THIRD SECTION
DECISION
This decision was rectified on 14 October 2016
under Rule 81 of the Rules of Court.
Application no. 33847/11
TELEGRAAF MEDIA NEDERLAND LANDELIJKE MEDIA B.V. and Jolande Gertrude VAN DER GRAAF
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 30 August 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 26 May 2011,
Having regard to the unilateral declaration submitted by the respondent Government and the remarks in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant is a limited liability company incorporated under Netherlands law. Its business includes publishing the mass-circulation daily newspaper De Telegraaf.
2. The second applicant, Ms Jolande Gertrude van der Graaf, is a Netherlands national, born in 1963 and resident in Hellevoetsluis. She is a journalist.
3. The applicants were represented before the Court by Mr A.W. Eikelboom and Mr V.L. Koppe. Mr Koppe was subsequently replaced by Ms C. Samkalden. All three are lawyers practising in Amsterdam. The Government were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms K. Adhin, of the Ministry of Foreign Affairs.
4. The facts of the case, as submitted by the parties and as apparent from public documents, may be summarised as follows.
A. The circumstances of the case
1. The newspaper articles
5. On Saturday 28 March 2009, the newspaper De Telegraaf published an article, which included the following:
“AIVD failed in regard of Iraq
Government put on the wrong track with intelligence for Gulf War 2003
By Jolande van der Graaf and [J.H., another journalist]
The Hague, Saturday
It appears that the AIVD [Algemene Inlichtingen- en Veiligheidsdienst, General Intelligence and Security Service] has put the Government on the wrong track during the preparatory phase in the war against Iraq. The secret service has readily adopted foreign intelligence reports without verifying the information.
...”
6. The article was published around the time that the Government had set up an independent committee for the purpose of investigating the preparation and the decision-making process in the period between the summer of 2002 and the summer of 2003 concerning the political support expressed by the Netherlands Government for the invasion into Iraq.
7. On Thursday 4 June 2009, De Telegraaf published another article on its front page which included the following:
“Dalai Lama threatened
By Jolande van der Graaf and [H.K., another journalist]
Amsterdam, Thursday
The security of the Dalai Lama, who arrived in the Netherlands yesterday for a three-day visit, has been considerably increased. There are serious threats from ‘Chinese quarters’, so well-informed sources connected to the visit report.
...”
2. The AIVD report
8. On 11 June 2009 the AIVD sent an official report to the national public prosecutor responsible for combating terrorism (landelijk officier van justitie terrorismebestrijding), containing information about an AIVD employee, her husband, who was an ex-AIVD employee, and the second applicant in relation to their involvement in the suspected leak of State secrets (staatsgeheimen).
9. The report stated that the reason for the investigation into these persons lay in the article published by De Telegraaf on 28 March 2009 entitled “AIVD failed in regard of Iraq”. It had appeared that the text of the article showed striking similarities to the draft report of an internal analysis carried out by the AIVD concerning the war in Iraq, which was classified as State secret information. This suspicion was confirmed by textual analysis of the newspaper article and the internal report carried out by the AIVD.
10. The report of 11 June 2009 further stated that it appeared from telephone data that the three persons had been in contact with each other and that they had talked in a veiled manner. The report went on to note that it appeared from the location data (locatiegegevens) of the telephones of the persons in issue that they might have seen each other on multiple occasions. In addition, it had been found that the three persons had met on 2 June 2009, on which occasion the second applicant had spent around three hours in the home of the two other persons.
11. Lastly, the report stated that it was of importance for national security to check whether these State secrets were still in the possession of unauthorised third parties and to prevent the leak of more State secrets.
12. On 16 June 2009 the second applicant was designated by the Public Prosecution Service (openbaar ministerie) as a suspect of the offences described in Articles 98 and 98a of the Criminal Code (Wetboek van Strafrecht) (see below).
3. The search of the second applicant’s home
13. On 18 June 2009 a search of the second applicant’s home took place following the issuance of a search warrant by the Regional Court (rechtbank) of The Hague. The search took place under the supervision of an investigating judge (rechter-commissaris) who was accompanied by seven officers of the National Police Internal Investigations Department (Rijksrecherche).
