TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): In the Sánamá judgment, this court ruled that Dutch legislation, to the extent relating to the seizure of journalistic material, is deficient.
AP1 (Applicant): After all, Article 96A of the Dutch Code of Criminal Procedure does not provide for the review by a judge or an independent and impartial decision-making body.
AP1 (Applicant): Also, this clear wording of this court has not incited the government to action.
AP1 (Applicant): Article 96A of the Criminal Code of Criminal Procedure has not been adjusted.
AP1 (Applicant): Although the applicants in these proceedings have made agreements with the Public Prosecution Office in order to have the seized documents sealed and deposited in the safe of the examining judge, it is clear that also in this case, there has been no prior judicial review of the seizure.
AP1 (Applicant): Having regard to the provisions of the Sánamá judgment of this court, also this case does involve a violation of Article 10 of the Convention, for the very same reason that the legislation still is deficient.
AP1 (Applicant): Finally, the court, the applicants draw the court's attention to the new instructions on the application of coercive measures against journalists.
AP1 (Applicant): These instructions came into force on the 1st of March 2012, and they originate from the College of Procurators General and therefore are not official legislation.
AP1 (Applicant): Although these instructions are an improvement compared to earlier versions, the instructions do not apply to retrieving telecom and print data, nor to the use of coercive measures by the Secret Service.
AP1 (Applicant): When the Secret Service uses special powers against journalists, it still does so without a prior consideration of the interests involved by judicial or other independent and impartial body.
AP1 (Applicant): I will now address the questions of the court.
AP1 (Applicant): The first question of the court was whether or not, in this case, the legal safeguards in place were sufficient to protect the applicants, the House and Moss, from abuse by the IJVD of its power.
AP1 (Applicant): The answer to this question is simple.
AP1 (Applicant): Also, with regard to the use of special powers by the Secret Service, the legislation is deficient.
AP1 (Applicant): The reason for this is that no prior review by a judge or an independent and impartial decision-making body is involved.
AP1 (Applicant): In other words, the situation is exactly the same as in the claim for seizure of journalistic material, which, according to this court, constituted a violation of Article 10 of the Convention.
AP1 (Applicant): The decision to have the Secret Service use special powers is taken by the Minister of Interior and Kingdom Relations or by the head of the Secret Service.
AP1 (Applicant): The Commission for the Supervision of the Intelligence and Security Services is authorized to conduct a subsequent review of such use.
AP1 (Applicant): Prior to the use of special powers, journalists do not have any safeguards.
AP1 (Applicant): The lack of legal protection continues once special powers are being used, as nobody knows whether the Secret Service carries out any investigation, which investigation methods it uses, and since when and during which period it has carried out the investigation.
AP1 (Applicant): Not until a few months after the House and Moss had been designated as targets by the government did they become aware of the fact that the Secret Service was using special powers against them.
AP1 (Applicant): They acquired this knowledge after they had been given access to some official reports from the Secret Service to the Public Prosecution Service in May 2006.
AP1 (Applicant): If the House and Moss had not by chance had the opportunity to inspect these official reports, they would have never become aware of the fact that the Secret Service had been carrying out an investigation into them.
AP1 (Applicant): So the person against whom an investigation by the Secret Service is carried out is from the start on always three to nil behind.
AP1 (Applicant): The only legal protection available to the House and Moss under the Act was filing a complaint to the National Ombudsman pursuant to the provisions of Articles 83 and 84 of the Act.
AP1 (Applicant): The government has meanwhile recognized that this procedure does not provide an effective remedy within the meaning of Article 13 of the Convention.
AP1 (Applicant): In addition, to make use of this judicial procedure, one must first become aware of the use of special powers, and finding out about that is extremely difficult.
AP1 (Applicant): If and when a period of five years after the use of special powers has lapsed, Article 34 of the Act imposes on the Minister the obligation to decide whether or not a report can be issued to the person against whom the special powers were exercised.
AP1 (Applicant): In this case, the Minister has not issued such a report to the House and Moss.
