CASE OF VERENIGING WEEKBLAD BLUF! v. THE NETHERLANDS
Violation of Art. 10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;John Freeland
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." 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. 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). 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. 2. ... 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; ..." 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] ..."