INTERIM resolution DH (2000) 25

HUMAN RIGHTS

APPLICATION No. 14084/88 R. V. AND OTHERS AGAINST THE NETHERLANDS

(Adopted by the Committee of Ministers on 14 February 2000 at the 695th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “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 said report to the Committee of Ministers and whereas the period of three months provided for in Article 32, par a graph 1, of the Convention has 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 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 agreed 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 President 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 Art i cle 32 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of its decision of 15 May 1992 and 9 March 1993, having regard to the Netherlands’ obligation under Article 32, paragraph 4, of the Conve n tion to abide by it;

Considering that High Contracting Parties are required to take the necessary measures to conform herewith, notably by preventing new violations of the Convention similar to those found in the Court’s judgments and in the Committee of Ministers' decisions;

Whereas the Government of the respondent State provided the Committee of Ministers with information about the measures taken so far to this effect (this information appears in the appendix to this resolution);

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 its decision of 9 March 1993,

Declares, after having taken note of the information supplied by the Government of the Netherlands, that it has provisionally exe r cised its functions under Article 32 of the Convention in this case;

Decides to resume consideration of this case, as far as general measures are concerned, when a new Bill has been drafted or, at the latest, at its first meeting in 2001.

Appendix to Interim Resolution DH (2000) 25

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

by the Committee of Ministers

Since the facts of the present case, the Intelligence and Security Services have been governed by new regulations established by an Act of 1987 which entered into force on 1 February 1988.

Nevertheless, the Council of State ( Raad van State) , in two judgments of 16 June 1994 relating to the Security Services’ refusal to give two persons access to information about them , relied on the Commission’s report in the case of R.V. and others to conclude that the new provisions of the Act in force, in particular sections 8 and 16 of the Intelligence and Security Services Act of 1987, were not in conformity with Articles 8 and 13 of the Convention.

First, the Council of State observed that the law was not predictable enough and in particular that it should indicate: the categories of persons about whom  information may be collected; the circumstances in which information may be collected and the means which may be used to obtain such information.

Secondly, the Council of State considered that a person who has been refused access to information contained in his or her file should be given reasons for this refusal instead of a general statement referring to national security.

As a consequence, the Minister of the Interior can no longer review applications for access to information on the grounds of the Internal Security Services regulations but has to apply the Government Information (Public Access) Act, which provides that each application must be assessed individually and that reasons must be given for refusal.

In line with these conclusions, the Government decided to proceed to another legislative reform.

This reform, which is still underway, aims at including in the Intelligence and Security Services Act:

- a more detailed description of the methods used by the BVD (Internal Security Services);

- a provision requiring the Permanent Committee on Intelligence and Security Services to be consulted before any new methods are used and regarding the way in which certain existing operational methods are used;

- a regulation governing the BVD's current internal review system relating to the subsidiarity and proportionality of  the methods used in any given case;

- a clearer description of the circumstances in which these methods may be used; in this connection, consideration is being given to a statutory provision obliging the BVD to include such details in its annual report.

The Government also seeks additional ways of monitoring the BVD's operations.

Finally, the Government is considering including a specific, new provision on public access to certain information filed by the BVD.  The provisions referred to above apply mutadis mutandis to the Military Intelligence Services (MID) and to their operation.