AP1 (Applicant): Furthermore, Article 47 of the Act grants every person the right to request the Minister to inform him of whether personal data concerning him have been processed by or on behalf of the Secret Service, and if so, which personal data.
AP1 (Applicant): The applicants filed such a request to the Minister in April of this year, although the applicants have thereafter repeatedly asked the Minister by telephone to respond as soon as possible, in connection with the plea in the present case.
AP1 (Applicant): The Minister has not given any substantive response to this request so far.
AP1 (Applicant): Finally, the House and Moss have instituted preliminary injunction proceedings against the government in order to have the use of special powers stopped.
AP1 (Applicant): These proceedings also do not constitute an effective remedy.
AP1 (Applicant): In the case of preliminary relief proceedings, again, only a subsequent review is involved, no prior review.
AP1 (Applicant): And these injunction proceedings can only take place, again, after it has been discovered that special powers are being used or will be used.
AP1 (Applicant): The conclusion must therefore be that Dutch law does not provide the House and Moss with any safeguards against any abuse of powers by the Secret Service.
AP1 (Applicant): Now my colleague, Mr. Lepola, will continue.
AP1 (Applicant): I thank you for your attention.
AP2 (Applicant): I will address the second question of the court.
AP2 (Applicant): Whether or not in this case, the public interest requiring the maintenance of the secrecy of information properly in the keeping of the BVD AIVD alone outweighed the applicant's interest in maintaining the secrecy of the identity of their informants.
AP2 (Applicant): The government obviously has an interest in the maintenance of the secrecy of information properly in the keeping of the Secret Service.
AP2 (Applicant): In the present case, however, that interest should be put into perspective.
AP2 (Applicant): In the publication of the 21st of January 2006, the Telegraaf has not disclosed any secret information, but only informed the public that state secret information of the Secret Service circulated in the criminal circuit of Amsterdam.
AP2 (Applicant): It requires no explanation that this publication should be regarded as a contribution to a debate of general interest.
AP2 (Applicant): I refer to the decision of your court in the Van Hannover 2 case from February this year, and that the Telegraaf fulfilled its vital public watchdog role with this publication.
AP2 (Applicant): The documents that the Haasen was obtained are related to the period 1997 till the beginning of 2000.
AP2 (Applicant): The government's interest in maintaining the secrecy of information should therefore be put into perspective in this case as it concerned relatively outdated old information, which moreover was already public in certain circles.
AP2 (Applicant): Furthermore, I do wish to emphasize once more that the Telegraaf has been extremely prudent in the handling of the information it obtained from its sources.
AP2 (Applicant): This was not only confirmed by the then Minister of Justice, Mr. Donner, but also by the Dutch courts.
AP2 (Applicant): I quote from the judgment of the preliminary relief judge of the District Court of The Hague of the 21st of June 2006.
AP2 (Applicant): This is also the case if the two journalists have only acted as an intermediary, a conduit, which regards the state's secret information at issue here in the sense that, one, the documents in question circulated elsewhere, according to them in criminal circles.
AP2 (Applicant): Two, these documents have come into their possession unrequested and unsolicited.
AP2 (Applicant): And three, they, after verifying with the IVD that copies of state's secret documents of the BVD or the AVD were actually involved, have exercised restraint in quoting from them in their publications in the Telegraaf.
AP2 (Applicant): And another quote from that verdict, these preliminary relief proceedings have not revealed any evidence to suspect that the two journalists have basically done more than what paragraph 4.7 refers
AP2 (Applicant): to as acting as an intermediary.
AP2 (Applicant): The preliminary relief judge of the District Court in The Hague and the Supreme Court also assumed that the two journalists could not be regarded as targets within the meaning of Article VI, paragraph 2a of the Act.
AP2 (Applicant): Moreover, and that's very important, the Secret Service has never objected to the contents of the publication in Telegraaf, nor requested the Telegraaf informally or formally to reframe from further disclosing certain information.
AP2 (Applicant): No phone call, no letter, no request, no summon.
AP2 (Applicant): And I stress this because that's a very relevant fact.
