TrustHLT/LaCour huggingface dataset:
Boštjan M. Zupančič (Judge): And by that kind of civil law standard, the right to one's own image would have been the minimum civil law tort claim which had been, the right which had been violated in this kind of situation without regard to any pornography aspect of the story.
Boštjan M. Zupančič (Judge): In other words, in some countries, if even in the public you are being photographed without your consent, unless you are a public figure, that might be a problem.
Boštjan M. Zupančič (Judge): And you cite of course, von Hanover, second grand chamber judgment in which a similar situation has occurred in this respect.
Boštjan M. Zupančič (Judge): And therefore my question is, does Sweden have this kind of personality rights tradition or registration in the context of the traditional tort law?
Boštjan M. Zupančič (Judge): My second question to the government is as follows.
Boštjan M. Zupančič (Judge): We are here talking about the rights of the applicant, but it is easy to imagine if we turn this situation like a glove inside out, that we might be dealing with a situation in which the perpetrator, the stepfather of the applicant here, would have been the claimant here, would have been the appellant here, applicant here.
Boštjan M. Zupančič (Judge): In other words, in that situation, if he had been convicted, he would have asked the reverse question because it would fall under article seven and it would be a question of whether the legality principle was or was not violated in this situation.
Boštjan M. Zupančič (Judge): Therefore, I know this is a speculative question, but to me it provides the mirror image of the situation.
Boštjan M. Zupančič (Judge): I'd be very grateful if the government could take the position on that kind of a question.
Boštjan M. Zupančič (Judge): Thank you.
Josep Casadevall (JudgeP): Well, in order to give the parties enough time to prepare their answers, I suggest to make a 19-minute break.
Josep Casadevall (JudgeP): That means that at 10.45 we will restart the hearing.
Josep Casadevall (JudgeP): Each party is allowed for 10 minutes.
Josep Casadevall (JudgeP): I give the floor, first of all, to, I don't know who wants to take the floor, Mr.
Josep Casadevall (JudgeP): Mr. Lewis or Mr. Södergren.
Josep Casadevall (JudgeP): Mr. Södergren.
AP3 (Applicant): Honorable European judges, we will do our best to answer the questions put to us specifically.
AP3 (Applicant): We are short of time, so I will rush this a bit.
AP3 (Applicant): I would like to address the issue, the question put by Judge Zimmer regarding psychological violence.
AP3 (Applicant): And of course, this was psychological violence.
AP3 (Applicant): It's perhaps not that very common that we are able to express this sort of from the source from the beginning in such court cases as this.
AP3 (Applicant): But we have been talking about this actual hurt in her soul that Elisa actually suffered from this.
AP3 (Applicant): And we've actually been speaking about it in the taxi to this court today.
AP3 (Applicant): She was remitted to psychiatric treatment at the time.
AP3 (Applicant): Also the social welfare were involved in this and said that this is, they had to, they said they had to treat this actually.
AP3 (Applicant): So it's no doubt that both as per definition and in practice, this was psychological violence for which there was no remedy in the domestic system.
AP3 (Applicant): And I will leave the next question to you, to Mr. Lewis.
AP3 (Applicant): No, no, sorry, to Mr. Clowns-Crawford.
AP2 (Applicant): Yes, and I will answer the question from Judge Sicilianos regarding the new legislation in Sweden.
AP2 (Applicant): Let me first stress that there is still no new legislation covering these matters.
AP2 (Applicant): However, there is a proposal about this.
AP2 (Applicant): And I think it's interesting to comment on this also since the government asked the Grand Chamber to take this proposal into consideration.
AP2 (Applicant): And let me first say that it is still not clear whether or not this proposal will pass.
AP2 (Applicant): The government presented the proposal in February and it's set to be voted for in May.
AP2 (Applicant): And let me just take some examples.
AP2 (Applicant): One demand from the Green Party is requiring a five-year limit in this proposal if it follows the new legislation.
AP2 (Applicant): And there are also other initiatives in the Swedish Parliament with criticism against the proposal.
AP2 (Applicant): And as we mentioned before, there is no majority for this proposal for the government.
