CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 mars 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 16616/90                       by VERENIGING WEEKBLAD "BLUF!"                       against the Netherlands         The European Commission of Human Rights sitting in private on 29 March 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  G. SPERDUTI                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M. NOWICKI                Mr.    M. de SALVIA, Deputy Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 May 1988 by VERENIGING WEEKBLAD "BLUF!" against the Netherlands and registered on 22 May 1990 under file No. 16616/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS   I.     Particular circumstances of the case         The applicant association, seated in Amsterdam, used to issue a weekly magazine called "Bluf!".   The association has meanwhile ceased to function but still exists for the sole purpose of the proceedings before the Commission.   Before the Commission, it is represented by Mrs. E. Prakken, a lawyer practising at Amsterdam in the Netherlands.         The facts of the case as submitted by the parties may be summarised as follows.         In the spring of 1987, the magazine "Bluf!" came into the possession of an almost six years old quarterly survey of the Internal Security Service (Binnenlandse Veiligheidsdienst, B.V.D.). The survey was classified with the lowest classification: "confidential".   It showed that the B.V.D. was interested in, inter alia, the Dutch Communist Party, the Anti Nuclear Movement (Anti Kern Beweging) and the Arab League.   "Bluf!" published this survey with an editorial comment in its issue No. 267 of 29 April 1987.   Before the issue could be sent out to the subscribers, the head of the B.V.D., by letter of 29 April 1987, informed the Public Prosecutor (Officier van Justitie) that the planned distribution by "Bluf!" probably amounted to a criminal offence under the Articles 98 and 98a of the Criminal Code (Wetboek van Strafrecht) (see below, Relevant domestic law and practice).         On 29 April 1987   the Public Prosecutor issued an order to have the association's premises searched and to seize (inbeslagneming) issue No. 267.   The police subsequently invaded the premises, seized all copies but one and arrested three persons.   However, as the Public Prosecutor formulated his demand for preliminary investigations (gerechtelijk vooronderzoek) against unknown suspects, these persons were released the next day.   Preliminary investigations were opened but as the Investigating Judge (Rechter-Commissaris) saw no grounds to proceed with them, they were closed by decision of 6 May 1987.   No charges were subsequently brought against the applicant association.         Meanwhile, the editors of "Bluf!" managed to reprint the issue during the night from 29 to 30 April 1987, and sold the approximately 2500 copies in the streets of Amsterdam on 30 April 1987, the Dutch national day, without the authorities preventing them from doing so. Distribution by mail to the subscribers was renounced since it was expected that the Post Office would seize the issue.         On 1 May 1987 "Bluf!" filed an appeal (beklag) against the seizure of issue No. 267 to the Amsterdam Regional Court (Arrondissementsrechtbank), claiming a breach of its freedom of expression and in particular its right to receive and impart information and ideas without interference by the public authorities as guaranteed by Article 7 of the Dutch Constitution (Grondwet) and by Article 10 of the Convention.   It also requested the Court to give the seized copies back to them so as to permit them to send them in time to the subscribers.           The Amsterdam Regional Court rejected the appeal on 1 May 1987 on the ground that it was not unlikely that the criminal court, which was to deal with the case at a later stage, would impose the measure of withdrawal from circulation (onttrekking aan het verkeer).   On 17 November 1987 the Supreme Court (Hoge Raad) dismissed the applicant association's plea of nullity.         On 11 May 1987 "Bluf!" lodged another appeal (beklag) with the Amsterdam Regional Court claiming that the seizure was unlawful as it violated its right under, inter alia, Article 10 of the Convention. At the hearing before the Court on 30 June 1987 the applicant association, invoking Article 6 of the Convention, requested the Court to make the hearing public.   This request was acceded to on the ground that the proceedings involved a determination of the applicant association's civil rights.   The Court declared the appeal inadmissible on 11 January 1988 holding that the newspaper had already filed the same complaint on 1 May 1987.   Since it had not adduced any new evidence, its claim was not to be re-examined.         By letter of 2 June 1987 the Public Prosecutor informed the applicant association that the three persons arrested during the seizure of issue No. 267 would not be prosecuted.         On 25 March 1988 the Public Prosecutor requested the Amsterdam Regional Court that issue No. 267 be withdrawn from circulation.   