AS TO THE ADMISSIBILITY OF
Applications Nos. 14084/88, 14085/88, 14086/88
14087/88, 14088/88, 14109/88, 14173/88, 14195/88,
14196/88 and 14197/88
by V. and Others
against the Netherlands
The European Commission of Human Rights sitting in private
on 4 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the applications:
- No. 14084/88 introduced on 25 July 1988 by V.
and registered on 1 August 1988;
- No. 14085/88 introduced on 25 July 1988 by L. and
registered on 1 August 1988;
- No. 14086/88 introduced on 25 July 1988 by S. and
registered on 1 August 1988;
- No. 14087/88 introduced on 25 July 1988 by M. and
registered on 1 August 1988;
- No. 14088/88 introduced on 28 July 1988 by O. and
registered on 1 August 1988;
- No. 14109/88 introduced on 3 August 1988 by K. and
registered on 11 August 1988;
- No. 14173/88 introduced on 23 August 1988 by K. and
registered on 31 August 1988;
- No. 14195/88 introduced on 26 August 1988 by E.
and registered on 7 September 1988;
- No. 14196/88 introduced on 26 August 1988 by P. and
registered on 7 September 1988;
- No. 14197/88 introduced on 26 August 1988 by V.
and registered on 7 September 1988;
all these applications being introduced against the
Netherlands;
Having regard to its decision of 9 November 1989 to join these
applications;
Having regard to the Government's observations dated 7
February 1990 and the applicants' replies dated 25 April 1990;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated,
Decides as follows:
THE FACTS
I. THE APPLICANTS
1. Application No. 14084/88. The applicant is a Dutch national,
born in 1956 and at present a resident of Utrecht, the Netherlands.
2. Application No. 14085/88. The applicant is a Dutch national at
present a resident of Utrecht, the Netherlands.
3. Application No. 14086/88. The applicant is a Dutch national,
and at present a resident of Vleuten, the Netherlands. He is a
clergyman by profession.
4. Application No. 14087/88. The applicant is a Dutch national,
born in 1959 and at present a resident of Utrecht, the Netherlands.
5. Application No. 14088/88. The applicant is a Dutch national,
born in 1956 and at present a resident of Amsterdam, the Netherlands.
6. Application No. 14109/88. The applicant is a Dutch national,
born in 1948 and at present a resident of Utrecht, the Netherlands.
7. Application No. 14173/88. The applicant is a Dutch national,
born in 1951 and at present a resident of Utrecht, the Netherlands.
The above seven applicants are represented by M. E. Th.
Hummels, a lawyer practising in Utrecht.
8. Application No. 14195/88. The applicant is a Dutch national,
born in 1962 and at present a resident of Amsterdam, the Netherlands.
9. Application No. 14196/88. The applicant is a Dutch national,
born in 1958 and at present a resident of Utrecht, the Netherlands.
10. Application No. 14197/88. The applicant is a Dutch national,
born in 1957 and at present a resident of Utrecht, the Netherlands.
The above three applicants are represented by Mr. Th. A. de
Roos, a lawyer practising in Amsterdam.
II. FACTS common to the applications
A. Particular circumstances of the case
The facts as submitted by the parties may be summarised as
follows.
In the night of 18 to 19 November 1984, an anti-militarist
activist group, known as "Onkruit", raided the offices of the Utrecht
team of the 450 Counter-Intelligence Detachment (450 Contra-
Inlichtingen Detachement; 450-CID) of the Army Intelligence
Service (Landmacht Inlichtingendienst). Previously, the CID was part
of the Army Intelligence Service, now it belongs to the Military
Intelligence Service. "Onkruit" found, inter alia, the names of 178
civilians and 64 organisations which were "noted" (gesignaleerd) on
the planning board of the so-called Infiltration-Influencing Outline
(Infiltratie Beïnvloedings Schema; IBS) as dangerous to the State.
Fifteen of these civilians were denoted by a red tag as hazardous to a
military mobilisation.
It appeared from other documents that files containing reports
and photographs concerning the civilians and organisations noted in
the IBS were held in a central 450-CID storehouse.
"Onkruit" published all the information that they found and
portions of this information were published in national daily
newspapers, including names of civilians and organisations noted in
the IBS. Also, it appeared from the "Onkruit" material that there was
collaboration between the military 450-CID and the civilian Internal
Security Service (Binnenlandse Veiligheidsdienst; BVD) and Police
Intelligence Service (Politie Inlichtingen Dienst; PID), and possibly
also with the Central Detective Intelligence Service (Centrale
Recherche Inlichtingen dienst; CRI). In the course of subsequent
debates in Parliament in March 1985, it became apparent that the
450-CID may have over-stepped its authority by investigating persons
and organisations active in the so-called "Peace Movement".
