TrustHLT/LaCour huggingface dataset:
Luis López Guerra (Judge): There is also a reference to an investigation by the National Police Internal Investigation Department.
Luis López Guerra (Judge): And also there is reference to an investigation by the Secretary General of the Ministry of the Interior and Kingdom Relations.
Luis López Guerra (Judge): And then it says in paragraph 37 that before the start of the investigation and at the request of the Minister of the Interior and Kingdom Relations, the supervisory committee of the Intelligence and Security Service examined whether the investigation had been designed and organized in such a way as to comply with the requirement of the civil service information and so on.
Luis López Guerra (Judge): Well, my question is concerning the particular investigation by the AIBD using special powers, that seems to include telephone tapping.
Luis López Guerra (Judge): This investigation was subject previously to any kind of control or advice or authorization by the supervisory committee or by any other independent agency.
Luis López Guerra (Judge): That's my question because I don't get it very clearly from this government observation.
Josep Casadevall (JudgeP): Thank you, Judge Myjer.
Egbert Myjer (Judge): Thanks, President.
Egbert Myjer (Judge): Indeed, on paragraph 37 of the government's observations, just to go in more detail, the supervisory committee for the intelligence and security services, the CETEVD in Dutch, is that supervisory committee, that's the first question, is that also for the applicants in general a sufficient independent body.
Egbert Myjer (Judge): I'd just like to hear what also the applicant thinks about the role in general of the supervisory committee.
Egbert Myjer (Judge): But then, indeed, the question arises, did the supervisory committee ex ante, so on forehand, not just afterwards, have a look at the special powers or not, special powers exercised?
Egbert Myjer (Judge): And in that connection, I go to paragraph 82 of the government's observations, where it says that where the person in respect of whom the power is to be exercised is acting in a special capacity, for instance, as a journalist, this must be stated in the request for authorization together with the reasons why it is necessary to exercise the power in this case.
Egbert Myjer (Judge): And there, in fact, we come to the question also asked by Judge Ziemele when a journalist, when against a journalist, looking at 82, special powers are exercised, is it indeed just the minister who, at the request of the head of secret service, authorizes or is there a special, some kind of special procedure because it is about a person in special capacity like a journalist?
Egbert Myjer (Judge): The last question, a question addressed especially to the applicant, as I take it, the documents in question were documents or copies of documents belonging to the secret service.
Egbert Myjer (Judge): They came from a secret service and whether they were originals or copies made of originals, they belonged to the secret service.
Egbert Myjer (Judge): So what the secret service does is, hey, these things are stolen from us or copied from us in an illegal way, hand them back.
Egbert Myjer (Judge): Is there anything against that?
Egbert Myjer (Judge): Is there anything against a surrender order when people ask something back what belongs to them?
Egbert Myjer (Judge): These are my questions.
Josep Casadevall (JudgeP): Okay, thank you.
Josep Casadevall (JudgeP): Well, I propose to take a break, a 15-minute break to resume the hearing.
Josep Casadevall (JudgeP): Taking in account the number of questions, I think I can give you 15 minutes each part to answer the questions and to make some conclusions about the other part.
Josep Casadevall (JudgeP): I give the floor to Mr. Böcker.
GR1 (Government): I will, to the best of my ability, answer the questions of several of the judges, as well as respond to a few points made by the applicants.
GR1 (Government): And I apologize beforehand for anything I might overlook.
GR1 (Government): Of course, as always, we are fully prepared to provide the court and our opponent party with any additional information that might be required by the court.
GR1 (Government): First of all, Judge Zimmler asked the question, what kind of threat the two journalists constituted and why they were considered targets rather than non-targets.
GR1 (Government): To answer this question, several factors are relevant.
GR1 (Government): First, the case involved, as I have said, an investigation under Section 6, Subsection 2A of the Intelligence and Security Services Act.
GR1 (Government): In other words, an investigation of organizations and, and these words are important, individuals whose objectives or activities give rise to grave suspicions that they pose a threat to continued existence of the democratic legal order or to security or other important interests of the state.
GR1 (Government): Any leak, especially a leak as extensive as in the present case, and I told you there were a thousand pages involved at least, immediately poses a risk to the AIVD's integrity and effective functioning and therefore to national security which the AIVD seeks to protect.
GR1 (Government): The AIVD enjoys far-reaching powers in the context of national security.
GR1 (Government): And if its integrity cannot be relied upon, this directly undermines its legitimacy and confidence in it, leaving it unable to carry out its tasks effectively.
GR1 (Government): For instance, sources and foreign agencies would no longer be willing to cooperate with it.
GR1 (Government): This directly impacts national security.
GR1 (Government): It was therefore essential to launch the investigation.
GR1 (Government): The principal aim, as I have stated, was to examine the leaked documents and establish whether more documents had been leaked and who was in possession of them.
