EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16616/90
Vereniging Weekblad "Bluf!"
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 9 September 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-33). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17-26) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 27-33) . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 34-51). . . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 34) . . . . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 35) . . . . . . . . . . . . . . . . . . . . . . . 6
C. The alleged violation of Article 10
of the Convention
(paras. 36-50) . . . . . . . . . . . . . . . . . . . . . 6
Conclusion
(para. 51) . . . . . . . . . . . . . . . . . . . . 8
DISSENTING OPINION OF MM. F. MARTINEZ AND I. CABRAL BARRETO . . . . 9
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10
APPENDIX II : DECISION ON THE ADMISSIBILITY
OF THE APPLICATION . . . . . . . . . . . . . . .11
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2. The applicant association whose seat is in Amsterdam used to
issue a weekly newspaper called "Bluf!". In the proceedings before the
Commission it was represented by Mrs. Ties Prakken, a lawyer practising
in Amsterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.
4. The application concerns the seizure and subsequent withdrawal
from circulation of one of the issues of "Bluf!" containing information
about the Dutch Internal Security Service. The applicant association
complains under Article 10 of the Convention.
B. The proceedings
5. The application was introduced on 4 May 1988 and registered on
22 May 1990.
6. On 6 March 1991 the Commission decided that notice should be
given to the Government of the Netherlands of the application and that
they should be invited to submit written observations on the
admissibility and merits of the application.
7. The Government submitted their observations on 6 June 1991. The
applicant association submitted observations in reply on 28 June 1991.
8. On 23 October 1992 the applicant association was granted legal
aid.
9. On 29 March 1993 the Commission declared the application
admissible as to the complaint about the interference with the
applicant association's freedom of expression and inadmissible as to
the remainder.
10. At the Commission's request the parties submitted additional
factual information - the applicant association on 7 May 1993 and the
Government on 24 May 1993.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. In the light of the parties' reaction, the Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M. NOWICKI
I. CABRAL BARRETO
N. BRATZA
13. The text of this Report was adopted on 9 September 1993 and is
now transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
14. The purpose of this Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. In the spring of 1987, the newspaper "Bluf!" got hold of an
almost six year 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., in a letter of 29 April 1987 to
the Public Prosecutor (Officier van Justitie), stated that the planned
distribution by "Bluf!" was likely to constitute a criminal offence
under Articles 98 and 98a of the Criminal Code (Wetboek van Strafrecht)
(see below, Relevant domestic law and practice).
18. 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 entered the premises, seized all
copies, except one which escaped their attention, and arrested three
persons. However, as the Public Prosecutor formulated his demand for
preliminary investigations (gerechtelijk vooronderzoek) against unknown
suspects, the arrested 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 criminal charges were subsequently brought.
19. Meanwhile, the editors of "Bluf!" managed to reprint the issue
during the night from 29 to 30 April 1987, and sold approximately
2500 copies in the streets of Amsterdam on 30 April 1987, the Dutch
national day. Although the Dutch authorities were aware of "Bluf!"
selling copies of issue No. 267, they did not intervene in order not
to disturb the public order in view of the important number of people
gathered in Amsterdam to celebrate the national day. Distribution by
mail to the subscribers was renounced since it was expected that the
Post Office would seize the issue.
20. 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 be given
the seized copies back in order to send them in time to the
subscribers.
21. 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.
22. 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.
23. 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 as, on the one hand,
there was insufficient evidence against them and, on the other hand,
the involvement of one of them was so minimal that, having regard also
to the fact that the actual perpetrators remained unknown, prosecution
was not indicated.
24. 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!" was 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.
25. "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.
26. 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, since it had not appeared that "Bluf!" was a legal person
and as "Bluf!" could not be considered as being one of the other
subjects of law mentioned in Article 528 of the Code of Criminal
Procedure.
B. Relevant domestic law
27. Articles 98 and 98a of the Criminal Code (CC - Wetboek van
Strafrecht) 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 to commit any preparatory act to that effect.
