Tapes Monitored De Telegraaf Journalist Are Infringing the Journalistic Right of Non-Disclosure - Acquittal of ‘Leaking’ AIVD Official
A discussion of the judgment of the Court of Haarlem dated
14 July 2010
Fruits of the poisonous tree
The Court of Haarlem has acquitted the (according to the AIVD)
leaking AIVD official who would have provided De Telegraaf with
information about Iraq. This acquittal is mainly based on the
journalistic right of non-disclosure. The Dutch General
Intelligence and Security Service (AIVD) had bugged various De
Telegraaf journalists and had thus obtained evidence against the
AIVD official. According to the Court these tapes are 'fruits
of the poisonous tree'. The recordings are illegally obtained
evidence because there are no exceptional circumstances that
justify an infringement of the journalistic right of
non-disclosure.
Most Important Considerations
Below are the most important passages from
the judgment (in Dutch):
"With regard to the importance of the journalistic right
of non-disclosure the Court considers as follows. A free press is a
necessary condition for the good performance of a democratic state
under the rule of law. The journalistic right of non-disclosure is
now generally accepted, leaving aside exceptional circumstances -
which have not become evident in this case. The conscious
undermining of this right by unlawfully monitoring the telephone
conversations made by the journalist, with the sole objective of
retrieving the source, is in conflict with this right to such an
extent that also the source itself is entitled to rely on the
unlawfulness of the evidence thus obtained. In this respect it is
not important whether the source meets the so-called whistleblower
criterion, since from the nature of the case this adjudication can
only take place after the unlawful violation of the journalistic
right of non-disclosure, which right would become substantially
illusory if the illegally obtained evidence could actually be used
against the source.
Therefore, the Court arrives at the judgment that the evidence
that has ensued from the illegal monitoring of [party involved 1]
will also be regarded as illegally obtained in the case against the
suspect. From the telephone tap of [party involved 1], more
specifically from the telephone conversation of 15 May 2009 by
[involved party 1] with the suspect, the possible involvement of
the suspect and fellow suspect [fellow suspect] in the charges has
appeared. This telephone conversation has also been the basis for
the observation of the house of the suspect and the fellow suspect
and the subsequent arrest and search of their house. In view of
these circumstances, the Court is of the opinion that all evidence
against the suspect and his fellow suspect, collected in the
investigation of the AIVD as well as in the criminal investigation,
are 'fruits of the poisonous tree' and must for this reason
be ignored. As a result, there is insufficient legal evidence to
arrive at a conviction. In view hereof, the suspect should be
acquitted of all charges."
Tenacious Dutch Government
We have already published articles on the Media Report website
several times (in Dutch) about this soap
opera between the AIVD and De Telegraaf and the tenacious
attitude of the AIVD and the Dutch government. This judgment
strengthens the question we asked before on
Media Report (in Dutch) whether the
supervisory commission of the AIVD, which has ruled earlier that
the AIVD had every right to monitor the De Telegraaf journalists
and thus ignored
the opinion of the Court of Appeal (in Dutch), is
sufficiently independent and whether the Minister has really acted
wisely by maintaining that she was right despite the judicial
rulings that prove her to be wrong (see
here (in Dutch), at the bottom).