AP2 (Applicant): That's also decided in the judgment of your court in the case Financial Times against the UK from December 2009.
AP2 (Applicant): The government's interest in keeping information secret has not been prejudiced by publications in the Telegraaf, but, and that's again important, by the leaking of information from the Secret Service to the criminal circuit.
AP2 (Applicant): The actions of the government were therefore not aimed at preventing further disclosure of information in the Telegraaf, but at tracing the leak within the Secret Service.
AP2 (Applicant): That was the aim.
AP2 (Applicant): First, I note in this context that the Telegraaf has been very helpful here.
AP2 (Applicant): Prior to the publication on the 21st of January 2006, the Telegraaf has provided a copy of the written information it had obtained from its sources to the then head of the Secret Service, a copy of all the documents.
AP2 (Applicant): The Secret Service just knew from Friday, the 20th of January 2006, which documents were involved.
AP2 (Applicant): And the government decided, sorry, the government subsequently took two decisions that are extremely relevant to the present case.
AP2 (Applicant): One, the government decided to have the required investigation carried out not by the public prosecution service, but by the Secret Service.
AP2 (Applicant): And two, the government decided not to limit the investigation to an internal one, into the leak within the Secret Service, but also to immediately start an investigation into the identity of the journalist's sources.
AP2 (Applicant): Although it had reported to the public prosecution service on the 22nd of January 2006, so one day after publication, the Secret Service started an investigation of its own in which it used extremely far-reaching powers.
AP2 (Applicant): This deliberate choice has the following consequences in this case.
AP2 (Applicant): An investigation by the public prosecution service is subject to judicial review prior to the investigation by the examining judge and after the investigation by the criminal court judge.
AP2 (Applicant): An investigation, as Mr. De Kamp has explained,
AP2 (Applicant): by the Secret Service is carried out without any judicial review.
AP2 (Applicant): The investigation against a journalist by the Secret Service could be carried out secretly without the Secret Service having to account for it.
AP2 (Applicant): This is also apparent from the government's course of action in the civil proceedings in the Netherlands.
AP2 (Applicant): The government did not want to comment on the investigation anyway.
AP2 (Applicant): The government even has refused to answer questions of the court of whether or not any powers had been exercised against the journalist.
AP2 (Applicant): In this way, the government has also evaded the burden of proof, resting on it regarding whether the use of powers against the journalist complied with the principles of proportionality and subsidiarity.
AP2 (Applicant): Under the subsidiarity principle, the Secret Service should first have tried to trace through an internal investigation who could have leaked information from the Secret Service to the criminal circuit.
AP2 (Applicant): This was a realistic option.
AP2 (Applicant): That this was a realistic option appears from the following.
AP2 (Applicant): As I already stressed before, the Telegraaf has provided to the Secret Service a copy of all the documents it had received from its sources on Friday.
AP2 (Applicant): From that time, the Secret Service knew which document had been leaked.
AP2 (Applicant): On 6 February 2006, the head of the Secret Service issued an official report to the Public Prosecution Service in which he stated, I quote, given the nature and composition of the set of documents with state secret data concerning operational activities of the BVD that the Telegraaf has received, I can inform you that four probably former employees of the BVD and or the IVD have or had access to copies or originals of the complete set of documents.
AP2 (Applicant): So within no more than 16 days after the publication of the Telegraaf, it had been established by means of an internal investigation using documents obtained from the Telegraaf that no more than four employees of the Secret Service could regard it as a potential leak.
AP2 (Applicant): And we assume that within a couple of days, these four had been limited to one person.
AP2 (Applicant): The Secret Service has deliberately opted for not limiting the investigation into the leak to an internal investigation, but also decided to immediately take extremely far-reaching coercive measures against journalists in order to trace their sources.
AP2 (Applicant): This is apparent from, again, an official report also dated the 6th of February.