GR1 (Government): Although the Telegraaf had handed over a set of documents to the AIVD consisting of copies of the classified documents, it was unclear whether they comprised all the classified documents or whether further classified information had been leaked.
GR1 (Government): The two journalists were in possession of the leaked documents.
GR1 (Government): And given the purpose of the investigation, therefore qualified as targets.
GR1 (Government): For the record, we would note that the purpose of the investigation was not to determine the identity of the journalist's source.
GR1 (Government): I have said it a few times before.
GR1 (Government): And I refer particularly to paragraphs 48 and 144 and following of our observations.
GR1 (Government): In other words, the journalists being in possession of these documents with all the risks involved, it not being clear whether they had in fact returned the documents was the trigger that made them into targets.
GR1 (Government): This is as much information as I can give in reply to your question.
GR1 (Government): And perhaps as a general caveat, and this perhaps may come back in some of the other answers I will give, and I have said it before, when we are in the area of the Secret Services, there are some limitations to what we can say.
GR1 (Government): I trust the Court understands that.
GR1 (Government): The second question of Judge Ziemelle was whether it is only the Minister of the Interior who is responsible and who is taking the decision to launch an investigation.
GR1 (Government): The answer is yes.
GR1 (Government): It is the Minister of the Interior.
GR1 (Government): And he or she is under no obligation to consult the supervisory committee or any other body beforehand.
GR1 (Government): Why is that so?
GR1 (Government): That is so because the Minister is responsible, is ultimately responsible, is politically responsible, has to respond to questions from Parliament, and can eventually be dismissed if Parliament doesn't agree.
GR1 (Government): Bringing in the supervisory committee or any other body which may be set up would compromise and jeopardize, rather, the standing of that committee, and it would jeopardize its ability afterwards to truly supervise what has been going on.
GR1 (Government): And therefore, there is no special procedure beforehand.
GR1 (Government): That brings me to the first question of Judge López-Guerra.
GR1 (Government): What was the nature of the documents concerned?
GR1 (Government): The documents proved to be copies of working files of the ancestor of the AIVD, the BVD, in fact, containing sensitive operational data, broadly speaking, for the period 1996 to 2000.
GR1 (Government): But the years are not crucial, as we have explained in our observations.
GR1 (Government): About investigations of the Secret Service into possible links between the underworld and legitimate society and into possible breaches of ethical behavior in public administration and the courts in the Netherlands.
GR1 (Government): Given the nature and content of the data, their interconnection and the classification marked on them, they were clearly secret.
GR1 (Government): And to go a little bit more into detail, the documents concerned secret classified reports of conversations with the BVD's human sources in the criminal community, who are referred to by their codenames.
GR1 (Government): These reports contain detailed information about the criminal group around Mink K and their associates.
GR1 (Government): Secret, another category, secret classified internal reports about the status and progress of the investigation concerned and where and how special powers, for example, the power to install surveillance microphones, could be applied.
GR1 (Government): Reports of discussions with the national public prosecutor for BVD-related matters.
GR1 (Government): Official reports of a hearing by the Vieringa committee, which investigated the inter-regional crime squad in the regional recherche team.
GR1 (Government): Confidential police notification forms addressed to the BVD and concerning organized crime, including all kinds of detailed information and official reports of the criminal intelligence service findings and information.
GR1 (Government): Internal memos about strictly confidential consultations with the committee on the intelligence and security services of the House of Representatives.
GR1 (Government): Secret classified analysis of intercepted telephone conversations.
GR1 (Government): Transcripts of intercepted telephone conversations.
GR1 (Government): Secret classified reports of conversations between persons mentioned by name.
GR1 (Government): And in as much as Judge López-Guerra was referring rather than to the contents of the documents, or their actual incarnation, to use that word, I should say that the documents, as I have said before, turned out to be copies of originals.
GR1 (Government): We're speaking here about the first set that was handed over on the 20th of January.
GR1 (Government): And it wasn't simply, it wasn't sure whether other copies still were circulating or were in the hands of the applicants.
GR1 (Government): Later on, and this is crucial to the government's position that we're defending here today, it transpired that further copies were indeed in the hands of the applicants.
GR1 (Government): And it took at least two orders to surrender them to provide those further copies.
GR1 (Government): Let me see.
GR1 (Government): That brings me to the second question of Judge López-Guerra, which would seem to cover also the first question of Judge Mayer.
GR1 (Government): Whether the supervisory committee looked at the special powers, the use of special powers ex-unters, particularly since there was a special category of persons involved, namely journalists.
GR1 (Government): I should say the following here.
GR1 (Government): Where the person in respect of whom the power is to be exercised is acting in a special capacity, for example as a journalist, this must be stated in the request to the minister.
GR1 (Government): So, as I have said before, this is all still within the ambit of the responsible minister.
