CASE OF VOSKUIL v. THE NETHERLANDS
Violation of Art. 10;Violation of Art. 5-1;Remainder inadmissible;Costs and expenses (Convention proceedings) - claim dismissed
David Thór Björgvinsson;Wilhelmina Thomassen
6. The applicant was born in 1975 and lives in Amsterdam. 7. On 30 March 2000 the Amsterdam Regional Court (arrondissementsrechtbank) convicted three accused, Messrs K., Van S. and H., of arms trafficking. In the criminal investigation into the offences at issue, the Amsterdam police had stated that an arsenal of weapons had been found by chance: the caretaker of a building situated on the Nachtwachtlaan in Amsterdam had contacted the police when water was leaking from one of the flats in the building, whose occupants were absent. With the aid of two locksmiths, the police had gained entry to the flat and in the subsequent search for the source of the leak, the weapons had been found. 8. The accused lodged an appeal against the judgment of the Regional Court. 9. On 12 and 13 September 2000 the daily newspaper Sp!ts published two articles, written by the applicant and his colleague Ms S., in which doubts were expressed about the amount of coincidence allegedly involved in the finding of the weapons. The article of 13 September 2000, entitled “Chance Hit or Perfect Shot?” (“Toevalstreffer of loepzuiver schot?”), quotes an unnamed policeman of the Amsterdam force as commenting in respect of the flooding, “That is what we made out of it. Sometimes you just need a breakthrough in an investigation” (“Dat hebben we er maar van gemaakt. Soms heb je net even een doorbraak nodig in je onderzoek”). 10. In the proceedings on appeal against K., Van S. and H., the applicant and Ms S. were summonsed to appear as witnesses at the request of the defence. At the first hearing before the Amsterdam Court of Appeal (gerechtshof) on 22 September 2000 in the cases against Van S. and K., the applicant – who was assisted by counsel – stated inter alia that he knew that the policeman, whom he had quoted verbatim in the article of 13 September 2000, had been involved in a previous investigation against K. When the applicant was asked whether that policeman was also involved in the investigation of the flat or was aware of that investigation, he invoked his right of non-disclosure (verschoningsrecht). Counsel for the defence argued that both the individual interest of the accused – on whom a custodial sentence had been imposed as a result of the investigation carried out by the police – and the interest of criminal justice in the Netherlands outweighed the applicant's interest in not disclosing his source. The Advocate General also expressed as his opinion that the applicant could not invoke a right of non-disclosure. He stated in addition that the source, if his name was made known, had nothing to fear from either the police or the public prosecution service. 11. After having deliberated, the Court of Appeal considered that, if the statement made by the police officer to the applicant was correct, this might affect the conviction of the accused. It also affected the integrity of the police and judicial authorities. For these reasons, the Court of Appeal held that the applicant was to reply to the question whether his source had been involved in the investigation of the flat and had been aware of that investigation. The President of the court further reminded the applicant that the court was empowered to order his detention for failure to comply with a judicial order (gijzeling). Upon this, the applicant replied that his source had both been aware of, and involved in, the investigation of the flat. 12. Asked by counsel for the accused to reveal the identity of his source, the applicant once again invoked his right of non-disclosure. Counsel for the applicant submitted that he was justified in so doing, given that disclosing the identity of his source would render it impossible for the applicant to work as a journalist in the future since sources would no longer approach him. The interests of the journalist and of freedom of expression outweighed other interests. Moreover, as the criminal charges at issue concerned only arms trafficking and not, for example, a multiple homicide, it was disproportionate to require the applicant to name his source. It also went against the principle of subsidiarity, since there were other ways in which the identity of the source could be discovered. 13. In reply, the Advocate General stated that journalists exposed obvious wrongs (kennelijke misstanden) in society. Where they chose to do so, they should also face the consequences. The applicant was the only witness who could clarify whether or not the three accused had been wrongly convicted. In the present case, where official records, drawn up on oath of office (ambtseed) by police officers, and the integrity of the judicial authorities were at stake, the applicant must reveal the identity of his source. It could not be the case that, in order to trace this identity, every member of the Amsterdam police force should be heard, bearing in mind that all officers in the case against K. had already been heard by the investigating judge (rechter-commissaris). 14. Having deliberated, the Court of Appeal decided that the applicant was to reveal the identity of his source, for the same reasons as it had held that he had to reply to the question of his source's involvement in the investigation. The applicant invoked his right to remain silent (zwijgrecht), upon which the court ordered his immediate detention for a maximum of 30 days. No legal remedy lay against the decision to detain the applicant (Article 294 § 3 of the Code of Criminal Procedure – Wetboek van Strafvordering, “CCP”). 15. When questioned by counsel for the accused, the applicant's colleague, Ms S., stated that she was aware of the identity of the source, but that she had never met him in person. Having regard to this last fact, as well as to the fact that the journalist who had had direct contact with the source – i.e. the applicant – had already been placed in detention, the Court of Appeal considered that Ms S. was not obliged to reveal the identity of the source. 16. The applicant was served with an unreasoned decision on 25 September 2000. On 27 September 2000 he was handed a copy of the record of the hearing of 22 September, containing the decisions made by the Court of Appeal at that hearing and the reasons for them. 17. Late on 22 September 2000 the applicant lodged a request with the Court of Appeal to be released from detention. Prior to the examination of this request on 27 September 2000, the applicant was able to consult his lawyer only once, namely in the evening of 25 September. Requests to visit the applicant on 22, 23, 24, (the afternoon of) 25, 26 and 27 September were refused. The request for release was dealt with by the Court of Appeal in chambers (raadkamer), by the same judges who had ordered his detention. 18. At the hearing in chambers on 27 September 2000, the Advocate General reported that, following the applicant's statements at the hearing on 22 September, a police inspector had carried out an internal investigation, which had revealed that only eight police officers had been involved in both the first and the second investigation into the accused K. All these officers had made sworn affidavits to the effect that they had never been in contact with the applicant. 19. Informed of the outcome of the internal police investigation, the applicant insisted that he did not want to reveal the identity of his source. He stated that he was a journalist and that he might as well give up on that career if he started revealing his sources; no sources wanting to remain anonymous would any longer be willing to provide him with tip-offs. The applicant was informed by the President of the Court of Appeal that the right of non-disclosure was not absolute, and that more weighty interests could be at stake. In the present case, long prison sentences had been imposed on the three accused, partly on the basis of official records drawn up by police officers. The applicant replied that he was willing to state only that his source was not one of the police officers who had made sworn affidavits in the internal police investigation. 20. Counsel for the applicant argued that the journalist should be the last, rather than the first, means of arriving at the truth. The witnesses, whose examination had been requested by the three accused, ought to be heard first. Those witnesses could be confronted with the articles published in Sp!ts as well as with the article which had appeared in the weekly news magazine Vrij Nederland on 8 January 2000. This latter article had also suggested that the flooding of the flat had been staged, and the author had informed counsel for the applicant that the information contained in the article had not come from the same source as the one relied on by the applicant. Counsel for the applicant further posited that the State Criminal Investigation Department (Rijksrecherche) could carry out an investigation of the police force. Finally, it was for the Court of Appeal to assess the value of the article written by the applicant – that court could also decide to disregard it. 21. By decision of 28 September 2000, the Court of Appeal refused the applicant's request for his detention to be lifted. It repeated that the interests of the accused and of the integrity of the police and the judicial authorities outweighed the interest of the applicant in not having to disclose the identity of his source. Having regard to the outcome of the internal police investigation, as well as to the fact that an appeal made by the police commissioner for the applicant's source to come forward had not produced any results, the Court of Appeal considered it unlikely that an investigation by the State Criminal Investigation Department would clarify, within a reasonable time, the cause of the flooding, quite apart from the fact that such an investigation would seriously delay the criminal proceedings against K., Van S. and H. The Court of Appeal similarly rejected the suggestion to hear the witnesses proposed by the defence first, given that those witnesses had already been heard extensively about the point in issue. For these reasons, it could not be held that the detention of the applicant breached the principles of proportionality and subsidiarity. 22. The Court of Appeal further considered that the applicant's objections against the order for his detention as given at the hearing of 22 September 2000 did not require examination since no appeal lay against such order. It also rejected the argument that the order had not been served on the applicant within 24 hours, since – as appeared from the record of that hearing of 22 September – he had been informed of the order orally. Finally, the Court of Appeal held that the possibilities for contact between the applicant and his counsel were laid down in penitentiary legislation. It was not for the Court of Appeal to assess the application of that legislation. 23. The applicant lodged an appeal on points of law to the Supreme Court (Hoge Raad) against the decision of the Court of Appeal. 24. A second hearing before the Court of Appeal in the criminal proceedings against Van S. and H. took place on 9 October 2000. The applicant once again refused to reveal the identity of his source. Upon this, the Court of Appeal decided to lift the order for the applicant's detention. It considered that no support for, or confirmation of, the applicant's statement that he had received information from a police officer who had been involved in both investigations against the accused K. could be found in statements made by other persons and/or in the contents of documents. On the contrary, the applicant's statement had been contradicted by ten police officers. Therefore, no credence could be attached to his statement. This being the case, the applicant's detention no longer served any purpose. 25. At the same hearing on 9 October 2000, and following the Court of Appeal's decision to lift the applicant's detention, counsel for the accused K. challenged (wraken) the Court of Appeal. A different chamber of the Court of Appeal upheld that challenge, also on 9 October 2000. It held that the opinion that the applicant's statement was not credible, as expressed by the Court of Appeal in the criminal proceedings against Van S. and H., might have a bearing on decisions which that court would be called upon to take in the criminal proceedings against K. This constituted an exceptional circumstance, providing an important indication for the conclusion that the accused's fear of a judge being prejudiced against him was objectively justified. 26. The criminal proceedings against the three accused continued on 30 October 2000 before the Court of Appeal in a new composition. The applicant was again heard as a witness, as were seven other journalists who had also published articles about the case against K. and the possibility of the flooding having been staged. The Court of Appeal also heard two plumbers and the caretaker of the building. 27. Subsequent to the decision to lift the order for his detention, the applicant withdrew his appeal on points of law as his release had rendered that appeal devoid of interest. 28. According to the Government, the criminal proceedings against K., Van S. and H. have been brought to a conclusion. 29. The applicant has submitted photocopies of two cuttings from print media. 30. The first is of a report in the mass circulation daily newspaper De Telegraaf, dated 24 September 1999. It is therein stated that following reports of flooding from a second flat in Amsterdam, police had found another large quantity of weaponry. Messrs K., Van S. and H., the accused in the applicant's case, were not at that time suspected of involvement; the weapons were thought to belong to a terrorist organisation. The report drew attention to the similarity between the Nachtwachtlaan case and this new case as regards the circumstances in which the weapons were found. It cited “police sources” as suggesting that intelligence services, possibly foreign, had engineered events in order to protect their informants. 31. The second, which is incomplete, is of an article that appeared on 8 January 2000 in the weekly magazine Vrij Nederland. It links the two events and cites an unnamed source as stating that they had in fact been engineered by the then Netherlands National Security Service (Binnenlandse Veiligheidsdienst – “the BVD”). 32. It appears that the report in De Telegraaf and the article in Vrij Nederland were both written by journalists other than the applicant. 33. The applicant has also submitted a printout of a page taken from the internet web site of the Amsterdam daily newspaper Het Parool, dated 27 September 2000. It quotes the two plumbers who were called in to repair the water leak as dismissing as nonsense all allegations that the damage had been caused deliberately; in actual fact, such leaks were very common in older buildings. 34. Provisions of the Code of Criminal Procedure relevant to the case provide as follows: Article 218 “Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.” Article 294 “1. If during the interrogation the witness refuses, for no lawful reason, to answer the questions put to him or to take the required oath or affirmation, the court shall, if the investigation urgently so requires, order his detention (gijzeling). 2. The witness and his counsel shall be heard about the reasons for his refusal before the order is given. 3. The detention order shall be valid for no more thirty days; the court shall at the same time order the time at which the witness is to be presented before it anew. No remedy shall lie against the order. 4. The court shall order the witness released from detention as soon as he has fulfilled his obligations or the investigation at the hearing is closed. It shall however have competence to order the witness released from detention whatever the state of the investigation, including at the request of the witness. Article 223 § 3 shall apply. 5. Articles 224 and 225 shall apply.” 35. Articles 223, 224 and 225, which are thus declared applicable to witnesses at the trial hearing, per se apply to witnesses heard by an investigating judge. 36. Article 223 § 3 provides, in relevant part, that the detained witness may appeal within three days after the official notification in writing of the decision against any refusal to order his release from detention and may appeal on points of law to the Supreme Court against any such refusal given on appeal. 37. Article 224 provides that the witness shall receive notification in writing within twenty-four hours of all decisions to order or extend his detention or to refuse his release from detention. 38. Article 225 provides that the witness shall have the right to consult counsel. His counsel shall have unrestricted access (vrije toegang) to him, be allowed to see him in private and exchange confidential correspondence with him, subject to detention rules and provided that the criminal investigation in which his evidence was sought not be delayed. Counsel shall also have access to any official records relating to the questioning of the witness and, if the criminal investigation admits of it, the remainder of the case file. 39. Although these provisions by their wording apply to proceedings at first instance before the Regional Court, by virtue of Article 415 they apply by analogy to appeal proceedings before the Court of Appeal. 40. The Guidelines on the position of the press in relation to police action (Leidraad over de positie van de pers bij politieoptreden) were issued by the Minister of Justice (Minister van Justitie) on 19 May 1988. At the time of the events complained of, they provided, in relevant part: “7. Seizure of journalistic material Journalistic material may be seized in cases described in the Code of Criminal Procedure. Journalists may be faced with seizure in two ways. A. The police may, on the instructions of a public prosecutor (officier van justitie) or an assistant public prosecutor (hulpofficier van justitie) or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot. There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed. In this situation, the journalist is arrested like any ordinary citizen. If a prosecution ensues, it will be for the independent judge eventually to decide what is to be done with any seized – and unpublished – material. B. Journalistic material may also be seized on the orders of an independent judge (the investigating judge), if such material may – in the judge's opinion – serve to clarify the truth in a preliminary judicial investigation (gerechtelijk vooronderzoek). ...” 