EHRM, 22-11-2012, nr. 39315/06

The Government recognised that the second and third applicants had been under investigation and that special powers had been used against them, including the power to intercept and record telecommunications. This had undoubtedly entailed interference with their right to respect for their private and family life, protected by Article 8; it could also be construed as an interference with their freedom to receive and impart information and ideas, protected by Article 10.

The statutory basis for the interference had been constituted by section 6(2)(a) of the 2002 Intelligence and Security Services Act, which — along with its drafting history — was at all times accessible to the public.

Referring to the Court's case-law, in particular Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006-XI, the Government stated that the situations which might attract the use of the AIVD's special powers were set out in section 6 of the 2002 Intelligence and Security Services Act. Moreover, the AIVD published annual reports in which it identified the areas on which it had focused in the past year and the areas on which it would focus in the year ahead. The duty to publish an annual report had been expressly included in the legislation precisely to enhance the transparency of the AIVD's use of its powers. The nature of the ‘offences’ which might give rise to the interference in question was thus as foreseeable as it could be. The Government asked the Court to bear in mind that the expression ‘offence’, in the context of cases such as the present, had a connotation different from its primary meaning derived from criminal law.

Even so, situations were bound to occur which were not foreseeable, but in which action by the AIVD was clearly necessary in view of its task and the interests which it served. The present case was one such.

Safeguards were in place. As the Supervisory Board had established, the use of special powers had not continued any longer than was permissible in the light of the applicable provisions. The processing — examination, use and storage — of data was subject to the statutory requirements set out in section 12 of the 2002 Intelligence and Security Services Act. Shortcomings identified by the Supervisory Board had been addressed and the data wrongly recorded had been removed and destroyed (see paragraph 43 above).

Statutory requirements set out in section 38 of the 2002 Intelligence and Security Services Act governed the transmission of information to the Public Prosecution Service. As was reflected in the Minister's letter of 6 December 2006 to the applicants' counsel (see paragraph 43 above), these had been complied with.

A monitoring and control system was in place, consisting of the following bodies:

These various supervisory and monitoring bodies did not exclude one another. However, the supervision and monitoring by each of the bodies was subject to limitations depending on the type of authority and the stage of the investigation. These limitations followed from the intrinsically secret nature of the activities of intelligence and security services.

The use of special powers required the prior authorisation of the Minister of the Interior and Kingdom Relations. The request for authorisation had to mention the particular status, if any, of the person under investigation — for example, the status of journalist.

The interference complained of had had a ‘legitimate aim’ in that it served the interests of national security, which had been directly compromised by the leaking of secret classified information.

As to ‘necessity in a democratic society’, the Government pointed out that protecting national security was one of the main functions of the State. If it was found that secret classified information had been leaked from the AIVD, its ability to operate reliably was at stake and hence national security as well. In this case, moreover, the nature and content of the leaked information had been such that an investigation into the leak had been necessary, taking into account the statutory duty of care in respect of the security of persons with whose help data were collected and the secrecy of the relevant data and sources. For example, the operational names of two sources had been published in De Telegraaf together with contextual information capable of enabling dangerous criminals to discover the true identity of the persons concerned. There had therefore been a statutory duty to take action.

An alternative to the use of special powers had not been available, given that those responsible for the leak had a vested interest in concealing the facts and circumstances.

The AIVD's purpose had not been to identify the applicants' journalistic sources; source protection was therefore not in issue.

Domestic law itself — to wit, sections 31 and 32 of the 2002 Intelligence and Security Services Act — laid down the requirements of subsidiarity and proportionality, subject to monitoring by the Supervisory Board and with the possibility of lodging a complaint with the National Ombudsman.

The applicants agreed with the Government that the use of special powers against the second and third applicants constituted an ‘interference’ with their rights under Articles 8 and 10. They suggested, however, that the Government's admission that they had been ‘targets’ within the meaning of section 6(2)(a) of the 2002 Intelligence and Security Services Act was inconsistent with the position taken by the domestic courts, in particular the Court of Appeal (see paragraph 31 above).