GR1 (Government): For authorization, together with the reasons why it is necessary to exercise the power in this case, where an existing authorization is to be renewed, a recent request that meets the minimum requirements set out must be submitted on each occasion.
GR1 (Government): A request for renewal of an authorization to exercise a special power, therefore, provides a natural opportunity for evaluation, including the question of whether the exercise of the power has yielded the information relevant to the investigation.
GR1 (Government): So, the conclusion is no, there is no separate procedure different from what is customary, but as I have just said, the nature of the persons investigated as being journalists is an element, an important element which has to be stated in the request to the minister, so the minister is fully aware of the important stakes.
GR1 (Government): Since Judge Mayer's second question was related to the applicants, I will not now spend any time on that question, but I do have a couple of comments with regards to the applicants' presentation of this morning.
GR1 (Government): The applicants forcefully state that the journalists did not do anything else than their journalistic duty.
GR1 (Government): I would repeat myself if I said that we are of a different opinion.
GR1 (Government): We think that they certainly did their duty by bringing to light what they seek in the Secret Service, which is a matter of public interest.
GR1 (Government): We also think they went beyond that by giving too much information from the, too much content from the file.
GR1 (Government): We can have a long discussion about whether they did.
GR1 (Government): The proof is simply in the articles that were published in the Telegraaf.
GR1 (Government): They are in the Court's possession.
GR1 (Government): I do not recall we had them translated.
GR1 (Government): We, of course, still do that.
GR1 (Government): Suffice to say that there is reference to code names and contextual information, and the government is of the opinion that in publishing these elements, access by third parties to the informants involved would have been possible.
GR1 (Government): The applicants also criticized the fact that there was no judicial control ex ante.
GR1 (Government): That may be true.
GR1 (Government): I cannot deny that is the case.
GR1 (Government): All that matters, and I borrow a few other Latin words, is that in CASU, the arrangement was fully satisfactory, one can criticize the arrangement from a national law point of view, but what we're here for today is to see whether under the convention the arrangement was satisfactory, and we submit that it was.
GR1 (Government): I have explained all the details in my pleadings before.
GR1 (Government): The applicants also seem to depart from the assumption that permission for use of special powers should have been asked from them, or from anybody else, I'm not sure.
GR1 (Government): Well, let's be short and frank on this.
GR1 (Government): Asking permission for the use of special powers to those investigated or third parties who have a direct interest in the matter, that would be totally unworkable.
GR1 (Government): Yes, and finally also, the applicants bring as a possibility that, or no, they come with the argument that no request was received by them from the authorities not to publish the information in the telegraph.
GR1 (Government): Well, I am sure that if that had been done, we would also have been here today, perhaps with some different allegation, but certainly that would have been a matter of censorship, which would equally raise questions, and perhaps even more pertinent questions, under Article 10 of the convention.
GR1 (Government): A few remaining issues, also in response to the applicants, and I'm sure the court will be interested to hear this as well, in the context of the Voskaal and Sanoma cases, the government has already expressed its intention to introduce new legislation on protecting journalistic sources.
GR1 (Government): The current situation, well, five days after the judgment in the Voskaal case, which dates from the 22nd of December, 2007, the then Minister of Justice informed Parliament that he would present a bill on the protection of sources in criminal cases.
GR1 (Government): After extensive consultations with the Dutch Association of Journalists, the Netherlands Press Council, and other organizations, the cabinet approved the bill.
GR1 (Government): It was submitted to the Council of State for an advisory opinion.
GR1 (Government): In preparing its response to the Council of State, the government took account of the fact that the court's grand chamber would give judgment in the Sanoma case in the foreseeable future.
GR1 (Government): The Minister of Justice wanted to await this judgment, and I think that is a wise decision, before introducing the bill in Parliament.
GR1 (Government): Following the judgment, the bill underwent a fundamental review, and given the current government's caretaker status, we will have elections on the 12th of September, I unfortunately cannot say when the cabinet will resubmit the amended bill to the Council of State for advice.
GR1 (Government): I would point out, however, that the Public Prosecution Service has modified its practices in anticipation of the new legislation, as was indeed acknowledged by the applicants as well.
GR1 (Government): On the 1st March of 2012, new instructions on the application of coercive measures in respect of journalists took effect.
GR1 (Government): They replaced the old instructions from 2002.
GR1 (Government): The court concluded in the Sanoma case that Dutch legislation lacked a procedure requiring a prior judicial review to strike a balance between the right to freedom of expression on the one hand, and the interests of the investigation on the other.
GR1 (Government): The new instructions provide for such a procedure.
GR1 (Government): They stipulate that in order for a journalist to surrender documents can only be issued by an investigating judge, either exproprio motu, or in response to an application by a public prosecutor.
GR1 (Government): The same applies to a search in respect of a journalist.
