Information Note on the Court’s case-law 209

July 2017

M v. the Netherlands - 2156/10

Judgment 25.7.2017 [Section III]

Article 6

Article 6-3-c

Defence through legal assistance

Restrictions on divulgation by accused of classified information to his defence counsel: violation

Article 6-3-b

Access to relevant files

Restrictions on defence access to classified information: no violation

Article 6-3-d

Examination of w itnesses

Restrictions on access to confidential information defence wished to use to examine witnesses: no violation

Facts – The applicant, a former audio editor and interpreter for the Netherlands General Intelligence and Security Service ( Algemene Inlichtingen- en Veiligheidsdienst – AIVD), was convicted of divulging State secret information. His appeals failed.

Before the European Court the applicant alleged, in particular, that the criminal proceedings against him had violated Article 6 §§ 1 and 3 (b), (c) and (d) in that the AIVD had exercised decisive control over the evidence, thereby restricting both his and the domestic courts’ access to information contained in the documents and controlling its use, and preventing him from instructi ng his defence counsel and offering witness evidence effectively.

Law

Article 6 §§ 1 and 3 (b): The applicant had sought disclosure of the report of the internal AIVD investigation and of the redacted parts of the AIVD documents contained in the case file.

(a) Internal AIVD investigation – The domestic courts had not found it established that any report actually existed. The Court was satisfied that no such document was in the hands of the prosecution and that accordingly it could not form part of the prosecution case. In so far as the ap plicant wished to imply that the investigation might have yielded disculpatory information, the Court dismissed such a suggestion as entirely hypothetical.

(b) Disclosure of documents in redacted form – The information blacked out could in itself be of n o assistance to the defence. Since the applicant was charged with having supplied State secret information to persons not entitled to take cognisance of it, the only question in relation to those documents was whether or not they were State secret. The evi dence on which the applicant was convicted included AIVD statements attesting that the documents in issue were classified State secret and explaining the need to keep the information contained in the documents secret. The National Public Prosecutor for Cou nter-terrorism had confirmed that the documents contained in the case file of the criminal proceedings were in fact copies of the documents they purported to represent and the applicant did not dispute this. The remaining legible information was sufficient for the defence and domestic authorities to make a reliable assessment of the nature of the information in the documents.

Conclusion : no violation (unanimously).

Article 6 §§ 1 and 3 (c): The Court had tolerated certain restrictions imposed on lawyer-clie nt contacts in cases of terrorism and organised crime. Nonetheless, the fundamental rule of respect for lawyer-client confidentiality may only be derogated from in exceptional circumstances and on condition that adequate and sufficient safeguards against a buse are in place. A procedure whereby the prosecution itself attempts to assess the importance of concealed information for the defence and weigh that against the public interest in keeping the information secret cannot comply with the requirements of Art icle 6 § 1.

The applicant had not been denied access to prosecution evidence: he had been ordered not to disclose to his counsel factual information to be used in his defence. There was no interference with the confidentiality between the applicant and his lawyer. No independent monitoring of the information passed between the applicant and his counsel took place; rather, the applicant was threatened with prosecution if he gave counsel secret information. What mattered was that communication between the app licant and his counsel was not free and unrestricted as to its content, as the requirements of a fair trial normally required.

The Court accepted that secrecy rules applied generally, and there was no reason of principle why they should not apply when mem bers of staff of the security service were prosecuted for criminal offences related to their employment. The question for the Court was how a ban on divulging secret information affected the suspect’s rights to defence, both in connection with his communic ations with his lawyers and as regards the proceedings in court. The Advocate General had given an undertaking not to prosecute the applicant for breach of his duty of secrecy if such breach was justified by the rights of the defence, as guaranteed by Arti cle 6 of the Convention. That laid upon the applicant the burden to decide, without the benefit of counsel’s advice, whether to disclose facts not already recorded in the case file and in so doing risk further prosecution, the Advocate General retaining fu ll discretion in the matter. The Court considered that it could not be expected of a defendant to serious criminal charges to be able, without professional advice, to weigh up the benefits of full disclosure of his case to his lawyer against the risk of pr osecution for doing so.

In those circumstances the fairness of the proceedings were irretrievably compromised by the interference with communication between the applicant and his counsel.

Conclusion : violation (unanimously).

Article 6 §§ 1 and 3 (d): The defence had not been denied the possibility to cross-examine prosecution witnesses with a view to testing the veracity of the statements made by them earlier in the proceedings. Rather, it was the applicant’s case that he was denied access to information to which AIVD members were privy that would have been capable of casting doubt on his guilt.

It was a perfectly legitimate defence strategy in criminal cases to create doubt as to the authorship of a crime by demonstrating that the crime could well have b een committed by someone else. It did not however, entitle the suspect to make specious demands for information in the hope that perchance an alternative explanation might present itself. The evidence on which the domestic courts grounded its conviction in cluded several items linking the applicant directly to the leaked documents and to the unauthorised persons found in possession of them. In the circumstances, it could not be said that the domestic courts had acted unreasonably or arbitrarily either by not allowing him all the witnesses requested or in holding that his defence had not been materially impaired by the conditions under which those witnesses who were not refused were questioned.

Conclusion : no violation (unanimously).

Article 41: new trial or t he reopening of the domestic proceedings at the request of the applicant represented appropriate redress; finding of a violation constituted in itself sufficient just satisfaction in respect of the non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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