AP2 (Applicant): But it's also interesting to note that this proposal is for the time being a target for an aggressive campaign from different interest groups.
AP2 (Applicant): There has been criticism from consultation bodies during the whole process, actually.
AP2 (Applicant): And let me give two examples.
AP2 (Applicant): There is an interest organization for Swedish publishers that recently informed in one of Sweden's most influential newspapers, Dagens Nyheter, that they demanded this proposal to be struck out of the list.
AP2 (Applicant): There is also a very effective work from the Swedish Union of Journalists that recently sent letters expressing their concern to all members of the Committee on Justice as well as all members of the Committee on the Constitution with exactly the same demand.
AP2 (Applicant): They demanded this proposal to be struck.
AP2 (Applicant): And this is also interesting in the perspective of what the chamber took into consideration.
AP2 (Applicant): They did, as the government suggests, that the Grand Chamber should do in this case.
AP2 (Applicant): The chamber took into consideration the government's claim that this proposal in its initial version to create this new legislation.
AP2 (Applicant): But what happened with that?
AP2 (Applicant): Actually, the same thing.
AP2 (Applicant): It was also criticized by different interest groups, the same as I mentioned, amongst others.
AP2 (Applicant): And it was also criticized by the Swedish Law Council.
AP2 (Applicant): And what happened?
AP2 (Applicant): Well, it never passed in the parliament.
AP2 (Applicant): So when the government asked you to take into consideration that there is a proposal now for new legislation, there are a lot of question marks, which makes that request not so important, actually.
AP4 (Applicant): Your Honor, I would just like to address, well, two questions connected.
AP4 (Applicant): One of them was really directed at the government.
AP4 (Applicant): And that was, if the gravity of this particular action was not so great that it required criminalization, does that mean that there was a flaw in criminal law?
AP4 (Applicant): Obviously, from everything we said earlier, we have pointed out that there is such a flaw and so on.
AP4 (Applicant): But we would also like to make the point, leading up to the next question, that we don't say that it must be criminalized.
AP4 (Applicant): We have never claimed that in this case.
AP4 (Applicant): We have our own personal opinion that there's important reasons to criminalize it.
AP4 (Applicant): And apparently, the government also agrees with us on this point, since they made the proposal that they made to the Parliament.
AP4 (Applicant): But nevertheless, the necessity is that there is an effective remedy.
AP4 (Applicant): And we say that there still has not been an effective remedy.
AP4 (Applicant): Which leads to the other question, which I believe was partially addressed to me.
AP4 (Applicant): And that is, wasn't it possible for the Svea Court of Appeal to grant damages in spite of the fact that the stepfather was acquitted?
AP4 (Applicant): And we have tried to explain that, in our opinion, we thought that that could have been possible and should have been possible.
AP4 (Applicant): However, the result of the case is that it wasn't possible.
AP4 (Applicant): I would refer you to the — there's an appendix which we have submitted to the district court decision, in which you can see exactly what Elisa's attorney did in this case.
AP4 (Applicant): The attorney never said that it was due to the criminalization of this act.
AP4 (Applicant): They simply — the attorney said that this act, the indictment, was the ground for causing Elisa injury.
AP4 (Applicant): And you can read that.
AP4 (Applicant): That's exactly what he said.
AP4 (Applicant): And he describes the injury as being, on the one hand, a violation of her personal integrity, which is part of the psychological violence.
AP4 (Applicant): And the second was her pain and suffering.
AP4 (Applicant): And these are clearly concepts within the law of torts.
AP4 (Applicant): And we claim that we think it would have been possible, without even using a conventional conform interpretation of the law of torts, to have given it.
AP4 (Applicant): But this did not happen.
AP4 (Applicant): And this doesn't happen in lots of cases like this.
AP4 (Applicant): There's some kind of interpretation from the Swedish courts today which generally think that when you have joined a claim of damages to the criminal indictment, that if the criminal indictment falls, that there can be no damages.
AP4 (Applicant): And that, in spite of what is written in the Procedural Code, 22nd Chapter, 7th paragraph.
AP4 (Applicant): So our answer is we think it should have, could have, but it didn't.
