No. R(2000) 7 on the right of
journalists not to disclose their sources of information (see
paragraph 43 above) and argued that it applied. In particular, they
submitted that the requirements of subsidiarity and proportionality
therein contained had been met.
Firstly,
as to subsidiarity, they stated that no reasonable alternative means
to obtain disclosure of the information concerned was available to
them. There had been an investigation by the judicial authorities in
the wake of allegations of police misconduct made by the defence in
Mr K.'s case long before the applicant had been ordered detained.
This, however, had not provided any information. When the applicant
was ordered detained, an investigation into the conduct of police
officers involved in the investigations against Mr K. was launched as
a precautionary measure. This had not yielded any information either,
as was only to be expected: the applicant's informant – if
there ever was an informant – had necessarily been a police
officer who could expect to face “grave repercussions”
for having made such serious allegations in an important criminal
investigation. Any further investigations by the State Criminal
Investigation Department (Rijksrecherche), the official body
created to investigate alleged cases of police wrongdoing, would have
held up the trial of Mr K. unacceptably.
Secondly,
as to proportionality, the applicant's statements had a direct
bearing on the integrity of the police and the judiciary in the
Amsterdam region. If the applicant's published allegations were
correct, the effect on the rule of law in the Netherlands would be
catastrophic. Moreover, the applicants' allegations had a direct
impact on the conviction of the accused, who had been sentenced to
long terms of imprisonment and who had an interest in obtaining an
enquiry into the alleged unfairness of the investigation against
them.
Thirdly
and finally, the applicant had been kept detained for no longer than
17 days and had been released as soon as the court no longer
considered his detention needful.
The
applicant disagreed. He contended that the Amsterdam Court of Appeal
had failed to balance his Article 10 rights against any interest,
whether the rights of the defence or any other. In addition, arms
trafficking was not among the crimes listed in the Committee of
Ministers Recommendation as serious enough to justify compelling a
journalist to disclose his source. At all events, the weapons found
in the Nachtwachtlaan building had been seized as soon as they had
been found and had therefore posed no danger to the public by the
time of the events complained of.
In
the second place, the requirement of subsidiarity had not been met.
Of the fourteen witnesses called by the defence, only three
(including himself) had been summonsed at that time; the Court of
Appeal had refused to summons the other eleven. Moreover, although a
second investigation had been held as the Government stated, this had
been done only after the applicant had been ordered detained.
Similarly, only after the applicant had been detained did the Court
of Appeal hear other journalists who had reported on the flooding
matter. Finally, the Government's admission that an investigation by
the State Criminal Investigation Department had been considered but
decided against for reasons of expediency showed that that
possibility had in fact existed.
The
Court has stated the principles generally applicable as follows (see,
among many other authorities, Cumpǎnǎ and Mazǎre v.
Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004 XI,
case-law references omitted):
“88. The test of 'necessity in a
democratic society' requires the Court to determine whether the
interference complained of corresponded to a 'pressing social need'.
The Contracting States have a certain margin of appreciation in
assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the
decisions applying it, even those delivered by an independent court.
The Court is therefore empowered to give the final ruling on whether
a 'restriction' is reconcilable with freedom of expression as
protected by Article 10 (...).
89. The Court's task in exercising its
supervisory function is not to take the place of the competent
domestic courts but rather to review under Article 10 the decisions
they have taken pursuant to their power of appreciation (...). This
does not mean that the supervision is limited to ascertaining whether
the respondent State exercised its discretion reasonably, carefully
or in good faith; what the Court has to do is to look at the
interference complained of in the light of the case as a whole,
including the content of the comments held against the applicants and
the context in which they made them (...).
90. In particular, the Court must determine
whether the reasons adduced by the national authorities to justify
the interference were 'relevant and sufficient' and whether the
measure taken was 'proportionate to the legitimate aims pursued'
(...). In doing so, the Court has to satisfy itself that the national
authorities, basing themselves on an acceptable assessment of the
relevant facts, applied standards which were in conformity with the
principles embodied in Article 10 (...).”
