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Cite as: [2010] ECHR 816

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THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39315/06
by UITGEVERSMAATSCHAPPIJ DE TELEGRAAF B.V. and Others
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 18 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 29 September 2006,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Uitgeversmaatschappij De Telegraaf B.V., is a limited liability company incorporated under Netherlands law. Its business includes publishing the mass-circulation daily newspaper De Telegraaf.

2. The second applicant, Mr Joost de Haas, is a Netherlands national born in 1967 and resident in Bovenkarspel. He is a journalist.

3. The third applicant, Mr Bart Mos, is a Netherlands national born in 1963 and resident in Ridderkerk. He too is a journalist.

4. The fourth applicant, Nederlandse Vereniging van Journalisten – hereafter Netherlands Association of Journalists –, is an association with legal personality under Netherlands law with its seat and its office in Amsterdam. Its membership is stated to comprise a majority (more than 80%) of journalists and photographers active in the print and broadcast media.

5. The fifth applicant, Nederlands Genootschap van Hoofdredacteuren – hereafter Netherlands Society of Editors-in-Chief –, is an association with legal personality under Netherlands law having its seat in Amsterdam and its offices in The Hague. Its membership is stated to consist of all editors-in-chief of the print media in the Netherlands.

6. The applicants are represented before the Court by Mr M.A. de Kemp and Mr R.S. Le Poole, lawyers practising in Amsterdam.

7. The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Particular circumstances

1. The newspaper articles

8. On Saturday 21 January 2006, the newspaper De Telegraaf published an article couched in the following terms on its front page:

“AIVD secrets in possession of drugs mafia

Top criminals made use of information

By Joost de Haas and Bart Mos

Amsterdam, Saturday

State secrets (staatsgeheime informatie), obtained from investigations of the Netherlands secret service AIVD [Algemene Inlichtingen- en Veiligheidsdienst, General Intelligence and Security Service] circulate in the criminal circuit of Amsterdam.

Complete investigations into the drugs and weapons dealer Mink K., who is labelled 'a danger to the State' (staatsgevaarlijk), are thus known to individuals concerned in the criminal world (onderwereld). This appears from documents and statements with which this newspaper has been acquainted.

It appears from the documents that the secret service has over a period of years carried out investigations and directed infiltrations relating to Amsterdam drugs criminals. The intervention of the service was prompted by, among other things, strong presumptions of the existence of corruption within the Amsterdam police force and the public prosecution service (openbaar ministerie). For that reason the secret service decided, in the late nineties, to recruit an informant in close proximity to Mink K. According to this informant, corruption was so rampant that liquidations were actually carried out using weapons seized by the police.

Threat

It appears from the documents that the AIVD considered top criminal Mink K. to be a threat to the legal order, as he reserved millions each year to bribe police and prosecution service officials. In addition, K. was thought to have enormous stocks of weapons at his disposal, including large quantities of semtex and 'hundreds of anti-tank missiles'. The links which K. was thought to maintain with terror groups such as Hezbollah and ETA were disquieting. The documents have been returned to the AIVD by De Telegraaf.

Incidentally, [the Ministry of] Defence yesterday reported the loss of a memory stick containing confidential information of the Military Intelligence and Security Service (Militaire Inlichtingen- en Veiligheidsdienst, MIVD).”

9. On an inside page, the same issue carried an article by the same two authors giving details including the informant's code name and that of a second informant operating in the periphery of the criminal organisation.

10. The following day, Sunday 22 January 2006, De Telegraaf published an article, again naming Mr De Haas and Mr Mos as authors, in which it was suggested that highly secret information concerning the AIVD's investigations had been made available to criminals including Mink K.

11. The same issue contained an interview with the then Minister of Justice (Minister van Justitie), Mr J.P.H. Donner. The Minister is quoted in the following terms:

“So this is about people who may be involved in the AIVD who publish documents to the outside world in this way. That is what must absolutely be prevented. Of course it is afterwards to be deplored that State secrets find their way into the newspapers. Once again, I also find that De Telegraaf has cited [them] in very general terms and not directly. So as far as that goes, they have been circumspect in their use. But that is quite another matter. My point is that this kind of thing ought not to be made public.”

12. On Monday 23 January 2006 De Telegraaf announced that the AIVD had lodged a criminal complaint concerning the unlawful disclosure of State secrets. The AIVD had reportedly stated that they had no proof that Mink K. had been able to bribe police and prosecution service officials, and that the documents in question had been leaked by an AIVD member.

13. In the days that followed, De Telegraaf published further material including allegations that Mink K. had had meetings with Government ministers (as well as the latter's denials).

2. Parliamentary documents

14. On 24 January 2006 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a white paper to the Speaker of the Lower House of Parliament (parliamentary year 2005-06, 29876, no. 11). It was stated that the predecessor of the AIVD, the BVD (Binnenlandse Veiligheidsdienst, National Security Service), had undertaken an investigation between 1997 and 2000 into allegations of corruption of public officials by Mink K. but that no such cases of corruption had come to light. It was not yet known how and when classified documents pertaining to this investigation had become known outside the BVD/AIVD, although there was thought to be no leak from within the police or public prosecution service. De Telegraaf had reported that the documents, which had been circulating in criminal circles for some time already, had been obtained from criminal contacts and suggested that they had been leaked by serving or former agents of the BVD or AIVD. The documents which De Telegraaf had returned comprised an incomplete collection of raw data from which no conclusions could be drawn.

3. The surrender order addressed to the first applicant

15. On 26 January 2006 a detective chief superintendent of the National Police Internal Investigations Department (hoofdinspecteur van politie-rijksrecherche) issued an order addressed to [a subsidiary of] the first applicant for the surrender of “document(s) and/or copy(ies), with State secrets concerning operational activities of the [BVD] and/or the [AIVD].”

16. On 30 January 2006 the first applicant's legal counsel entered into an agreement with the public prosecutor aimed at protecting the identity of the source of the information set out above. Since the originals of the documents in question (copies had already been returned) might bear fingerprints or other traces capable of identifying this person, they were placed in a container by a notary and sealed, after which the container with the documents was handed over to the investigating judge to be kept in a safe unopened pending the outcome of objection proceedings intended to be brought.