If the second and third applicants had not themselves been ‘targets’ within the meaning of section 6(2)(a), then the use of special powers against them had lacked a statutory basis. If, on the contrary view, the second and third applicants had been targets — a position which the applicants described as ‘preposterous’, since it would imply that they constituted a menace to the continued existence of the democratic legal order —, then a statutory basis had to be admitted.

However, safeguards against abuse were insufficient given that there was no prior judicial review of the use of special powers. Authorisation given by the Minister of the Interior and Kingdom Relations was not sufficient, since the Minister was hardly independent and impartial.

A necessity in a democratic society for the interference had not been shown. The AIVD documents received by the applicants related to the period 1997–2000; the newspaper articles concerned had all been published in 2006, approximately six years later. In the applicants' submission, there was no appearance of any danger to informants, whose identity the newspaper publications did not reveal; nor had the AIVD's operating procedures been divulged. At all events, the information itself contained in the documents had all been in the hands of criminals for a long time already.

The applicant and respondent parties agree that there has been an ‘interference’ with the rights of the second and third applicants under Articles 8 and 10 of the Convention, but disagree on its precise nature.

The Government dispute the applicants' position that the protection of journalistic sources is in issue. They argue that the AIVD resorted to the use of special powers not to establish the identity of the applicants' journalistic sources of information, but solely to identify the AIVD staff member who had leaked the documents.

The Court is prepared to accept that the AIVD's purpose in seeking to identify the person or persons who had supplied the secret documents to the applicants was subordinate to its main aim, which was to discover and then close the leak of secret information from within its own ranks. However, that is not decisive (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 66, 14 September 2010). The Court's understanding of the concept of journalistic ‘source’ is ‘any person who provides information to a journalist’; it understands ‘information identifying a source’ to include, as far as they are likely to lead to the identification of a source, both ‘the factual circumstances of acquiring information from a source by a journalist’ and ‘the unpublished content of the information provided by a source to a journalist’ (see Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information (quoted in paragraph 61 above); compare also Sanoma, §§ 65–66, and Weber and Saravia, §§ 144–45).

As in Roemen and Schmit v. Luxembourg, no. 51772/99, § 52, ECHR 2003-IV; Ernst and Others v. Belgium, no. 33400/96, § 100, 15 July 2003; Tillack v. Belgium, no. 20477/05, § 64, 27 November 2007; and Sanoma, loc. cit., the Court must therefore find that the AIVD sought, by the use of its special powers, to circumvent the protection of a journalistic source (compare and contrast Weber and Saravia, cited above, § 151).

Although questions raised by surveillance measures are usually considered under Article 8 alone, in the present case they are so intertwined with the Article 10 issue that the Court finds it appropriate to consider the matter under Articles 8 and 10 concurrently.

The Court must now decide whether the interference was ‘in accordance with the law’ (Article 8) or ‘prescribed by law’ (Article 10) — expressions which, although they differ in the English text of the Convention (both correspond to prévue(s) par la loi in the French version), are identical in meaning (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 48, Series A no. 30, and Silver and Others v. the United Kingdom, 25 March 1983, § 85, Series A no. 61).

The Court reiterates its case-law according to which the expression ‘in accordance with the law’ not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. The law must be compatible with the rule of law, which means that it must provide a measure of legal protection against arbitrary interference by public authorities with the rights safeguarded by Article 8 § 1 and Article 10 § 1. Especially where, as here, a power of the executive is exercised in secret, the risks of arbitrariness are evident. Since the implementation in practice of measures of secret surveillance is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Weber and Saravia, cited above, §§ 93–95 and 145; Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 76, ECHR 2006-VII; Liberty and Others v. the United Kingdom, no. 58243/00, §§ 62-63; 1 July 2008; Kennedy v. the United Kingdom, no. 26839/05, § 152, 18 May 2010).

There is no suggestion that the law was not accessible.

