AS TO THE ADMISSIBILITY OF
Application No. 16616/90
by VERENIGING WEEKBLAD "BLUF!"
against the Netherlands
The European Commission of Human Rights sitting in private on 29
March 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M. NOWICKI
Mr. M. de SALVIA, 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 application introduced on 4 May 1988 by
VERENIGING WEEKBLAD "BLUF!" against the Netherlands and registered on
22 May 1990 under file No. 16616/90;
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. Particular circumstances of the case
The applicant association, seated in Amsterdam, used to issue a
weekly magazine called "Bluf!". The association has meanwhile ceased
to function but still exists for the sole purpose of the proceedings
before the Commission. Before the Commission, it is represented by
Mrs. E. Prakken, a lawyer practising at Amsterdam in the Netherlands.
The facts of the case as submitted by the parties may be
summarised as follows.
In the spring of 1987, the magazine "Bluf!" came into the
possession of an almost six years old quarterly survey of the Internal
Security Service (Binnenlandse Veiligheidsdienst, B.V.D.). The survey
was classified with the lowest classification: "confidential". It
showed that the B.V.D. was interested in, inter alia, the Dutch
Communist Party, the Anti Nuclear Movement (Anti Kern Beweging) and the
Arab League. "Bluf!" published this survey with an editorial comment
in its issue No. 267 of 29 April 1987. Before the issue could be sent
out to the subscribers, the head of the B.V.D., by letter of 29 April
1987, informed the Public Prosecutor (Officier van Justitie) that the
planned distribution by "Bluf!" probably amounted to a criminal offence
under the Articles 98 and 98a of the Criminal Code (Wetboek van
Strafrecht) (see below, Relevant domestic law and practice).
On 29 April 1987 the Public Prosecutor issued an order to have
the association's premises searched and to seize (inbeslagneming) issue
No. 267. The police subsequently invaded the premises, seized all
copies but one and arrested three persons. However, as the Public
Prosecutor formulated his demand for preliminary investigations
(gerechtelijk vooronderzoek) against unknown suspects, these persons
were released the next day. Preliminary investigations were opened but
as the Investigating Judge (Rechter-Commissaris) saw no grounds to
proceed with them, they were closed by decision of 6 May 1987. No
charges were subsequently brought against the applicant association.
Meanwhile, the editors of "Bluf!" managed to reprint the issue
during the night from 29 to 30 April 1987, and sold the approximately
2500 copies in the streets of Amsterdam on 30 April 1987, the Dutch
national day, without the authorities preventing them from doing so.
Distribution by mail to the subscribers was renounced since it was
expected that the Post Office would seize the issue.
On 1 May 1987 "Bluf!" filed an appeal (beklag) against the
seizure of issue No. 267 to the Amsterdam Regional Court
(Arrondissementsrechtbank), claiming a breach of its freedom of
expression and in particular its right to receive and impart
information and ideas without interference by the public authorities
as guaranteed by Article 7 of the Dutch Constitution (Grondwet) and by
Article 10 of the Convention. It also requested the Court to give the
seized copies back to them so as to permit them to send them in time
to the subscribers.
The Amsterdam Regional Court rejected the appeal on 1 May 1987
on the ground that it was not unlikely that the criminal court, which
was to deal with the case at a later stage, would impose the measure
of withdrawal from circulation (onttrekking aan het verkeer). On 17
November 1987 the Supreme Court (Hoge Raad) dismissed the applicant
association's plea of nullity.
On 11 May 1987 "Bluf!" lodged another appeal (beklag) with the
Amsterdam Regional Court claiming that the seizure was unlawful as it
violated its right under, inter alia, Article 10 of the Convention.
At the hearing before the Court on 30 June 1987 the applicant
association, invoking Article 6 of the Convention, requested the Court
to make the hearing public. This request was acceded to on the ground
that the proceedings involved a determination of the applicant
association's civil rights. The Court declared the appeal inadmissible
on 11 January 1988 holding that the newspaper had already filed the
same complaint on 1 May 1987. Since it had not adduced any new
evidence, its claim was not to be re-examined.