Since
1985 the Court has frequently made mention of the task of the press
as purveyor of information and “public watchdog” (see,
among many other authorities, Barthold v. Germany, judgment of
25 March 1985, Series A no. 90, p. 26, § 58; Lingens v.
Austria, judgment of 8 July 1986, Series A no. 103, p. 27, §
44; Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992,
Series A no. 239, p. 27, § 63; more recently, Cumpǎnǎ
and Mazǎre, cited above, § 93).
Protection
of journalistic sources is one of the basic conditions for press
freedom, as is recognised and reflected in various international
instruments including the Committee of Ministers Recommendation
quoted in paragraph 43 above. Without such protection, sources may be
deterred from assisting the press in informing the public on matters
of public interest. As a result the vital public-watchdog role of the
press may be undermined and the ability of the press to provide
accurate and reliable information may be adversely affected. Having
regard to the importance of the protection of journalistic sources
for press freedom in a democratic society and the potentially
chilling effect an order of source disclosure has on the exercise of
that freedom, such a measure cannot be compatible with Article 10 of
the Convention unless it is justified by an overriding requirement in
the public interest (see Goodwin v. the United Kingdom,
judgment of 27 March 1996, Reports of Judgments and Decisions
1996 II, p. 500, § 39; more recently and mutatis
mutandis, Roemen and Schmit v. Luxembourg, no.
51772/99, § 46, ECHR 2003 IV).
As
the Court understands the Government's argument, the applicant was
required to identify his source for two reasons: firstly, to guard
the integrity of the Amsterdam police; and secondly, to secure a fair
trial for the accused.
The
Court sees no need on this occasion to consider whether under any
conditions a Contracting Party's duty to provide a fair trial may
justify compelling a journalist to disclose his source. Whatever
the potential significance in the criminal proceedings of
the information which the Court of Appeal tried to obtain from the
applicant, the Court of
Appeal was not prevented from considering the merits of the
charges against the three accused; it was apparently able to
substitute the evidence of other witnesses for that which it had
attempted to extract from the applicant (see paragraph 26 above).
That being so, this reason given for the interference complained of
lacks relevance.
That
leaves the Court to consider the other interest relied on by the
Government, which was to identify the applicant's source for their
own purposes.
The
Court is not in a position to establish whether or not there was any
truth in the allegations published by the applicant. It notes that
both the Advocate General and the Court of Appeal took them seriously
enough for the applicant's detention to be ordered for more than two
weeks, and that similar allegations were aired in print media other
than the newspaper Sp!ts, but that the Court of Appeal
eventually dismissed the report published by the applicant as
implausible.
On
the one hand the Court understands the Government's concern about the
possible effects of any suggestion of foul play on the part of public
authority, especially if it is false. On the other hand, however, it
takes the view that in a democratic state governed by the rule of law
the use of improper methods by public authority is precisely the kind
of issue about which the public have the right to be informed
(compare, for example, Thorgeir Thorgeirson, cited above, p.
28, § 67, and Cumpǎnǎ and Mazǎre, cited
above, § 95). It is in this light that the Court views the
Government's admission (apparently contradicting the Advocate General
– see paragraph 10 above) that the applicant's source
faced “grave repercussions” if exposed.
Whatever
the consequences might have been for the source, the Court is struck
by the lengths to which the Netherlands authorities were prepared to
go to learn his or her identity. Such far-reaching measures cannot
but discourage persons who have true and accurate information
relating to wrongdoing of the kind here at issue from coming forward
and sharing their knowledge with the press in future cases.
The
Court finds that the facts to be considered tip the balance of
competing interests in favour of the interest of democratic society
in securing a free press. On the facts of the present case, the Court
does not find that the Government's interest in knowing the identity
of the applicant's source was sufficient to override the applicant's
interest in concealing it (compare Goodwin, cited above, p.
502, § 45).
This
finding dispenses the Court from considering the Government's
remaining argument, namely that the length of the applicant's
detention was not disproportionate when viewed in relation to the
interests involved.