14. The investigating judge requested the second applicant to provide him with items of the following four categories: firstly, the draft report of the internal analysis of the AIVD concerning the war in Iraq or any other documents that had served as a basis for the article in De Telegraaf entitled “AIVD failed in regard of Iraq”, published by De Telegraaf on 28 March 2009; secondly, documents classified as State secret that concerned the security of the Dalai Lama or any other documents that had served as a basis for the article on the Dalai Lama published by De Telegraaf on 4 June 2009; thirdly, documents classified as State secret that had been provided to the second applicant during a three-hour meeting on 2 June 2009 or any other documents classified as State secret; and fourthly, the mobile telephones which had used certain SIM cards along with those SIM cards. The investigating judge further informed the second applicant that the search of her home probably could be totally or partially dispensed with if she cooperated.
15. After the second applicant had been provided the opportunity to contact the editor-in-chief of De Telegraaf and a lawyer, she informed the investigating judge that she refused to cooperate. Subsequently, the search started. When the second applicant’s lawyer arrived at the house the search was in progress. The lawyer and the second applicant were provided the opportunity to talk in private.
16. In the course of the search, the investigating judge seized the following items: 6 A4 documents, 72 small paper notebooks, a diary (agenda), a laptop computer, a notebook computer, a GPS route planner, a hard disk taken from a desktop computer, a desktop computer, a USB memory stick with documents from the laptop computer, an article published by De Telegraaf, a large paper notebook, a telephone voucher (telefoonbon), a SIM card package without the SIM card, and lastly, a mobile phone without a SIM card.
17. On 30 June 2009, the seized laptop and notebook computers were returned to the second applicant after copies of the respective hard disks had been made.
4. Complaint proceedings
(a) The Regional Court
18. On 3 July 2009 the applicants lodged a complaint under Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering) (see below) seeking, primarily, an order addressed to the investigating judge to return the seized objects and documents without examination of these items and, secondarily, an order that a procedure would be set up, which would make available to the National Police Internal Investigations Department and the Public Prosecution Service only those documents and items that had direct links to the information and intelligence flowing from the AIVD employee and her husband. The applicants claimed, inter alia, that the search and seizure had not been proportionate and that the public prosecutor had failed to show that the subsidiarity requirement had been respected. Therefore, so they argued, Article 10 of the Convention had been violated.
19. On 23 July 2009 the Regional Court of The Hague, sitting in Haarlem, gave a decision finding that the search of the second applicant’s home had been lawful and declaring the complaint of the first applicant inadmissible for lack of interest.
(b) Discontinuation of the prosecution of the second applicant
20. On 26 January 2010 the public prosecutor (officier van justitie) notified the second applicant that the prosecution against her had been dropped. The ground for this decision was that the evidence against her had been unlawfully obtained.
(c) The Supreme Court
21. Invoking Article 10 of the Convention the applicants lodged an appeal on points of law (cassatie) against the decision of the Regional Court.
22. In his advisory opinion to the Supreme Court dated 5 October 2010 the Advocate-General (Advocaat-Generaal) stated that in the meantime the documentary evidence had been returned to the second applicant (via her lawyer) and that the seizure of all the items subject to it had been lifted.
23. On 30 November 2010 the Supreme Court dismissed the applicants’ appeal on points of law. It noted the advisory opinion of the Advocate-General from which it appeared that all items connected to the second applicant’s complaint that had been dismissed by the Regional Court, had been returned to her in the meantime. Concluding that the second applicant therefore no longer had any interest in her appeal on points of law, the Supreme Court declared her appeal inadmissible. As regards the first applicant’s appeal on points of law the Supreme Court considered that it had to reach a similar conclusion (moet hetzelfde worden geoordeeld).
5. Other proceedings
(a) Civil proceedings
24. On 8 July 2009 the applicants, along with other claimants, brought summary civil injunction proceedings (kort geding) against the State before the Amsterdam Regional Court claiming that the AIVD’s use of special powers against them had violated their rights under Article 10 of the Convention.
25. On 23 July 2009 the provisional measures judge (voorzieningenrechter) of the Regional Court gave judgment (ECLI:NL:RBAMS:2009:BJ3552) ordering the State firstly, to desist from the use of special powers of the AIVD in so far as such use was related to the two articles here in issue (see paragraphs 5 and 7 above) and secondly, not to take cognisance of the data obtained through such use of special powers, nor to make use of them or hand them over to the public prosecution service, pending the outcome of complaint proceedings intended to be brought before the Supervisory Board for Intelligence and Security Services (Commissie van toezicht voor de inlichtingen- en veiligheidsdiensten).