GR1 (Government): The instructions also specify the principle that journalistic material is to be handed over in the manner least incriminating to the journalist.
GR1 (Government): And I have noted the fact that the applicants criticize that this is merely a regulation and not an act of formal legislation.
GR1 (Government): But again, in the context of responding to the requirements of the convention, what matters is how things work out in practice, and this is how they work out in practice these days.
GR1 (Government): Final point, Mr. President, if you allow me, the question of
GR1 (Government): notification.
GR1 (Government): Why have the journalists not yet been notified that special powers were exercised against them?
GR1 (Government): Has this not damaged their interests?
GR1 (Government): The two journalists, through their authorized representatives, asked the Minister of the Interior and Kingdom Relations on the 18th of April, 2012, to allow them to access any data related to them and to report on the use of special powers against them.
GR1 (Government): A decision on the request is yet to be taken.
GR1 (Government): The law provides that a decision on access to data be taken within three months, which period may be extended by a month.
GR1 (Government): And I think that I have been speaking already too long, probably, so I'll leave it at that.
Josep Casadevall (JudgeP): Thank you Mr. Böcker.
Josep Casadevall (JudgeP): I don't know, Mr. De Kem, Mr. Le Poole.
AP1 (Applicant): I will start by addressing a few of the questions of your court, and then I have one reply to the plea of the Dutch government.
AP1 (Applicant): One of the questions was, and it was asked by Judge Ziemelle, if the Dutch government could point out more concretely what exactly or what kind of threat the journalists were.
AP1 (Applicant): I have not heard today any more concrete answers than what has already been written down.
AP1 (Applicant): And what I would like to point out to the court is that the journalists in this case, they were not the threat.
AP1 (Applicant): They were not the threat to the democratic legal order because all documents were already in the possession of the criminal circuit.
AP1 (Applicant): They were in the possession of criminals.
AP1 (Applicant): And that was the true danger because those criminals could use the information in the documents to, let's say, attack people or employees of the prosecution service or whatever.
AP1 (Applicant): That's, of course, nothing that the journalist, De Haas-Mos would do.
AP1 (Applicant): And what I also would like to point out is that all Dutch courts stated that what the applicants have done was nothing more than fulfilling their job, and they were only intermediaries.
AP1 (Applicant): And that decision is upheld by all Dutch courts.
AP1 (Applicant): Another question of the court was whether or not there has been...
AP1 (Applicant): whether or not the supervisory committee afforded any safeguards prior to the use of special powers by the Secret Service.
AP1 (Applicant): And the applicants of the opinion that the supervisory committee is not sufficient because of the fact that there is no prior review.
AP1 (Applicant): Of course, the supervisory committee can see all relevant documents, and they can hear both parties.
AP1 (Applicant): But they are not in the same position as an independent and impartial judge.
AP1 (Applicant): The supervisory committee does not stand above the parties.
AP1 (Applicant): And even more so is applicable to the minister, which is the only person who's responsible for starting or allowing the Secret Service to take special measures against journalists.
AP1 (Applicant): The minister is a party himself, so we cannot expect from the minister to have a look at all interests involved.
AP1 (Applicant): So it's a pity that there is no special way or procedure within the ministry to decide or to take a look at the interests of the journalists.
AP1 (Applicant): And with respect to there being safeguards or not, I would also like to draw your attention to the decision of the president of the Hague Court in the preliminary relief proceedings.
AP1 (Applicant): Because in those proceedings, the state said, well, the applicants, they have the ability to go to the supervisory committee, and they can file a complaint with me, the minister.
AP1 (Applicant): So there are enough safeguards.
AP1 (Applicant): And the president of the court explicitly said that for the applicants, there were no other options to obtain at very short notice a judicial review of the actions of the court.
AP1 (Applicant): And he also said in paragraph 4.3
AP1 (Applicant): that the options presented by the state will not lead to a judicial verdict on a very short notice.
AP1 (Applicant): So there is no prior judicial review.
AP1 (Applicant): And that also brings me to the last point I would like to make today, which is the following.
AP1 (Applicant): In its plea, the government said that the Sanema case is not applicable to the present case because the Dutch public prosecutor did not have a look at the files or the state secret files because they first awaited the judgments of the district court in chambers, which had to decide on the seizure of the documents.
AP1 (Applicant): But that's not the issue here in the present case.
AP1 (Applicant): And what I would like to point out here is that today, one of the points the applicants would like to make is that the decision to ask a journalist to surrender documents or the decision to seize documents, that decision should be subject to prior judicial review.
AP1 (Applicant): And that's what has not happened here.
AP1 (Applicant): And that's what, to my opinion and to the opinion of the applicants, is exactly what your court rules in the Sanema decision.
Josep Casadevall (JudgeP): Discuss.
Luis López Guerra (Judge): Maybe I was not too precise in my question to the government.