Subsequently, on 1 January 1987, a reorganisation of the military
intelligence and security services took place which resulted in an
increased influence of the Ministry of Defence on them.
The applicants' names were among those found on the planning
board of the IBS.
In May 1986, the applicants requested the Minister of Defence
(Minister van Defensie) and the Minister for Home Affairs (Minister
van Binnenlandse Zaken) to grant them access to the information
contained in files concerning them held by, respectively, the 450-CID
and the BVD. They based their request on the information gathered by
"Onkruit" and on their right to information held by public
organisations as guaranteed by the Publicity of Public Administration
Act (Wet Openbaarheid van Bestuur; WOB). They claimed a legitimate
interest to know what was contained in these files because it could
have harmful effects on their future, i.e. when seeking a job.
Furthermore, it was apparent that this information was insufficiently
secure from outside interference, as the raid by "Onkruit" had
demonstrated. They alleged that any form of observation or
registration by intelligence or security services was an unjustified
interference with their private life.
Both Ministers refused to acknowledge that any files
concerning the applicants were held by intelligence or security
services. The Minister of Defence reiterated that the 450-CID did not
investigate the "Peace Movement". The Minister for Home Affairs
pointed out that, in the interest of national security, no information
about the existence of files held by the BVD could be divulged. He
cited the exception contained in Article 4 (b) of the Publicity of
Public Administration Act (WOB) (see below Relevant domestic law and
practice).
The applicants requested a review of these decisions. This was
unsuccessful.
Thereupon the applicants appealed to the Judicial Division of
the Council of State (Afdeling Rechtspraak van de Raad van State).
They invoked, inter alia, Article 8 of the Convention.
On 28 February 1988, in two separate decisions, the Council of
State rejected the appeals. It stated that the Ministers had
justifiably based their decisions on the national security exception
contained in Article 4 (b) of the WOB. Furthermore, there had been no
violation of Article 8 of the Convention because the decisions under
appeal only constituted refusals to acknowledge the existence of
information, which, of themselves, could not constitute an
interference with the applicants' private life.
In the meantime, on 31 December 1987, the Royal Decree of 5
August 1972 was replaced by a parliamentary Act, the Intelligence and
Security Services Act 1987 (Wet op de inlichtingen- en
veiligheidsdiensten), which came into effect on 1 February 1988.
B. Relevant domestic law and practice
1. Until 1987, the Dutch intelligence and security services, both
civil and military, were governed by the Royal Decree of 5 August 1972
regulating the duties, organisation, working methods and co-operation
of the intelligence and security services (Koninklijk Besluit van 5
augustus 1972, Stb. 437, houdende regeling van de taak, de
organisatie, de werkwijze en de samenwerking van de inlichtingen- en
veiligheidsdiensten). The Dutch intelligence and security services
consist of three branches: the Internal Security Services (BVD), the
Military Intelligence Services (MID) and the Foreign Intelligence
Service.
The CID falls under the authority of the MID. The latter
comes under the Minister of Defence, whereas the Minister for Home
Affairs is responsible for the BVD. In this respect, both Ministers
are responsible to the Parliament.
The tasks of the military intelligence services are set out in
Art. IV, 2 of the Royal Decree. It states:
(Dutch)
"De militaire inlichtingendiensten hebben, ieder
voorzover het hun krijgsmachtdeel betreft, tot taak:
a. het inwinnen van gegevens omtrent het potentieel en de
strijdkrachten van andere mogendheden, welke nodig zijn voor
een juiste opbouw en een doeltreffend gebruik van de
krijgsmacht;
b. het inwinnen van gegevens welke nodig zijn voor het
treffen van maatregelen:
1. ter voorkoming van activiteiten die ten doel hebben de
veiligheid of paraatheid van de krijgsmacht te schaden;
2. ter beveiliging van gegevens binnen de krijgsmacht
waarvan de geheimhouding geboden is;
3. ter bevordering van een juist verloop van mobilisatie en
concentratie der strijdkrachten."
(Translation)
"The military intelligence services' tasks, insofar as their
branch of service is concerned, are:
a. to collect information on the potential and the armed
forces of other powers, which is necessary for a correct
structure and an effective use of the armed forces;
b. to collect the information which is necessary for
taking measures:
1. to prevent activities aimed at prejudicing the security
or the readiness of the armed forces;
2. to secure confidential information concerning the armed
forces;
3. to promote a correct course of mobilisation and
concentration of the armed forces."
