THIRD SECTION

Application no. 33847/11 TELEGRAAF MEDIA NEDERLAND LANDELIJKE MEDIA B.V. and Jolande Gertrude VAN DER GRAAF against the Netherlands lodged on 26 May 2011

STATEMENT OF FACTS

1. The first applicant is a limited liability company incorporated under Netherlands law. Its business includes publishing the mass-circulation daily newspaper De Telegraaf .

2. The second applicant, Ms Jolande Gertrude van der Graaf , is a Netherlands national, born in 1963 and resident in Hellevoetsluis . She is a journalist.

3. The applicants are represented before the Court by Mr A.W. Eikelboom and Mr V.L. Koppe , lawyers practising in Amsterdam.

4. The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The circumstances of the case

1. The newspaper articles

5. On Saturday 28 March 2009, the newspaper De Telegraaf published an article, which included the following:

“ AIVD failed in regard of Iraq

Government put on the wrong track with intelligence for Gulf War 2003

By Jolande van der Graaf and [J.H., another journalist]

The Hague, Saturday

It appears that the AIVD [ Algemene Inlichtingen - en Veiligheidsdienst , General Intelligence and Security Service] has put the Government on the wrong track during the preparatory phase in the war against Iraq. The secret service has readily adopted foreign intelligence reports without verifying the information.

... ”

6. The article was published around the time that the Government had set up an independent committee for the purpose of investigating the preparation and the decision-making process in the period between the summer of 2002 and the summer of 2003 concerning the political support expressed by the Netherlands Government for the invasion into Iraq.

7. On Thursday 4 June 2009, De Telegraaf published another article on its front page which included the following:

“ Dalai Lama threatened

By Jolande van der Graaf and [H.K., another journalist]

Amsterdam, Thursday

The security of the Dalai Lama, who arrived in the Netherlands yesterday for a three-day visit, has been considerably increased. There are serious threats from ‘ Chinese quarters ’ , so well-informed sources connected to the visit report.

... ”

2. The AIVD report

8. On 11 June 2009 the AIVD sent an official report to the national public prosecutor responsible for combating terrorism ( landelijk officier van justitie terrorismebestrijding ), containing information about an AIVD employee, her husband, who was an ex-AIVD employee, and the second applicant in relation to their involvement in the suspected leak of State secrets ( staatsgeheimen ).

9. The report stated that the reason for the investigation into these persons lay in the article published by De Telegraaf on 28 March 2009 entitled “AIVD failed in regard of Iraq”. It had appeared that the text of the article showed striking similarities to the draft report of an internal analysis carried out by the AIVD concerning the war in Iraq, which was classified as State secret information. This suspicion was confirmed by textual analysis of the newspaper article and the internal report carried out by the AIVD.

10. The report of 11 June 2009 further stated that it appeared from telephone data that the three persons had been in contact with each other and that they had talked in a veiled manner. The report went on to note that it appeared from the location data ( locatiegegevens ) of the telephones of the persons in issue that they might have seen each other on multiple occasions. In addition, it had been found that the three persons had met on 2 June 2009, on which occasion the second applicant had spent around three hours in the home of the two other persons.

11. Lastly, the report stated that it was of importance for national security to check whether these State secrets were still in the possession of unauthorised third parties and to prevent the leak of more State secrets.

12. On 16 June 2009 the second applicant was designated by the Public Prosecution Service ( o penbaar ministerie ) as a suspect of the offences described in Articles 98 and 98a of the Criminal Code ( Wetboek van Strafrecht ) (see below).

3. The search of the second applicant ’ s home

13. On 18 June 2009 a search of the second applicant ’ s home took place following the issuance of a search warrant by the Regional Court ( rechtbank ) of The Hague. The search took place under the supervision of an investigating judge ( rechter-commissaris ) who was accompanied by seven officers of the National Police Internal Investigations Department ( Rijksrecherche ).

14. The investigating judge requested the second applicant to provide him with items of the following four categories: firstly, the draft report of the internal analysis of the AIVD concerning the war in Iraq or any other documents that had served as a basis for the article in De Telegraaf entitled “AIVD failed in regard of Iraq”, published by De Telegraaf on 28 March 2009; secondly, documents classified as State secret that concerned the security of the Dalai Lama or any other documents that had served as a basis for the article on the Dalai Lama published by De Telegraaf on 4 June 2009; thirdly, documents classified as State secret that had been provided to the second applicant during a three-hour meeting on 2 June 2009 or any other documents classified as State secret; and fourthly, the mobile telephones which had used certain SIM cards along with those SIM cards. The investigating judge further informed the second applicant that the search of her home probably could be totally or partially dispensed with if she cooperated.

