Lexploria

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)

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V. AND OTHERS v. THE NETHERLANDS

V. AND OTHERS v. THE NETHERLANDS

LEXI