In
conclusion, there has been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that, contrary to domestic law, he had not been
provided with a copy of the order for his detention in writing within
twenty-four hours; he also complained that the written copy, when he
eventually received it, contained no reasoning. He relied on Article
5 § 1 of the Convention, which, in relevant part, reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
... in accordance with a procedure prescribed by law ...”
The
Government denied that the applicant had been a victim of the
violation alleged.
A. Admissibility
1. The Government's preliminary objection
The
Government took the view that the applicant had suffered no actual
adverse consequences as a result of the facts complained of. There
was, after all, no doubt that the applicant was aware of the sanction
taken against him and the reasons for it: the Court of Appeal had
explained the reasons for the order in question orally to the
applicant in person. It followed that the applicant could not claim
to be a “victim” within the meaning of Article 34 of the
Convention.
The
applicant repeated that he had not been given a reasoned detention
order within twenty-four hours as required by domestic law.
As
the Court has held many times, the existence of a violation is
conceivable even in the absence of prejudice or damage; the question
whether an applicant has actually been placed in an unfavourable
position is not a matter for Article 34 of the Convention and the
issue of damage becomes relevant only in the context of Article 41
(see, among many other authorities, Marckx v. Belgium, 13 June
1979, Series A no. 31, p. 13, § 27; as a recent example, The
Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §
65, ECHR 2006 ...). Absent any measure favourable to the
applicant, let alone any acknowledgement of a violation by the
domestic authorities (see, among many other authorities, Zdanoka v.
Latvia [GC], no. 58278/00, § 69, ECHR 2006 ...),
the Court sees no reason to come to any different decision in the
present case. The Government's preliminary objection must therefore
be dismissed.
2. Conclusion as to admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The Government did not attempt to argue that domestic
law had been complied with.
As the Court has held many times, on the question
whether detention is “lawful”, including whether it
complies with “a procedure prescribed by law” the
Convention refers back essentially to national law and lays down the
obligation to conform to the substantive and procedural rules thereof
(see, among many other authorities, Wassink v. the Netherlands,
judgment of 27 September 1990, Series A no. 185 A, p. 11, §
24; Öcalan v. Turkey [GC], no. 46221/99, §
83, 12 May 2005; and Nakach v. the Netherlands, no. 5379/02,
§ 37, 30 June 2005).
The
Court observes that, although the decision ordering the applicant
detained on the ground of refusing to give evidence was not required
to be reasoned as the applicant suggested, domestic law did provide
for notification in writing of the detention order within twenty-four
hours (Article 224 of the Code of Criminal Procedure – see
paragraph 37 above). The Government do not deny that the applicant
was only provided with a written copy of the order some three days
later. The Court therefore finds that the procedure prescribed by law
has not been followed. There has accordingly been a violation of
Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant raised under Article 6 of the Convention the same
complaints as he had made under Article 5. Article 6, in relevant
part, provides as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal...”
The
Government did not comment.
The
Court observes that the duty to give evidence in criminal proceedings
is ordinarily a normal civic duty in a democratic society governed by
the rule of law. An order to give evidence does not involve the
determination of the witness's “civil rights and obligations”
(see British Broadcasting Corporation v. the United Kingdom,
no. 25798/94, Commission decision of 18 January 1996); nor does it
involve the determination of a “criminal charge” against
the witness. This complaint is therefore incompatible ratione
materiae with Article 6 of the Convention within the meaning of
Article 35 § 3 and must be declared inadmissible in accordance
with Article 35 § 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant submitted no claim for damages.
He
claimed EUR 23,104.77 including value-added tax for the costs and
expenses incurred before the Court.
The
Government considered these claims excessive.
According
to the Court's case-law, costs and expenses are recoverable under
Article 41 provided that they were incurred by the injured party in
order to seek, through the domestic legal order, prevention or
rectification of a violation, to have the same established by the
Court or to obtain redress therefor. Furthermore, it has to be
established that the costs and expenses were actually incurred, were
necessarily incurred and were also reasonable as to quantum (see,
among many other authorities, Dudgeon v. the United Kingdom
(former Article 50), judgment of 24 February 1983, Series
A no. 59, p. 9, § 20).