17. The first applicant in fact lodged an objection with the Regional Court of The Hague on 23 February 2006. Relying on Article 10 of the Convention, it invoked what it considered to be the journalistic privilege against the disclosure of sources. It argued in this connection, inter alia, that Mr De Haas and Mr Mos had exercised due care in that they had disclosed neither the identity of AIVD members or informants nor that service's specific modus operandi or the current state of its information.

18. During a hearing in chambers (raadkamer), the first applicant offered to destroy the documents in question should the Regional Court order their return. The public prosecutor stated that it would not be necessary to examine the original documents for fingerprints or other identifying information since the information contained in the documents itself already pointed to the source of the leak.

19. The Regional Court gave a decision dismissing the objection on 31 March 2006. Its reasoning included the following:

“The fact that the seized documents may contain fingerprints which may lead the AIVD or the public prosecution service to the [first applicant's] source or sources does not lead the court to find otherwise. As the [first applicant] has correctly argued, Article 10 of the Convention also comprises the protection of journalistic sources in order to safeguard the right freely to gather news (recht van vrije nieuwsgaring). However, the Regional Court does not consider that that right has been violated in the instant case. The Regional Court stresses that the journalists concerned have not been required to give their active co-operation to the investigation into the identity of the source, but that in the instant case all that has been sought is the handover of material that exists independently from the will of the journalists and which, in addition, is the object of a criminal act. The Regional Court therefore considers that any sanctioning of the Public Prosecution Service's actions in the present case will not hinder any future exchange of information – albeit perhaps in a different form – between the [first applicant] and its sources.”

20. The first applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which on 25 March 2008 dismissed it in a decision containing the following reasoning:

“4.5 In considering that the documents seized originate from the AIVD and contain State secret information and are the object of the criminal act proscribed by Article 98c of the Criminal Code, the Regional Court has expressed the fact that the surrender order protects the interest for which that provision was enacted, namely the protection of State secrets.

Its subsequent consideration that in the present case the right to protect sources, covered by Article 10 of the Convention, has not been violated, encapsulates the finding that it is a weighty social interest that State secret information should not circulate in public and also that the interference with the right to source protection – which the Regional Court has clearly found to exist, as is not contested in this appeal – is to be considered justified in light of the circumstances of the case.

These considerations do not ... disclose an incorrect view of the applicable law, and are not incomprehensible in light of the proceedings in chambers. In so finding, the Supreme Court notes

(a) that the case file does not admit of any other conclusion than that the documents seized contain State secret information about operational investigations of the AIVD into possible interaction between the criminal substratum and law-abiding society (verwevenheid van onderwereld en bovenwereld) for the purpose of preventing serious crime, this information being important in connection with the protection of the democratic legal order and liable to endanger national security and the safety of others if made public, and

(b) that the objection adduced by the [first applicant] against surrender of the documents has been limited, as regards the measure of probability of disclosure of the source, to its fear that examination of the documents might lead to identification of the source because fingerprints might be found on these papers, in which connection the Public Prosecutor has stated that an examination of the documents, although possible, is not necessary to determine the identity of the leak within the AIVD, that already being possible using the contents of these documents, which are already known to the AIVD.”

4. Civil proceedings brought by all five applicants

21. On 2 June 2006 the applicant's counsel Mr Le Poole wrote to the Minister of the Interior and Kingdom Relations, with a copy to the head of the AIVD, demanding an end to all investigations and to the use of special powers against the second and third applicants, an undertaking to destroy all information so obtained and a further undertaking that any such information should not be used in criminal proceedings against the second and third applicants.

22. On 6 June 2006 the Permanent Secretary (secretaris-generaal) of the Interior and Kingdom Relations, replying on behalf of the Minister, wrote to Mr Le Poole refusing to give such an undertaking. To confirm or deny the use of special powers would entail the disclosure of information on specific AIVD operations, such information having to remain secret in the interests of national security. It was noted in the Permanent Secretary's letter that questions about the case asked in Parliament had been responded to similarly.

23. On 7 June 2006 the five applicants together summoned the respondent State to appear before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague in summary injunction proceedings (kort geding). They claimed to be aware that the applicants De Haas and Mos had been subject to telephone tapping and observation, presumably by AIVD agents, from late January 2006 onwards. Such measures, in the contention of the applicants, lacked a legal basis, since the AIVD was using powers granted it by section 6 paragraph 2, sub-paragraph a of the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten – see paragraph 41 below) to carry out duties set out in section 6 paragraph 2, sub-paragraph c of that Act. In the alternative, since clearly the target of the measures was the second and third applicants' journalistic source and not the applicants themselves, basic requirements of subsidiarity and proportionality had been disregarded, the more so since the said two applicants were journalists and therefore entitled to protect their journalistic sources pursuant to Article 10 of the Convention. The applicants also claimed the protection of the second and third applicants' private and family life, home and correspondence under Article 8 of the Convention. They sought, in essence, a provisional measure in the form of an order for the cessation of all investigations and the use of special powers against the second and third applicants, in so far as these related to the press publications referred to above; the destruction of all data obtained by their use; and an order preventing the AIVD from handing over the data to the Public Prosecution Service for use in criminal proceedings against the second and third applicants.

24. The provisional measures judge gave judgment on 21 June 2006. On a preliminary point, he ruled that the applicants' claims for provisional measures were admissible in the civil courts since no alternative procedure offering a speedy resolution of the matter or any judicial remedy other than civil proceedings was available in law. Proceeding on the assumption that the AIVD had in fact made use of its surveillance powers – which the respondent had not confirmed or denied – he then went on to hold that such use was contrary to Article 10 of the Convention. He ordered provisional measures largely in the terms requested by the applicants.