At its hearing of 27 May 1988 the Court, upon the applicant association's request, held a public hearing.   On 21 June 1988 the Court held that the possession and the planned distribution of the confidential material held by "Bluf!" were aimed at perpetrating a criminal offence under Article 98 and/or Article 98a of the Criminal Code.   It further found that the uncontrolled possession of the issue was unlawful and contrary to the general interest.   Therefore the Court granted the Public Prosecutor's request pursuant to Articles 36b and 36c of the Criminal Code whilst noting that there was no suspect person, either legal or physical, that no criminal charges had been brought against "Bluf!" or anybody else and that no criminal court had established any infringement of Articles 98 ff. of the Criminal Code.         "Bluf!" lodged a plea of nullity with the Supreme Court which the latter rejected on 18 September 1989 holding, inter alia, that the measure complained of was justified in the interests of national security within the meaning of Article 10 para. 2 of the Convention.         Throughout the proceedings, "Bluf!" was not admitted as a party to the proceedings but was considered as an interested party as the Public Prosecution department constantly held that "Bluf!" lacked legal personality.     II.   Relevant domestic law and practice         Articles 98 and 98a of the Criminal Code make it a punishable offence to disclose information, the confidentiality of which is required by the interest of the State or of its allies or any preparatory act to that effect.           According to Article 94 of the Code of Criminal Procedure (Wetboek van Strafvordering), any object which may help to disclose the truth ("de waarheid aan de dag brengen") or is liable to be confiscated ("verbeurdverklaring") or to be withdrawn from circulation ("onttrekking aan het verkeer") can be seized ("inbeslagneming").   In general, a seizure is carried out by investigating officers, such as the police, on the orders of the Public Prosecutor.         Any interested party can file an appeal against the seizure with the Regional Court (Article 552a of the Code of Criminal Procedure). Article 552d of the Code provides for an appeal in cassation against the Regional Court's decision.         The withdrawal from circulation of seized objects can be pronounced by a separate judicial order upon request of the Public Prosecutor (Article 36b, 4° of the Criminal Code).   Liable to withdrawal from circulation are all objects designed to be used for committing an offence insofar as their uncontrolled possession is unlawful or contrary to the general interest (Article 36c, 5° of the Criminal Code).         The legal ownership of goods withdrawn from circulation passes to the State which can then dispose of them.   This can result in the destruction of the goods.         However, this measure does not presuppose a finding of guilt, it is not a penalty or a substitute for a penalty and it can even be ordered in the absence of any suspect.         The Supreme Court has found (see e.g. Hoge Raad, 8 September 1987, Nederlandse Jurisprudentie 1988/453) that the withdrawal from circulation of a person's goods in these circumstances determines his civil rights as owner of those goods.     COMPLAINTS   1.     The applicant association complains that the seizure and the subsequent withdrawal from circulation of issue No. 267 constituted an unjustified interference with its right to impart information and ideas within the meaning of Article 10 of the Convention.   2.     The applicant association further complains under Article 6 of the Convention that after the seizure of issue No. 267, it was subjected to a measure, namely the withdrawal from circulation, without criminal proceedings having been instituted against it in which it could have defended itself against the suspicion of having committed an offence which led to the seizure and withdrawal from circulation of issue No. 267.   In particular, the applicant association complains that it has not been admitted as a party to the proceedings and that it has therefore been denied a fair trial prior to the imposition of the measure.         The applicant association also claims that no evidence was adduced as to its committing an offence.   It relies in this respect on Article 6 paras. 1, 2 and 3 (a) of the Convention.     3.     The applicant association finally complains under Article 1 of Protocol No. 1 in conjunction with Article 6 of the Convention that it was deprived of its property without proper proceedings, alleging in particular that it did not have a fair hearing.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 May 1988 and registered on 22 May 1990.         On 6 March 1991 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were received by letter dated 6 June 1991 and the applicant's observations by letter dated 28 June 1991.         On 23 October 1992 the applicant association was granted legal aid.     THE LAW   1.     