The letters which the Minister of the Interior and Kingdom Relations sent on 6 December 2006 to the Lower House of Parliament (paragraph 41 above) and to the applicants' counsel (paragraph 43) show that the use of special powers against the second and third applicants was considered lawful for the purposes of section 6(2)(a) of the 2002 Intelligence and Security Services Act. The Supreme Court's judgment (§ 3.5.3, see paragraph 33 above) is based on the same view, at least for an initial period. The Court therefore finds that the statutory basis for the interference in question was section 6(2)(a) of the 2002 Intelligence and Security Services Act.

The possibility that the applicants might be placed under surveillance was not predictable in the sense that their situation corresponded to a precise statutory prescription. Nevertheless, even though the second and third applicants may resent the suggestion that their actions constituted a threat to the Netherlands democratic legal order, they could not reasonably be unaware that the information which had fallen into their hands was authentic classified information that had unlawfully been removed from the keeping of the AIVD and that publishing it was likely to provoke action aimed at discovering its provenance. On its own reading of section 6(2)(a) and (c) of the 2002 Intelligence and Security Services Act, the Court is prepared to accept that the interference complained of was, in that sense, foreseeable.

As to the available safeguards, the applicants do not allege that the array of supervisory and monitoring procedures described by the Government (see paragraph 73 above) is in itself insufficient.

Rather, it is the applicants' contention that their status as journalists required special safeguards to ensure adequate protection of their journalistic sources. The Court will now turn to this issue.

In Weber and Saravia, the interference with the applicants' rights under Articles 8 and 10 consisted of the interception of telecommunications in order to identify and avert dangers in advance, or ‘strategic monitoring’ as it is also called. The first applicant in that case being a journalist, the Court found that her right to protect her journalistic sources was in issue (loc. cit., §§ 144–45). However, the aim of strategic monitoring was not to identify journalists' sources. Generally the authorities would know only when examining the intercepted telecommunications, if at all, that a journalist's conversation had been monitored. Surveillance measures were, in particular, not directed at uncovering journalistic sources. The interference with freedom of expression by means of strategic monitoring could not, therefore, be characterised as particularly serious (loc. cit., § 151). Although admittedly there was no special provision for the protection of freedom of the press and, in particular, the non-disclosure of sources once the authorities had become aware that they had intercepted a journalist's conversation, the safeguards in place, which had been found to satisfy the requirements of Article 8, were considered adequate and effective for keeping the disclosure of journalistic sources to an unavoidable minimum (loc. cit., § 151).

The present case is characterised precisely by the targeted surveillance of journalists in order to determine from whence they have obtained their information. It is therefore not possible to apply the same reasoning as in Weber and Saravia.

The Court has indicated, when reviewing legislation governing secret surveillance in the light of Article 8, that in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others v. Germany, 6 September 1978, § 56, Series A no. 28, and Kennedy, cited above, § 167). However, in both cases the Court was prepared to accept as adequate the independent supervision available. In Klass and Others, this included a practice of seeking prior consent to surveillance measures of the G 10 Commission, an independent body chaired by a president who was qualified to hold judicial office and which moreover had the power to order the immediate termination of the measures in question (mutatis mutandis, Klass and Others, §§ 21 and 51; see also Weber and Saravia, §§ 25 and 117). In Kennedy (loc. cit.) the Court was impressed by the interplay between the Investigatory Powers Tribunal (‘IPT’), an independent body composed of persons who held or had held high judicial office and experienced lawyers which had the power, among other things, to quash interception orders, and the Interception of Communications Commissioner, likewise a functionary who held or had held high judicial office (Kennedy, § 57) and who had access to all interception warrants and applications for interception warrants (Kennedy, § 56).

In contrast, in Sanoma, an order involving the disclosure of journalistic sources was given by a public prosecutor. The Court dismissed as inadequate in terms of Article 10 the involvement of an investigating judge, since his intervention, conceded voluntarily by the public prosecutor, lacked a basis in law and his advice was not binding. Judicial review post factum could not cure these failings, since it could not prevent the disclosure of the identity of the journalistic sources from the moment when this information came into the hands of the public prosecutor and the police (loc. cit., §§ 96–99).

In the instant case, as the Agent of the Government admitted at the hearing in reply to a question from the Court, the use of special powers would appear to have been authorised by the Minister of the Interior and Kingdom Relations, if not by the head of the AIVD or even a subordinate AIVD official, but in any case without prior review by an independent body with the power to prevent or terminate it (section 19 of the 2002 Intelligence and Security Services Act, see paragraph 51 above).

Moreover, review post factum, whether by the Supervisory Board, the Committee on the Intelligence and Security Services of the Lower House of Parliament or the National Ombudsman, cannot restore the confidentiality of journalistic sources once it is destroyed.

The Court thus finds that the law did not provide safeguards appropriate to the use of powers of surveillance against journalists with a view to discovering their journalistic sources. There has therefore been a violation of Articles 8 and 10 of the Convention.

Under the head of ‘duties and responsibilities’, the Government raised two points.

Firstly, the Government considered the present case different in essential respects from Voskuil v. the Netherlands, no. 64752/01, 22 November 2007. The primary purpose of the surrender order had not been to identify the applicants' journalistic sources, nor even the leak from within the AIVD — who was identifiable simply by studying the content of the information unlawfully leaked — but to withdraw the documents from public circulation. It was moreover found that the applicants had not returned all of the documents immediately; had they done so at the outset, there would have been no need for the surrender order.

Secondly, the Government submitted that although the fact itself that secret classified documents had fallen into the hands of the criminal classes was a matter of public interest and therefore newsworthy, the applicants had gone beyond what was necessary in publishing information which they contained. Details published had included the code names of two informants and contextual information capable of identifying them, which had compromised both their safety (and that of their families and others in their immediate circle of acquaintance) and national security.

The surrender order undoubtedly constituted an ‘interference’.

The interference had been ‘prescribed by law’. The crucial difference between the present case and Sanoma was that the lawfulness of the surrender order was assessed by a court by virtue of its statutory power before the documents were handed over for inspection.

The ‘legitimate aims’ pursued by the interference had been ‘national security’ and ‘the prevention of crime’.

Finally, the interference had been ‘necessary in a democratic society’ for the furtherance of these aims. As stated above, it was necessary to ensure that all the documents should be returned to the AIVD. It was also important to investigate whether it was possible to determine if there had been access to the documents and if so, by whom (other than the second and third applicants and H., by then already a suspect). Again as already mentioned, the safety of two informants and members of their families and their immediate circle was in jeopardy as well.

A surrender order had been the least intrusive measure available, and therefore to be preferred to a search of the applicants' premises such as those carried out by the authorities in the cases of Roemen and Schmit and Ernst and Others, cited above.

Finally, and again as already noted, there had been an independent review by a court before the documents were passed on to the National Police Investigations Department.

The applicants complained that although ostensibly the primary purpose of the surrender order had been to withdraw the documents from public circulation, in fact the intention had been to subject them to technical examination and identify the applicants' source. They pointed to the public prosecutor's admission (see paragraph 22 above) and that of the Government that the identity of the AIVD official who leaked the documents had already been known simply from studying the content of the documents and identifying the AIVD officials who had had access to them, and also to the judgment convicting H. of the leaks (see paragraph 37 above), which reflected the fact that the documents had actually been examined.

The documents obtained by the second and third applicants contained relatively old information, which moreover had already become known in criminal circles. The Government's interest in keeping the information secret had therefore not been prejudiced by the publications in De Telegraaf, but by the leak from within the AIVD; it followed that the action taken against the applicants could have had no other purpose than to trace the path followed by the documents back to the leak.

Referring to the above-mentioned Sanoma judgment, they argued that orders to disclose sources might have a detrimental impact, not only on the source, but also on the newspaper itself, which would no longer be trusted by potential sources, and on the public, who had an interest in receiving information imparted through anonymous sources. In addition, they argued, referring to the same judgment, that there was no procedure attended by adequate legal safeguards for them to enable an independent assessment as to whether the interest of the criminal investigation overode the public interest in the protection of journalistic sources.

All agree that there has been an ‘interference’ with the first applicant's freedom to receive and impart information. The Court so finds (see Sanoma, cited above, § 72).

It is not in dispute that the surrender order had a statutory basis, namely Article 96a of the Code of Criminal Procedure (see paragraph 50 above). The Court so finds (see Sanoma, cited above, § 86).

