CASE OF VERENIGING WEEKBLAD BLUF! v. THE NETHERLANDS

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 9 December 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 16616/90) against the Kingdom of the Netherlands lodged with the Commission under Article 25 (art. 25) by an association under Netherlands law, Vereniging Weekblad Bluf!, on 4 May 1988.
The Commission ’ s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 (art. 10) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant association stated that it wished to take part in the proceedings and designated the lawyer who would represent it (Rule 30). The lawyer was given leave by the President to use the Dutch language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio Mr S.K. Martens, the elected judge of Netherlands nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 24 January 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr C. Russo, Mr A. Spielmann, Mrs E. Palm, Sir John Freeland, Mr D. Gotchev and Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Netherlands Government ("the Government"), the applicant ’ s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant association ’ s memorial on 17 May 1994 and the Government ’ s memorial on 26 May. On 3 August the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.
5. On 4 July 1994 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President ’ s instructions.
6. In accordance with the President ’ s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 August 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mrs M.L.S.H. Groothuisje, Ministry of Justice,
Mrs M.J.T.M. Vijgen, Ministry of Justice, Advisers;
- for the applicant association
Mrs E. Prakken, advocaat, Counsel,
Mr R.E. de Winter, Assistant Lecturer,
University of Maastricht, Adviser.
The Court heard addresses by Mr de Vey Mestdagh, Mr Danelius, Mrs Prakken and Mr de Winter.
7. The applicant is an association based in Amsterdam and at the material time it published a weekly called Bluf! for a left-wing readership. Since then the periodical has ceased publication.
8. In the spring of 1987 the editorial staff of Bluf! came into possession of a quarterly report by the internal security service (Binnenlandse Veiligheidsdienst - "the BVD"). Dated 1981 and marked "Confidential", it was designed mainly to inform BVD staff and other officials who carried out work for the BVD about the organisation ’ s activities. It showed that at that time the BVD was interested in, among other groups, the Communist Party of the Netherlands and the anti-nuclear movement. It also mentioned the Arab League ’ s plan to open an office in The Hague and gave information about the Polish, Czechoslovakian and Romanian security services ’ activities in the Netherlands.
The editor of Bluf! proposed to publish the report with a commentary as a supplement to issue no. 267 of the journal on 29 April 1987.
9. On 29 April 1987, before the journal was published or sent out to subscribers, the director of the BVD informed the public prosecutor (Officier van Justitie) of the plan to publish the report and pointed out that its dissemination was likely to infringe Article 98a paras. 1 and 3 and Article 98c para. 1 of the Criminal Code (Wetboek van Strafrecht - see paragraph 20 below). In his letter he stated:
"Although, in my opinion, the various contributions taken separately do not (or do not any longer) contain any State secrets, they do - taken together and read in conjunction - amount to information whose confidentiality is necessary in the interests of the State or its allies. This is because the juxtaposition of the facts gives an overview, in the various sectors of interest, of the information available to the security service and of the BVD ’ s activities and method of operation."
1. The preliminary judicial investigation
10. On the same day a preliminary judicial investigation (gerechtelijk vooronderzoek) in respect of a person or persons unknown was commenced on an application by the public prosecutor. The investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) ordered the applicant association ’ s premises to be searched and had the entire print run of issue no. 267 of Bluf!, including the supplement, seized. The police apparently did not take away the offset plates remaining on the printing presses. Three people were arrested but released the following day.
11. During the night of 29 April 1987, unknown to the authorities, the staff of the applicant association managed to reprint the issue that had been seized. Some 2,500 copies were sold in the streets of Amsterdam the next day, which was the Queen ’ s birthday and a national holiday. The authorities decided not to put a stop to this so as not to cause any public disorder.
12. On 6 May 1987 the investigating judge closed the investigation on the ground that he had no basis on which to continue it. In a letter of 2 June 1987 the public prosecutor informed the applicant association that proceedings against the three people arrested during the seizure were being dropped, as the evidence against two of them was insufficient and the third had played a minimal role.
