CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1991

.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                      Applications Nos. 14084/88, 14085/88, 14086/88                    14087/88, 14088/88, 14109/88, 14173/88, 14195/88,                    14196/88 and 14197/88                    by V. and Others                    against the Netherlands             The European Commission of Human Rights sitting in private on 4 March 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   J. RAYMOND, 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 applications:   -        No. 14084/88 introduced on 25 July 1988 by V. and registered on 1 August 1988;   -        No. 14085/88 introduced on 25 July 1988 by L. and registered on 1 August 1988;   -        No. 14086/88 introduced on 25 July 1988 by S. and registered on 1 August 1988;   -        No. 14087/88 introduced on 25 July 1988 by M. and registered on 1 August 1988;   -        No. 14088/88 introduced on 28 July 1988 by O. and registered on 1 August 1988;   -        No. 14109/88 introduced on 3 August 1988 by K. and registered on 11 August 1988;   -        No. 14173/88 introduced on 23 August 1988 by K. and registered on 31 August 1988;   -        No. 14195/88 introduced on 26 August 1988 by E. and registered on 7 September 1988;   -        No. 14196/88 introduced on 26 August 1988 by P. and registered on 7 September 1988;   -        No. 14197/88 introduced on 26 August 1988 by V. and registered on 7 September 1988;           all these applications being introduced against the Netherlands;           Having regard to its decision of 9 November 1989 to join these applications;           Having regard to the Government's observations dated 7 February 1990 and the applicants' replies dated 25 April 1990;           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.       THE APPLICANTS   1.       Application No. 14084/88.   The applicant is a Dutch national, born in 1956 and at present a resident of Utrecht, the Netherlands.   2.       Application No. 14085/88.   The applicant is a Dutch national at present a resident of Utrecht, the Netherlands.   3.       Application No. 14086/88.   The applicant is a Dutch national, and at present a resident of Vleuten, the Netherlands.   He is a clergyman by profession.   4.       Application No. 14087/88.   The applicant is a Dutch national, born in 1959 and at present a resident of Utrecht, the Netherlands.   5.       Application No. 14088/88.   The applicant is a Dutch national, born in 1956 and at present a resident of Amsterdam, the Netherlands.   6.       Application No. 14109/88.   The applicant is a Dutch national, born in 1948 and at present a resident of Utrecht, the Netherlands.   7.       Application No. 14173/88.   The applicant is a Dutch national, born in 1951 and at present a resident of Utrecht, the Netherlands.           The above seven applicants are represented by M. E. Th. Hummels, a lawyer practising in Utrecht.   8.       Application No. 14195/88.   The applicant is a Dutch national, born in 1962 and at present a resident of Amsterdam, the Netherlands.   9.       Application No. 14196/88.   The applicant is a Dutch national, born in 1958 and at present a resident of Utrecht, the Netherlands.   10.      Application No. 14197/88.   The applicant is a Dutch national, born in 1957 and at present a resident of Utrecht, the Netherlands.           The above three applicants are represented by Mr.   Th.   A. de Roos, a lawyer practising in Amsterdam.   II.      FACTS common to the applications   A.       Particular circumstances of the case           The facts as submitted by the parties may be summarised as follows.           In the night of 18 to 19 November 1984, an anti-militarist activist group, known as "Onkruit", raided the offices of the Utrecht team of the 450 Counter-Intelligence Detachment (450 Contra- Inlichtingen Detachement; 450-CID) of the Army Intelligence Service (Landmacht Inlichtingendienst).   Previously, the CID was part of the Army Intelligence Service, now it belongs to the Military Intelligence Service.   "Onkruit" found, inter alia, the names of 178 civilians and 64 organisations which were "noted" (gesignaleerd) on the planning board of the so-called Infiltration-Influencing Outline (Infiltratie Beïnvloedings Schema; IBS) as dangerous to the State. Fifteen of these civilians were denoted by a red tag as hazardous to a military mobilisation.           It appeared from other documents that files containing reports and photographs concerning the civilians and organisations noted in the IBS were held in a central 450-CID storehouse.           "Onkruit" published all the information that they found and portions of this information were published in national daily newspapers, including names of civilians and organisations noted in the IBS.   Also, it appeared from the "Onkruit" material that there was collaboration between the military 450-CID and the civilian Internal Security Service (Binnenlandse Veiligheidsdienst; BVD) and Police Intelligence Service (Politie Inlichtingen Dienst; PID), and possibly also with the Central Detective Intelligence Service (Centrale Recherche Inlichtingen dienst; CRI).   In the course of subsequent debates in Parliament in March 1985, it became apparent that the 450-CID may have over-stepped its authority by investigating persons and organisations active in the so-called "Peace Movement". Subsequently, on 1 January 1987, a reorganisation of the military intelligence and security services took place which resulted in an increased influence of the Ministry of Defence on them.           The applicants' names were among those found on the planning board of the IBS.           