Lexploria

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

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VERENIGING WEEKBLAD "BLUF!" v. the NETHERLANDS

VERENIGING WEEKBLAD "BLUF!" v. the NETHERLANDS

LEXI