2. The complaints by the applicant association
13. In the meantime, on 1 May 1987, the applicant association had complained of the seizure to the Review Division of the Amsterdam Regional Court under Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering - see paragraph 21 below), seeking the return of the confiscated copies, their supplements and the wrappers so that they could be sent out to subscribers in time.
This application was dismissed on the same day in so far as it related to the copies of the journal and supplement. The court considered that, in view of their content, it was not "highly unlikely" that in the criminal proceedings an order would be made for the periodical ’ s withdrawal from circulation (onttrekking aan het verkeer). The court did, however, order the return of an insert entitled "A Contribution to the Jewish History Museum" and the wrappers.
14. In a judgment of 17 November 1987 (Nederlandse Jurisprudentie (NJ) 1988, 394) the Supreme Court dismissed appeals on points of law that the applicant association and the public prosecutor lodged against that decision. In respect of the applicant association ’ s ground of appeal based on a violation of Article 7 of the Constitution (see paragraph 19 below), the court held that the right secured in that provision was limited by the phrase "subject to each person ’ s liability under the law" and that the seizure of the printed matter to be distributed was among the measures capable of safeguarding the interests which Articles 98 and 98a of the Criminal Code were intended to protect.
15. In the interval, on 12 May 1987, the applicant association had lodged a second complaint with the Review Division of the Amsterdam Regional Court. Relying on Article 10 (art. 10) of the Convention, it challenged the lawfulness (rechtmatigheid) of the seizure. In the alternative, it sought the return of the confiscated items on the ground that as the judicial investigation had been terminated, the measure had ceased to be justified.
On 11 January 1988 the court dismissed the complaint. It ruled that it was identical with the one of 1 May 1987 and that no new factor justified returning the property. Relying on the statement from the public prosecutor ’ s office to the effect that it would make an application to have the journal withdrawn from circulation as soon as the Supreme Court had given judgment on the appeal on points of law against the decision of 1 May, the court held that it was still not to be excluded that such a measure might be taken. Consequently, it rejected the applicant association ’ s submission based on the decision not to prosecute (see paragraph 12 above).
B. The withdrawal from circulation
16. On 25 March 1988 the public prosecutor applied to the Amsterdam Regional Court for an order that issue no. 267 of Bluf! should be withdrawn from circulation.
17. On 21 June 1988 the court allowed the application on the basis of Articles 36b and 36c of the Criminal Code (see paragraph 20 below). It held that as the seized items were designed to commit the offence set out in Article 98 and/or Article 98a para. 1 taken together with para. 3 of the Criminal Code, the unsupervised possession of them was contrary to the law and the public interest. Moreover, the measure was justified under Article 10 (art. 10) of the Convention on the grounds of maintaining "national security".
18. In a judgment of 18 September 1989 (NJ 1990, 94) the Supreme Court dismissed an appeal on points of law by the applicant association.
It held that the court below had clearly established that an offence covered either by Article 98a para. 1 taken together with para. 3 or by Article 98 had been committed and that it did not have to choose between the provisions indicated. Articles 36b para. 1 (4) and 36c para. 1 (5) were applicable even though neither the applicant association nor any other person had had to answer for their actions in the criminal proceedings. The reprinting and distribution of the issue in dispute after the seizure was no bar either, since the fact of making information public, covered by Article 98, did not necessarily have the consequence that secrecy should not be preserved. Articles 98 and 98a contained statutory provisions envisaged in Article 7 of the Constitution and Article 10 (art. 10) of the Convention; since the seizure and withdrawal from circulation were designed to safeguard the interests protected by Articles 98 and 98a, they fell within the permitted restrictions on the right to freedom of expression. In referring to national security, the court below had clearly shown that what was in issue in the instant case was information whose secrecy was necessary in the interests of the State. Lastly, the seizure and withdrawal from circulation could not be equated with imposing a condition of "prior authorisation", even though the public could not acquaint itself with the opinions and ideas contained in the printed matter.