25. The State appealed to the Court of Appeal of The Hague. Again refusing to confirm or deny the use of surveillance powers against any of the applicants, they argued that the protection of journalists' sources was not absolute and any conflict between the protection of journalistic sources and the protection of State secrets should be decided in favour of the latter. They also stated that the first, second and third applicants had gone beyond the needs of informing the public, especially by unlawfully retaining original copies of secret documents the possession of which was in itself a crime and in exposing the AIVD's use of informants. Moreover, adequate safeguards existed in the form of the Supervisory Board, two of whose members including the chairman were members of the judiciary; the Supervisory Board exercised supervision on a regular basis but also entertained complaints, and in so doing had access to information denied the civil courts. It was stated that the Supervisory Board had begun investigations into the case on the instructions of the Minister of the Interior and Kingdom Relations.

26. For their part, the applicants appealed on the ground that the provisional measures judge had failed to find the AIVD at fault for misusing powers intended only for use against persons identified as “targets”, that is, who were themselves considered dangerous to national security.

27. The Court of Appeal gave judgment on 31 August 2006. It held that the use of powers of surveillance against the applicants was not per se impermissible, even though the applicants might not be targets themselves. It accepted, in the face of the State's refusal to declare itself on this factual point, that the first, second and third applicants had made out a credible case that powers of surveillance had been used against them. This interfered with their rights under Articles 8 (private life) and 10, and was unlawful in so far as the use of the powers concerned continued after the identification of a target other than the applicants, to whom moreover the need for source protection apparently did not apply. For the remainder it allowed the State's appeal; the State was ordered not to hand any materials or copies thereof, obtained with the use of special powers, to the Public Prosecution Service (Openbaar Ministerie) as long as the Supervisory Board had not found those materials to have been lawfully obtained.

28. Both the applicants and the State lodged appeals on points of law with the Supreme Court.

29. The Supreme Court gave judgment on 11 July 2008. Its reasoning included the following:

“3.5.3. ... The Court of Appeal was entitled to hold, without violating section 6 of the 2002 Intelligence and Security Services Act, that in view of the danger threatening the effectiveness and integrity of the AIVD as a result of a 'leak' within the security service itself, weighty State interests were at stake, and draw the conclusion that the AIVD's investigations against the journalists were, at least initially, covered by sub-paragraph a. ...”

and

“3.7.3. ... The Court of Appeal has not overlooked the fact that the interests of the Government invoking one of the exceptions set out in Article 8 § 2 and Article 10 § 2, if they are to justify such an exception, must tip the balance (zwaarder zullen moeten wegen) against the interests in maintaining the rights and freedoms guaranteed by those provisions. ... [The Court of Appeal's finding] that 'in view of the importance of the protection of journalistic sources to the freedom of the press in a democratic society and the possible chilling effect (afschrikwekkende werking) which results from the knowledge that the AIVD is using the said special powers against the journalists, ... such use is only justified by an undeniable need in the public interest (onloochenbare behoefte in het algemeen belang)' unambiguously implies that the Court of Appeal, in applying its test, has had regard to the condition, formulated by the European Court of Human Rights, of an 'overriding requirement in the public interest'”

and

“3.7.4.2. Part 2.4.1. (of the applicant's statement of grounds of appeal) complains that the Court of Appeal misapplied the law in that it did not find, on the sole ground of the extreme reticence in the use of special powers and their duration given the weighty interest of protecting journalistic sources ..., that the interference with Article 10 of the Convention was from the outset not justified by an 'overriding requirement of public interest', instead of [finding such to be the case] from the moment the AIVD caught sight of one or more other persons. The protection of journalistic sources thus becomes entirely illusory, since the AIVD, by starting its investigation with the journalist, will always be able to trace (a person leading closer to) the source, so it is argued.

This part fails, because it essentially purports to assume that the protection of journalistic sources is absolute. It is not. The protection of journalistic sources reaches its limits in, among other things, the protection of national security and the need to prevent the dissemination of confidential information, as set out in Article 10 § 2 of the Convention. The Court of Appeal, in stressing the importance of 'extreme reticence in the use of special powers', was right not to exclude [such measures].”

and

“3.7.4.3. ... the Court of Appeal sufficiently specifies the interest and the danger [involved] by stating, as the aim of the use of the special powers: the prevention of dissemination of the State secrets at issue by tracing the leak and the investigation, possible also in order to protect the lives of others, of the consequences of publication of these State secrets.”

and

“3.7.4.5. ... The counter-argument made by De Telegraaf and the other appellants that other means were available, namely that the AIVD might have asked the journalists to name their source, is rejected by the Court of Appeal on the ground, essentially, that the journalists would not have named their source in that case either precisely because they are doing their very best to keep their sources secret. The other defence submitted by De Telegraaf and the other appellants that the AIVD could have awaited the outcome of the criminal investigation is rejected by the Court of Appeal by pointing out that the criminal investigation and the investigation by the AIVD are entirely unrelated to each other, by which the Court of Appeal means to express that the two investigations pursue different aims and serve different interests, so that in order to answer the question whether the use of the special powers meets the requirement of subsidiarity the outcome of the criminal investigation is, in principle, irrelevant. ...”

and

“3.8.5. ... The Court of Appeal has dismissed the primary claim under 2 (B) [i.e. the claim for an order preventing the AIVD from handing over the data to the Public Prosecution Service for use in criminal proceedings against the second and third applicants] because it could not determine which information had and which had not been lawfully obtained – meaning, plainly, on the basis of investigations what ... can be considered still lawful, or no longer lawful, vis-à-vis the journalists – and because it could not be ruled out beforehand that all the information collected had been obtained unlawfully, so that the Court of Appeal could not in reason determine what information ought to be discarded. This ground of the decision is not called into question in the statement of points of appeal, and rightly so, because the Court of Appeal had the latitude in summary injunction proceedings to find and decide thus.