By letter of 2 June 1987 the Public Prosecutor informed the
applicant association that the three persons arrested during the
seizure of issue No. 267 would not be prosecuted.
On 25 March 1988 the Public Prosecutor requested the Amsterdam
Regional Court that issue No. 267 be withdrawn from circulation. At
its hearing of 27 May 1988 the Court, upon the applicant association's
request, held a public hearing. On 21 June 1988 the Court held that
the possession and the planned distribution of the confidential
material held by "Bluf!" were aimed at perpetrating a criminal offence
under Article 98 and/or Article 98a of the Criminal Code. It further
found that the uncontrolled possession of the issue was unlawful and
contrary to the general interest. Therefore the Court granted the
Public Prosecutor's request pursuant to Articles 36b and 36c of the
Criminal Code whilst noting that there was no suspect person, either
legal or physical, that no criminal charges had been brought against
"Bluf!" or anybody else and that no criminal court had established any
infringement of Articles 98 ff. of the Criminal Code.
"Bluf!" lodged a plea of nullity with the Supreme Court which the
latter rejected on 18 September 1989 holding, inter alia, that the
measure complained of was justified in the interests of national
security within the meaning of Article 10 para. 2 of the Convention.
Throughout the proceedings, "Bluf!" was not admitted as a party
to the proceedings but was considered as an interested party as the
Public Prosecution department constantly held that "Bluf!" lacked legal
personality.
II. Relevant domestic law and practice
Articles 98 and 98a of the Criminal Code make it a punishable
offence to disclose information, the confidentiality of which is
required by the interest of the State or of its allies or any
preparatory act to that effect.
According to Article 94 of the Code of Criminal Procedure
(Wetboek van Strafvordering), any object which may help to disclose the
truth ("de waarheid aan de dag brengen") or is liable to be confiscated
("verbeurdverklaring") or to be withdrawn from circulation
("onttrekking aan het verkeer") can be seized ("inbeslagneming"). In
general, a seizure is carried out by investigating officers, such as
the police, on the orders of the Public Prosecutor.
Any interested party can file an appeal against the seizure with
the Regional Court (Article 552a of the Code of Criminal Procedure).
Article 552d of the Code provides for an appeal in cassation against
the Regional Court's decision.
The withdrawal from circulation of seized objects can be
pronounced by a separate judicial order upon request of the Public
Prosecutor (Article 36b, 4° of the Criminal Code). Liable to
withdrawal from circulation are all objects designed to be used for
committing an offence insofar as their uncontrolled possession is
unlawful or contrary to the general interest (Article 36c, 5° of the
Criminal Code).
The legal ownership of goods withdrawn from circulation passes
to the State which can then dispose of them. This can result in the
destruction of the goods.
However, this measure does not presuppose a finding of guilt, it
is not a penalty or a substitute for a penalty and it can even be
ordered in the absence of any suspect.
The Supreme Court has found (see e.g. Hoge Raad, 8 September
1987, Nederlandse Jurisprudentie 1988/453) that the withdrawal from
circulation of a person's goods in these circumstances determines his
civil rights as owner of those goods.
COMPLAINTS
1. The applicant association complains that the seizure and the
subsequent withdrawal from circulation of issue No. 267 constituted an
unjustified interference with its right to impart information and ideas
within the meaning of Article 10 of the Convention.
2. The applicant association further complains under Article 6 of
the Convention that after the seizure of issue No. 267, it was
subjected to a measure, namely the withdrawal from circulation, without
criminal proceedings having been instituted against it in which it
could have defended itself against the suspicion of having committed
an offence which led to the seizure and withdrawal from circulation of
issue No. 267. In particular, the applicant association complains that
it has not been admitted as a party to the proceedings and that it has
therefore been denied a fair trial prior to the imposition of the
measure.
The applicant association also claims that no evidence was
adduced as to its committing an offence. It relies in this respect on
Article 6 paras. 1, 2 and 3 (a) of the Convention.
3. The applicant association finally complains under Article 1 of
Protocol No. 1 in conjunction with Article 6 of the Convention that it
was deprived of its property without proper proceedings, alleging in
particular that it did not have a fair hearing.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 May 1988 and registered on
22 May 1990.
On 6 March 1991 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
The Government's observations were received by letter dated 6
June 1991 and the applicant's observations by letter dated 28 June
1991.
On 23 October 1992 the applicant association was granted legal
aid.
THE LAW
1. The applicant association complains that the seizure and the
subsequent withdrawal from circulation of issue No. 267 constituted an
unjustified interference with its right to impart information and ideas
within the meaning of Article 10 (Art. 10) of the Convention which
reads:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary."
It argues in particular that the withdrawal from circulation was
not "in accordance with the law" since this measure can only be ordered
if an offence has been committed and that Dutch criminal law does not
provide for seizure or withdrawal from circulation as sanctions for
offences against national security.
The applicant further submits that the interference was in any
event not necessary "for the protection of national security" for
several reasons. In the first place the quarterly survey of the B.V.D.
published in this issue was almost six years old and merely bore the
qualification "confidential". Secondly, "Bluf!" had managed to reprint
the entire issue following the seizure and had sold it the day after
in the streets of Amsterdam without any intervention of the
authorities. In these circumstances there was no question of
disclosure of state secrets, as stated by the B.V.D. head himself when
contacting the Public Prosecutor.
The applicant finally argues that, should the interference have
been in accordance with the law and aimed at the protection of national
security, it was not necessary in a democratic society. In this
respect "Bluf!" refers to the case-law of the European Court of Human
Rights according to which Article 10 (Art. 10) also protects ideas or
information that offend, shock or disturb the State and that in general
the press has a watchdog function in a democratic society. As
throughout the eighties the functioning of the Dutch secret services
was the object of public debate, "Bluf!" merely contributed to the
democratic calibre of Dutch society by publishing the B.V.D. survey in
its issue No. 267.
The Government primarily submit that in assessing whether the
interference with a certain right was necessary, Member States have a
certain margin of appreciation. They argue that the seizure of issue
No. 267 was based on Articles 98a and 98c of the Criminal Code and thus
"in accordance with the law". The proper functioning of a democratic
system based on the rule of law and the security of the State require
institutions such as the B.V.D. For such a protection to be effective,
these services must operate in secrecy. As issue No. 267 contained
confidential information affecting the interests of the State, the
seizure was necessary in a democratic society in the interests of
national security and public safety.
The Commission, having regard to the parties' submissions under
Article 10 (Art. 10) of the Convention, considers that this complaint
raises complex issues of fact and law which can only be resolved by an
examination of the merits. No other grounds for inadmissibility having
been established, this complaint should therefore be declared
admissible.
2. The applicant association further complains under Article 6
(Art. 6) of the Convention that issue No. 267 was seized and withdrawn
from circulation without any criminal proceedings having been
instituted against it subsequently. The applicant association also
claims that no evidence was adduced as to its committing an offence.
It invokes Article 6 paras. 1, 2 and 3 (a) (Art. 6-1, 6-2, 6-3-a) of
the Convention.
The applicant association moreover complains that it has not been
admitted as a party to the proceedings following the seizure and that
it has therefore been denied a fair trial prior to the withdrawal from
circulation of issue No. 267.
Article 6 (Art. 6) of the Convention reads, insofar as relevant:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. (...)
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against
him;
(...)."
The applicant assocation argues in particular that the seizure
and withdrawal from circulation were ordered without "Bluf!", in its
capacity of suspect, having had the opportunity to defend itself
against the suspicion on which these measures were based, which
suspicion was only included summarily in the demand for preliminary
judicial investigations against unknown suspects.
The Government submit that the procedure governing withdrawal
from circulation, in order to meet the requirements of Article 6
(Art. 6) of the Convention as to publicity, will be amended through a
Bill which is currently before the Council of State. It is submitted
that in any event no issue arises in the present case as the Regional
Court acceded to the applicant's request to deal with the case in a
public hearing.
Insofar as the applicant association complains that no criminal
proceedings have been instituted against it to determine whether it had
committed the offences mentioned in Articles 98 and 98a of the Criminal
Code, the Commission recalls that no right to institute criminal
proceedings is as such guaranteed by the Convention (No. 7116/75, Dec.
4.10.76, D.R. 7 pp. 91-92). It follows a fortiori that the Convention
does not guarantee the right to have criminal proceedings instituted
against oneself.
It follows that this part of the application must be rejected as
being incompatible with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Insofar as the applicant association complains under Article 6
paras. 1, 2 and 3 (a) (Art. 6-1, 6-2, 6-3-a), the Commission notes that
as no "criminal charge" within the meaning of Article 6 para. 1
(Art. 6-1) has been brought against it, the invoked paragraphs do not
apply.
It follows that this part of the complaint must also be rejected
as being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention insofar as it concerns the determination of a criminal
charge against the applicant association.
The Commission will next address the question whether the
proceedings concerning the seizure and withdrawal from circulation
concerned the determination of the applicant association's civil rights
and obligations.
It is not disputed between the parties that Article 6 (Art. 6)
of the Convention applies to the proceedings at issue. However, the
Commission recalls the Convention organs' constant case-law according
to which the concept "right" in Article 6 (Art. 6) is autonomous to a
certain extent. It is therefore not decisive whether or not a
particular interest or "privilege" is classified as a "right" in the
legal system of the State concerned (see e.g. No. 9310/81, Dec.
16.10.85, D.R. 44 pp. 13, 21). The Commission refers in this respect
to the case of R.R. and G.R. against the Netherlands in which it found
Article 6 (Art. 6) applicable to the proceedings concerning withdrawal
of goods from circulation as the withdrawal immediately determined the
applicants' right as owners to dispose of the goods (No. 14216/88, Dec.
7.3.91 in Comm. Rep. 14.10.91 - see also para. 39). In the present
case, the applicant association in its capacity of editor of the weekly
newspaper "Bluf!" owned issue No. 267. Its civil rights were thus
affected as from the moment issue No. 267 was seized.
It follows that the procedure in which the applicant association
was involved concerned the determination of its civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. This provision is therefore applicable to the proceedings
at issue.
Insofar as the applicant association complains that it has not
been admitted as a party to the proceedings and that it has therefore
been denied a fair trial prior to the withdrawal from circulation of
issue No. 267, the Commission observes that there is no right as such
to be admitted as a party to certain proceedings.
In the present case, although "Bluf!" was considered as an
interested party in the relevant proceedings, the courts involved
admitted its appeals and gave a decision on these appeals. In this
respect the Commission notes that it does not render the proceedings
unfair that the applicant association's status was that of an
interested party.
Moreover, the applicant association's request for a public
hearing of the case on the ground that the proceedings did not comply
with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention
was granted by the Regional Court so that the application association
is debarred from raising this issue before the Commission.
In any event, an examination of the proceedings as a whole on the
basis of the case-file does not disclose any appearance of unfairness
of the proceedings.
It follows that this part of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant association finally complains under Article 1 of
Protocol No. 1 in conjunction with Article 6 (P1-1+6) of the Convention
that by the withdrawal from circulation of issue No. 267 it was
deprived of its property without proper proceedings. It complains in
particular that it did not have a fair hearing as guaranteed by Article
6 para. 1 (Art. 6-1) of the Convention.
The Commission refers to its above findings with respect to the
alleged unfairness of the proceedings concerning the withdrawal from
circulation and concludes that no issue arises under Article 6 taken
together with Article 1 of Protocol No. 1 (Art. 6+P1-1) of the
Convention.
It follows that this complaint should be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES ADMISSIBLE, without prejudging its merits, the complaint
concerning the seizure of one of the applicant association's
issues,
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy