TrustHLT/LaCour huggingface dataset:
GR1 (Government): And for the record, I would add here that the applicants subsequently lodged a complaint with the National Ombudsman, which was eventually not pursued.
GR1 (Government): If this overview of procedures proves anything, it is that this case raises no issues concerning any lack of access to domestic remedies under Article 13 of the Convention, which, incidentally, was not invoked by the applicants, and rightly so.
GR1 (Government): It is beyond doubt that several avenues were open to the applicants, in which their complaints under the Convention were carefully examined and, in some instances, upheld.
GR1 (Government): Since the Court specifically asked the parties to address the issue of safeguards against abusive powers by the Ayurvedic, I should stress here the interim injunction proceedings, the Supervisory Committee's full review of the lawfulness of the use of special powers, and the examination of the applicants' complaint.
GR1 (Government): The government deems the aggregate of the above-mentioned remedies to have been as effective as they can be, given the national security considerations involved.
GR1 (Government): The seriousness of these proceedings is, apart from anything else, borne out by the fact that they all led to certain retrospective corrections, for example, with regard to the Ayurvedic investigation.
GR1 (Government): Although the applicants were clearly not satisfied with the outcome of the various proceedings, Article 13, as confirmed by the Court in its case law, merely provides the right to an effective remedy, but does not guarantee the applicant a favorable outcome.
GR1 (Government): And I refer to the Court's established case law, such as Leander v. Sweden and Al-Nashif v. Bulgaria.
GR1 (Government): Finally, I should mention the fact that, given the public interest inherent in the case at hand, the Minister kept the House of Representatives of the States General informed of developments in the various procedures I have summarized, insofar as this did not harm the investigations.
GR1 (Government): this brings me to the key question which needs to be answered this morning, namely whether, having regard to the facts of the case, including the many domestic procedures followed, the applicants are right to claim that their rights under Articles 8 and 10 of the Convention were violated.
GR1 (Government): All in all, the applicants complain about three different acts by the state.
GR1 (Government): One, the seizure of documents.
GR1 (Government): Two, the committal to prison of the two journalists.
GR1 (Government): Three, the use of special powers by the IJVD in relation to the two journalists.
GR1 (Government): In contrast to the approach adopted in our written observations of 3 December 2010 and further observations of the 5th of July 2011, I will not now make a distinction by Article of the Convention, since Articles 8 and 10 in this particular case are closely connected.
GR1 (Government): Instead, and for the sake of clarity, I will deal with the three acts by the state, one after another.
GR1 (Government): First, the seizure of documents.
GR1 (Government): The government postulates that the order to surrender the classified documents, as was made abundantly clear to the Telegraaf at the time, was not intended to discover the journalist's sources, but first and foremost, to ensure that all documents and copies had in fact been returned to the IJVD.
GR1 (Government): Identification of the journalist's sources was explicitly not the intention.
GR1 (Government): The contents of the documents pointed in the direction of a former employee as being the leak within the IJVD, for which he was later convicted.
GR1 (Government): Consequently, the government holds that this case does not involve the right to protection of journalistic sources, since the order to surrender the documents was not aimed at disclosing those sources, as demonstrated in the proceedings.
GR1 (Government): As the applicant's right to freedom of expression was not interfered with in any other way by the seizure of documents, the government concludes that this seizure raises no issue under Article 10 of the Convention.
GR1 (Government): Should the court hold otherwise, the government would recall that Article 10 of the Convention states that those exercising their right to freedom of expression have duties and responsibilities.
GR1 (Government): In two areas, the government finds that the applicants did not respect those duties and responsibilities.
GR1 (Government): Firstly, contrary to the impression it repeatedly gave, Telegraaf had not surrendered all the classified documents in its possession.
GR1 (Government): After all, the judicial orders did in fact lead to the handover of additional documents that were not submitted initially.
GR1 (Government): There is no justification whatsoever for these omissions.
GR1 (Government): Secondly, the articles in the Telegraaf went far beyond serving the public interest by exposing shortcomings within the Intelligence and Security Service.
GR1 (Government): They undoubtedly crossed the line between reporting on the leak itself and reporting on details of investigations by the IEVD, which is a totally different matter.
GR1 (Government): As a result, not only were the lives of IEVD informants and their relatives put at risk, but the manner of disclosure could also affect the willingness of existing and future sources to cooperate with the IEVD.
GR1 (Government): None of this serves any public interest of which the applicants claim to be the watchdog.
GR1 (Government): The applicants invoked their rights to protect journalistic sources, but have themselves demonstrated a complete lack of care with regard to the safety of sources used by the IEVD.
GR1 (Government): In case the Court should find that Article 10 of the Convention is at issue, we submit that any interference with the rights to freedom of expression serve the legitimate aims of national security, the prevention of crime, and the protection of the rights of others.
