The ECHR judgment of 25 July 2017 in the case "M. (M.) v. The Netherlands" (application no. 2156/10).
In 2010, the applicant was assisted in preparing the application. The application was subsequently communicated to the Netherlands. In the case, the applicant's complaint on restrictions on the disclosure of confidential information to his defense counsel was successfully considered. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, former audio editor and translator of the General Intelligence and Security Service of the Netherlands (Algemene Inlichtingen en Veiligheidsdienst, further - AIVD), was convicted of divulging state secrets. Attempts to appeal the verdict failed. In the Court, in particular, the applicant argued that the criminal proceedings against him violated article 6, paragraph 1 (b) and (d), of the Convention, since AIVD carried out the main control over the evidence, thereby limiting its access and access to the courts of the country to the information contained in the documents, and monitoring its use, preventing him from consulting with the defender and effectively giving evidence.
ISSUES OF LAW
Concerning compliance with paragraph 1 and subparagraph "b" of paragraph 3 of Article 6 of the Convention. The applicant sought to disclose the findings of the internal investigation of the AIVD and the censored parts of the AIVD documents contained in the case file.
(a) Internal investigation of AIVD. The courts of the Netherlands did not find it established that any conclusion really existed. The European Court recognized that the prosecution did not have such a document and that, accordingly, it could not be attached to the case. As far as the applicant wished to indicate that the investigation could have hidden the acquittal, the Court dismissed this assumption as purely hypothetical.
(b) Disclosure of documents in censored form. The crossed out information in itself could not be of use for protection. Since the applicant was accused of disclosing state secrets to persons who did not have the right to get acquainted with her, the only issue was whether these documents were a state secret? The evidence on the basis of which the applicant was convicted included AIVD materials indicating that these documents represented state secrets and explaining the need to preserve it. The Dutch prosecutor for countering terrorism confirmed that the materials contained in the criminal case were in fact copies of the documents that should have been submitted and that the applicant had not disputed it.
The remaining available information was sufficient to protect the authorities of the respondent State and made it possible to make a reliable assessment of the nature of the information in the documents.
DECISION
The requirements of Article 6 of the Convention were not violated (unanimously).
Concerning compliance with paragraph 1 and subparagraph "c" of paragraph 3 of Article 6 of the Convention. The European Court allowed certain restrictions placed on the contacts of the lawyer and the client in cases of terrorism and organized crime. Nevertheless, the fundamental rule of respect for the confidentiality of attorney-client relationships can be derived in exceptional circumstances and on the condition that there are adequate and sufficient safeguards against abuse. The procedure by which the prosecution party tries to assess the importance of hidden information for protection and compare it with public interest in preserving sensitive information can not meet the requirements of Article 6 § 1 of the Convention.
The applicant was not denied access to the evidence of the prosecution: he was ordered not to disclose to his counsel for factual information for use in his defense. There was no interference with the confidentiality of the applicant's relationship with his lawyer. In addition, there was no independent monitoring of information transmitted between the applicant and his counsel and the applicant was threatened with harassment in the event of the transfer of classified information to the defense counsel. It is important that the communication between the applicant and his counsel was not free and unlimited in content, as is usually assumed by the requirements of a fair trial. The European Court recognized that in general the rules of secrecy were applied in the proceedings and that there were no principal reasons for their non-application in case of harassment of members of the secret service for crimes related to their service. The European Court was required to consider how the prohibition of the dissemination of classified information affected the rights of the suspect to be protected in connection with his contacts with his lawyers and in relation to the trial. The General Counsel had an obligation not to prosecute the applicant for breach of the duty of secrecy, if such a violation was justified by the protection rights guaranteed by Article 6 of the Convention.
The abovementioned imparted to the applicant, in the absence of a lawyer's advice, the burden of deciding whether to report facts not yet disclosed in the case file, and at the same time risking further prosecution, since the general counsel retained full discretion in this regard. The Court decided that the accused in a serious case could not be expected, in the absence of professional advice, to compare the advantages of fully disclosing the case to his lawyer, provided there was a threat of prosecution for it. In such circumstances, the fairness of the proceedings was irretrievably diminished by interference in the communication between the applicant and his counsel.
DECISION
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
Concerning compliance with paragraph 1 and subparagraph "d" of paragraph 3 of Article 6 of the Convention. The defense was not denied the possibility of cross-examination of the prosecution witnesses in order to verify the testimony they had given earlier during the proceedings. The applicant was denied access to information that was available to AIVD employees and which could cast doubt on his guilt.
A completely legitimate strategy for the defense of criminal cases is to create doubts in the subject of the crime by proving that the crime could have been committed by someone else. However, she did not grant the suspect the right to file information claims in the hope that an alternative explanation might appear. The data on the basis of which the domestic courts rendered the conviction included those that linked the applicant directly to the leakage of documents and to unauthorized recipients from whom they had been found. Under such circumstances, it could not be argued that domestic courts acted unreasonably or arbitrarily, without allowing the applicant to call witnesses or believing that his defense was materially violated by the conditions under which the unconvicted witnesses were questioned.
DECISION
The requirements of Article 6 of the Convention were not violated (unanimously).
COMPENSATION
In the application of Article 41 of the Convention. If there is an applicant's claim, a new trial or the resumption of domestic proceedings will be an adequate compensation, the finding of a violation constituted sufficient fair compensation for non-pecuniary damage.