The co-operation and in particular the exchange of information
between the services, i.e. the CID and the BVD, is provided for in
Article I, 3, which reads:
(Dutch)
"De inlichtingen- en veiligheidsdiensten verlenen elkaar in
het bijzonder ook door het uitwisselen van gegevens - zoveel
magelijk medewerking".
(Translation)
"The intelligence and security services will cooperate as
much as possible, in particular by the exchange of
information."
2. The Publicity of Public Administration Act (Wet Openbaarheid
van Bestuur), invoked by the applicants in the proceedings concerned,
gives to every Dutch citizen the right to request a public body to
disclose information concerning its administration and its policy.
The public body can refuse the disclosure of information on the basis
of Article 4 which reads, insofar as relevant:
(Dutch)
"Het verstrekken van de informatie blijft achterwege
indien dit ...
b. de veiligheid van de staat zou kunnen schaden ..."
(Translation)
"No information ... will be issued insofar as...
b. it might harm the national security ..."
3. On 3 December 1987, the Royal Decree of 5 August 1972 was
replaced by a parliamentary Act, the Intelligence and Security
Services Act 1987 (Wet op de inlichtingen- en veiligheidsdiensten).
This Act came into force on 1 February 1988. It gives the Ministers
responsible more power in certain matters and provides for an even
closer co-operation between the services than was provided for in the
Royal Decree.
The legal basis upon which the MID, and thus the CID, act
resides in Article 9 of the Intelligence and Security Services Act,
which reads:
(Dutch)
"1. Er is een Militaire Inlichtingendienst.
2. Deze heeft tot taak:
a. het verzamelen van gegevens omtrent het potentieel en
de strijdkrachten van andere mogendheden welke nodig zijn
voor een juiste opbouw en een doeltreffend gebruik van de
krijgsmacht;
b. het verrichten van veiligheidsonderzoeken ter zake van
de vervulling van vertrouwensfuncties, dan wel van functies
in het bedrijfsleven, welke naar het oordeel van Onze
terzake verantwoordelijke Ministers de mogelijkheid bieden
de veiligheid of andere gewichtige belangen van de Staat te
schaden;
c. het verzamelen van gegevens welke nodig zijn voor het
treffen van maatregelen:
1. ter voorkoming van activiteiten die ten doel hebben
de veiligheid of paraatheid van de krijgsmacht te schaden;
2. ter beveiliging van gegevens betreffende de
krijgsmacht waarvan de geheimhouding is geboden;
3. ter bevordering van een juist verloop van
mobilisatie en concentratie der strijdkrachten."
(Translation)
"1. There shall be a Military Intelligence Service.
2. Its task is:
a. to collect information on the potential and the armed
forces of other powers, which is necessary to a correct
structure and an effective use of the armed forces;
b. to carry out security investigations on the
fulfilling of confidential functions in trade and industry
which, according to our Ministers responsible, might
prejudice the security or other important interests of the
State;
c. to collect information which is necessary to take
measures:
1. to prevent activities aimed at prejudicing the
security or the readiness of the armed forces;
2. to secure confidential information concerning
the armed forces;
3. to promote a correct course of mobilisation
and concentration of the armed forces."
COMPLAINTS
The applicants allege that it is apparent from the information
published by "Onkruit" that they are or have been the subject of
investigation by the 450-CID. They also refer to Article I,3 of the
Royal Decree of 5 August 1972 regulating the duties, organisation,
working methods and co-operation of the intelligence and security
services, which provides that security services shall assist each
other as much as possible. They conclude that the BVD must also have
files on them.
The applicants complain under Article 8 of the Convention that
the investigation of their activities by security services and the
refusal of access to the information gathered by the security services
interferes with their right to respect for their private life. They
argue that the national security exception contained in paragraph 2 of
Article 8 does not apply as the 450-CID is not authorised by law to
investigate civilians nor is it necessary in a democratic society in
the interest of national security to deny them access to the
information contained in their files.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 July 1988 and registered
on 1 August 1988.
On 9 November 1989, the Commission decided to join the
applications and to communicate them to the respondent Government and
invite them to submit written observations on the admissibility and
the merits of the applications.
The Government's observations were received by letter dated 7
February 1990 and the applicants' observations were dated 25 April 1990.
THE LAW
1. The applicants complain that the investigation and
registration of their activities by security services and the refusal
of access to the information held on them by the security services
constitute a breach of Article 8 (Art. 8) of the Convention, which
states:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
2. The Government contend that, since the applicants have failed
to bring an action for tort before the civil courts, their application
must be declared inadmissible for non-exhaustion of domestic remedies.