GR1 (Government): After all, a leak within the National Intelligence and Security Services poses a serious threat to national security.
GR1 (Government): The possession of secret classified documents constitutes a criminal offense in case at hand, the lives and well-being of IEVD informants and their relatives were put at risk, as I said a moment ago.
GR1 (Government): Thus, the next question is whether that interference was prescribed by law.
GR1 (Government): The answer to that question can only be affirmative, since the order was based on Article 96a of the Code of Criminal Procedure.
GR1 (Government): And as the Court confirmed in its judgment in the Sanoma case, this provision meets the requirements of accessibility and foreseeability and carries with it procedural safeguards.
GR1 (Government): That brings me to the last question concerning the seizure of documents, namely whether the interference was necessary in a democratic society, or in the words of the Court, whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient, and whether the measures taken were proportionate to the legitimate aims pursued.
GR1 (Government): We would, at the outset, draw attention to the essential difference between the case at hand and the Sanoma case, in which the Court found a violation.
GR1 (Government): In the present case, the lawfulness of the order to surrender the documents was assessed by a court before the documents were handed over to the public prosecutor.
GR1 (Government): It is true that this prior judicial review was the result of an ad hoc arrangement and not of legislation in force at the time.
GR1 (Government): Dutch law is currently being amended on that particular point.
GR1 (Government): Having said that, the Court has repeatedly stated that it looks at the facts in concreto.
GR1 (Government): Well, in this particular case, judicial oversight prior to the surrender of the documents was carried out.
GR1 (Government): The applicant handed over a set of documents in a sealed envelope to the National Police Internal Investigations Department, after which this sealed envelope remained in a safe at the office of the investigating judge until the district court had been able to rule on the lawfulness of the order.
GR1 (Government): As I said earlier, the possession of secret classified documents constitutes a criminal offense, carrying a maximum penalty of six years imprisonment or a fine of 76,000 euros.
GR1 (Government): Possessing such documents does not cease to be an offense, just because the perpetrator is a newspaper or a journalist.
GR1 (Government): Also, it is crucial that unauthorized possession of secret classified documents is terminated as speedily as possible.
GR1 (Government): The government considers the order to surrender the documents a perfectly proportionate measure under the circumstances.
GR1 (Government): I repeat that the measure would not have been necessary had the telegraph surrendered all the documents in the first place.
GR1 (Government): In that regard, the order to surrender documents was the mildest possible measure to ensure return of all the documents.
GR1 (Government): It was milder, for instance, than a search of the telegraph's premises.
GR1 (Government): This argument is reinforced by the cautious approach displayed by the authorities, allowing the telegraph to hand over the documents in a sealed envelope and leaving them sealed until the district court had had the opportunity to rule on the matter.
GR1 (Government): In comparison with cases where the court considered a seizure of documents to be in violation of the right to protection of journalistic sources towards the government's opinion, in Financial Times and Goodwin, both against the United Kingdom, the seizure concerned confidential information within private companies.
GR1 (Government): Accordingly, the rights of others were undoubtedly at stake, but not national security or the prevention of crime.
GR1 (Government): In addition, in the Goodwin case, the applicant had also separately been forbidden to publish the information obtained, which clearly never happened in the present case.
GR1 (Government): As it may, a considerable minority of the court in the Goodwin case found the interests of the private company constituted a sufficient justification for the seizure.
GR1 (Government): This would apply a fortiori to the legitimate interests at stake in the present case.
GR1 (Government): We cannot but conclude, therefore, that the order to surrender the documents did not in any way constitute a violation of the applicant's freedom of expression.
GR1 (Government): Secondly, I will discuss the committal to prison of the two journalists for failure to comply with the judicial order.
GR1 (Government): The comments I made in relation to the order to surrender the documents pertaining to the question of whether the protection of journalistic sources, and hence an interference with Article 10 of the Convention, are at issue, and pertaining to the question of duties and responsibilities, are equally relevant here.
GR1 (Government): And I respectfully request that the court to take them into account.
GR1 (Government): Obviously, however, a committal to prison constitutes an interference with a person's right to private life, guaranteed in Article 8 of the Convention.
GR1 (Government): The statutory basis for the committal to prison of witnesses refusing to testify is Article 294, paragraph 1, of the Code of Criminal Procedure.
GR1 (Government): The court held in its judgment in the Foscale case that this basis in domestic law is adequate.
GR1 (Government): The legitimate aim here is primarily the prevention of crime, which leaves the question of whether the interference was necessary in a democratic society.
GR1 (Government): The primary consideration is the fact that the journalists refused to answer most of the questions put by the investigating judge, not only questions that could arguably have a bearing on protection of sources.