19. Article 7 para. 1 of the Constitution provides:
"No one shall need prior authorisation in order to express his opinions or ideas through the press, subject to each person ’ s liability under the law."
20. At the material time the relevant provisions of the Criminal Code read as follows:
"An order for the withdrawal of seized items from circulation may be made
(1) in a judgment in which a person is convicted of a criminal offence and a sentence is imposed;
(4) in a separate judicial order made on an application by the public prosecutor."
"Any of the following items are liable to be withdrawn from circulation:
(5) those made or intended for the commission of the offence; in so far as they are of such a nature that the unsupervised possession of them is contrary to the law or the public interest."
"1. Anyone who deliberately communicates or puts at the disposal of a person or organisation not authorised to have knowledge of it any information whose secrecy is necessary in the interests of the State or its allies, or any item from which it is possible to extract such information, shall, if he knows or should reasonably suspect that the information is of this kind, be liable to imprisonment for a period not exceeding six years or a fine of the fifth category.
2. A person shall be liable to the same penalty if he deliberately communicates, or makes available to a person or organisation not authorised to have knowledge of it, any information from a prohibited locality and relating to the security of the State or of its allies, or any item from which it is possible to extract such information, if he knows or should reasonably suspect that the information is of this kind."
"1. Any person who deliberately divulges information of the kind referred to in Article 98 ... shall, if he knows or should reasonably suspect that the information is of this kind, be liable to imprisonment for a period not exceeding fifteen years or a fine of the fifth category.
3. The acts carried out in preparation of an offence as defined in the foregoing paragraphs shall be punishable with imprisonment for a period not exceeding six years or a fine of the fifth category."
"1. The following shall be liable to imprisonment for a period not exceeding six years or a fine of the fifth category:
(1) anyone who, without having been so authorised, takes or keeps in his possession any information referred to in Article 98;
C. The Code of Criminal Procedure
21. The main provisions of the Code of Criminal Procedure mentioned in this case are the following:
"Any items which may serve to establish the truth or whose confiscation or withdrawal from circulation can be ordered shall be liable to be seized."
"During the preliminary judicial investigation the investigating judge shall be empowered to seize any items liable to confiscation."
"The parties concerned shall be able by way of application to make a complaint in respect of seizures, the use made of confiscated items or delay in ordering the return [of such items] ..."
PROCEEDINGS BEFORE THE COMMISSION
22. Vereniging Weekblad Bluf! applied to the Commission on 4 May 1988. Relying on Article 10 (art. 10) of the Convention, it complained of the seizure and the subsequent withdrawal from circulation of issue no. 267 of its periodical Bluf!. It also complained of a breach of Article 6 paras. 1, 2 and 3 (a) (art. 6-1, art. 6-2, art. 6-3-a) of the Convention and Article 1 of Protocol No. 1 (P1-1) in that as the judicial investigation had been closed, it had not had an opportunity to defend itself against the charge underlying the foregoing two measures and had been deprived of its property without due process.
23. On 29 March 1993 the Commission declared the application (no. 16616/90) admissible as to the first complaint and inadmissible as to the remainder. In its report of 9 September 1993 (Article 31) (art. 31), it expressed the opinion by sixteen votes to two that there had been a breach of Article 10 (art. 10). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].
FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
24. In their memorial the Government expressed the opinion that
"the requirements of Article 10 para. 2 (art. 10-2) of the Convention [had been] met in [the] case, so that there [was] no question of there having been any contravention of Article 10 (art. 10) of the Convention".
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
25. The applicant association maintained that the seizure and subsequent withdrawal from circulation of issue no. 267 of Bluf! had infringed its right to freedom of expression. It relied on Article 10 (art. 10) of the Convention, which provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article (art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
26. The Government disputed this submission, while the Commission accepted it as regards the withdrawal from circulation.
A. Whether there were "interferences"
27. The Court notes that the impugned measures amounted to interferences by a public authority in the applicant association ’ s exercise of its freedom to impart information and ideas. None of those appearing before it contested this.