15. After the second applicant had been provided the opportunity to contact the editor-in-chief of De Telegraaf and a lawyer, she informed the investigating judge that she refused to cooperate. Subsequently, the search started. When the second applicant ’ s lawyer arrived at the house the search was in progress. The lawyer and the second applicant were provided the opportunity to talk in private.

16. In the course of the search, the investigating judge seized the following items: 6 A4 documents, 72 small paper notebooks, a diary ( agenda ), a laptop computer, a notebook computer, a GPS route planner, a hard disk taken from a desktop computer, a desktop computer, a USB memory stick with documents from the laptop computer, an article published by De Telegraaf , a large paper notebook, a receipt of a phone ( telefoonbon ), a SIM card package without the SIM card, and lastly, a mobile phone without SIM card.

17. On 30 June 2009, the seized laptop and notebook computers were returned to the second applicant after copies of the respective hard disks had been made.

4. Complaint proceedings

a. The Regional Court

18. On 3 July 2009 the applicants lodged a complaint under Article 552a of the Code of Criminal Procedure ( Wetboek van Strafvordering ) (see below) seeking, primarily, an order addressed to the investigating judge to return the seized objects and documents without examination of these items and, secondarily, an order that a procedure would be set up, which would make available to the National Police Internal Investigations Department and the Public Prosecution Service only those documents and items that had direct links to the information and intelligence flowing from the AIVD employee and her husband. The applicants claimed, inter alia , that the search and seizure had not been proportionate and that the public prosecutor had failed to show that the subsidiarity requirement had been respected. Therefore, so they argued, Article 10 of the Convention had been violated.

19. As to the complaint of the second applicant the Regional Court of The Hague, sitting in Haarlem, noted on 23 July 2009 that the second applicant was suspected of having obtained documents and information classified as State secret and that the interests of national security and public security required the distribution of these items be prevented. It went on to consider that the second applicant had overstepped the boundaries set by the Court ’ s case-law since she was suspected of participating in the criminal offences set out in Articles 98, 98a and, possibly, 98c of the Criminal Code. The Regional Court held that the search had been proportionate because there had been an overriding requirement in the public interest for the search and that, given that the second applicant had refused to cooperate with the investigating judge, the subsidiarity requirement was satisfied. Consequently, the court concluded that the search had been lawful.

20. In relation to the restitution of the seized items, the court held that there was no danger of the journalist ’ s source becoming known since the source of the items in the first three categories (see paragraph 14 above) was already known. It ordered the investigating judge, together with the second applicant ’ s lawyer and the public prosecutor, to select those of the seized items that fell under these categories and to surrender the selected items to the officers of the National Police Internal Investigations Department in charge of the criminal investigation. In relation to the items not falling under the first three categories, the court held that they should be returned to the second applicant without them being examined by the investigating authorities and that of those items all copies made should be destroyed.

21. As to the complaint of the first applicant, the Regional Court declared it inadmissible for lack of interest since the seized items that were possessions of the first applicant would be returned to the second applicant and as regards the other seized items the first applicant had not established that they belonged to its intellectual property.

22. On 20 November 2009 investigating judge V. informed Mr Koppe , the applicants ’ representative, and the public prosecutor as follows:

“The investigation carried out by the computer forensics examiners of [the second applicant ’ s] computers (or images as the case may be) is finished. Only the original desktop computer was still under investigation, as you both know. I will report as soon as possible on the findings and actions of my investigation.

I think it is correct to report already that on the desktop computer of [the second applicant] no documents have been found of which it can be said – in the light of the preconditions set out by [the Regional Court] on 23 July 2009 – that the seizure applies ( doel treffen ). This results therein that the desktop computer can be returned to [the second applicant]. I request Mr Koppe to inform me by telephone when he will pick up the computer.”

23. On 26 November 2009 the investigating judge V. reported as follows:

“On 12 August 2009 the employees of the office of the investigating judge of The Hague ( het kabinet van de rechter-commissaris te ‘ s-Gravenhage ) delivered two boxes containing sealed envelopes, an unconnected desktop computer and an inventory list. I opened all envelopes and put aside all digital data carriers ( gegevensdragers ) (that were thus also partly placed in the envelopes). Subsequently, I put everything ( één en ander ) into the safe. ...

For the examination of the digital materials seized ... I received the assistance of [T. and M.], both inspectors of the police and employed as computer forensics examiners at the Forensic Investigation [Division] of the Kennermerland police. Neither is involved with the investigation of the National Police Internal Investigations Department. They started their work for me in September 2009. For that purpose, a sealed ( afsluitbaar ) workroom was furnished for them. The digital data carriers were brought from the safe to this room and did not leave this room (and the Regional Court) for the duration of the investigations. I have placed both detectives under an obligation of secrecy.

