Supreme Court of the Netherlands upholds conviction of AIVD intelligence officer for leaking classified information to newspaper

On March 31st 2015, the Supreme Court of the Netherlands upheld (in Dutch) the conviction of an employee of the Dutch General Intelligence & Security Service (AIVD) for leaking classified information to journalists working for Dutch newspaper De Telegraaf. The court ruled that the AIVD official cannot invoke rights granted by Article 10 ECHR concerning protection of journalistic sources.

Here is a translation of a report (in Dutch) by based on the official press release (in Dutch):

Conviction of AIVD employee for leaking classified information to newspaper De Telegraaf is upheld

The Supreme Court of the Netherlands in The Hague today ruled that the conviction of an employee of the AIVD for leaking classified information to newspaper De Telegraaf is upheld. The court states that the employee cannot invoke the journalistic source protection rights. The conviction of the employee’s partner, however, must be done again in a new trial. The Supreme Court finds that the lower court insufficiently made clear to what extent he was intentionally involved in providing the classified information. The employee was sentenced to 16 months prison, her partner 8 months.

The case is about two publications in De Telegraaf in 2009; one on the AIVD’s role in informing the cabinet about the start of the war in Iraq, and one on the security of the Dalai Lama during his visit to the Netherlands. Because the AIVD suspected that information was leaked from the inside, the phone of the journalists involved was eavesdropped on by the AIVD to determine whether that suspicion was justified.

Resulting from a complaint filed by De Telegraaf and the journalists involved, the Dutch Review Committee on the Intelligence and Security Services (CTIVD) found, in hindsight, that the use of phone taps against the journalists was disproportionate. According to the judge, the AIVD should have considered the journalists’ right to protect sources more important than tracing the possible leak. As a result, the journalists were not prosecuted for violating state secrecy. The AIVD official who had  leaked the information, and her partner, were prosecuted.

Illegally obtained evidence

During the appeal, the Supreme Court stated that the evidence that the AIVD had illegally obtained by eavesdropping on the journalists could be used in the case against the AIVD employee. According to the Supreme Court, the lower court was justified in ruling that this evidence does not need to be excluded, because the journalistic right to protect sources does not apply to the employee. From the context of her employment, the employee was bound to confidentiality. The fact that the CTIVD found that the AIVD had gone too far is, according to the Supreme Court, not an extraordinary circumstance that could justify the leaking.