Information Note on the Court’s case-law 199
August-September 2016
Telegraaf Media Nederland Landelijke Media B.V. and van Der Graaf v. the Netherlands (dec.) - 33847/11
Decision 30.8.2016 [Section III]
Article 37
Article 37-1
Striking out applications
Exceptional circumstances justifying unilateral declaration in absence of prior attempt to reach a friendly settlement: struck out following unilateral declaration
Facts – In their application to the European Court the applicants complained that a search and seizure operation conducted at the home of the second applicant, a journalist on a newspaper (De Telegraaf) published by the first applicant, had breached their rights under Article 10 of the Convention. The operation had taken place pursuant to a warrant issued by a regional court in connection with the suspected leak of State secrets to the newspaper. In the Convention proceedings, the Government issued a unilateral declaration acknowledging a violation of Article 10 and offering to reimburse the applicants’ costs and expenses before the Court. The applicants asked the Court to dismiss the declaration.
Law – Article 37 § 1: Rules 62 and 62A of the Rules of Court were 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. In the present case, the Government had attempted to reach a friendly settlement directly with the applicants, through their representatives, without the involvement of the Court. The question therefore arose whether “exceptional circumstances” obtained within the meaning of Rule 62 § 2 that justified the filing of a unilateral declaration.
In finding that such circumstances did exist, the Court noted that (i) despite the lack of supervision of the friendly-settlement negotiations by the Court, there was no reason to believe that there was or could have been any abuse by either party or any imbalance in power, particularly bearing in mind that the applicant company was a corporate body and the proprietor of a major newspaper with national coverage, and that both applicants were ably represented by experienced counsel throughout; (ii) the Court had developed the principles governing the protection of journalistic sources in a series of judgments; (iii) the applicants had not sought just satisfaction going beyond a finding of a violation of the Convention and reimbursement of their costs and expenses and (iv) the Government had introduced legislation aimed at preventing the recurrence of violations such as that recognised in the present case in the future.
The Court was therefore satisfied that the Government’s unilateral declaration offered a sufficient basis for finding that respect for human rights as defined in the Convention and the Protocols did not require it to continue its examination of the application.
Conclusion: strike out (majority).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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