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Case law

ECtHR, M v. the Netherlands

July 2017 - Netherlands

The applicant, was a former member of the Netherlands secret service who had been charged with having disclosed State secrets. Prior to his trial, he was informed by the secret service that it would be constitutive of a further criminal offence if he were to discuss matters covered by his duty of secrecy with anyone, including his counsel. Restrictions were also put on the defence’s access to documents. The applicant was found guilty and finally sentenced to three years’ imprisonment. Relying on Article 6 (1) and (3) (b), (c) and (d) (right to legal assistance of own choosing, right to adequate time and facilities for preparation of defence and right to obtain attendance and examination of witnesses), Mr M complained that the secret service had exercised decisive control over the evidence, restricting his and the domestic courts’ access to it and controlling its use, thus preventing him from instructing his defence counsel effectively. The ECtHR found that there had been a violation of Article 6(1) (right to a fair trial) and 3 (c) (right to legal assistance of own choosing) given that as a result of the threat of prosecution should Mr M divulge State secrets to his lawyers, communication between him and his counsel was not free and unrestricted as to its content, thus irretrievably compromising the fairness of the proceedings against him. On the other hand, ECtHR Court further held that there had been no violation of Article 6(1) and 3 (b) and (d) (right to adequate time and facilities for preparation of defence and right to obtain attendance and examination of witnesses) of the Convention. In particular, the refusal of members of the secret services to answer questions put to them by the defence because of their duty of secrecy had not been contrary to Article 6 (1) and (3) (d). The Court observed that a new trial or the reopening of the domestic proceedings at the request of the applicant represents an appropriate way to redress the violation. 

You can read the full judgment here.

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