AP2 (Applicant): It's exhibit 21 to the complaint in which the head of the Secret Service informed the Public Prosecution Service that the investigations by the Secret Service had revealed that journalists in the Haas and Moss had meetings with several persons on the 24th of January and on the 26th of January, and noted explicitly with respect to the meeting on the 26th of January 2006, I quote, this meeting has to do with the above-mentioned publication in the Telegraaf.
AP2 (Applicant): So the Secret Service was listening in, they knew what was discussed.
AP2 (Applicant): The same official report also states that two of the aforementioned persons, I quote, had already had telephone contact with Bart Moss prior to the aforementioned publications.
AP2 (Applicant): The journalists did not get to see these official reports by coincidence until May 2006.
AP2 (Applicant): At the same time, it was also established that the Secret Service had continued using powers against the journalists at least until in May 2006, so January, February, March, April, May.
AP2 (Applicant): This is apparent from the official report submitted as exhibit 22, in which the Secret Service reports to the Public Prosecution Service that the journalists at the Haas and Moss, I quote, are making preparations for publishing an article about Paul H. in the short term.
AP2 (Applicant): What exactly made this official report so relevant and shocking?
AP2 (Applicant): Prior to 4 May 2006, the Haas and Moss were the only persons who knew of the planned publication of 6 May.
AP2 (Applicant): They had not discussed this with anyone else prior to 4 May.
AP2 (Applicant): Neither with people within the Telegraaf, nor with people outside the Telegraaf.
AP2 (Applicant): Not even the chief editors of the Telegraaf were informed.
AP2 (Applicant): The Haas and Moss had only had telephone contact with each other about this planned publication of 6 May.
AP2 (Applicant): So the only possible conclusion is that the Haas and Moss were still being listened in on by the Secret Service at the beginning of May 2006.
AP2 (Applicant): The problem is that the Dutch authorities opt for the easiest way in cases like this.
AP2 (Applicant): We have seen that again and again.
AP2 (Applicant): Namely, tracing the source of the journalist, because it's much easier to start an investigation at the end of the information chain than at the beginning of the information chain.
AP2 (Applicant): And I refer to the drawing in my notes.
AP2 (Applicant): Tracing the source of the journalist is relatively easy.
AP2 (Applicant): Namely, by retrieving retroactively data that show with whom the journalist has called and by whom the journalist had been called, has been called prior to the publication.
AP2 (Applicant): By listening in on a journalist and keeping him or her under observation, it can also be established with whom he or she has had contact after the publication.
AP2 (Applicant): This is exactly what happened in the present case.
AP2 (Applicant): As appeared afterwards, the government has retrieved telecom data of both journalists as from 1 September 2005 and as appeared from the official reports, has listened in on the journalist and kept him under surveillance or observation for months.
AP2 (Applicant): The official reports also show that the Secret Service attention was aroused by another person or other persons fairly soon after it had proceeded to use special powers against the journalist.
AP2 (Applicant): This is a quote from the judgment of the Court of Appeal in The Hague of 31 August 2006.
AP2 (Applicant): For now, we arrive at the essence of this dispute.
AP2 (Applicant): The Court of Appeal ruled, and I quote, in the absence of further information on that person or of those persons, the Court of Appeal will assume for the time being that it is a person or persons with regard to whom the journalistic source protection is not an issue.
AP2 (Applicant): According to the Court of Appeal, the Secret Service should immediately thereafter cease the use of special powers.
AP2 (Applicant): But the Telegraaf believe this is not enough.
AP2 (Applicant): For the ruling that the use of powers should be ceased after another person has drawn the Secret Service attention touches on the essence of source protection.
AP2 (Applicant): Why could not the person who drew the Secret Service attention be the source of the journalist?
AP2 (Applicant): This Court will understand that I cannot comment on this, but I draw the Court's attention to this point because the Court of Appeal's ruling is not only puzzling, but even fundamentally wrong.
AP2 (Applicant): And then I'm, of course, referring to the judgment of the Court of Appeal, the Hague.
AP2 (Applicant): For it leads to a remarkable conclusion that the Secret Service can go on listening in until the source of the journalist has been identified, which is precisely what this case is about.