It follows that the Court of Appeal has not made its decision dependent on the opinion of the Supervisory Board. ... Moreover, the Court of Appeal's considerations do not exclude the possibility that De Telegraaf and the other appellants may, after the Supervisory Board has given its opinion, ... yet seek an order or a prohibition as here at issue from the civil courts, if by that time they still have such an interest and if in the opinion of the Supervisory Board (in so far as that opinion is public or made public afterwards in the civil proceedings) provides sufficient factual grounds for a reasoned ruling on such a claim.

For that reason the question whether the complaints procedure provided by the 2002 Intelligence and Security Services Act is an 'effective remedy' in the sense of Article 13 of the Convention need not be discussed.”

The Supreme Court dismissed both the applicants' and the State's appeals.

5. Questioning of the second and third applicants as witnesses in criminal proceedings

30. On 15 November 2006 the second and third applicants appeared before the investigating judge (rechter-commissaris) of the Regional Court of The Hague to be questioned as witnesses in criminal proceedings against three individuals. Both refused to answer questions which would be capable of leading to the disclosure of the identity of the person from whom they had received secret AIVD documents.

31. On 27 November 2006 the second and third applicants were again questioned by the investigating judge and persisted in their refusal. The three defence counsel, present at the time, asked the investigating judge to order the two applicants detained for failure to comply with a judicial order (gijzeling). The investigating judge so ordered.

32. On 30 November 2006 the Regional Court of The Hague, sitting in chambers (raadkamer), ordered the applicants released. It recognised the importance of the protection of journalistic sources, as stated in the case-law of the Supreme Court (see below) and found that no issue of State security could arise since the fact of the documents having become available outside the AIVD had been made common knowledge in the media.

33. The three defendants were put on trial before the Regional Court of The Hague on charges under Articles 98 and 98c of the Criminal Code (Wetboek van Strafrecht) (see below). The applicants have submitted a judgment convicting one of these persons of the crime defined in Article 98 of the Criminal Code, in which it is mentioned that the documents seized from the first applicant were examined by the Netherlands Forensic Institute (Nederlands Forensisch Instituut) but that no traces were found.

6. The report of the Supervisory Board and the decision of the Minister

34. On 3 July 2006, that is while the first and second sets of proceedings were still pending, the applicants' counsel Mr De Kemp wrote to the Minister of the Interior and Kingdom Relations giving notice of a complaint concerning the AIVD's actions relating to the second and third applicants. In accordance with section 83 of the 2002 Intelligence and Security Services Act (see below), the Minister forwarded the complaint to the Supervisory Board.

35. On 15 November 2006 the Supervisory Board submitted to the Minister a report containing its findings and its advice. This was classified top secret (Stg. Geheim – for streng geheim).

36. On 6 December 2006 the Minister wrote to Mr De Kemp summarising the Board's findings and advice and expressing his views on the matter. His letter included the following:

“[Section 6, paragraph 2, sub-paragraph a versus sub-paragraph c]

The leaking of classified AIVD information damages the integrity and functioning of that service and can in so doing endanger the national security for which the AIVD labours. The AIVD has therefore, in the opinion of the Board, rightly initiated an operational investigation within the meaning of section 6, paragraph 2, sub-paragraph a of the 2002 Intelligence and Security Services Act.

The special powers used

The Board considers that the decision to make use of special powers against the journalists of De Telegraaf met the requirements of necessity, subsidiarity and proportionality. In other respects too, the decision to use special powers did not, in the Board's opinion, give rise to impropriety vis-à-vis De Telegraaf and the other complainants.

The Board is of the opinion that the complaint is unfounded on these two main points.

The way in which the special powers were used

The Board finds that there have been a few lapses (onzorgvuldigheden) in the way in which telephone tapping was resorted to against the journalists. The Board is of the opinion that the way in which this was done should be considered an (implied) part of the complaint of De Telegraaf and the other complainants. After all, the complaint relates to the application of special powers. Such application includes, in the Board's opinion, the transcription and recording of intercepted conversations. The Board finds that several of the journalists' conversations have been transcribed and recorded which did not relate to the investigation into the leak within the AIVD and which have no further relevance to the AIVD's discharge of its duties. Even on initial consideration this ought to have been clear in respect of a (major) portion of these too far-reaching transcriptions. The Board also finds that this information has not been destroyed after having been recorded and considered more closely.

The Board advises [the Minister] to declare the complaint well-founded in respect of this [implied] part of the complaint.

Adulteration (vermenging) with the investigation headed by the Public Prosecution Service

The Board is of the opinion that the use of special powers in the present case fell within the task of the AIVD as set out in section 2, paragraph 2, sub-paragraph a of the 2002 Intelligence and Security Services Act. The special powers have thus not been used for the purpose of the criminal investigation. The Board therefore takes the view that there has been no adulteration of the AIVD investigation with the criminal investigation headed by the Public Prosecution Service. The issuing of official reports (ambtsberichten) in this case cannot lead to the finding that there has been adulteration of tasks and powers between the AIVD and the Public Prosecution Service. After all, this concerns the regular provision of information – which the AIVD has obtained based on its own tasks – to the Public Prosecution Service in accordance with the law in force.

The Board advises [the Minister] to declare the complaint ill-founded on this main point.

Official reports

The Board is of the opinion that the shortcomings found as regards the transcription and recording of the intercepted telephone conversations have no bearing on the lawfulness of the obtention of the information – in so far as these concern (also) the journalists – which have been made available to persons foreign to the service (extern zijn verstrekt) by means of official reports.

My view of the matter

In view of the findings of the Board and in accordance with the advice of the Board I declare the complaint unfounded on the main points, namely as regards the AIVD's task under section 6, sub-paragraph 2, sub-paragraph a; as regards the decision to use special powers against the journalists of De Telegraaf; and as regards the adulteration of the investigations of the AIVD and the Public Prosecution Service. An implied part of the complaint, namely the transcription and recording of intercepted telephone conversations, I declare well-founded in part.

The recording and transcribing of the conversations was begun one hour too early and the conversations have been partly recorded and transcribed to too great an extent. This has harmed the interests of the journalists because too much information about them has been recorded and this information has been kept by the AIVD for too long. I have not found any circumstances requiring me to deviate from the advice of the Board on any of the parts of the complaint.

The information unlawfully recorded (ten onrechte vastgelegde gegevens) have in the meantime been removed and destroyed. In accordance with the Board's advice, greater reticence will be exercised in future in transcribing and recording telecommunication with journalists should the situation arise.

Now that I have stated my view of your complaint, you can, if you so wish, lodge your complaint with the National Ombudsman in accordance with section 83 of the 2002 Intelligence and Security Services Act.”

37. Also on 6 December 2006 the Minister transmitted a version of the report cleansed of secret information to the Lower House of Parliament. The forwarding letter (parliamentary year 2006-07, 29 876, no. 19) contains the following:

“The AIVD investigation was intended in the first place to make an assessment of the leaked file and any other leaked documents. Within that framework it was considered necessary, among other things, to use special powers against the journalists of De Telegraaf who were in possession of the leaked file. The use of special powers was not intended directly to identify the journalists' sources but did indirectly interfere with the journalistic right of source protection. The Supervisory Board has tested the lawfulness of the decisions concerned in the light of the applicable laws and delegated legislation and the above-mentioned requirements of necessity, proportionality and subsidiarity. In so doing the Board has taken into consideration all relevant aspects of the case, including in particular those mentioned above. The Board thus concluded that the decisions to use special powers against the journalists were lawful.”

and

“In my reaction to the supervisory report I have transmitted to your House information which the Supervisory Board has set out in the secret part of its report in accordance with section 8, third paragraph, of the 2002 Intelligence and Security Services Act. This includes the fact, among others, that journalists have lawfully had their telephones tapped. I did not wish to supply this information earlier in the summary injunction and appeal proceedings which have taken place with regard to the present AIVD investigation. My reasons for giving you this information now are connected with the failings found by the Board in the exercise of this special power. Given the interest existing in society for the matter in question and in order to prevent incorrect speculation I consider it necessary that the said facts should be known to the public. I can only provide further operational information concerning the journalists and operational information relating to other persons to the Committee for Intelligence and Security Services (Commissie voor de Inlichtingen- en Veiligheidsdiensten) of the Lower House of Parliament.”

7. Complaint to the National Ombudsman

38. On 8 February 2007 the applicants, through their counsel Mr De Kemp, lodged a complaint with the National Ombudsman asking for an investigation into the AIVD's conduct. They relied on the views expressed by the Minister of the Interior and Kingdom Relations in his letter to them of 6 December 2006, which in their submission constituted an admission that special powers had actually been used against the second and third applicants.

39. The National Ombudsman replied on 5 March 2007. He pointed out that the applicants', and indeed the State's, appeals on points of law were still pending before the Supreme Court, and that he was not empowered to investigate conduct that was the subject of proceedings pending in the civil courts. Moreover, once the Supreme Court delivered its judgment the National Ombudsman was bound to take note of the grounds on which it was based.

40. The applicants have not pursued their complaint before the National Ombudsman.

8. Official reports submitted by the applicants

41. The applicants have submitted copies of official reports (ambtsberichten) addressed by the head of the AIVD to the National Public Prosecutor for Countering Terrorism (Landelijke Officier van Justitie Terrorismebestrijding). The copies submitted to the Court bear no dates and identifying information – other than pertaining to the applicants – has been blanked out.

42. The first of these reports names a former member of the BVD, the AIVD's predecessor, as having been in possession of State secret documents after having left the service and mentions indications that this person has received a considerable sum of money from “criminal circles”. The second names four members and former members of the BVD and the AIVD who might have had access to copies or originals of the documents handed back by the first applicant. The third report states that the second and third applicants have been in contact with persons connected with the international trade in illegal drugs. The fourth states that, according to information from a “reliable source”, the second and third journalists have tried to establish contact with one H. (understood by the Court to be a person suspected of involvement in the disclosure of AIVD information) with a view to publishing an article about him with his photograph.

B. Relevant domestic law

1. The Criminal Code

43. Provisions of the Criminal Code relevant to the case before the Court are the following:

“Article 98

1. He who deliberately delivers or makes available knowledge (inlichting) which needs to be kept secret in the interest of the State or its allies, an object from which such information can be derived, or such information (gegevens) to a person or body not authorised to take cognisance of it, shall, if he knows or ought reasonably to be aware that it concerns such knowledge, such an object or such information, be sentenced to a term of imprisonment not exceeding six years or a fifth-category fine [i.e. up to 74,000 euros (EUR)]....

Article 98c

1. The following shall be sentenced to a term of imprisonment not exceeding six years or a fifth-category fine:

i. he who deliberately takes or keeps knowledge, an object or information as referred to in Article 98 without being duly authorised;

ii. he who undertakes any action with intent to obtain knowledge, an object or information as referred to in Article 98 without being duly authorised; ...”

2. The Code of Criminal Procedure

44. Provisions of the Code of Criminal Procedure (Wetboek van Strafvordering) relevant to the case before the Court are the following:

“Article 94

1. All objects are liable to seizure which may serve to establish the truth ...

2. In addition, all objects are liable to seizure which may be declared forfeit or ordered withdrawn from circulation. ...

Article 96a

1. In case of suspicion of a criminal offence as described in Article 67 § 1 [i.e. an offence attracting a prison sentence of four years or more – including the offences defined in Articles 98 and 98c of the Criminal Code – or of a number of other specified criminal acts not relevant to the present case] every civil servant invested with investigative powers (opsporingsambtenaar) may order any person who is reasonably believed to hold an item eligible for seizure to surrender it for that purpose.

2. Such an order shall not be given to the suspect.

3. Based on their privilege of non-disclosure (bevoegdheid tot verschoning), the following shall not be obliged to comply with such an order:

...

b. the persons referred to in Article 218, in so far as surrender would be incompatible with their duty of secrecy; ...

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 552a

1. Interested parties may lodge an objection in writing against the seizure of an object, the use made of seized objects, the failure to order the return of a seized object, ...

7. If the court finds the complaint or request well-founded, it shall give the appropriate order.”

3. The Intelligence and Security Services Act

45. Provisions of the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten) relevant to the case before the Court are the following:

“Section 6

1. There shall be a General Intelligence and Security Service [i.e. the AIVD].

2. The [AIVD]'s tasks, in the interest of national security, are the following:

a. to carry out investigations relative to organisations and persons who, by the aims which they pursue or their activities, give rise to serious suspicion (het ernstige vermoeden) that they constitute a danger to the continued existence of the democratic legal order or to the security or other weighty interests of the State;

b. ...

c. to promote measures (het bevorderen van maatregelen) for the protection of the interests mentioned in sub-paragraph a, including measures aimed at securing information which needs to be kept secret in the interest of national security and of those parts of Government service and private enterprise (bedrijfsleven) which in the judgment of the Ministers invested with responsibility in the matter are of vital importance for the maintenance of social life (de instandhouding van het maatschappelijk leven);

d. to carry out investigations concerning other countries relative to subject-matter indicated by the Prime Minister, Minister of General Affairs (Minister-President, Minister van Algemene Zaken [the Prime Minister being both at the same time]), in agreement with other Ministers involved; ...

Section 8

...

3. Information providing an insight into the following, at least, shall be omitted from the published annual report [sc. of the activities of the AIVD and the MIVD respectively]:

a. the means applied by the service in specific cases;

b. the secret sources used by the service;

c. the service's current state of knowledge (actuele kennisniveau).

4. The Minister concerned may communicate the information referred to in the third paragraph to one or both Houses of Parliament in confidence. ...

Section 18

A power (bevoegdheid) referred to in this chapter [i.e. the special powers referred to in sections 20 and 25, quoted below, among others] may only be exercised in so far as necessary for the proper fulfilment of the tasks referred to in section 6, second paragraph, sub-paragraphs a and d ...

Section 20

1. The [intelligence and security] services are empowered (bevoegd) to:

a. observe, and in that framework record information concerning behaviour of natural persons or information concerning objects (zaken), with or without the use of observational and recording devices;

b. follow, and in that framework record information concerning behaviour of natural persons or information concerning objects (zaken), with or without the use tracking devices, locator apparatus and recording devices. ...

Section 25

1. The [intelligence and security] services are empowered to use technical appliances for the targeted tapping, receiving, recording and monitoring (afluisteren) of every form of conversation, telecommunication or transfer of information by means of an automated system (geautomatiseerd werk), regardless of where this takes place. The power set out in the first sentence shall include the power to undo the encryption of conversations, telecommunication or transfer of information. ...

Section 31

1. The use of a power as referred to in this chapter is permissible only if the information thereby sought cannot be collected, or cannot be collected in time, by consulting sources of information accessible to anyone or sources of information in respect of which a right to take cognisance of the information therein contained has been granted to the service.

2. If the decision has been taken to collect information by the use of one or more of the [said] powers ..., only that power shall be resorted to which considering the circumstances, including the seriousness of the threat to one of the interests to be protected by [an intelligence or security service], and also in comparison with other powers available, causes the least disadvantage to the person concerned.

3. No use shall be made of a power if its use would cause disproportionate harm to the person concerned compared to the aim thereby pursued.

4. The use of a power shall be proportionate to the aim pursued.

Section 32

The use of a power as referred to in this chapter shall be terminated immediately if the aim for which the power is used, is achieved, or the use of a less intrusive power (minder ingrijpende bevoegdheid) can suffice.

Section 34

1. The Minister concerned shall examine within five years after the end of the use of special powers as referred to in ... section 25, first paragraph ..., and thereafter every year, whether the person in respect of whom one of the special powers is used can receive a report thereof. If this is possible, it shall be done without delay.

2. If it is not possible for the person in respect of whom one of the special powers referred to in the first paragraph [of this section] is used to receive a report thereof, the Supervisory Board shall be informed accordingly. ...

Section 64

1. There shall be a Supervisory Board for the intelligence and security services.

2. The Supervisory Board shall be charged with:

a. supervision of the legality of the execution of the provisions of this Act ...

c. advising the Ministers concerned in relation to the investigation and consideration of complaints; ...

Section 65

1. The Supervisory Board shall consist of three members, including the chairman.

2. The members shall be appointed for six years by royal decree (Koninklijk Besluit) following collective nomination by the Ministers concerned and can be reappointed only once. For the appointment of the members the Lower House of Parliament shall nominate three persons for each vacancy, one of whom shall be chosen by the Ministers concerned. In making its nomination the Lower House shall take into account, as it thinks fit, a list of recommended persons naming at least three persons for each vacancy prepared by the Vice-President of the Council of State (Raad van State), the President of the Supreme Court (Hoge Raad der Nederlanden) and the National Ombudsman (Nationale ombudsman).

3. The Ministers concerned may request the Lower House to submit a new nomination. ...

Section 66

The members of the Supervisory Board shall be dismissed by royal decree following collective nomination by the Ministers concerned:

...

g. if in the judgment (oordeel) of the Ministers concerned collectively, having taken note of the opinion of the Lower House, the person concerned by his acts or omissions seriously damages the trust to be placed in him.

Section 72

The meetings of the Supervisory Board shall not be public.

Section 78

1. Within the framework of its supervisory task, referred to in Section 64, second paragraph, sub-paragraph a, the Supervisory Board is empowered to investigate the way in which that which is provided in or pursuant to this Act ... has been carried out.

2. The Supervisory Board may also carry out an investigation as referred to in the first paragraph in response to a request to that effect from either of the Houses of Parliament.

3. The Minister concerned and one or both Houses of Parliament shall be informed of intended investigations, in confidence if need be.

Section 79

1. The Supervisory Board shall draw up a supervision report following its investigations. The supervision report shall be public, save as regards information as referred to in section 8, third paragraph, of this Act.

2. Before finalising the supervision report, the Supervisory Board shall offer the Minister concerned the opportunity to react to the findings contained in the supervisory report within a reasonable time set by the board.

3. Having received the reaction of the Minister concerned, the Supervisory Board shall finalise the supervision report. It may, on the basis of its findings, make recommendations to the Minister concerned regarding any measures to be taken.

4. The supervisory report, once it is finalised, shall be transmitted to the Minister concerned by the Supervisory Board.

5. The Minister concerned shall forward the supervisory report and his reaction thereto to both Houses of Parliament within six weeks. Information as referred to in section 8, third paragraph, of this Act shall in all cases be omitted. That information may be communicated to one or both Houses of Parliament for their confidential information.

Section 83

1. Any person may lodge a complaint with the National Ombudsman about the actions or presumed actions of the Ministers concerned, the heads of the services, ... and the persons working for the services in the execution of this Act ... against (jegens) natural or legal persons.

2. Before lodging a complaint with the National Ombudsman, the complainant shall give notice to the Minister concerned of the complaint and offer him the opportunity to express his views on the matter.

3. The Minister shall, before offering his views as referred to in the second paragraph, obtain the advice of the Supervisory Board. ... [The Minister] shall not be able to give instructions to the Supervisory Board.

4. In complaints proceedings in which the Minister concerned, persons working under his responsibility or the Supervisory Board are obliged pursuant to section 9:31 of the General Administrative Law Act (Algemene wet bestuursrecht) to give information or surrender documents to the National Ombudsman, section 9:31, fifth and sixth paragraphs [which empower the National Ombudsman to decide whether any refusal to surrender or grant access to such information or documents is justified, see below] shall not apply.

5. If the Minister concerned, persons working under his responsibility or the Supervisory Board are obliged to surrender documents, it shall be sufficient to make the documents concerned available for inspection. The documents concerned shall not be copied in any way.

Section 84

1. The National Ombudsman shall inform the complainant of his opinion of the complaint in writing, giving reasons to the extent that the security or other weighty interests of the State admit of it.

2. The National Ombudsman shall inform the Minister concerned of his opinion of the complaint in writing. The National Ombudsman may, in his communication, make such reasoned recommendations as he sees fit. The National Ombudsman may, if in his view the purport of the recommendations so justifies, also communicate them to the complainant.

3. The Minister concerned shall inform the National Ombudsman within six weeks and in writing of the consequences which he attaches to the latter's opinion and recommendations.

4. The Minister concerned shall forward the National Ombudsman's opinion, his advice, and the consequences to be attached thereto by the Minister concerned to one or both Houses of Parliament. The information referred to in section 8, third paragraph, shall be omitted in all cases. This information may be communicated to one or both of the Houses of Parliament for their confidential information.”

4. The General Administrative Law Act

The General Administrative Law Act contains provisions specific to proceedings before an Ombudsman (Chapter 9, Title 2). As relevant to the case, these provide as follows:

“Section 9:17

The expression 'Ombudsman' shall mean:

a. the National Ombudsman, ...

Section 9:18

1. Any person shall have the right to lodge a written request with the Ombudsman to investigate the way in which an administrative organ (bestuursorgaan) has conducted itself in a specific matter vis-à-vis them or someone else.

...

3. The Ombudsman shall be obliged to comply with a request as referred to in the first paragraph, unless section 9:22 ... applies.

Section 9:20

1. Before lodging the request with an Ombudsman, the petitioner (verzoeker) shall lodge a complaint with the administrative organ concerned, unless this cannot reasonably be expected of them. ...

Section 9:22

The Ombudsman is not competent (bevoegd) to investigate or continue an investigation if the request concerns:

a. a matter which belongs to general Government policy, including general policy for the maintenance of the legal order (rechtsorde), or the general policy of the administrative organ in question;

...

d. conduct in relation to which a decision (uitspraak) has been given by an administrative tribunal;

e. conduct in relation to which proceedings are pending before a different jurisdictional body, or an appeal lies against a decision which has been given in such proceedings as the case may be;

f. conduct that is subject to supervision by the judiciary.

Section 9:27

1. The Ombudsman shall consider whether or not the administrative organ has conducted itself with propriety (behoorlijk) in the matter which he has investigated.

2. If a jurisdictional body had given a decision in relation to the conduct to which the Ombudsman's investigation relates, the Ombudsman shall have regard to the legal grounds on which that decision is wholly or partially based.

3. The Ombudsman may make recommendations to the administrative organ following (naar aanleiding van) his investigations.

Section 9:31

1. The administrative organ, persons working under its responsibility – even after ceasing their activities – , witnesses and the petitioner shall give the Ombudsman the necessary information and shall appear before him when invited to do so. The same obligation is incumbent on every collegiate body (college), it being understood that the collegiate body shall determine which of its members shall comply with the obligations, unless the Ombudsman indicates one or more particular members. The Ombudsman may order persons concerned who have been summoned to appear in person.

2. The Ombudsman can only obtain information relating to policy conducted under the responsibility of a minister or another administrative organ from the persons and collegiate bodies concerned through the intervention of the Minister or that administrative organ as the case may be. The organ through whose intervention the information is to be obtained may be represented by civil servants at hearings.

3. Within a time-limit to be set by the Ombudsman, documents held by the administrative organ, the person to whose conduct the investigation relates and others shall be handed over to [the Ombudsman] for the purpose of the investigation after he has so requested in writing.

4. The persons summoned in accordance with the first paragraph, or the persons who are under an obligation to surrender documents in accordance with the third paragraph, may, if there are weighty reasons to do so, refuse to give information or surrender documents as the case may be or inform the Ombudsman that he and he only shall be allowed to take cognisance of the information or the documents.

5. The Ombudsman shall decide whether the refusal or restriction on taking cognisance referred to in the fourth paragraph is justified.

6. If the Ombudsman has decided that the refusal is justified, the obligation shall be cancelled.”

5. The National Ombudsman Act

The National Ombudsman Act (Wet Nationale ombudsman) is applicable to the conduct of administrative organs including Government Ministers (section 1a(1)(a)). Conduct of a civil servant in the exercise of his or her functions is imputed to the administrative organ responsible (section 1a(4)).