B. Justification for the interferences
28. Such interferences infringe Article 10 (art. 10) unless they were "prescribed by law", pursued a legitimate aim under Article 10 para. 2 (art. 10-2) and were "necessary in a democratic society" to achieve it.
29. The Government considered that the basis for the seizure was provided by Articles 94 and 104 of the Code of Criminal Procedure (see paragraph 21 above) and for the withdrawal from circulation by Articles 36b para. 1 (4) and 36c (5) of the Criminal Code (see paragraph 20 above). Issue no. 267 of Bluf! imparted information whose secrecy was necessary in the interests of the State, an offence under Articles 98 and 98a of the Criminal Code (see paragraph 20 above).
30. In the applicant association ’ s submission, the seizure of printed matter such as the weekly in question and its withdrawal from circulation only conformed to the fundamental principle of the rule of law contained in the concept "prescribed by law" if they were ordered in the context of criminal proceedings. Given the importance of the right to freedom of expression, only such proceedings afforded sufficient safeguards. In the instant case, however, that condition had not been satisfied, so that the public prosecutor ’ s office obtained the order for seizure and withdrawal without having had to prove in adversarial proceedings that the information in issue had to be kept secret.
Furthermore, it said, the proceedings had contravened Netherlands law, among other reasons because the guilt of the party concerned had never been established and Article 7 of the Constitution prohibited preventive measures where a publication was concerned. Lastly, the seizure and withdrawal were not penalties within the meaning of paragraph 2 of Article 10 (art. 10-2) but measures of expediency.
31. The Commission considered it sufficient that the impugned measures were based on Articles 98a and 98c of the Criminal Code.
32. The Court cannot accept the argument that Article 10 (art. 10) precludes ordering the seizure and withdrawal from circulation of printed matter other than in criminal proceedings. National authorities must be able to take such measures solely in order to prevent punishable disclosure of a secret without taking criminal proceedings against the party concerned, provided that national law affords that party sufficient procedural safeguards. Netherlands law satisfies that condition by allowing the party concerned to complain both of a seizure and of a withdrawal from circulation (see paragraph 21 above) - opportunities of which the applicant association availed itself.
As to the applicant association ’ s second allegation, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B, p. 36, para. 25). In the instant case the Supreme Court considered and rejected the applicant association ’ s submissions on two occasions (see paragraphs 14 and 18 above). The European Court sees no reason to suppose that Netherlands law was not correctly applied.
In conclusion, the interferences were "prescribed by law".
33. The applicant association conceded that at the time of the seizure the ban on publishing the quarterly report might in theory have served the purpose of "national security". It asserted, on the other hand, that as soon as the reprint of issue no. 267 had been distributed, the same was no longer true as the material was no longer secret.
34. In the Government ’ s submission, persons and groups representing a threat to national security could have discovered, by reading the report, whether and to what extent the BVD was aware of their subversive activities. The way in which the information had been presented could also have given them an insight into the secret services ’ methods and activities. They had thus had a chance of using this information to the detriment of national security.
35. The Court recognises that the proper functioning of a democratic society based on the rule of law may call for institutions like the BVD which, in order to be effective, must operate in secret and be afforded the necessary protection. In this way a State may protect itself against the activities of individuals and groups attempting to undermine the basic values of a democratic society.
36. In view of the particular circumstances of the case and the actual terms of the decisions of the relevant courts, the interferences were unquestionably designed to protect national security, a legitimate aim under Article 10 para. 2 (art. 10-2).
3. "Necessary in a democratic society"
37. The applicant association submitted that the seizure and withdrawal to prevent distribution of issue no. 267 of Bluf! were not necessary in a democratic society for the protection of national security, as the six-year-old report had been given the lowest confidentiality rating when it appeared in 1981. Furthermore, the measures had become pointless after the reprint of the issue had been distributed, since the confidentiality of the information had been breached. In refraining from intervening, the State had recognised that its confidentiality was not of the first importance. In any event, account had to be taken of the applicant association ’ s manifest intention of contributing, by publishing the material, to the public debate then under way in the Netherlands on the BVD ’ s activities.