41. This section of the Guidelines was replaced with effect from 1 April 2002 by the “Directive on the application of coercive measures to journalists” (Aanwijzing toepassing dwangmiddelen bij journalisten), issued by the Board of Procurators General (College van procureursgeneraal). This directive makes extensive reference to the Court's case-law. If the protection of a journalist's source is at issue, the use of coercive measures must be in accordance with Article 10 § 2 with due regard to requirements of proportionality and subsidiarity. 42. In a civil case – brought by persons named in connection with alleged bribery against two journalists who had allegedly made use of information leaked by officials – the Supreme Court, reversing earlier case-law, held (judgment of 10 May 1996, Nederlandse Jurisprudentie (Netherlands Law Reports) 1996, no. 578): “It follows from the said judgment [i.e. Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996prima facie case must be made out by the person who calls the journalist as a witness. ... It is apparent from the decision of the Court of Appeal and the other documents contained in the case file that the present case is characterised in that, as stated by [the plaintiffs], the 'leaked' information relates to a criminal investigation into alleged bribery of a number of local government officials in the province of Limburg, in that information relating to the supposed involvement of [the plaintiffs] in such cases of bribery has already been made public and that [the plaintiffs] have sued [the newspaper] De Limburger for damages which they claim resulted therefrom (...). Accordingly, [the plaintiffs] have claimed no other interest in the disclosure of [the defendants'] sources than that they wish to know who has 'leaked', because they wish eventually to sue the State and the persons concerned themselves for damages and also to obtain an injunction against the persons concerned to restrain them from any further 'leaking'. However, the said judgment of the European Court of Human Rights compels the Supreme Court to find that this interest in itself is insufficient to counterbalance the weighty public interest which belongs to the protection of [the defendants'] sources.” 43. Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000. It states, in relevant part: “[The Committee of Ministers] Recommends to the governments of member States: 1. to implement in their domestic law and practice the principles appended to this recommendation, 2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations. Appendix to Recommendation No. R (2000) 7 Principles concerning the right of journalists not to disclose their sources of information Definitions For the purposes of this Recommendation: a. the term 'journalist' means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication; b. the term 'information' means any statement of fact, opinion or idea in the form of text, sound and/or picture; c. the term 'source' means any person who provides information to a journalist; d. the term 'information identifying a source' means, as far as this is likely to lead to the identification of a source: i. the name and personal data as well as voice and image of a source, ii. the factual circumstances of acquiring information from a source by a journalist, iii. the unpublished content of the information provided by a source to a journalist, and iv. personal data of journalists and their employers related to their professional work. Principle 1 (Right of non-disclosure of journalists) Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right. Principle 2 (Right of non-disclosure of other persons) Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein. Principle 3 (Limits to the right of non-disclosure) a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature. b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that: i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: - an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights. c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked. Principle 4 (Alternative evidence to journalists' sources) In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist. Principle 5 (Conditions concerning disclosures) a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure. b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested. c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention. d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority. e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure. Principle 6 (Interception of communication, surveillance and judicial search and seizure) a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source: i. interception orders or actions concerning communication or correspondence of journalists or their employers, ii. surveillance orders or actions concerning journalists, their contacts or their employers, or iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work. b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3. Principle 7 (Protection against self-incrimination) The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.” 44. For the precise application of the Recommendation, the explanatory notes clarify the meaning of certain terms. As regards the term “sources” the explanation reads as follows: “c. Source 17. Any person who provides information to a journalist shall be considered as his or her 'source'. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the 'potentially chilling effect' an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being 'provided' when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”