Lexploria

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)

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VERENIGING WEEKBLAD "BLUF!" v. THE NETHERLANDS

VERENIGING WEEKBLAD "BLUF!" v. THE NETHERLANDS

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