Final Resolution CM/ResDH(2007) 86

Human Rights

Application No. 14084/88

R.V. and others against the Netherlands

(Adopted by the Committee of Ministers on 20 June 2007, at the 997th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the P rotection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),

Having regard to the report drawn up on 3 December 1991 by the European Commission of Human Rights in accordance with Article 31 of the Convention relating to the applic a tions lodged between 25 July 1988 and 26 August 1988 by ten Dutch nationals, Mr R.V., Mr J.L., Mr C. van S., Mr F. van M., Mr J.O., Mr C.K., Mr K.K., Mr S.E., Mr R. P . and Mr B. van V. against the Netherlands ;

Whereas on 31 January 1992 the Commission transmitted the report to the Committee of Ministers and whereas the period of three months provided in Article 32, par a graph 1, of the Convention elapsed without the case having been brought before the European Court of Human Rights pursuant to Art i cle 48 of the Convention;

Whereas in their applications, declared admissible by the Commission on 4 March 1991, the applicants complained that the surveillance of their activities by the intelligence and security services, the compilation and retention of personal information concerning them, as well as the refusal of access to this information constituted a violation of their right to respect for their private life;

Whereas in its report the Commission expressed, unanimously, the opinion that there had been a violation of Article 8 of the Convention;

Whereas at the 475th meeting of the Ministers ' Deputies, held in 15 May 1992, the Committee of Ministers, having voted in accordance with the provisions of Article 32, paragraph 1, of the Convention, and agreeing with the opinion expressed by the Commission, held that there had been in this case a violation of Article 8 of the Convention;

Having regard to the decision taken by the Committee of Ministers at its 498th meeting, and adopted on 21 September 1993, to authorise, at the request of the Government of the Netherlands , the publication of the report adopted by the Commission in this case;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicants, proposals supplemented by a letter of the P resident of the Commission dated 16 February 1993;

Whereas at the 489th meeting of the Ministers ' Deputies, the Committee of Ministers, agre e ing with the Commission ' s proposals, held, by a decision adopted on 9 March 1993, in accordance with Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay to each of the ten applicants as just satisfaction, within three months, 1 000 Dutch guilders in respect of non-pecuniary damage, 2 175 Dutch guilders, plus V.A.T., in respect of costs and expenses, namely a total sum of 31 750 Dutch guilders of which 21 750 Dutch guilders are subject to V.A.T;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of former Art i cle 32 of the Convention;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of its decisions of 15 May 1992 and 9 March 1993, having regard to the Netherlands ' obligation under former Article 32, paragraph 4, of the Conve n tion to abide by them;

Noting that in the circumstances of the case no question of individual measures over and above the just satisfaction awarded has been raised;

Noting with satisfaction, with regard to general measures, the decision of the Administrative Court Division of the Council of State, which rapidly gave effect to the Committee of Minister ' s finding of a violation of Article 8 in this case;

Having further regard to Interim Resolution DH(2000)25 adopted by the Committee of Ministers on 14 February 2000, at its 695th meeting in which it took note of the case-law development and the other measures adopted so far by the Netherlands to prevent new, similar violations (see Appendix) and in which it decided to come back to the case at the latest at its first meeting in 2001;

Whereas following the adoption of that Interim Resolution, the government accordingly gave the Committee additional information about further general measures taken to avoid new violations of the same kind as those found in this case (this information a p pears in the appendix to this resol u tion);

Having satisfied itself that, within the time-limit set, the government of the respondent state had paid the a p plicants the sum provided in the decision of 9 March 1993,

Declares, having examined the measures taken by the Netherlands , that it has exercised its fun c tions under former Article 32 of the Convention in this case.

Appendix to Resolution CM/ResDH(2007)86

Information provided by the Government of the Netherlands during the examination of the R.V. and others case by the Committee of Ministers

The violation of Article 8 in the R.V. and others case was due to the fact that the Royal Decree of 5 August 1972 on intelligence and security services did not indicate in sufficiently clear terms the circumstances in which and the conditions under which the authorities were empowered to carry out measures of secret surveillance.

The Intelligence and Security Services Act ( Wet op de inlichtingen- en veiligheidsdiensten; Wiv ) entered into force on 1 February 1988. This Act contained substantive modifications with regard to the conditions under which information procured may be registered and passed on to other bodies or persons. These modifications were laid down in sections 8 and 16 of the new Act. Section 8 described the duties of the National Security Service ( Binnenlandse Veiligheidsdienst ) and section 16 concerned the distribution of personal information to parties other than government bodies. However, the Act did not introduce any change in regard of the circumstances in which covert modes of surveillance may be deployed.

On 16 June 1994 however, the Administrative Law Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) decided that section 8 and section 16 of the Intelligence and Security Services Act must remain inapplicable, as they were not in accordance with Article 8 of the Convention. According to the Division, section 8 was not clear about the circumstances under which information could be collected and about the means by which this information could be collected. Section 16 made implicit reference to section 8 and was therefore considered inapplicable as well. In its decision the Division referred to case-law of the European Court, in particular the Leander case, the KLass case, the Malone case and the Sunday Times case. After this decision, requests for access to security service files were to be examined under the Government Information ( P ublic Access) Act ( Wet openbaarheid van bestuur; Wob ).

Following this decision, on 29 May 2002 a new law came into force, the Intelligence and Security Services Act 2002 ( Wet op de inlichtingen- en veiligheidsdiensten 2002; Wiv 2002 ). The delay between the decision of the Division and the enactment of the new law is partly explained by numerous modifications of the law made by the government, numerous amendments to the law made by Parliament and by a delayed European Union notification procedure, all during the course of the examination of the draft law. This Act was designed better to formulate the circumstances and conditions in which the authorities are empowered to carry out measures of secret surveillance and to provide a new procedure concerning requests for access to security service files.

The Act in particular provides a definition of persons liable to be subject to measures of secret surveillance and contains a description of the means to be employed to that end.

The procedure for the treatment of requests for access to security service is outlined in the Act, as well as the instance competent to receive appeal.

The Act lays an obligation on the security services to publish an annual report which is submitted to Parliament, in which areas of specific attention of the services for the past and coming year are outlined.

An article about the report of the Commission in this case has been published in a national newspaper ( NRC Handelsblad ) on 16 April 1993.

The Government of The Netherlands considers that the measures adopted will prevent new violations of a similar kind as that found in the present case. The government accordingly considers that The Netherlands has complied with its obligation under former Article 32 of the Convention.