28. According to Article 94 of the CC, 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.
29. Any interested party can file an appeal against the seizure with
the Regional Court (Article 552a of the Code of Criminal Procedure
(CCP) - Wetboek van Strafvordering). Article 552d of the CCP provides
for an appeal in cassation against the Regional Court's decision.
30. 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 CC). 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 CC).
31. 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.
32. 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.
33. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
34. The Commission has declared admissible the applicant
association's complaint that the seizure and subsequent withdrawal from
circulation of issue No. 267 of 29 April 1987 of the newspaper "Bluf!"
violated its right to impart information.
B. Point at issue
35. Accordingly, the issue to be determined is whether there has been
a violation of Article 10 (Art. 10) of the Convention.
C. The alleged violation of Article 10 (Art. 10) of the Convention
36. Article 10 (Art. 10) of the Convention provides, insofar as
relevant:
"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. (...)
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 and crime, for the protection of
health or morals, for the protection of the reputation of others,
for preventing the disclosure of information received in
confidence, or for maintaining the authority and the impartiality
of the judiciary."
37. The applicant association complains that the seizure and the
subsequent withdrawal from circulation of issue No. 267 violated its
right to impart information and ideas under Article 10 (Art. 10) of the
Convention.
38. It argues in particular that the measures complained of were not
"in accordance with the law" within the meaning of para. 2 of
Article 10 (Art. 10-2) since they could only be ordered if an offence
had been committed and that Dutch criminal law does not provide for
such measures as sanctions for offences against national security.
39. The applicant association further submits that the above
interferences did not serve "the interests of national security". The
quarterly survey of the B.V.D. published by "Bluf!" was almost six
years old and merely bore the qualification "confidential". Moreover,
"Bluf!" managed to reprint the entire issue following the seizure and
sold it in the streets of Amsterdam without any intervention by the
authorities. In these circumstances there was no longer any question
of disclosure of state secrets when the issue was subsequently
withdrawn from circulation.
40. The applicant association finally argues that, should the
interference have been in accordance with the law and served the
interests of national security, it was not "necessary in a democratic
society". According to the case-law of the European Court of Human
Rights Article 10 (Art. 10) also protects ideas or information that
offend, shock or disturb the State and 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!" exercised a democratic function by publishing the
B.V.D. survey in its issue No. 267.
41. The Government submit that the seizure of issue No. 267 was based
on Articles 98a and 98c of the Criminal Code and was 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. To be effective, such 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. In assessing the necessity of an interference under
Article 10 (Art. 10) Contracting States have a certain margin of
appreciation.
42. The Commission finds that the seizure of issue No. 267 and its
subsequent withdrawal from circulation interfered with the applicant
association's freedom of expression and in particular with its right
to impart information and ideas within the meaning of Article 10
para. 1 (Art. 10-1) of the Convention.
43. The Commission must then examine whether these measures were
"prescribed by law", whether they had an aim or aims that is or are
legitimate under Article 10 para. 2 (Art. 10-2) and whether they were
"necessary in a democratic society" for the aforesaid aim or aims (see
e.g. Eur. Court H.R., Observer and Guardian judgment of
26 November 1991, Series A no. 216, p. 27, para. 49).
44. The Commission is satisfied that, being based on Articles 98a and
98c of the Criminal Code, the seizure and the withdrawal from
circulation of issue No. 267 were prescribed by law.
45. The Commission further agrees with the Government that the proper
functioning of a democratic society based on the rule of law may
require institutions such as the B.V.D. which, in order to be
effective, must operate in secrecy and receive the necessary
protection. The Commission therefore accepts that the legitimate aim
of the measures complained of was the protection of national security.
46. The question remains whether these measures were necessary in a
democratic society. The Commission recalls that, according to the
Convention organs' case-law, the adjective "necessary", within the
meaning of Article 10 para. 2 (Art. 10-2), implies the existence of a
"pressing social need". The Contracting States have a certain margin
of appreciation in assessing whether such a need exists, but it goes
hand in hand with a European supervision, embracing both the law and
the decisions applying it, even those given by independent courts
(Observer and Guardian judgment, loc. cit., p. 30, para. 59(c)).
47. The Commission notes that, by classifying its quarterly survey
as "confidential", the B.V.D. had indicated that the issue should not
be made generally available. In view of the character of the tasks
entrusted to the B.V.D., it is natural that the institution should
enjoy a high degree of protection as regards dissemination of
information about its activities. On the other hand, the survey
published by the B.V.D. was several years old and it can be questioned
whether the information which it contained was, at least at the time
of publication, of such a sensitive nature as to require protection
against publication in mass media.
48. However, the Commission is not required to determine whether the
seizure of issue No. 267 of "Bluf!" on 29 April 1987 was, if looked at
separately, justified under para. 2 of Article 10 (Art. 10-2), since
it must also take into account the subsequent developments in order to
determine whether the measures taken against the applicant association
could be considered as "necessary in a democratic society".
49. The Commission recalls in this respect that, subsequent to the
seizure, the editors of "Bluf!" managed to reprint approximately
2500 copies of issue No. 267 in the night of 29 to 30 April 1987 and
that these copies were publicly sold in the streets of Amsterdam on
30 April 1987 without any intervention by the authorities.
50. As a result of this unimpeded sale of the publication on
30 April 1987, the information which it contained must be considered
to have been so widely disseminated that it could no longer be regarded
as "necessary in a democratic society" to prevent further distribution
in the interest of national security (cf. Eur. Court H.R., Weber
judgment of 22 May 1990, Series A no. 177, para. 51 and Sunday Times
(No. 2) judgment of 26 November 1991, Series A no. 217, para. 54). The
further interferences with the applicant association's freedom of
expression, in particular the decision to withdraw issue No. 267 from
circulation, were therefore not justified under para. 2 of Article 10
(Art. 10-2).
Conclusion
51. The Commission concludes, by 16 votes to 2, that there has been
a violation of Article 10 (Art. 10) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
DISSENTING OPINION OF
MM. F. MARTINEZ AND I. CABRAL BARRETO
To our regret, we are unable to share the view of the majority
of the Commission that the measures against the applicant association,
taken as a whole, amount to a violation of Article 10 of the Convention
(paras. 48-51). We consider in addition that a distinction should be
drawn between the seizure of issue No. 267 of "Bluf!" and its
subsequent withdrawal from circulation.
With regard to the seizure of issue No. 267 of "Bluf!", we note
that by classifying its quarterly survey as "confidential", the B.V.D.
had clearly indicated that it objected to its further distribution.
We accept that the prevention of imparting information so classified,
such as the information contained in issue No. 267, constituted a
pressing social need and that the seizure of this issue could therefore
reasonably be regarded as necessary in a democratic society in the
interest of national security.
As to the subsequent withdrawal from circulation, the same
grounds, which justified the seizure of the issue of "Bluf!", also
justify the withdrawal from circulation. The fact that the editors of
"Bluf!", having managed to reprint the issue during the night of
29 to 30 April 1987, could distribute a certain number of copies in the
streets of Amsterdam on 30 April 1987 does not change this
justification. Within their margin of discretion the Government were
free to consider that the risks involved in handing out pamphlets in
the street would not justify the effort and expenses of stopping it,
especially as much of the distribution must have taken place before the
authorities were informed about it.
We therefore consider that there has been no violation of
Article 10 of the Convention, either in respect of the seizure or in
respect of the withdrawal from circulation.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_______________________________________________________________________
4 May 1988 Introduction of application
22 May 1990 Registration of application
Examination of admissibility
6 March 1991 Commission's decision to
invite the Government to
submit their observations on
the admissibility and merits
of the application
6 June 1991 Government's observations
28 June 1991 Applicant association's
observations in reply
23 October 1992 Commission's decision to
grant the applicant
association legal aid
29 March 1993 Commission's decision to
declare the application
admissible in respect of the
applicant association's
complaint under Article 10
of the Convention
Examination of the merits
29 March 1993 Parties invited to submit
further observations on
the merits
7 May 1993 Applicant association's
further observations
24 May 1993 Government's further
observations
31 August 1993 Commission's deliberations
on the merits and final vote
9 September 1993 Adoption of the Report
Full & Egal Universal Law Academy