The applicants contend that they have exhausted domestic
remedies. They did not bring an action for tort under Article 1401 of
the Dutch Civil Code (Burgerlijk Wetboek) before the civil courts, as
sufficient factual evidence must be brought to support the claim. But
since the Government refuse to state whether information is being
stored on the applicants, an action for tort was not an effective
remedy in these circumstances.
Under Article 26 (Art. 26) of the Convention the Commission
may only deal with a matter after all remedies have been exhausted
according to the generally recognised rules of international law.
The Commission notes that the Government have referred to the
possibility of filing an action for tort before the civil courts.
However, they do not explain how such an action could have been
effective with regard to the applicants' complaints, in particular,
whether they could have obtained access to their files and prevented
further storing of the information complained of.
In particular, the Commission observes that a general practice
of security related activities has been established on the basis of
the Royal Decree. The Commission recalls in this respect that where
the alleged violation is lawful in the respondent State, e.g. where it
is authorised by statute or is accepted as the law of the land, the
requirements as to the exhaustion of domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention clearly do not apply
(Ireland v. the United Kingdom, Comm. Rep. 25.01.76, para. 25,
Yearbook 19 pp. 760-761). In the present case, an action for tort is
of necessity rendered inadequate by the general practice of security
related activities. Therefore, in the Commission's opinion, the
applicants have complied with Article 26 (Art. 26) of the Convention.
In these circumstances the Commission considers that the
Government have not shown that the action at issue was an effective
remedy within the meaning of Article 26 (Art. 26) of the Convention,
in that it could have served to remedy the applicants' complaints. As
a result, the application cannot be declared inadmissible for
non-exhaustion of domestic remedies according to Article 27 para. 3
(Art. 27-3) of the Convention.
3. With regard to the well-foundeness of their complaints, the
applicants claim under Article 8 (Art. 8) of the Convention that they are
entitled to have access to the files concerning them. They contend
that observation and registration of their activities by the
intelligence and security services is an unjustified interference with
their right to respect for their private life. The information
recorded may give an incorrect impression of the applicants and their
activities, and thus might jeopardise their future, for instance when
seeking employment.
The applicants furthermore contend that, since the CID is not
authorised by law to investigate the activities of civilians, this
interference with their right to respect for their private life is not
"in accordance with the law". The legal basis at the time of the
gathering of information (1984 or earlier) was the Royal Decree and not
the Intelligence and Security Services Act which was only enacted in
1987. The applicants submit that Article 8 (Art. 8) of the Convention
requires a Parliamentary Act as legal basis.
The applicants also submit that the interferences complained
of are not "necessary in a democratic society" in the interests of
national security within the meaning of Article 8 para. 2 (Art. 28-2)
of the Convention.
The respondent Government submit that the applicants have
based their claims entirely on supposition. They emphasise the need
for the secret services to be able to work in total secrecy.
Therefore the Government can never reveal whether any information is
held on a particular person, let alone disclose that information, if
any. The disclosure of information would reveal the pattern of the
services' activities and would endanger employed agents and informers.
Besides, if the Government would grant the applicants' requests, the
principle of equal treatment would compel them to disclose information
at any request, which would deprive the security services of their
"raison d'être".
The Government argue that the "law" in Article 8 para. 2
(Art. 8-2) need not be an Act of Parliament, though the Dutch secret
services are governed by such an Act, the Intelligence and Security
Services Act 1987, and prior to that by the Royal Decree of 5 August
1972. The Government consider that the existence of secret services
is "necessary in a democratic society" to protect the country's
security and to prevent crime. These services are strictly bound by
their mandate, which is embodied in the aforementioned Act and Decree
respectively. Thus, even if the services' activities would constitute
an interference with the applicants' right to respect for their
private life, this interference is "in accordance with the law", and
thus justified within the meaning of Article 8 para. 2 (Art. 8-2) of
the Convention.
The Government also allege that there are enough safeguards
for citizens against the activities of the intelligence and security
services. The Standing Committee on Intelligence and Security Services
of the Lower House, which consists of the parliamentary leaders of the
governing parties and of the main opposition parties, can, when
requested by a citizen, investigate whether one of the services
concerned has acted in an unlawful manner towards him. Complaints by
citizens can also be submitted to the National Ombudsman, who is
independent of the Government and the Parliament.
The Commission, having regard to the parties' submissions
under Article 8 (Art. 8) of the Convention concerning the applicants'
right to respect for their private life, considers that these
complaints raise complex issues of fact and law which can only be
resolved by an examination of the merits. This application cannot,
therefore, be declared manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds
for inadmissibility have been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATIONS ADMISSIBLE,
without prejudging the merits of the case.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy