JOINT PARTLY DISSENTING OPINION OF JUDGES MYJER AND LÓPEZ GUERRA

1. We voted with the majority finding that there was a violation in relation to the use of "special powers" against the second and third applicants.

2. As far as the order to surrender the documents is concerned, we are however of the opinion that there has been no violation. We consider that there are important distinctions to be made between the present case and other cases in which the Court has had to consider the importance of protecting journalistic sources.

3. We agree that civil servants may in certain circumstances have the right, and even the duty, to disclose information to the outside world in the public interest (see, for example, Guja v. Moldova [GC], no. 14277/04, §§ 72-97, ECHR 2008, and Heinisch v. Germany , no. 28274/08, §§ 62-93, ECHR 2011 (extracts)). However, neither the applicants nor the respondent Government have suggested that such circumstances obtained in the present case. It must therefore in our view be accepted that the respondent Government were in principle entitled to determine the identity of the person who had unlawfully taken the documents concerned and placed them in the hands of a person or persons not authorised to receive them.

4. The documents themselves, moreover, were criminally obtained or photocopied in the perpetration of a criminal act. As such, they could properly be seized as “objects ... which [might] serve to establish the truth” (Article 94 of the Code of Criminal Procedure, see paragraph 50 of the judgment). That being the case, it is unconscionable that whoever has obtained the documents should be allowed to set conditions for their return to the person or institution that has title to them. In our view, this holds true even if the documents happen to be in the possession of the press.

5. Turning to the facts of this case, we consider that it was properly for the institution which held title to the documents – the AIVD, as it happens – itself to determine the reasons for which to demand the return of the documents. If documents criminally obtained or photocopied in the perpetration of a criminal act can, for the sole reason that they have come into the possession of the press, no longer be seized except on conditions posed by the press itself, the press is granted a privilege for which we see no justification. It is in our view wrong to weigh against the rights of the owner of the documents the possibility that the documents may be examined for traces capable of identifying the person who committed the original crime. In this the present case differs from other cases concerning the protection of journalistic sources.

6. It should be pointed out at this juncture that the right to protect the confidentiality of journalists’ sources is not absolute. As mentioned in paragraph 96 of the judgment, the Court has accepted that the disclosure of information identifying journalistic sources may occur unavoidably in the process of “strategic monitoring” despite reasonable measures taken by the authorities. Closer to the facts of the present case, the Court has consistently accepted, in a phrase repeated many times since its first use in Goodwin v. the United Kingdom , 27 March 1996, § 39, Reports of Judgments and Decisions 1996 II, that an order leading to the disclosure of a journalistic source may be compatible with Article 10 if – but only if – it is justified by an “overriding requirement in the public interest” ( see Roemen and Schmit v. Luxembourg , no. 51772/99, § 46, ECHR 2003 IV; Ernst and Others v. Belgium , no. 33400/96, § 91, 15 July 2003; Tillack v. Belgium , no. 20477/05, § 53, 27 November 2007; Voskuil v. the Netherlands , no. 64752/01, § 65, 22 November 2007; Financial Times Ltd and Others v. the United Kingdom , no. 821/03, § 59, 15 December 2009; and Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 51, 14 September 2010. This is also reflected in principle 3 of Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information (see paragraph 61 of the judgment).

7. In view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one ( Guja , cited above, § 71). In our opinion, this duty weighs even more heavily in the case of an official belonging to a service like the AIVD, which by its very nature has to guard the secrecy of its information (see, mutatis mutandis , Hadjianastassiou v. Greece , 16 December 1992, § 46, Series A no. 252; Vereniging Weekblad Bluf! v. the Netherlands , 9 February 1995, § 35, Series A no. 306 A; and Pasko v. Russia , no. 69519/01, § 86, 22 October 2009).

8. The present case is distinguishable from earlier cases like The Sunday Times v. the United Kingdom (no. 2), 26 November 1991, Series A no. 217; Observer and Guardian v. the United Kingdom , 26 November 1991, Series A no. 216; and Vereniging Weekblad Bluf!, cited above. In those cases the Court was able to find violations of Article 10 on the ground that the secrecy of the information which the measures complained of purported to protect was already compromised. In contrast, in the present case the issue is not so much the need to protect the secrecy of the information itself, but the very fact that, secret or not, information was allowed to fall into the hands of persons not authorised to receive it by the misconduct of an AIVD official.

9. Likewise, we cannot find it unreasonable that the Netherlands authorities refused to accept the first applicant’s offer to destroy the documents. The Court has held that Article 10 cannot be interpreted as prohibiting the forfeiture in the public interest of items whose use has lawfully been adjudged illicit (see, mutatis mutandis , Handyside v. the United Kingdom , 7 December 1976, § 63, Series A no. 24, and Otto ‑ Preminger-Institut v. Austria , 20 September 1994, § 57, Series A no. 295 ‑ A). We cannot see that similar reasoning should not apply in the present case. We therefore consider that the Netherlands State was entitled to have the possession of the actual documents restored to it.