As regards the procedural safeguards available, the Court finds that the present case differs in essential respects from Sanoma. The documents 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 in the Regional Court (see paragraph 20 above). The applicants agreed to this procedure with the public prosecutor. Moreover, as the Government correctly point out, it had a statutory basis, namely Article 552a of the Code of Criminal Procedure, which moreover empowers the Regional Court to give any orders needed (see paragraph 50 above; compare and contrast Sanoma, §§ 96–97).

The interference complained of was therefore ‘prescribed by law’.

It is not in dispute that the aims pursued by the interference were, at the very least, ‘national security’ and ‘the prevention of crime’ as the Government state. The Court so finds.

The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ complained of corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see, among many other authorities, The Sunday Times, cited above, § 62). In assessing whether such a ‘need’ exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Cump?n? and Maz?re v. Romania [GC], no. 33348/96, § 88, ECHR 2004-XI; Voskuil, cited above, § 63; and TV Vest AS and Rogaland Pensjonistparti v. Norway, no. 21132/05, § 58, ECHR 2008 (extracts)).

The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered 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 and 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 and determine whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ and whether it was ‘proportionate to the legitimate aim pursued’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998-VI; Cump?n? and Maz?re, cited above, § 90; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68–71, ECHR 2004-XI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II; Mamère v. France, no. 12697/03, § 19, ECHR 2006-XIII; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV; Voskuil, cited above, § 63; and Guja v. Moldova [GC], no. 14277/04, § 69, ECHR 2008).

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, 25 March 1985, § 58, Series A no. 90; Lingens v. Austria, 8 July 1986, § 44, Series A no. 103; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Cump?n? and Maz?re, cited above, § 93; Voskuil, cited above, § 64; and Financial Times Ltd. and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009).

Under the terms of Article 10 § 2, the exercise of freedom of expression carries with it duties and responsibilities which also apply to the press. Article 10 protects a journalist's right — and duty — to impart information on matters of public interest provided that he is acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III; and Financial Times Ltd. and Others, cited above, § 62).

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 61 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, cited above, § 39; Voskuil, cited above, § 65; Financial Times Ltd. and Others, cited above, § 59; and Sanoma, cited above, § 51).

While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose (for example, by intentionally fabricating false information), courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2 (Financial Times Ltd. and Others, cited above, § 63).

Turning to the facts of the case, the Court notes that before the Regional Court the public prosecutor stated that the primary purpose of the surrender order was to return them to the AIVD, although if the opportunity arose to examine them for usable traces it would be taken. However, as the public prosecutor admitted, even without detailed technical examination of the documents the culprits could be found simply by studying the contents of the documents and identifying the officials who had had access to them (see paragraph 22 above). That being so, the need to identify the AIVD official concerned cannot alone justify the surrender order.

Although the full contents of the documents had not come to the knowledge of the general public, it is highly likely that that information had long been circulating outside the AIVD and had come to the knowledge of persons described by the parties as criminals. Withdrawing the documents from circulation could therefore no longer prevent the information which they contained — including the code names and other information identifying AIVD informants — from falling into the wrong hands (see The Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 54, Series Ano. 217; Observer and Guardian v. the United Kingdom, 26 November 1991, § 68, Series A no. 216; and Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, § 45, Series A no. 306-A).

There remains the need for the AIVD to check whether all the documents removed from its keeping had been withdrawn from circulation. The Court accepts that this is a legitimate concern. However, that is not sufficient to find that it constituted ‘an overriding requirement in the public interest’ justifying the disclosure of the applicant's journalistic source. The Court takes the view that the actual handover of the documents taken was not necessary: since — as appears from the Minister's letter of 20 December 2006 to the Lower House (see paragraph 18 above) — these were copies not originals, visual inspection to verify that they were complete, followed by their destruction (as was in fact proposed by the first applicant, see paragraph 22 above), would have sufficed.

In sum, ‘relevant and sufficient’ reasons for the interference complained of have not been given. There has therefore been a violation of Article 10 of the Convention.