In May 1986, the applicants requested the Minister of Defence (Minister van Defensie) and the Minister for Home Affairs (Minister van Binnenlandse Zaken) to grant them access to the information contained in files concerning them held by, respectively, the 450-CID and the BVD.   They based their request on the information gathered by "Onkruit" and on their right to information held by public organisations as guaranteed by the Publicity of Public Administration Act (Wet Openbaarheid van Bestuur; WOB).   They claimed a legitimate interest to know what was contained in these files because it could have harmful effects on their future, i.e. when seeking a job. Furthermore, it was apparent that this information was insufficiently secure from outside interference, as the raid by "Onkruit" had demonstrated.   They alleged that any form of observation or registration by intelligence or security services was an unjustified interference with their private life.           Both Ministers refused to acknowledge that any files concerning the applicants were held by intelligence or security services.   The Minister of Defence reiterated that the 450-CID did not investigate the "Peace Movement".   The Minister for Home Affairs pointed out that, in the interest of national security, no information about the existence of files held by the BVD could be divulged.   He cited the exception contained in Article 4 (b) of the Publicity of Public Administration Act (WOB) (see below Relevant domestic law and practice).           The applicants requested a review of these decisions.   This was unsuccessful.           Thereupon the applicants appealed to the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State). They invoked, inter alia, Article 8 of the Convention.           On 28 February 1988, in two separate decisions, the Council of State rejected the appeals.   It stated that the Ministers had justifiably based their decisions on the national security exception contained in Article 4 (b) of the WOB.   Furthermore, there had been no violation of Article 8 of the Convention because the decisions under appeal only constituted refusals to acknowledge the existence of information, which, of themselves, could not constitute an interference with the applicants' private life.           In the meantime, on 31 December 1987, the Royal Decree of 5 August 1972 was replaced by a parliamentary Act, the Intelligence and Security Services Act 1987 (Wet op de inlichtingen- en veiligheidsdiensten), which came into effect on 1 February 1988.   B.       Relevant domestic law and practice   1.       Until 1987, the Dutch intelligence and security services, both civil and military, were governed by the Royal Decree of 5 August 1972 regulating the duties, organisation, working methods and co-operation of the intelligence and security services (Koninklijk Besluit van 5 augustus 1972, Stb. 437, houdende regeling van de taak, de organisatie, de werkwijze en de samenwerking van de inlichtingen- en veiligheidsdiensten).   The Dutch intelligence and security services consist of three branches: the Internal Security Services (BVD), the Military Intelligence Services (MID) and the Foreign Intelligence Service.           The CID falls under the authority of the MID.   The latter comes under the Minister of Defence, whereas the Minister for Home Affairs is responsible for the BVD.   In this respect, both Ministers are responsible to the Parliament.           The tasks of the military intelligence services are set out in Art.   IV, 2 of the Royal Decree.   It states:   (Dutch)          "De militaire inlichtingendiensten hebben, ieder         voorzover het hun krijgsmachtdeel betreft, tot taak:             a. het inwinnen van gegevens omtrent het potentieel en de         strijdkrachten van andere mogendheden, welke nodig zijn voor         een juiste opbouw en een doeltreffend gebruik van de         krijgsmacht;             b. het inwinnen van gegevens welke nodig zijn voor het         treffen van maatregelen:             1. ter voorkoming van activiteiten die ten doel hebben de              veiligheid of paraatheid van de krijgsmacht te schaden;           2. ter beveiliging van gegevens binnen de krijgsmacht              waarvan de geheimhouding geboden is;           3. ter bevordering van een juist verloop van mobilisatie en              concentratie der strijdkrachten."   (Translation)          "The military intelligence services' tasks, insofar as their         branch of service is concerned, are:             a. to collect information on the potential and the armed              forces of other powers, which is necessary for a correct              structure and an effective use of the armed forces;             b. to collect the information which is necessary for         taking measures:             1. to prevent activities aimed at prejudicing the security              or the readiness of the armed forces;           2. to secure confidential information concerning the armed              forces;           3. to promote a correct course of mobilisation and              concentration of the armed forces."           The co-operation and in particular the exchange of information between the services, i.e. the CID and the BVD, is provided for in Article I, 3, which reads:   (Dutch)   "De inlichtingen- en veiligheidsdiensten verlenen elkaar in het bijzonder ook door het uitwisselen van gegevens - zoveel magelijk medewerking".   (Translation)   "The intelligence and security services will cooperate as much as possible, in particular by the exchange of information."   2.       