Judges have ruled that the restriction of communication between a former Netherlands secret service agent and his lawyer, to protect state secrets, breached human rights law.
The case of M v. the Netherlands (application no. 2156/10) concerned a former member of the Netherlands secret service who had been charged with leaking state secrets.
The applicant, ‘M,’ is a former member of the Netherlands secret service, the AIVD (Algemene Inlichtingen- en Veiligheidsdienst, General Intelligence and Security Service). He was employed by the AIVD as an audio editor and interpreter. In this capacity, he had access to classified information which he was under strict instruction not to divulge. This duty of secrecy continued even after he left the service.
In 2004, he was charged with having disclosed state secrets to unauthorised persons, including terrorist suspects. Prior to his trial, he was informed by the AIVD that it would be constitutive of a further criminal offence if he were to discuss matters covered by his duty of secrecy with anyone, including his counsel. Restrictions were also put on the defence’s access to documents, with some only being provided in a redacted form.
The applicant complained before the European Court of Human Rights that the ensuing criminal proceedings had been unfair.
In its 25 July Chamber judgment, the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 §§ 1 (right to a fair trial) and 3 (c) (right to legal assistance of own choosing) of the European Convention on Human Rights.
The court found that as a result of the threat of prosecution should M divulge state secrets to his lawyers, communication between him and his counsel was not free and unrestricted as to its content, thus irretrievably compromising the fairness of the proceedings against him.
However, the court further held, unanimously, that there had been no violation of Article 6 §§ 1 (right to a fair trial) and 3 (b) and (d) (right to adequate time and facilities for preparation of defence and right to obtain attendance and examination of witnesses) of the convention.
In particular, the refusal of members of the secret services to answer questions put to them by the defence because of their duty of secrecy had not been contrary to Article 6 §§ 1 and 3 (d).
The applicant explained that his strategy had been to demonstrate that someone else could have divulged the classified information, and that that line of defence had been compromised as he couldn’t properly question the witnesses from the secret services. The court noted that this was a perfectly legitimate defence strategy in theory.
However, considering the sheer volume of evidence linking him to the crime, he had not been entitled to make specious demands for information in the hope that an alternative explanation might present itself.
The court observed that a new trial or the reopening of the domestic proceedings at the request of the applicant represents an appropriate way to redress the violation.