I have looked at all the written (paper) documents. I have thus determined that there are five written items ( ... ) which may be subject to seizure. The (paper) items which are certainly not subject to seizure were handed over to Mr Koppe on 22 September 2009. During a meeting at the office of the investigating judge on 4 November 2009 with the public prosecutor [H.] and Mr Koppe the five written items of which it is indicated above that they may be subject to seizure were handed over to the public prosecutor. At this opportunity – after the public prosecutor took note of these items – Mr Koppe also inspected these items ( ook naar deze stukken gekeken ).

The computer forensics examiners have made two independent reports of their investigations, dated 22 October 2009 and 12 November 2009. These reports will be attached to this report. Herein, I have made illegible a part of their findings in relation to the “Investigation Webmail traffic”. This concerns data that were reason for me to instruct the digital inspectors to continue the so-called ‘ carving in the unallocated space data ’ ... but this further investigation did not provide data or documents that fell within the definition [of the seizure] as described by [the Regional Court]. This applies also to the data (now made illegible) that were reason for this further research.

In the course of the investigation the computer forensics examiners have provided me with three CD-ROMS containing a very large quantity of text documents, graphic documents and e-mail messages. I have myself examined the data on these CD-ROMS – in respect of which the computer forensics examiners have indicated that they did not take note of them – on a laptop computer. In so doing, I have, among other things, used the search keywords supplied by the public prosecutor. This investigation did not provide data or documents that fell under the definition described by [the Regional Court].

The external hard disks referred to by the computer forensic examiners on page 7 of their report of 22 October 2009 will be kept in the safe by me. The same goes for the above-mentioned report in so far as it concerns the parts made illegible and the three CD-ROMS mentioned by me above. I will destroy everything (or will have it destroyed) when a final decision in the case is taken.”

b. The Supreme Court

24. Invoking Article 10 of the Convention the applicants lodged an appeal on points of law ( cassatie ) against the decision of the Regional Court.

25. In his advisory opinion to the Supreme Court dated 5 October 2010 the Advocate-General ( Advocaat-Generaal ) noted that it appeared from the inquiries made by him that in the meantime the five written items as mentioned by the investigating judge in his report of 26 November 2009 (see paragraph 23 above) had been returned to the second applicant ( ‘ s lawyer) and that the seizure of all seized items had been lifted.

26. On 30 November 2010 the Supreme Court dismissed the applicants ’ appeal on points of law. It noted the advisory opinion of the Advocate-General from which it appeared that all items connected to the second applicant ’ s complaint that had been dismissed by the Regional Court, had been returned to her in the meantime. Concluding that the second applicant therefore no longer had any interest in her appeal on points of law, the Supreme Court declared her appeal inadmissible. As regards the first applicant ’ s appeal on points of law the Supreme Court considered that it had to reach a similar conclusion ( moet hetzelfde worden geoordeeld ).

5. Civil proceedings

a. The Regional Court

27. On 8 July 2009 the applicants, among other claimants, brought summary injunction proceedings ( kort geding ) before the Amsterdam Regional Court claiming that the AIVD ’ s use of special powers against them had violated their rights under Article 10 of the Convention. They sought, inter alia , an order to prohibit the State to use special powers against them in so far as these powers were linked to the articles published by De Telegraaf on 28 March 2009 and 4 June 2009 (see paragraphs 5 and 7, respectively); an order to prevent the State from providing the Public Prosecution Service with information obtained from the applicants through the use of special powers; and an order that the State destroy all information obtained by the use of special powers against them.

28. The State argued that it had sufficiently reasoned that in the applicants ’ case the use of special powers had been justified so that the provisional measures judge ( voorzieningenrechter ) should reject all claims. Additionally, they argued that if the applicants wished a more extensive examination of their case they should lodge a complaint with the Minister of Interior and Kingdom Relations ( Minister van Binnenlandse Zaken ) who in her turn would be obliged to obtain the advice of the Supervisory Board for Intelligence and Security Services ( Commissie van toezicht voor de inlichtingen - en veiligheidsdiensten , hereafter “Supervisory Board”), which would have access to all information needed for the assessment of the complaint (see below).

29. On 23 July 2009 the provisional measures judge of the Amsterdam Regional Court held, inter alia , that the complaint proceedings as proposed by the State could take some time and that it was possible that the AIVD would use its special powers and the information obtained in the meantime.

30. The provisional measures judge dismissed the first applicant ’ s claims since there had been no appearance of the use of special powers against it. However, as the employer of the second applicant it did have an interest in the second applicant ’ s claims. As regards the second applicant, the provisional measures judge noted that it appeared from the official report of 11 June 2009 that the AIVD had used special powers against her. She further considered that the State had failed to submit anything on the questions of proportionality and subsidiarity. However, since it was not in the nature of summary injunction proceedings to provide a very close examination she would allow the second applicant ’ s first two claims on the condition that the latter lodge a complaint with the Minister of Interior and Kingdom Relations within one month of the date of her judgment.

b. The Court of Appeal

31. On 13 October 2009 the Amsterdam Court of Appeal dismissed the State ’ s appeal against the judgement of the provisional measures judge of the Amsterdam Regional Court. It appears no appeal on points of law was instituted against this judgment.

B. Relevant domestic law

1. The Criminal Code

32. Provisions of the Criminal Code relevant to the case before the Court are the following:

Article 98

“1. He who deliberately delivers or makes available knowledge ( inlichting ) which needs to be kept secret in the interest of the State or its allies, an object from which such information can be derived, or such information ( gegevens ) to a person or body not authorised to take cognisance of it, shall, if he knows or ought reasonably to be aware that it concerns such knowledge, such an object or such information, be sentenced to a term of imprisonment not exceeding six years or a fifth-category fine [i.e. up to 74,000 euros (EUR)]. ...”

Article 98a

“1. He who deliberately publishes ( openbaar maken ) or, without being duly authorised, deliberately makes available or delivers an object or information as referred to in Article 98 to a foreign Power, a person or body domiciled abroad, or to such a person or body which would create a danger of the knowledge or information becoming known to a foreign Power or to a person or body domiciled abroad, be sentenced to a term of imprisonment not exceeding fifteen years or a fifth-category fine. ... ”

Article 98c

“1. The following shall be sentenced to a term of imprisonment not exceeding six years or a fifth-category fine:

1Ëš. he who deliberately takes or keeps knowledge, an object or information as referred to in Article 98 without being duly authorised;

2˚. he who undertakes any action with intent to obtain knowledge, an object or information as referred to in Article 98 without being duly authorised; ...”

2. The Code of Criminal Procedure

33. Provisions of the Code of Criminal Procedure relevant to the case before the Court are the following:

Article 552a

“1. Interested parties may lodge an objection in writing against the seizure of an object, the use made of seized objects, the failure to order the return of a seized object, ...

7. If the court finds the complaint or request well-founded, it shall give the appropriate order.”

3. The Intelligence and Security Services Act

34. Provisions of the 2002 Intelligence and Security Services Act ( Wet op de inlichtingen - en veiligheidsdiensten ) relevant to the case before the Court are the following:

Section 83

“1. Any person may lodge a complaint with the National Ombudsman ( Nationale ombudsman ) about the actions or presumed actions of the Ministers concerned, the heads of the services, ... and the persons working for the services in the execution of this Act ... against ( jegens ) natural or legal persons.

2. Before lodging a complaint with the National Ombudsman, the complainant shall give notice to the Minister concerned of the complaint and offer him the opportunity to express his views on the matter.

3. The Minister shall, before offering his views as referred to in the second paragraph, obtain the advice of the Supervisory Board. ... [The Minister] shall not be able to give instructions to the Supervisory Board.

4. In complaints proceedings in which the Minister concerned, persons working under his responsibility or the Supervisory Board are obliged pursuant to section 9:31 of the General Administrative Law Act ( Algemene wet bestuursrecht ) to give information or surrender documents to the National Ombudsman, section 9:31, fifth and sixth paragraphs [which empower the National Ombudsman to decide whether any refusal to surrender or grant access to such information or documents is justified, see below] shall not apply.

5. If the Minister concerned, persons working under his responsibility or the Supervisory Board are obliged to surrender documents, it shall be sufficient to make the documents concerned available for inspection. The documents concerned shall not be copied in any way.”

COMPLAINT

35. The applicants complain under Article 10 of the Convention about the search of the second applicant ’ s house, the seizure of various documents and items, and the “chilling effect” these actions have on potential sources.

QUESTIONS TO THE PARTIES

Article 10 of the Convention

1. (a) Has there been an interference with the first and/or second applicant ’ s freedom of expression, in particular their right to receive and impart information and ideas, within the meaning of Article 10 § 1 of the Convention?

(b) If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

(c) In particular, to what extent are the duties and responsibilities inherent in the applicants ’ professional or business activities relevant to their claim and the State ’ s margin of appreciation in this field?

Factual question to the respondent Government :

2. (a) Were the actions complained of by the applicants – in particular, the search of the second applicant ’ s house and the seizure of various items – intended to identify the applicants ’ journalistic source?

(b) If not, what was the purpose of these actions?

(c) Whatever the purpose of these actions, was it achieved?