Search of Premises at Activist Magazine Ravage: State Wins After All
Supreme Court, 19 September 2009
In May 1996, criminal investigators raided the office of the then
activist magazine Ravage in Amsterdam, prompted by a claim
letter Ravage had received that referred to a bomb attack
on the company BASF in Arnhem. The claim letter had already been
destroyed by the editors, but the detectives impounded computers
with the subscriber file, address lists, registration coupons,
address wrappers, a diary, a phone index, a typewriter, data on
contact persons and other editorial materials and personal data of
editors.
Protection of Sources
Ravage brought proceedings against the State because it
considered the search to be unlawful and an infringement of
Articles 8 and 10 of the ECHR, in particular of its right to
protect its sources. In preliminary relief proceedings the Court
found for Ravage. In the subsequent proceedings on the
merits, Ravage's claim for damages was denied by the
Court and on appeal by the Court of Appeal of The Hague.
With the judgment of the Supreme Court of 2 September 2005 the tide
seemed to be in Ravage's favor again. The Supreme
Court set aside the judgment of the Court of Appeal of The Hague
because the Court of Appeal had failed to recognize that the
obligation to furnish facts and the burden of proof are on the
State with regard to the non-existence of less drastic means (the
requirement of subsidiarity) than searching the premises and
impounding things, and the Court of Appeal had not argued
sufficiently that the impounding of the computers (including the
data on them) and the other materials was not disproportionate (the
requirement of proportionality). The case was then referred to the
Court of Appeal of Amsterdam. However, this Court of Appeal ruled
again that the search had been in accordance with the requirements
of proportionality and subsidiarity, which must be fulfilled in
order to consider an infringement of the rights guaranteed by
Articles 8 and 10 of the ECHR to be necessary in a democratic
society in the interest of public order and for the prevention of
crime. Ravage appealed again to the Supreme Court.
To Strasbourg
At the end of December 2009 Ravage reported that after
more than twelve years of litigation the legal battle in the Dutch
courts had ended. On 19 September 2009 the Supreme Court rejected
the appeal of Ravage against the judgment of the Court of
Appeal of Amsterdam. The editorial board is now considering
bringing proceedings before the European Court of Human Rights in
Strasbourg.