The
invoices for the applicant's representation have been made out to
Telegraaf Media Groep N.V., the proprietor of the newspaper
Sp!ts. It has not been shown that the applicant is himself
liable for any costs. That being so the Court rejects his claims (see
Dudgeon (former Article 50), cited above, p. 10, § 22).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares admissible the applicant's complaints
under Articles 10 and 5 § 1 of the Convention;
Declares the remainder of the application
inadmissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 22 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following concurring opinion of Mrs
Thomassen is annexed to this judgment.
B.M.Z.
S.Q.
CONCURRING OPINION OF
JUDGE WILHELMINA THOMASSEN
I
fully agree with the judgment in this case. However, I find it
appropriate to make some additional observations with regard to the
lack of domestic remedies against the detention order which was
imposed on the applicant.
Article
294 § 3 of the Code of Criminal Procedure provided that no
remedy lay against the detention order which had been imposed on the
applicant. Article 223 § 3 however provided the applicant with
an appeal against the refusal to release him and with an appeal on
points of law to the Supreme Court (Hoge Raad) against any
such refusal given on appeal. The applicant in fact made use of his
right to appeal against the refusal to release him. This appeal was
rejected by the very judges of the Court of Appeal who had given the
detention order. Subsequently the applicant lodged an appeal on
points of law with the Supreme Court, but withdrew it after he was
released and before the Supreme Court could give its judgment.
Initially
the Government argued that the applicant, having withdrawn his appeal
to the Supreme Court, had failed to exhaust domestic remedies. They
later withdrew this preliminary objection, having come round to
thinking that the Supreme Court would have declared the appeal on
points of law inadmissible because the applicant would no longer have
been in detention by the time it could have considered his case
(Government's letter to the Court of 2 March 2006).
Apparently
the Government took the view that it was beyond any doubt that the
Supreme Court would have dismissed the appeal on points of law on the
ground of being devoid of interest because of the applicants'
release.
If
this presumption is correct, then the protection at the domestic
level has been deficient. It would mean that the lawfulness of the
applicants' detention could not be challenged before any other court
than the Court of Appeal which itself had imposed the detention order
(if at all). It would mean that the Supreme Court would not have been
in a position to rule on points of law either as to the lawfulness of
the detention or as to its compatibility with Article 10, for the
sole reason that the applicant had been released in the meantime.
Since
fundamental rights require effective protection at the domestic level
more than at any other, this case raises the question what possible
solutions for the future can be found there. The European Court of
Human Rights should only intervene in the national system as a
subsidiary means of protection. Moreover, an effective protection at
the domestic level is necessary in view of the Court's
ever-increasing workload (see also Resolution Res(2004)3 on judgments
revealing an underlying systemic problem, adopted by the Committee of
Ministers of the Council of Europe on 12 May 2004).
In my
view one such possible solution could be to allow an appeal on points
of law against a detention order and have the Supreme Court examine
complaints regarding the lawfulness of someone's detention even after
his or her release, either by way of a further review by the Supreme
Court of its tasks with regard to the Convention or perhaps by the
introduction of a statutory provision which explicitly sets out the
Supreme Court's tasks in this respect.
In
this context it should be noted that the applicants' detention dates
from 22 September 2000, which is more than seven years before the
Court decided on the well-foundedness of his complaints. Had the
Supreme Court examined the arguable claims under Articles 5 and 10 of
the Convention, the applicant could have had a judgment on points of
law most probably in 2000 or at any rate no later than 2001.
Moreover, such a judgment could have made a contribution to an
informed national debate at a time when this issue was a live topic.
If a
national court had been able to conclude that the applicant's
detention had violated both Article 5 and Article 10 of the
Convention, the applicant would have had a remedy within a reasonable
time and any application to the Court could have been declared
inadmissible for non-exhaustion of domestic remedies.