AP4 (Applicant): And the fact that it didn't shows that there is not either a civil remedy for Elisa in this concrete case.
Josep Casadevall (JudgeP): Thank you very much. I call Mr. Rönquist.
GR1 (Government): Mr. President, let me first refer to the question put by Judge Simmele.
GR1 (Government): As was in fact established by the Court of Appeal, it was clear from the evidences in the case that the applicant had suffered psychological injury due to her stepfather's actions.
GR1 (Government): And the government shares this view.
Josep Casadevall (JudgeP): I thank the parties for their interventions and answers to the core questions.
Josep Casadevall (JudgeP): The core will now deliberate on the merits.
Josep Casadevall (JudgeP): I declare open the public hearing on the admissibility and merits in the case Telegraaf Media Netherlands versus Netherlands.
Josep Casadevall (JudgeP): The case was lodged on the 29th of September 2006 with the court under Article 34 of the Convention by five Netherlands nationals, Telegraf Media Netherlands, by Mr. Joost de Haas and Mr. Bart Mos,
Josep Casadevall (JudgeP): and also by the Netherlands Association of Journalists and the Netherlands Society of Editors-in-Chief.
Josep Casadevall (JudgeP): The application was allocated to the third section of the court, pursuant to Rule 52 of the Rules of the Court.
Josep Casadevall (JudgeP): On 18 May 2010, the application was declared inadmissible in respect of the Netherlands Association of Journalists and the Netherlands Society of Editors-in-Chief, and adjourned in respect of the remaining applicants.
Josep Casadevall (JudgeP): The defending government are represented by their agent, Mr. Böcker, agent of the Government of the Netherlands,
Josep Casadevall (JudgeP): assisted by Dr. Kuijer of the Ministry of Security and Justice,
Josep Casadevall (JudgeP): Mr. van Sasse van Ysselt, and Mr. Dielemens,
Josep Casadevall (JudgeP): both of the Ministry of the Interior and Kingdom Relations, and by Mrs. Jarigsma of the Public Prosecution Service Advisors.
Josep Casadevall (JudgeP): The applicants are represented by Mr. Le Poole and Mr. de Kemp, counselors.
Josep Casadevall (JudgeP): Mrs. van Meurs-Bergsma, head of the legal department of the first applicant,
Josep Casadevall (JudgeP): is present on the first applicant behalf.
Josep Casadevall (JudgeP): The applicants, Mr. De Haas and Ms. Bart Mos, are present.
Josep Casadevall (JudgeP): I welcome the representative and applicants in the name of the court.
Josep Casadevall (JudgeP): I also welcome the delegation of members of the French Conseil d'Etat, the delegation of judges of the Hungarian Supreme Court, the delegation of judges and prosecutors from the Netherlands, the delegation of judges and prosecutors from the European Judicial Training Network, the delegation of judges and prosecutors from Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan, and the delegation from Lincoln's Inn.
Josep Casadevall (JudgeP): Having consulted the agent of the government and the representative of the applicants, I have determined the order of address as follows.
Josep Casadevall (JudgeP): Mr. Böcker, for the government, will speak first,
Josep Casadevall (JudgeP): and then Mr. de Kem and Mr. Le Poole for the applicants.
Josep Casadevall (JudgeP): I call Mr. Böcker.
GR1 (Government): There used to be microphones here, but I think they have been replaced by new devices.
GR1 (Government): I hope you can hear me.
GR1 (Government): it cannot be denied that there is a certain complexity due to the case we are discussing today.
GR1 (Government): This complexity, however, relates to the proliferation of procedures which emanated from the original facts underlying the case, rather than to the facts themselves, which are not so complicated at all.
GR1 (Government): I will try to demonstrate that in a moment.
GR1 (Government): I will then describe the various domestic proceedings relevant to the case, not only because they are essential to the complaint, but also because the court, in its recent letter of 16 May, specifically asked the parties to address the question of legal safeguards against abuse of powers.
GR1 (Government): We are convinced that a description of the procedures followed in this case will eliminate any doubts about the availability of effective remedies, and hence legal safeguards, to the applicants.
GR1 (Government): Finally, I will explain why the government does not believe that a violation of Article 8 or 10 of the European Convention on Human Rights has occurred in the present case.
GR1 (Government): In doing so, we will also answer the second question raised by the court in its recent letter concerning the balance of interests in this case.
GR1 (Government): But before embarking on all this, please allow me to highlight a few very basic principles which underlie the government's position in this case.
GR1 (Government): First, the press, in its role of public watchdog, has the task of imparting information and ideas on matters of public interest.
GR1 (Government): Protection of sources is an important requirement for proper fulfillment of that task.
GR1 (Government): Second, the public has the right to receive that information and those ideas.
GR1 (Government): Third, intelligence and security services have the task of protecting the democratic legal order and the security and other important interests of the state.
GR1 (Government): The nature of that task requires a specific regime as to special powers and confidentiality.
GR1 (Government): Fourth, the public has the right to have the democratic legal order and the security and other important interests of the state protected from threats against them.
GR1 (Government): Fifth, shortcomings in the organization of the intelligence and security services, which threaten their reliability and effectiveness, are by definition a matter of public interest.
GR1 (Government): And sixth, the contents of the files of the intelligence and security services are not, by definition, a matter of public interest.
GR1 (Government): Let me now present the bare facts.
GR1 (Government): On the 20th of January 2006, the Telegraaf informed the General Intelligence and Security Service, which I will refer to hereafter as the IEVD, after its Dutch acronym, that the newspaper was in possession of documents containing secret classified information and was intending to publish articles about them.
GR1 (Government): That same day, one set of documents, which after inspection turned out to be copies, was collected by the IEVD from the Telegraaf.
GR1 (Government): The IEVD sent a letter stating that it would assume, in the absence of express notice to the contrary, that all documents had been handed over.
GR1 (Government): No notice to the contrary was received.
GR1 (Government): The next day, the Telegraaf published its first article on the matter.
GR1 (Government): The article disclosed details of the secret classified documents, including quotations, code names of IEVD informants, and contextual information.
GR1 (Government): The article confirmed that the documents had been returned to the IEVD.
GR1 (Government): Various other articles were published in the days that followed.
GR1 (Government): Since the Public Prosecution Service was not convinced that all the documents and copies thereof had in fact been handed over, and since unauthorized possession of the documents constituted a criminal offense, an order to surrender any remaining documents was served on the Telegraaf.
GR1 (Government): The Telegraaf then handed over a set of documents in a sealed envelope, not to the public prosecution itself, but to the National Police Internal Investigations Department, or Rijksrecherche.
GR1 (Government): It was agreed that this sealed envelope would remain in a safe at the office of the investigating judge until such time as the district court had ruled on the lawfulness of the order.
GR1 (Government): After the district court had declared the order lawful, the sealed package was found to contain 37 documents fewer than the set which had been handed over to the IEVD on the 20th of January.
GR1 (Government): After a second order to surrender the missing documents was served, and following a subsequent handover of documents, it was found that 11 documents were still missing.
GR1 (Government): In the meantime, a criminal investigation had been instituted, originally against six persons, including the two Telegraaf journalists, Messrs.
GR1 (Government): de Haas and Moss, here present, who are both applicants in this case.
GR1 (Government): After the investigation into the journalists had been discontinued, they were summonsed to appear as witnesses in the case against the remaining suspects.
GR1 (Government): However, since they repeatedly refused to answer the investigating judge's questions, they were committed to prison for three days for failure to comply with a judicial order, and subsequently released.
GR1 (Government): Entirely separate from the criminal investigation, the IEVD started its own investigation into the leaked files.
GR1 (Government): In the context of this investigation, the IEVD exercised special powers in relation to the two journalists, notably the power to intercept and record telecommunications.
GR1 (Government): These, Mr. President, distinguished members
GR1 (Government): of the court, are the essential facts underlying the case.
GR1 (Government): In a nutshell, a leak within the IEVD had occurred.
GR1 (Government): A criminal offense had been committed.