GR1 (Government): That being so, there is no compelling reason why the interference of the court is not a valid basis for the judgment.
GR1 (Government): There is no compelling reason why the judge could not reasonably avail himself of the power vested in him by virtue of the Code of Criminal Procedure, as would have been possible with regard to witnesses who are not journalists.
GR1 (Government): In addition, the facts here are significantly different from those in the Foscale case.
GR1 (Government): In the latter case, the applicant was detained for 17 days, whereas the committal in the present case lasted three days.
GR1 (Government): In the Foscale case, the journalists in the present case were clearly the only persons able to shed light on certain elements of the criminal case.
GR1 (Government): With regard to the committal to prison two, we therefore conclude that there has been no violation of the convention.
GR1 (Government): Lastly, I come to the complaint concerning the Ayyubids' use of special powers against the two journalists.
GR1 (Government): Here, too, there is no doubt that the use of these powers constituted an interference with the journalists' right to private life, which served the legitimate aim of national security.
GR1 (Government): In that regard, let me first stress that there is a real difference between the activities of intelligence and security services on the one hand and law enforcement authorities on the other.
GR1 (Government): This difference has a bearing on how covert action by the former category is assessed, in the sense that a wider margin of appreciation should be applied.
GR1 (Government): The difference also affects the extent to which the government can be open in its communications, including in the context of the present proceedings before the court.
GR1 (Government): What is of crucial importance, however, is that the supervisory committee can, and in fact did, have access to all the information in the context of both the lawfulness investigation and the complaint advisory process.
GR1 (Government): As set out in my overview of the procedures followed, the committee basically concluded that the investigation had been lawful, meaning that it had been necessary and in accordance with the law and with the criteria of proportionality and subsidiarity.
GR1 (Government): The minister did not deviate from the committee's advice and recommendations in respect of the lawfulness investigation and the complaint advisory process, but instead adopted them in their entirety.
GR1 (Government): In our written observations, we explained in detail why we consider the use of special powers in the present case to be in accordance with the law, i.e. the Intelligence and Security Services Act,
GR1 (Government): which is accessible and foreseeable.
GR1 (Government): In doing so, we referred extensively to the required safeguards developed by the court in its judgment in the case of Weber and Saravia versus Germany.
GR1 (Government): Scrutiny of the present case in the light of the court's judgment in the relevant case of Kennedy versus the United Kingdom would lead to exactly the same conclusion.
GR1 (Government): With the interference thus being firmly based in law, the final question is whether it was necessary in a democratic society.
GR1 (Government): A leak of secret classified information damages the IJVD's ability to operate reliably and hence national security as well.
GR1 (Government): In the case at hand, a large quantity of documents, over 1,000 pages, had been leaked, including reports of conversation with human sources, scheme reports, transcriptions of intercepted telephone calls and so forth, extremely sensitive information with particular implications for the safety of the IJVD human sources.
GR1 (Government): This posed a direct threat to the pillars on which the statutory duty of secrecy in the Intelligence and Security Services Act is based, namely protection of sources, protection of current status of intelligence, and protection of working methods.
GR1 (Government): These three interests are why secrecy must be observed.
GR1 (Government): Moreover, the leaked documents concerned an investigation into a hardcore criminal organization that had a reputation for serious violence.
GR1 (Government): Since Telegraf had published both code names and contextual information, there was a real danger that disclosure of the identity of the IJVD sources would result in revenge attacks against these people or their relatives.
GR1 (Government): Given the continued uncertainty about the exact volume and nature of documents which had been leaked, it was impossible to assess the damage to current investigations and dangers to other human sources.
GR1 (Government): No effective alternatives were available.
GR1 (Government): Openly asking for the information would have been to no avail.
GR1 (Government): In the case of a leak, those involved have a vested interest in keeping the facts and circumstances secret.
GR1 (Government): The use of special powers was terminated by order of the District Court, ruling in interim injunction proceedings.
GR1 (Government): In view of all these facts and circumstances, the government considers that there were interests at stake in this case which outweighed both the applicant's interest in protecting journalistic sources and the applicant's right to private life, namely national security and the prevention of serious crime.
GR1 (Government): In the government's opinion, the exercise of special powers in relation to the journalists was therefore justified, having regard to paragraph 2 of articles 8 and 10 of the Convention.
GR1 (Government): It fully complied with the requirements of subsidiarity and proportionality.
Josep Casadevall (JudgeP): I call Mr. De Kemp.
AP1 (Applicant): for the third time in a relatively short period, this court will have to examine judicial coercive measures against journalists taken by the Dutch government.
AP1 (Applicant): The previous two times, this court rightly criticized the actions and conduct of the government with respect to journalists.