26. An appeal against this judgment lodged by the State was dismissed by the Amsterdam Court of Appeal on 13 October 2009 (ECLI:NL:GHAMS:2009:BK0003).
(b) Non-judicial proceedings
27. The second applicant lodged a complaint with the public prosecutor against the decision to discontinue the criminal proceedings against her on the ground that the evidence had been unlawfully obtained. She wished the decision to be based on the ground that there had never been any justification for considering her a criminal suspect in the first place.
28. Faced with the public prosecutor’s refusal, against which there was no legal remedy available, the second applicant brought a complaint before the National Ombudsman (Nationale Ombudsman).
29. On 26 April 2012 the National Ombudsman adopted a report (no. 2012/048) in which he expressed the opinion that in view of the second applicant’s status as a journalist the decision to drop the prosecution ought in reason to have been based on the finding that she had not properly been considered a criminal suspect.
B. Subsequent legal developments
1. The Lawyers and Journalists (Use of Special Powers under the 2002 Intelligence and Security Services Act) Temporary Review Order
30. The Lawyers and Journalists (Use of Special Powers under the 2002 Intelligence and Security Services Act) Temporary Review Order (Tijdelijke regeling onafhankelijke toetsing bijzondere behoegdheden WiV 2002 jegens advocaten en journalisten) was published in the Official Gazette (Staatscourant) of 23 December 2015. This order is intended as an interim arrangement pending the enactment of appropriate primary legislation.
31. As relevant, it requires the Minister concerned (the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) or the Minister of Defence (Minister van Defensie), as the case may be, depending on which intelligence service is involved) to seek the prior permission of a Temporary Review Board for the use of special powers aimed at identifying a journalist’s source. If the urgency is such that the decision of the Temporary Review Board cannot be awaited, the Minister shall seek its approval post factum; in the event of a refusal, the Minister (or the intelligence service involved) shall immediately terminate the use of special powers immediately and destroy any data already obtained.
32. The Temporary Review Board comprises one titular member, namely the head of the Supervisory Board for Intelligence and Security Services (Commissie van toezicht voor de inlichtingen- en veiligheidsdiensten) and one substitute member, who must be qualified for judicial office.
2. The Code of Criminal Procedure
33. By Royal Message (Koninklijke boodschap) of 17 September 2014 the Government sent to the Lower House of Parliament (Tweede Kamer der Staten-Generaal) a bill “for the amendment of the Code of Criminal Procedure to establish the free right to source protection in the free gathering of news (source protection in criminal cases)” (Wijziging van het Wetboek van Strafvordering tot vastlegging van het recht op bronbescherming bij vrije nieuwsgaring (bronbescherming in strafzaken)) (Parliamentary Documents, Lower House of Parliament, parliamentary year 2014-2015, 34 032, nos. 1-2).
34. The bill proposes to introduce a new Article 218a, according to which any witness who, as a “journalist” or a “publicist”, possesses information concerning persons who have agreed to provide that information on condition that the information should not be traceable to them shall have the right to decline to answer questions about the origin of this information. This right may be overridden by the investigating judge if “disproportionate harm” to a “weightier social interest” would result.
35. The bill also proposes an amendment to Article 222 with the effect of allowing the Regional Court, before ordering the detention (or the extension of the detention) of an uncooperative journalist witness, to obtain the advice of “a member of the profession” to which the witness belongs.
36. The Explanatory Memorandum (Memorie van Toelichting) (Parliamentary Documents, Lower House of Parliament, parliamentary year 2014-2015, 34 032, no. 4) makes mention of the case-law of this Court, including Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996‑II; Voskuil v. the Netherlands, no. 64752/01, 22 November 2007; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010; and Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, 22 November 2012; as well as Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information of the Committee of Ministers of the Council of Europe.
37. The advisory opinion of the Council of State (Parliamentary Documents, Lower House of Parliament, parliamentary year 2014-2015, 34 032, no. 4) focuses on the scope of the expressions “journalist” and “publicist”, since these define the circle of persons who would be entitled to the privilege granted by the proposed Article 218a, and on harmonising the amendments of the Code of Criminal Procedure with amendments proposed to the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten 2002).
