The applicant, M., is a former employee of the Dutch General Information and Security Service (AIVD). He was appointed by the AIVD as an audio editor and translator. In that capacity, he had access to classified information that, under strict AIVD rules, he was forbidden from sharing. This confidentiality also applied after he left the AIVD.

State secrets

In 2004, M. was accused of passing state secrets to unauthorised persons, including suspects of terrorism. Prior to his criminal proceedings, the AIVD informed M. that if he were to discuss matters that were covered by his duty of confidentiality with anyone, including his counselor, this would constitute a new criminal offence. There were also restrictions on access to documents by the counselor, and some documents that were provided were heavily redacted.

During the trial, M.'s counselors protested the impact of the restrictions placed on the defence, especially the communication between them and their client. The AIVD therefore granted M. a temporary exemption of his confidentiality obligation, which allowed M. to provide his counselors exclusively with materials that were strictly essential for his own defence.

During the appeal procedure, M. subsequently complained that he could not give the names of the AIVD employees whom he wanted to call as witnesses before the court. AIVD staff who appeared as witnesses did not have to answer questions of the defence that could damage the confidentiality of the intelligence work of the AIVD. Their voices and their appearance were hidden to shield their identity.

On December 14, 2005, the Rotterdam Court sentenced M. to four years and six months in prison. On appeal, The Hague Court of Appeals on March 1, 2007, amended this sentence to four years. In cassation, the Supreme Court on July 7, 2009, sentenced M. to three years and ten months' imprisonment.

On January 7, 2010, M. submitted a complaint to the European Court of Human Rights (ECtHR).

Judgment

The Strasbourg court considered the availability of documents redacted by the AIVD to be acceptable. The relevant documents contain details of state secrets. M. was accused of trading these documents, and the sensitive nature of the materials could be demonstrated even in redacted form. The Court considered that the National Counter-Terrorism Coordinator had confirmed that the documents in the dossier were copies of the classified documents, which M. had not disputed. The remaining available information was sufficient for the defence to adequately prepare the case. Regarding the internal AIVD investigation file, which M. claimed was kept from the defence, the Court was convinced that it was not in the hands of the Public Prosecutor's Office and that the Court of Appeals could not establish that it had existed. Any advantage that M. had wanted from this was merely hypothetical.

For these reasons, on July 25, 2017, the Court unanimously held that there had been no violation of Article 6 §§ 1 and 3 (b) of the Convention on Human Rights (ECHR) as regards redacting of certain documents and the alleged withholding of others.

The Court considered accepting that in principle there was no reason why confidentiality rules would not apply when a former security service employee was prosecuted for the disclosure of state secrets. However, the Court questioned what the effect of a ban on the disclosure of secret information was on M.'s right to defend himself. The Court considered that without professional advice, a person charged with serious criminal offences can not be expected to weigh the benefits from fully disclosing his file to his counselor against the possible resulting risk of further criminal prosecution.

The Court judged that there had been a violation of Article 6 §§ 1 and 3 (c) ECHR, because the fairness of the criminal procedures was irreversibly affected by the interference in communication between M. and his counselor.

The Court considered that in criminal matters, there is a legitimate defence strategy to cast doubts over the perpetration of a crime by demonstrating that the offence could have been committed by someone else. The Court added that this does not entitle a suspect to submit unfounded information requests in the hope that an alternative statement might emerge.

The evidence - consisting of 53 items - that the Court of Appeal based its conviction on contained several items that brought M in immediate contact with the leaked documents and with unauthorised persons found in the possession of these documents. Under these circumstances, the European Court could not find that the Court of Appeals had acted unreasonably or arbitrarily with regard to M.'s right to invoke and question witnesses.

The Court concluded that there had been no violation of Article 6 §§ 1 and 3 (d) of the ECHR.

Read the ECtHR's judgment here, and its press release on the case here.