AP1 (Applicant): In the Voskaal case, this court ruled in clear terms as follows on the actions of the government to find out the identity of the source of the journalist Voskaal, and I quote, whatever the consequences might have been for the source, the court is struck by the lengths to which Netherlands authorities were prepared to go to learn his or her identity.
AP1 (Applicant): Such far-reaching measures cannot but discourage persons who have a true and accurate information relating to wrongdoing of the kind here at issue from coming forward and sharing their knowledge with the press in future cases, end of quote.
AP1 (Applicant): In the Sannema case, this court again stated in clear terms how seriously it takes infringements on the protection of journalistic sources, and again I quote your court.
AP1 (Applicant): The court knows that orders to disclose sources potentially have a detrimental impact not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public who have an interest in receiving information imparted through anonymous sources.
AP1 (Applicant): The present complaint is equally fundamental as the complaints in the previous two cases.
AP1 (Applicant): The government has again seriously overstepped the boundaries set by this court.
AP1 (Applicant): The government has in different ways and over a long period of time infringed on the right of freedom of expression enshrined in Article 10 of the Convention and the right to protect journalistic sources arising therefrom.
AP1 (Applicant): The government has not treated applicants of the Haas & Moss as journalists, but as targets within the meaning of Article 6, Paragraph 2 of the Dutch Intelligence and Security Services Act, to which I will refer as the Act.
AP1 (Applicant): According to the Dutch government, the Haas & Moss are persons who, because of the objectives they pursue or their activities, give rise to serious suspicion that they constitute a danger to the continued existence of the democratic legal order or the security or other weighty interests of the state.
AP1 (Applicant): The government apparently has learned nothing from the previous two convictions by this court, and has decided to continue its actions as it did before.
AP1 (Applicant): Not only did the Dutch authorities investigate the sources of journalists of the Telegraaf in 2006, but did it again in 2009.
AP1 (Applicant): Also in 2009, the Dutch courts prohibited the Secret Service from continuing the use of its special powers against the journalists in that matter, which matter is also pending before this court.
AP1 (Applicant): In order to learn the identity of the sources of the Haas & Moss, the government has undertaken the following actions.
AP1 (Applicant): One, the General Intelligence and Security Services, the Secret Service, has for a long time, over a period of several months, listened in on the Haas & Moss.
AP1 (Applicant): Two, the Secret Service has for a long time systematically kept the Haas & Moss under observation.
AP1 (Applicant): Three, the Public Prosecution Service, or the Secret Service, we don't know who did it, has retrieved the telecom and print data of the Haas & Moss from the 1st of September 2005.
AP1 (Applicant): And based thereon, it could determine exactly with whom the Haas & Moss have called since that date, by whom they have been called, and using positioning via GSM masts, where they have been.
AP1 (Applicant): The public, the four, the Public Prosecution Service has ordered the seizure of documents that were in the hands of the applicants.
AP1 (Applicant): And five, the Public Prosecution Service has knowingly agreed to the three-day detention of the Haas & Moss when they were heard as witnesses in the criminal proceedings against the person who leaked state secret documents outside the Secret Service.
AP1 (Applicant): Due to the use of these coercive measures by both the Public Prosecution Service and the Secret Service, the Haas & Moss have for a long time considered themselves to be hunted game.
AP1 (Applicant): And that feeling was justified, considering the fact that the government in these proceedings for the first time explicitly recognised that the Haas & Moss are persons who constitute a danger to the continued existence of the democratic legal order, or the security, or other way, to the interests of the state.
AP1 (Applicant): The actions by the Dutch government are incorrect, incomprehensible, and exceed all bounds.
AP1 (Applicant): After all, Mrs. de Haas & Moss have done nothing more
AP1 (Applicant): than exercise their task as journalists.
AP1 (Applicant): In a democratic society, it is their task to fulfil their role as a public watchdog.
AP1 (Applicant): This task is quite relevant when persons employed, or formerly employed by the Secret Service, appear to be leaking state secret documents.
AP1 (Applicant): This very fact in itself already constitutes a matter of public interest.
AP1 (Applicant): And it is all the more so if the leaked documents end up in the criminal circuit, even precisely the criminal circuit to which the documents relate.
AP1 (Applicant): If journalists discover such a wrongdoing has been perpetrated within a governmental organisation, it is their journalistic duty to publish about it.
AP1 (Applicant): In response to the Voskow judgment, the government has prepared a legislative proposal that should provide a legal basis for the protection of journalistic sources.
AP1 (Applicant): May I remind you that the Voskow judgment dates from more than four and a half years ago, and there still only is a legislative proposal.
AP1 (Applicant): It is unclear when this legislative proposal will be discussed in the House of Representatives and will be or may be passed into law.
AP1 (Applicant): In other words, the government is in no hurry to pass this proposal.