COMPLAINT
38. The applicants complained under Article 10 of the Convention about the search of the second applicant’s house, the seizure of various documents and items, and the “chilling effect” these actions would have on potential sources.
THE LAW
A. Whether the application should be struck out
1. The Government’s unilateral declaration
39. On 8 November 2013 the Government wrote to the Court in the following terms:
“[T]he Government hereby wishes to express – by way of unilateral declaration – its acknowledgement that the requirements of Article 10 of the Convention were violated in respect of the applicants.
Consequently, the Government is prepared to reimburse the applicants with any costs and expenses related to the proceedings before the Court, provided they were incurred necessarily and are reasonable as to quantum, plus any tax that may be chargeable to the applicants.
I look forward to the Court’s decision in this respect.”
40. The applicants asked the Court to dismiss the Government’s unilateral declaration. They argued, firstly, that despite the Court’s findings of violations of Article 10 in no fewer than three judgments against the Netherlands, no legislation capable of preventing the recurrence of the violation acknowledged was yet in place, and secondly, that the guarantees of independent review provided by the Lawyers and Journalists (Use of Special Powers under the 2002 Intelligence and Security Services Act) Temporary Review Order (paragraphs 23-25 above) were insufficient.
41. The Government submitted that the present application concerned only the authorities’ conduct in a criminal investigation, to which the use of special powers by the intelligence services was irrelevant, and pointed to the bill currently under discussion in Parliament (paragraphs 33-37[1] above).
2. The Court’s decision
42. In their relevant parts, Rules 62 and 62A of the Rules of Court read as follows:
Rule 62
“1. Once an application has been declared admissible, the Registrar, acting on the instructions of the Chamber or its President, shall enter into contact with the parties with a view to securing a friendly settlement of the matter in accordance with Article 39 § 1 of the Convention. The Chamber shall take any steps that appear appropriate to facilitate such a settlement. ...”
Rule 62A
“1.(a) Where an applicant has refused the terms of a friendly-settlement proposal made pursuant to Rule 62, the Contracting Party concerned may file with the Court a request to strike the application out of the list in accordance with Article 37 § 1 of the Convention.
(b) Such request shall be accompanied by a declaration clearly acknowledging that there has been a violation of the Convention in the applicant’s case together with an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures.
(c) The filing of a declaration under paragraph 1 (b) of this Rule must be made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings referred to in Article 39 § 2 of the Convention and Rule 62 § 2.
2. Where exceptional circumstances so justify, a request and accompanying declaration may be filed with the Court even in the absence of a prior attempt to reach a friendly settlement.
3. If it is satisfied that the declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of the application, the Court may strike it out of the list, either in whole or in part, even if the applicant wishes the examination of the application to be continued.
4. This Rule applies, mutatis mutandis, to the procedure under Rule 54A.”
43. In the present case, the application was communicated under the joint procedure on admissibility and merits (Rule 54A); no separate decision on admissibility has been given. Rule 62 cannot therefore apply directly; Rule 62A applies mutatis mutandis by virtue of its fourth paragraph. Nevertheless, in view of their interrelation both Rules retain their importance for a correct understanding of the situation that has arisen.
44. Rules 62 and 62A are based on the premise, reflected in Article 39 of the Convention, that friendly settlement negotiations are normally concluded after the Court has placed itself at the disposal of the parties concerned for that particular purpose.
45. In the present case, the Government have attempted to reach a friendly settlement directly with the applicants, through their representatives, without the involvement of the Court. The question therefore arises whether “exceptional circumstances” obtain within the meaning of Rule 62A § 2[2].
46. The Court finds this to be the case. The friendly settlement negotiations were admittedly not supervised by the Court, but the Court has no reason to believe that in the present case there was or could have been any abuse by either party or any imbalance in power. It is significant in this regard that the applicant Telegraaf Media Nederland Landelijke Media B.V. is a corporate body, the proprietor of a major newspaper with national coverage, and that both applicants were ably represented by experienced counsel throughout.