38. The Government maintained that as the seizure complied with the requirements of Article 10 para. 2 (art. 10-2), the same was true of its prolongation and of the subsequent withdrawal from circulation, since these were designed to prevent the report from falling into the hands of unauthorised persons. The information should have remained confidential. It was for the State to decide whether it was necessary to impose and preserve such confidentiality. The State was also in the best position to assess the use that might be made of the information by subversive elements to the detriment of national security. Against that background, it should be allowed a wide margin of appreciation.
The Netherlands authorities had refrained from preventing distribution of the reprint solely for fear of causing serious public disorder in view of the vast crowds on the streets of Amsterdam on 30 April 1987, the Queen ’ s birthday. The withdrawal from circulation remained in force after that date because the journal had been distributed only locally and in limited quantities. The figure of 2,500 copies sold, advanced by the applicant association, was exaggerated. Moreover, to hold that the measures were no longer effective following distribution of the periodical would be tantamount to accepting that "crime pays".
Lastly, the instant case differed from the cases of Weber v. Switzerland (judgment of 22 May 1990, Series A no. 177, p. 23, para. 51), The Sunday Times v. the United Kingdom (no. 2) (judgment of 26 November 1991, Series A no. 217, p. 30, para. 54) and Open Door and Dublin Well Woman v. Ireland (judgment of 29 October 1992, Series A no. 246-A, p. 31, para. 76). In this instance, unlike the situation in the first of those cases, the Netherlands authorities had brought proceedings to prevent publication; and, unlike the situation in the other two cases, the information in the report could not be obtained by other means.
39. In the light of these submissions, it must be ascertained whether there were sufficient reasons under the Convention to justify the seizure and withdrawal.
40. Because of the nature of the duties performed by the internal security service, whose value is not disputed, the Court, like the Commission, accepts that such an institution must enjoy a high degree of protection where the disclosure of information about its activities is concerned.
41. Nevertheless, it is open to question whether the information in the report was sufficiently sensitive to justify preventing its distribution. The document in question was six years old at the time of the seizure. Further, it was of a fairly general nature, the head of the security service having himself admitted that in 1987 the various items of information, taken separately, were no longer State secrets (see paragraph 9 above). Lastly, the report was marked simply "Confidential", which represents a low degree of secrecy. It was in fact a document intended for BVD staff and other officials who carried out work for the BVD (see paragraph 8 above).
42. Like the Commission, the Court does not consider that it must determine whether the seizure carried out on 29 April 1987, taken alone, could be regarded as "necessary".
43. The withdrawal from circulation, on the other hand, must be considered in the light of the events as a whole. After the newspaper had been seized, the publishers reprinted a large number of copies and sold them in the streets of Amsterdam, which were very crowded (see paragraphs 11 and 38 above).
Consequently, the information in question had already been widely distributed when the journal was withdrawn from circulation. Admittedly, the figure of 2,500 copies advanced by the applicant association was disputed by the Government. Nevertheless, the Court sees no reason to doubt that, at all events, a large number were sold and that the BVD ’ s report was made widely known.
44. In this latter connection, the Court points out that it has already held that it was unnecessary to prevent the disclosure of certain information seeing that it had already been made public (see the Weber judgment previously cited, pp. 22-23, para. 49) or had ceased to be confidential (see the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 33-35, paras. 66-70, and the Sunday Times (no. 2) judgment previously cited, pp. 30-31, paras. 52-56).
45. Admittedly, in the instant case the extent of publicity was different. However, the information in question was made accessible to a large number of people, who were able in their turn to communicate it to others. Furthermore, the events were commented on by the media. That being so, the protection of the information as a State secret was no longer justified and the withdrawal of issue no. 267 of Bluf! no longer appeared necessary to achieve the legitimate aim pursued. It would have been quite possible, however, to prosecute the offenders.