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Court says bombers not protected as a journalistic source

A group claiming responsibility for bomb attacks in the Netherlands sent a letter to a magazine – and the publication’s offices were subsequently searched.

ALLEGED BOMBERS IN the Netherlands cannot be protected the same as other journalistic sources, the European Court of Human Rights has said.

It made the decision in the Stitchting Ostade Blade v the Netherlands case, which concerned a letter that an organisation sent to a magazine, claiming that it was responsible for a series of bomb attacks.

What happened

The magazine was called Ravage and run by Stitchting Ostade Blade, a Dutch foundation based in Amsterdam.

The letter had been sent in the wake of a series of bomb attacks in Arnhem in 1995 and 1996.

The magazine issued a press release saying it had received the letter, and that it intended to publish it in the next edition.

Its premises were then searched the next day, as part of criminal investigations against the perpetrators of the attacks. The letter had been destroyed the day it received, an editor of the magazine reported later.

Freedom of expression

The publisher claimed that under Article 10 of the European Convention on Human Rights – freedom of expression – the search was a violation of its right to protect its journalistic sources.

The Court said that protection of sources was not in issue in this case, as the informant who sent the letter was seeking publicity for the attacks under the cover of the press, and was not entitled to the same protection as sources usually are.

It said the search had complied with the requirements under Article 10, and was necessary in a democratic society for the prevention of crime.

Court proceedings

The foundation and one of its editors brought proceedings before the national courts claiming compensation, which were dismissed by the Supreme Court in September 2009.

The Court of Appeal of Amsterdam did find a partial violation of the applicant foundation’s rights under Article 13 (right to an effective remedy) together with Articles 8 (right to respect for private life) and 10 regarding one of the aims of the search, finding possible links between the organisation claiming responsibility for the attacks and the magazine.

The Amsterdam Court dismissed all of the foundation’s claims for compensation.

The foundation brought the case to the ECHR, saying that the search was a violation of its right to protect its journalist sources. It also complained about the fact it did not receive compensation from the domestic courts.

ECHR verdict

The ECHR found that the search of the premises had amounted to interference, prescribed by Netherlands law, with the exercise of their right to freedom of expression.

However, the issue turned on what was the nature of the interference and whether it had been justified as “necessary in a democratic society” for the prevention of crime.

In respect of the nature of the interference, the Court found that not every individual who is used by a journalist for obtaining information can be considered a “source” within the meaning of its case-law in this area.

The Court observed that the magazine’s informant was not motivated by the desire to provide information which the public was entitled to know.

His purpose in seeking publicity through the magazine was “to don the veil of anonymity with a view to evading his own criminal accountability”. For this reason, the Court found that the informant was not, in principle, entitled to the same protection as ordinarily accorded to “sources”.

The Court went on to find that the search had complied with the requirements under Article 10 of the Convention.

It also said that the fact that the domestic courts did not award compensation “was not a material consideration”.

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