The National Ombudsman is appointed by the Lower House of Parliament, which may take such notice as it sees fit of a recommendation of three persons submitted jointly by the President of the Supreme Court, the Vice-President of the Council of State and the President of the Chamber of Audit (Algemene Rekenkamer). The appointment is for six years at a time; the incumbent may be reappointed (section 2 (2)-(4)).

The Lower House of Parliament has the power to dismiss the National Ombudsman on specific grounds. These include unfitness as a result of invalidity or disease; taking up an official position or occupation incompatible with the position of National Ombudsman; loss of Netherlands nationality; conviction of an indictable offence (misdrijf) or any measure entailing deprivation of liberty, by a final and binding judgment; and bankruptcy, receivership (curatele), debt adjustment proceedings (schuldsanering) and detention (gijzeling) in connection with a debt pursuant to a final and binding judgment (section 3(2)). If proceedings of such nature are pending against the National Ombudsman but have not yet been brought to a conclusion, the Lower House of Parliament has the power to suspend him and withhold his salary (section 4).

6. Relevant domestic case-law

46. Until 11 November 1977, the Netherlands Supreme Court did not recognise any journalistic privilege of non-disclosure. On that date, it handed down a judgment in which it found that a journalist, when asked as a witness to disclose his source, was obliged to do so unless it could be regarded as justified in the particular circumstances of the case that the interest of non-disclosure of a source outweighed the interest served by such disclosure.

47. This principle was reversed by the Supreme Court in a landmark judgment of 10 May 1996 on the basis of the principles set out in the Court's judgment of 27 March 1996 in the case of Goodwin v. the United Kingdom (Reports of Judgments and Decisions 1996-II). In this ruling, the Supreme Court accepted that, pursuant to Article 10 of the Convention, a journalist was in principle entitled to non-disclosure of an information source unless, on the basis of arguments to be presented by the party seeking disclosure of a source, the judge was satisfied that such disclosure was necessary in a democratic society for one or more of the legitimate aims set out in Article 10 § 2 of the Convention (Nederlandse Jurisprudentie – Netherlands Law Reports – 1996, no. 578).

48. In a judgment given on 2 September 2005 concerning the search of premises of a publishing company on 3 May 1996 (Nederlandse Jurisprudentie 2006, no. 291), the Supreme Court held inter alia:

“The right of freedom of expression, as set out in Article 10 of the Convention, encompasses also the right freely to gather news (see, amongst others, Goodwin v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577; and Roemen and Schmit v. Luxembourg, judgment of 25 February 2003 [ECHR 2003-IV]). An interference with the right freely to gather news – including the interest of protection of a journalistic source – can be justified under Article 10 § 2 in so far as the conditions set out in that provision have been complied with. That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision. Secondly, the interference must serve one of the aims mentioned in Article 10 § 2. Thirdly, the interference must be necessary in a democratic society for attaining such an aim. In this, the principles of subsidiarity and proportionality play a role. In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other, less far-reaching ways (minder bezwarende wegen) can be followed along which this interest can be served to a sufficient degree. Where it concerns a criminal investigation, it must be considered whether the interference with the right freely to gather news is proportionate to the interest served in arriving at the truth. In that last consideration, the gravity of the offences under investigation will play a role.”

C. Relevant international materials

49. Several international instruments concern the protection of journalistic sources; among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on the Confidentiality of Journalists' Sources by the European Parliament (18 January 1994, Official Journal of the European Communities No. C 44/34).

50. Moreover, 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 and states, in so far as relevant:

“[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.”

51. For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out:

“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.”

COMPLAINTS

52. The applicants argue that the order to surrender the original documents, ostensibly for the purpose of restoring the documents to the AIVD, were in fact intended to make possible the positive identification of the journalistic source. The applicants allege a violation of their freedom, as purveyors of news, to impart information as guaranteed by Article 10 of the Convention.

53. They also argue that the use of special powers against the second and third applicants, who were not themselves “targets”, could not be covered by section 6 paragraph 2, sub-paragraph a, of the Intelligence and Security Services Act and therefore lacked the basis in law required by the second paragraphs of Articles 8 and 10 of the Convention. Conversely, if it be the case that the second and third applicants were in fact “targets”, then the Court of Appeal and the Supreme Court had wrongly held the interest in the protection of journalistic sources to be outweighed by the interest of State security, again in violation of Article 10 of the Convention.

THE LAW

I. STANDING OF THE FOURTH AND FIFTH APPLICANTS

54. As to whether all applicants can be regarded as “victims” within the meaning of Article 34 of the Convention, the Court has held that this concept must be interpreted autonomously and independently of domestic concepts such as those concerning the interest in taking proceedings or the capacity to do so. In the Court's opinion, there must be a sufficiently direct link between the applicant and the damage which he or she claims to have sustained as a result of the alleged violation, for an applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols (see, among other authorities, Association des amis de Saint-Raphaël et de Fréjus v. France (dec.), no. 45053/98, 29 February 2000, in respect of the applicant association; and Smits, Kleyn, Mettler Toledo B.V. et al., Raymakers, Vereniging Landelijk Overleg Betuweroute and Van Helden v. the Netherlands (dec.), nos. 39032/97, 39343/98, 39651/98, 43147/98, 46664/99 and 61707/00, 3 May 2001, in respect of the applicant Vereniging Landelijk Overleg Betuweroute).

55. The fourth applicant, the Netherlands Association of Journalists, and the fifth applicant, the Netherlands Society of Editors-in-Chief, are associations which have not themselves been affected by the matters complained of under Articles 8 and 10 of the Convention. Consequently the fourth and fifth applicants cannot claim to be “victims” of a violation of these provisions in the sense of Article 34 of the Convention.

56. It follows that in so far as the application is lodged by the fourth and fifth applicants it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

II. ARTICLES 8 AND 10 OF THE CONVENTION

57. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints of the first, second and third applicants;

Declares the application inadmissible in respect of the fourth and fifth applicants.

Santiago Quesada Josep Casadevall Registrar President