AP2 (Applicant): Professor Schout has commented very clearly on this ruling and concluded, I quote, that would be tantamount to granting full license, which in my view is incompatible with the principle of the ECHR.
AP2 (Applicant): It's not permitted unless.
AP2 (Applicant): I come to my conclusion.
AP2 (Applicant): Unfortunately, the Supreme Court has not allowed the Telegraaf's objections against the contested rulings of the Court of Appeal.
AP2 (Applicant): And that's the main reason why the Telegraaf and the applicants has applied to this Court.
AP2 (Applicant): According to the Supreme Court, the position taken by the Telegraaf amounts to making the right to protect sources absolute.
AP2 (Applicant): But that's incorrect.
AP2 (Applicant): The Telegraaf is aware that the right to protect sources may be limited.
AP2 (Applicant): According to consistent case law of this Court, taking a measure to break the right to protect sources is in violation of Article 10 of the Convention unless it's justified by an overriding requirement in the public interest.
AP2 (Applicant): In the present case, there is no such overriding requirement because, at least initially, it would have surfaced to carry out an internal investigation within the Secret Service to find a leak.
AP2 (Applicant): Moreover, the government has taken disproportionate coercive measures against journalists, DAS, and Moss for far too long, for at least months.
AP2 (Applicant): We don't know how long for at least months.
AP2 (Applicant): Without judicial review, these facts tip the balance of competing interest in favor of the interest of democratic society in securing a free press.
Josep Casadevall (JudgeP): Thank you, Mr. Le Poole.
Josep Casadevall (JudgeP): Thank you for your interventions in this first round.
Josep Casadevall (JudgeP): I turn now to the judges.
Josep Casadevall (JudgeP): OK.
Josep Casadevall (JudgeP): Judge Ziemele, please.
Ineta Ziemele (Judge): I would have, roughly speaking, two questions.
Ineta Ziemele (Judge): They are addressed to the government primarily, but of course the applicant representatives are very welcome to comment if they find it appropriate.
Ineta Ziemele (Judge): And the questions really relate to the application of the Intelligence and Security Service Act or what the government has named as IVD investigations in relation to the applicants in this case.
Ineta Ziemele (Judge): And I would really appreciate if the government were to specify more concretely what kind of threat to the national security did the applicants pose.
Ineta Ziemele (Judge): What exactly was in their actions of such a character?
Ineta Ziemele (Judge): Because as far as I can see, Article 6, Paragraph 2 requires a rather high threshold.
Ineta Ziemele (Judge): So what was in their actions that endangered the national security?
Ineta Ziemele (Judge): And if you could, in this connection, also clarify this contradiction that we have in the case file when it comes to the application of Article 6, Paragraph 2, where the applicants considered targets or non-targets on the debate in the Court of Appeal, indeed as just referred by the applicant's representative.
Ineta Ziemele (Judge): And the second question, also linked to IVD investigations, is the government of the opinion that the minister's authorization of these special investigative activities on the basis of the Act, that the minister's authorization, or sometimes it seems that it is the head of the Secret Service, is a sufficient safeguard for the purposes of Article 8 and Article 10.
Ineta Ziemele (Judge): I understand that you will obviously look at it in the broader picture.
Ineta Ziemele (Judge): But I'm more interested that you address the whole issue of prior guarantees in relation to the possible interferences with fundamental human rights.
Josep Casadevall (JudgeP): Judge López Guerra.
Luis López Guerra (Judge): Yeah, my question refers to the, directed to both the government and the application.
Luis López Guerra (Judge): The first one refers to the nature of these documents.
Luis López Guerra (Judge): I mean, these documents were in possession of the Telegraph, and whose surrender was asked by the government from the Telegraph, where they were the same original documents which physically had been in possession of the Secret Services and had been given to the Telegraph.
Luis López Guerra (Judge): There was a material, physical identity.
Luis López Guerra (Judge): The second question, also both parties, in page 11 of the observation of the government, there is reference to several investigations.
Luis López Guerra (Judge): There is reference to an investigation by the AIBD under section six of section two of the Intelligence Act.