The applicant association complains that the seizure and the subsequent withdrawal from circulation of issue No. 267 constituted an unjustified interference with its right to impart information and ideas within the meaning of Article 10 (Art. 10) of the Convention which reads:         "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       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."         It argues in particular that the withdrawal from circulation was not "in accordance with the law" since this measure can only be ordered if an offence has been committed and that Dutch criminal law does not provide for seizure or withdrawal from circulation as sanctions for offences against national security.           The applicant further submits that the interference was in any event not necessary "for the protection of national security" for several reasons.   In the first place the quarterly survey of the B.V.D. published in this issue was almost six years old and merely bore the qualification "confidential".   Secondly, "Bluf!" had managed to reprint the entire issue following the seizure and had sold it the day after in the streets of Amsterdam without any intervention of the authorities.   In these circumstances there was no question of disclosure of state secrets, as stated by the B.V.D. head himself when contacting the Public Prosecutor.         The applicant finally argues that, should the interference have been in accordance with the law and aimed at the protection of national security, it was not necessary in a democratic society.   In this respect "Bluf!" refers to the case-law of the European Court of Human Rights according to which Article 10 (Art. 10) also protects ideas or information that offend, shock or disturb the State and that in general the press has a watchdog function in a democratic society.   As throughout the eighties the functioning of the Dutch secret services was the object of public debate, "Bluf!" merely contributed to the democratic calibre of Dutch society by publishing the B.V.D. survey in its issue No. 267.         The Government primarily submit that in assessing whether the interference with a certain right was necessary, Member States have a certain margin of appreciation.   They argue that the seizure of issue No. 267 was based on Articles 98a and 98c of the Criminal Code and thus "in accordance with the law".   The proper functioning of a democratic system based on the rule of law and the security of the State require institutions such as the B.V.D.   For such a protection to be effective, these services must operate in secrecy.   As issue No. 267 contained confidential information affecting the interests of the State, the seizure was necessary in a democratic society in the interests of national security and public safety.         The Commission, having regard to the parties' submissions under Article 10 (Art. 10) of the Convention, considers that this complaint raises complex issues of fact and law which can only be resolved by an examination of the merits.   No other grounds for inadmissibility having been established, this complaint should therefore be declared admissible.   2.     The applicant association further complains under Article 6 (Art. 6) of the Convention that issue No. 267 was seized and withdrawn from circulation without any criminal proceedings having been instituted against it subsequently.   The applicant association also claims that no evidence was adduced as to its committing an offence. It invokes Article 6 paras. 1, 2 and 3 (a) (Art. 6-1, 6-2, 6-3-a) of the Convention.         The applicant association moreover complains that it has not been admitted as a party to the proceedings following the seizure and that it has therefore been denied a fair trial prior to the withdrawal from circulation of issue No. 267.           Article 6 (Art. 6) of the Convention reads, insofar as relevant:         "1.   In the determination of his civil rights and       obligations or of any criminal charge against him, everyone       is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law.   (...)         2.    Everyone charged with a criminal offence shall be       presumed innocent until proved guilty according to law.         3.    Everyone charged with a criminal offence has the       following minimum rights:         a. to be informed promptly, in a language which he understands       and in detail, of the nature and cause of the accusation against       him;         (...)."         The applicant assocation argues in particular that the seizure and withdrawal from circulation were ordered without "Bluf!", in its capacity of suspect, having had the opportunity to defend itself against the suspicion on which these measures were based, which suspicion was only included summarily in the demand for preliminary judicial investigations against unknown suspects.         The Government submit that the procedure governing withdrawal from circulation, in order to meet the requirements of Article 6 (Art. 6) of the Convention as to publicity, will be amended through a Bill which is currently before the Council of State.   