The Publicity of Public Administration Act (Wet Openbaarheid van Bestuur), invoked by the applicants in the proceedings concerned, gives to every Dutch citizen the right to request a public body to disclose information concerning its administration and its policy. The public body can refuse the disclosure of information on the basis of Article 4 which reads, insofar as relevant:   (Dutch)          "Het verstrekken van de informatie blijft achterwege         indien dit ...           b. de veiligheid van de staat zou kunnen schaden ..."   (Translation)          "No information ... will be issued insofar as...           b. it might harm the national security ..."   3.       On 3 December 1987, the Royal Decree of 5 August 1972 was replaced by a parliamentary Act, the Intelligence and Security Services Act 1987 (Wet op de inlichtingen- en veiligheidsdiensten). This Act came into force on 1 February 1988.   It gives the Ministers responsible more power in certain matters and provides for an even closer co-operation between the services than was provided for in the Royal Decree.           The legal basis upon which the MID, and thus the CID, act resides in Article 9 of the Intelligence and Security Services Act, which reads:   (Dutch)          "1.   Er is een Militaire Inlichtingendienst.           2.   Deze heeft tot taak:             a. het verzamelen van gegevens omtrent het potentieel en         de strijdkrachten van andere mogendheden welke nodig zijn         voor een juiste opbouw en een doeltreffend gebruik van de         krijgsmacht;             b. het verrichten van veiligheidsonderzoeken ter zake van         de vervulling van vertrouwensfuncties, dan wel van functies         in het bedrijfsleven, welke naar het oordeel van Onze         terzake verantwoordelijke Ministers de mogelijkheid bieden         de veiligheid of andere gewichtige belangen van de Staat te         schaden;             c. het verzamelen van gegevens welke nodig zijn voor het         treffen van maatregelen:                1. ter voorkoming van activiteiten die ten doel hebben         de veiligheid of paraatheid van de krijgsmacht te schaden;              2. ter beveiliging van gegevens betreffende de         krijgsmacht waarvan de geheimhouding is geboden;              3. ter bevordering van een juist verloop van         mobilisatie en concentratie der strijdkrachten."   (Translation)          "1.   There shall be a Military Intelligence Service.           2.   Its task is:              a. to collect information on the potential and the armed         forces of other powers, which is necessary to a correct         structure and an effective use of the armed forces;              b. to carry out security investigations on the         fulfilling of confidential functions in trade and industry         which, according to our Ministers responsible, might         prejudice the security or other important interests of the         State;              c. to collect information which is necessary to take         measures:           1. to prevent activities aimed at prejudicing the            security or the readiness of the armed forces;         2. to secure confidential information concerning            the armed forces;         3. to promote a correct course of mobilisation            and concentration of the armed forces."   COMPLAINTS           The applicants allege that it is apparent from the information published by "Onkruit" that they are or have been the subject of investigation by the 450-CID.   They also refer to Article I,3 of the Royal Decree of 5 August 1972 regulating the duties, organisation, working methods and co-operation of the intelligence and security services, which provides that security services shall assist each other as much as possible.   They conclude that the BVD must also have files on them.           The applicants complain under Article 8 of the Convention that the investigation of their activities by security services and the refusal of access to the information gathered by the security services interferes with their right to respect for their private life.   They argue that the national security exception contained in paragraph 2 of Article 8 does not apply as the 450-CID is not authorised by law to investigate civilians nor is it necessary in a democratic society in the interest of national security to deny them access to the information contained in their files.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 25 July 1988 and registered on 1 August 1988.           On 9 November 1989, the Commission decided to join the applications and to communicate them to the respondent Government and invite them to submit written observations on the admissibility and the merits of the applications.           The Government's observations were received by letter dated 7 February 1990 and the applicants' observations were dated 25 April 1990.   THE LAW   1.       The applicants complain that the investigation and registration of their activities by security services and the refusal of access to the information held on them by the security services constitute a breach of Article 8 (Art. 8) of the Convention, which states:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."   2.       The Government contend that, since the applicants have failed to bring an action for tort before the civil courts, their application must be declared inadmissible for non-exhaustion of domestic remedies.           The applicants contend that they have exhausted domestic remedies.   They did not bring an action for tort under Article 1401 of the Dutch Civil Code (Burgerlijk Wetboek) before the civil courts, as sufficient factual evidence must be brought to support the claim.   But since the Government refuse to state whether information is being stored on the applicants, an action for tort was not an effective remedy in these circumstances.           