Introduction

The Court of Appeal of Amsterdam has convicted two former employees of the AIVD, a man and a woman, in criminal proceedings for leaking state secret information to De Telegraaf. The woman was also convicted for keeping state secret documents at home. The man was convicted to eight months’ imprisonment and the woman got sixteen months’ imprisonment. The rulings can be found here and here

The Facts

In June 2009 De Telegraaf published the article “Security Stepped Up Sharply. Dalai Lama Threatened”. The Dutch General Intelligence and Security Service (“AIVD”) suspected on the basis of this article that state secret documents had been leaked and started an investigation. The telephone of the journalist of De Telegraaf was tapped in this investigation and through his calls the AIVD traced the two employees involved in the case. Their house was searched and state secret documents were found in it. It is a criminal offense to have state secret documents in one’s possession and to pass them on to others. Both the journalist of De Telegraaf and the two employees of the AIVD were charged by the Public Prosecution Office.

Following an investigation by the Supervisory Board for Intelligence and Security Services, the Board concluded that tapping the journalist’s telephone had been a disproportionate method. The Board held that the interest in the protection of sources prevailed over the interest of retrieving the leak. This conclusion made the Public Prosecution Office decide to drop the case against the journalist.

The Court

The prosecution of the two former employees was continued by the Public Prosecution Office, but the Court acquitted them. The AIVD had only traced the employees after it had tapped the journalist in an illegal way, so that this evidence was not allowed to be used against the employees. The Court held that the journalistic right of non-disclosure “would become practically illusory if illegally obtained evidence could be used against the source”.

The Court of Appeal

The Public Prosecution Office appealed against the acquittals. The Court of Appeal set aside the ruling of the Court and did convict the two former employees. The Court of Appeal considered that results of an investigation carried out by an intelligence and security service cannot be used as evidence if this investigation was contrary to the principle of “fair trial” as envisaged in Article 6 of the ECHR. The Court of Appeal held that in this case the investigation was not contrary to this principle. Otherwise, the acts of the AIVD “as far as they should be classified as unlawful” did not constitute a circumstance that would prevent the results of the investigation from being used as evidence.

More specifically, the employees also relied on Article 10 of the ECHR. However, the Court of Appeal held that this right can be restricted, inter alia by the provisions in the Dutch Penal Code intended to make the unauthorized surrender of state secret information a punishable act. Civil servants, so the Court of Appeal argued, are under a particular obligation to keep state secret information secret. They cannot rely on the freedom of speech in this case.

The reliance on the principle of equality, because the journalist has not been prosecuted, was not successful either. The Court of Appeal held that the journalist who had published the information was not in a similar position to the employees who had breached their official duty by leaking state secretes to the press. These are not equal circumstances that should be treated equally, in the opinion of the Court of Appeal.

So, the conclusion of het Court of Appeal was that the results of the investigations could be used in the criminal proceedings against the two employees. On the basis of this evidence the Court of Appeal considered that there was clear and convincing evidence that the employees were guilty of having passed on and having possessed state secret information.

Consequences

This judgment only goes to show that the boundaries of the protection of journalists’ sources are not at all clearly defined yet. This time the consequences for the sources themselves were grave. Not surprisingly, there are reports in the media that the employees are preparing appeal proceedings before the Supreme Court.