It is submitted that in any event no issue arises in the present case as the Regional Court acceded to the applicant's request to deal with the case in a public hearing.         Insofar as the applicant association complains that no criminal proceedings have been instituted against it to determine whether it had committed the offences mentioned in Articles 98 and 98a of the Criminal Code, the Commission recalls that no right to institute criminal proceedings is as such guaranteed by the Convention (No. 7116/75, Dec. 4.10.76, D.R. 7 pp. 91-92).   It follows a fortiori that the Convention does not guarantee the right to have criminal proceedings instituted against oneself.         It follows that this part of the application must be rejected as being incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         Insofar as the applicant association complains under Article 6 paras. 1, 2 and 3 (a) (Art. 6-1, 6-2, 6-3-a), the Commission notes that as no "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) has been brought against it, the invoked paragraphs do not apply.         It follows that this part of the complaint must also be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention insofar as it concerns the determination of a criminal charge against the applicant association.           The Commission will next address the question whether the proceedings concerning the seizure and withdrawal from circulation concerned the determination of the applicant association's civil rights and obligations.         It is not disputed between the parties that Article 6 (Art. 6) of the Convention applies to the proceedings at issue.   However, the Commission recalls the Convention organs' constant case-law according to which the concept "right" in Article 6 (Art. 6) is autonomous to a certain extent.   It is therefore not decisive whether or not a particular interest or "privilege" is classified as a "right" in the legal system of the State concerned (see e.g. No. 9310/81, Dec. 16.10.85, D.R. 44 pp. 13, 21).   The Commission refers in this respect to the case of R.R. and G.R. against the Netherlands in which it found Article 6 (Art. 6) applicable to the proceedings concerning withdrawal of goods from circulation as the withdrawal immediately determined the applicants' right as owners to dispose of the goods (No. 14216/88, Dec. 7.3.91 in Comm. Rep. 14.10.91 - see also para. 39).   In the present case, the applicant association in its capacity of editor of the weekly newspaper "Bluf!" owned issue No. 267.   Its civil rights were thus affected as from the moment issue No. 267 was seized.         It follows that the procedure in which the applicant association was involved concerned the determination of its civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   This provision is therefore applicable to the proceedings at issue.         Insofar as the applicant association complains that it has not been admitted as a party to the proceedings and that it has therefore been denied a fair trial prior to the withdrawal from circulation of issue No. 267, the Commission observes that there is no right as such to be admitted as a party to certain proceedings.         In the present case, although "Bluf!" was considered as an interested party in the relevant proceedings, the courts involved admitted its appeals and gave a decision on these appeals.   In this respect the Commission notes that it does not render the proceedings unfair that the applicant association's status was that of an interested party.         Moreover, the applicant association's request for a public hearing of the case on the ground that the proceedings did not comply with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention was granted by the Regional Court so that the application association is debarred from raising this issue before the Commission.         In any event, an examination of the proceedings as a whole on the basis of the case-file does not disclose any appearance of unfairness of the proceedings.         It follows that this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     3.     The applicant association finally complains under Article 1 of Protocol No. 1 in conjunction with Article 6 (P1-1+6) of the Convention that by the withdrawal from circulation of issue No. 267 it was deprived of its property without proper proceedings.   It complains in particular that it did not have a fair hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission refers to its above findings with respect to the alleged unfairness of the proceedings concerning the withdrawal from circulation and concludes that no issue arises under Article 6 taken together with Article 1 of Protocol No. 1 (Art. 6+P1-1) of the Convention.         It follows that this complaint should be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority         DECLARES ADMISSIBLE, without prejudging its merits, the complaint       concerning the seizure of one of the applicant association's       issues,         DECLARES INADMISSIBLE the remainder of the application.     Deputy Secretary to the Commission      President of the Commission         (M. de SALVIA)                           (C.A. NØRGAARD)