Under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all remedies have been exhausted according to the generally recognised rules of international law.           The Commission notes that the Government have referred to the possibility of filing an action for tort before the civil courts. However, they do not explain how such an action could have been effective with regard to the applicants' complaints, in particular, whether they could have obtained access to their files and prevented further storing of the information complained of.           In particular, the Commission observes that a general practice of security related activities has been established on the basis of the Royal Decree.   The Commission recalls in this respect that where the alleged violation is lawful in the respondent State, e.g. where it is authorised by statute or is accepted as the law of the land, the requirements as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention clearly do not apply (Ireland v. the United Kingdom, Comm.   Rep. 25.01.76, para. 25, Yearbook 19 pp. 760-761).   In the present case, an action for tort is of necessity rendered inadequate by the general practice of security related activities.   Therefore, in the Commission's opinion, the applicants have complied with Article 26 (Art. 26) of the Convention.           In these circumstances the Commission considers that the Government have not shown that the action at issue was an effective remedy within the meaning of Article 26 (Art. 26) of the Convention, in that it could have served to remedy the applicants' complaints.   As a result, the application cannot be declared inadmissible for non-exhaustion of domestic remedies according to Article 27 para. 3 (Art. 27-3) of the Convention.   3.       With regard to the well-foundeness of their complaints, the applicants claim under Article 8 (Art. 8) of the Convention that they are entitled to have access to the files concerning them.   They contend that observation and registration of their activities by the intelligence and security services is an unjustified interference with their right to respect for their private life.   The information recorded may give an incorrect impression of the applicants and their activities, and thus might jeopardise their future, for instance when seeking employment.           The applicants furthermore contend that, since the CID is not authorised by law to investigate the activities of civilians, this interference with their right to respect for their private life is not "in accordance with the law".   The legal basis at the time of the gathering of information (1984 or earlier) was the Royal Decree and not the Intelligence and Security Services Act which was only enacted in 1987.   The applicants submit that Article 8 (Art. 8) of the Convention requires a Parliamentary Act as legal basis.           The applicants also submit that the interferences complained of are not "necessary in a democratic society" in the interests of national security within the meaning of Article 8 para. 2 (Art. 28-2) of the Convention.           The respondent Government submit that the applicants have based their claims entirely on supposition.   They emphasise the need for the secret services to be able to work in total secrecy. Therefore the Government can never reveal whether any information is held on a particular person, let alone disclose that information, if any.   The disclosure of information would reveal the pattern of the services' activities and would endanger employed agents and informers. Besides, if the Government would grant the applicants' requests, the principle of equal treatment would compel them to disclose information at any request, which would deprive the security services of their "raison d'être".           The Government argue that the "law" in Article 8 para. 2 (Art. 8-2) need not be an Act of Parliament, though the Dutch secret services are governed by such an Act, the Intelligence and Security Services Act 1987, and prior to that by the Royal Decree of 5 August 1972.   The Government consider that the existence of secret services is "necessary in a democratic society" to protect the country's security and to prevent crime.   These services are strictly bound by their mandate, which is embodied in the aforementioned Act and Decree respectively.   Thus, even if the services' activities would constitute an interference with the applicants' right to respect for their private life, this interference is "in accordance with the law", and thus justified within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.           The Government also allege that there are enough safeguards for citizens against the activities of the intelligence and security services.   The Standing Committee on Intelligence and Security Services of the Lower House, which consists of the parliamentary leaders of the governing parties and of the main opposition parties, can, when requested by a citizen, investigate whether one of the services concerned has acted in an unlawful manner towards him.   Complaints by citizens can also be submitted to the National Ombudsman, who is independent of the Government and the Parliament.           The Commission, having regard to the parties' submissions under Article 8 (Art. 8) of the Convention concerning the applicants' right to respect for their private life, considers that these complaints raise complex issues of fact and law which can only be resolved by an examination of the merits.   This application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission unanimously           DECLARES THE APPLICATIONS ADMISSIBLE,         without prejudging the merits of the case.     Deputy Secretary to the Commission      President of the Commission              (J. RAYMOND)                         (C.A. NØRGAARD)