GR1 (Government): The Telegraaf had reported not only on the leak as such, but also on the highly confidential and sensitive contents of the leaked documents.
GR1 (Government): Documents had been held back, and both the IEVD and public prosecution service, as is their public duty, had taken measures in response to the leak and the criminal offense.
GR1 (Government): I'll now give an overview of the many procedures that were initiated in the context of this case.
GR1 (Government): This is essential for a proper understanding of its merits.
GR1 (Government): First, I have already mentioned the complaint procedure instituted by the Telegraaf against the seizure of the documents.
GR1 (Government): This complaint, which was based on the assumption that examination of the original documents could reveal the journalist's sources, was dealt with at two instances.
GR1 (Government): The district court sitting in chambers and the Supreme Court.
GR1 (Government): Both instances, referring to Article 10 of the Convention, considered the right of the Telegraaf to protect its sources, and concluded that under the circumstances, this right had not been violated by the order to surrender the documents.
GR1 (Government): The Supreme Court specifically referred to the interests of national security set out in paragraph 2 of Article 10 of the Convention, as well as to the fact that examination of the documents, although possible, was not necessary in order to identify the leak within the IJVD, since this was already possible by reference to the contents of the documents.
GR1 (Government): Second, I also mentioned the criminal investigation into the unauthorized possession and disclosure of secret classified information, an indictable offense under the criminal code.
GR1 (Government): In the context of this investigation, the two journalists were committed to prison for three days, since in their capacity as witnesses, they refused to answer most of the questions put by the investigating judge, irrespective of the relevance of these questions to the protection of their sources.
GR1 (Government): I should stress here that the committal to prison was requested by the defense in the proceedings, not by the public prosecutor.
GR1 (Government): It was in the context of these proceedings that ultimately a former IJVD employee was sentenced to two years' imprisonment.
GR1 (Government): Third, I mentioned the IJVD's investigation into the leaked files.
GR1 (Government): This type of investigation, also referred to as the subsection 2A investigation after its statutory basis, is directed at organizations and persons whose objectives and activities give rise to grave suspicions that they pose a threat to the continued existence of the democratic legal order or the security or other important interests of the state.
GR1 (Government): In the framework of this investigation, the IJVD exercised special powers with regard to the journalists, based on the Intelligence and Security Services Act.
GR1 (Government): Fourth, the applicants instituted civil law interim injunction proceedings, or Kortgeding, against the state, requesting the termination of the use of any special powers against the journalists and the destruction of all information obtained in this way.
GR1 (Government): The district court granted the applicants' request in full.
GR1 (Government): The Court of Appeal, however, while leaving unaffected the order to terminate the use of special powers, did not follow the district court in ordering destruction of the information, but barred the state from passing on the information obtained by the use of special powers to the public prosecutor, pending a ruling on the lawfulness of the use of those powers by the Intelligence and Security Services Supervisory Committee, which I will hereafter refer to as the Supervisory Committee.
GR1 (Government): The Supreme Court subsequently dismissed appeals in cassation by both parties.
GR1 (Government): Fifth, the Minister of the Interior and Kingdom Relations, responsible for the Ayvede, requested the Supervisory Committee to assess the lawfulness of the Ayvede's investigation into the leak.
GR1 (Government): The committee concluded that the investigation had been lawful, meaning that it had been necessary and in accordance with the law and the criteria of proportionality and subsidiarity, save for a few exceptions.
GR1 (Government): These exceptions did not influence the committee's conclusion that the data that had been forwarded by the Ayvede to the Public Prosecution Service had been obtained lawfully.
GR1 (Government): Sixth and last, the applicants lodged a complaint with the Minister under the Intelligence and Security Services Act, alleging an abuse of special powers and that the investigations by the Ayvede and the Public Prosecution Service had become intertwined.
GR1 (Government): Advice on the complaint was requested from the Supervisory Committee as prescribed by law.
GR1 (Government): This advice should be distinguished from the committee's lawfulness investigation, which I just mentioned.
GR1 (Government): The committee advised that the complaint be declared unfounded except for one point relating to the transcription and recording of intercepted conversations.
GR1 (Government): The minister endorsed that advice.