47. The Court notes that it has developed the principles governing the protection of journalistic sources in a series of judgments, including Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996‑II; Roemen and Schmit v. Luxembourg, no. 51772/99, ECHR 2003‑IV; Ernst and Others v. Belgium, no. 33400/96, 15 July 2003; Voskuil v. the Netherlands, no. 64752/01, 22 November 2007; Tillack v. Belgium, no. 20477/05, 27 November 2007; Financial Times Ltd and Others v. the United Kingdom, no. 821/03, 15 December 2009; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010; Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, 22 November 2012; and Nagla v. Latvia, no. 73469/10, 16 July 2013.
48. The Court further observes that the applicants did not seek just satisfaction going beyond a finding of a violation of the Convention and reimbursement of their costs and expenses.
49. Finally, and noting that it is not called upon to express a view on the temporary arrangement currently in force (see paragraphs 30-32[3] above), the Court accepts that the Government have in the meantime introduced legislation aimed at preventing the recurrence of violations such as that here recognised in the future (see paragraphs 33-37[4] above).
50. It is therefore appropriate for the Court to take note of the Government’s unilateral declaration. The Court is satisfied that the declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.
B. Application of Rule 43 § 4
51. Rule 43 § 4, in its relevant part, provides as follows:
“When an application has been struck out in accordance with Article 37 of the Convention, the costs shall be at the discretion of the Court. ...”
1. Costs and expenses
52. The applicants’ claims were the following (excluding value-added tax):
(a) In respect of the complaints proceedings before the Regional Court, EUR 63,181.33;
(b) In respect of the proceedings before the Supreme Court, EUR 3,958.35;
(c) In respect of the summary injunction proceedings (at two levels of jurisdiction), EUR 93,288.27 after deduction of the costs awarded against the State;
(d) In respect of the complaint to the National Ombudsman, EUR 1,000;
(e) In respect of the proceedings before this Court,an initial sum of EUR 15,000 anda supplement of EUR 7,697.25;
(f) For legal advice given in the domestic proceedings, EUR 3,707.63.
The applicants submitted time-sheets and invoices in support of these claims.
53. The Government considered these sums excessive and pointed out that some of them did not relate to the violation acknowledged.
54. The Court reiterates that the general principles governing the reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see, among other authorities, Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 133, ECHR 2007‑I; El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 39, 20 December 2007; and Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 276, 3 October 2008). Thus, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, as a recent authority, Blokhin v. Russia [GC], no. 47152/06, § 229, ECHR 2016).
55. The Court now turns to the applicants’ claims.
56. It is correct, as the Government state, that only the costs claimed under (a), (b), (e) and (f) relate, in whole or in part, to the object of the application. Already for that reason it must dismiss the claims set out under (c) and (d).
57. The hourly rate charged by the lawyers who assisted the applicants in the domestic proceedings, namely EUR 375 per hour, goes well beyond what the Court is prepared to consider reasonable as to quantum in the case. Moreover, in the absence of detailed information, the Court is not persuaded that item (f) was necessarily incurred and related entirely to the violation of Convention rights here in issue.
58. Making its own assessment based on the information contained in its case file, the Court considers that the applicants should be awarded EUR 30,000, not including value-added tax, in respect of the domestic proceedings (items (a), (b) and (f)).
59. The Court accepts the claims in respect of the proceedings before it (item (e) under a. and b., that is, for an aggregate sum of EUR 22,697.25[5] not including value-added tax.
60. The total award thus comes to EUR 52,697.25[6]. Any tax chargeable to the applicants is to be added to that sum.
2. Default interest
61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the Court
Decides by a majority to strike the application out of its list of cases;
Holds unanimously
(a) that the respondent State is to pay the applicants jointly, within three months, EUR 52,697.25 (fifty-two thousand six hundred and ninety-seven euros and twenty-five cents)[7] for costs and expenses, plus any tax that may be chargeable to the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses by a majority the remainder of the applicants’ claims.
Done in English and notified in writing on 22 September 2016.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
[1] Rectified on 14 October 2016: the text was “26-30”.
[2] Rectified on 14 October 2016: the text was: “Rule 62 § 2”.
[3] Rectified on 14 October 2016: the text was “23-25”.
[4] Rectified on 14 October 2016: the text was “26-30”.
[5] Rectified on 14 October 2016: the text was “18,707.63”.
[6] Rectified on 14 October 2016: the text was “48,707.63”.
[7] Rectified on 14 October 2016: the text was “48,707.63 (forty-eight thousand seven hundred and seven euros and sixty-three cents).
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