THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16269/02 
by Manon Harriët AALMOES and 112 Others 
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 25 November 2004 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mrs M. Tsatsa-Nikolovska
 Ms R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 27 March 2002,

Having deliberated, decides as follows:

THE FACTS

The 113 applicants, whose particulars are appended, are all Netherlands nationals and practising lawyers in the Netherlands. They were represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  Background

a.  Events having occurred in the course of criminal proceedings before the Rotterdam Regional Court

In the course of criminal proceedings before the Rotterdam Regional Court (arrondissementsrechtbank), in which applicants nos. 34 and 100 acted as defence lawyers, the Regional Court took oral evidence on 12 and 17 October 2000 from police officer A.B. on the criminal investigation conducted and in the course of which telecommunications with a lawyer - falling within the ambit of the privilege of non-disclosure (verschoningsrecht) by virtue of Article 218 of the Code of Criminal Procedure (Wetboek van Strafvordering - “CCP”) - apparently had been intercepted and recorded. Mr A.B. declared that this had simply been a mistake as, at the material time, he and his colleagues had never realised that it was forbidden to transcribe such conversations into a written record. Once this had been pointed out to him in March 1995 by the public prosecutor, it was too late as copies had already been distributed. It had then been agreed to record such conversations but not to transcribe them. He further declared that it was technically not possible to prevent such conversations from being intercepted. As to two conversations held in June 1996 which had nevertheless been transcribed, Mr A.B. declared that, unlike many others, these two conversations had accidentally slipped through the control system.

On 19 October and 2 November 2000, further hearings were held before the Rotterdam Regional Court in the course of which oral evidence was taken from police detective H.H., who stated that it was his understanding that it was not allowed to transcribe intercepted conversations falling within the ambit of the privilege of non-disclosure, but that use could be made of the information contained therein.

No further information about these proceedings has been submitted by the applicants.

b.  Events having occurred in the course of criminal proceedings before the Almelo Regional Court

In the summer of 2001, it appeared in separate but interrelated sets of criminal proceedings pending before the Almelo Regional Court – in which applicants nos. 39, 81 and 104 acted as defence lawyers – that the obligation under the CCP to destroy evidence falling within the ambit of the privilege of non-disclosure enjoyed by lawyers under Article 218 of the CCP had not been complied with. The three applicants detected this when listening to copies of optical disks that had been added to the case file and on which telephone conversations were stored that had been tapped in the course of the criminal investigations, known under the codenames “T14-1” and “Choco”. They had been made between January 2000 and April 2001.

The three applicants subsequently requested the responsible public prosecutor to provide them with a copy of the written records of the destruction (proces-verbaal van vernietiging) of the conversations with persons enjoying the privilege of non-disclosure (geheimhouders; hereinafter referred to as “privileged persons”), that must be drawn up pursuant to Article 4 § 2 of the Decision on the storage and destruction of items not added to the case file (Besluit bewaren en vernietigen niet-gevoegde stukken – “the Decision”; see below under “Relevant domestic law”).

A written record, dated 1 August 2001 and drawn up by police officer B. reads, insofar as relevant, as follows:

“Both the Choco [investigation] team (Enschede) and the T14 team (Nijmegen) used the “Comverse” interception system. This system stored the intercepted telephone conversations on a so-called Optical Disk. Once stored it was no longer possible to manipulate these recorded conversations. That means that they could no longer be deleted. Given the fact that the system was saved regularly (24 hour), conversations with privileged persons were also stored on the Optical Disk.

The so-called “privileged persons” conversations were recorded by the Choco team in the criminal investigation system used. The telephone conversations were recorded in the processing system concerned as “privileged person” or “confidential”. The conversations were thus not transcribed or summarised.”

In the course of a hearing held in camera before the Almelo Regional Court on 8 August 2001, the public prosecutor stated that no formal records of destruction had been drawn up as it was technically impossibly to delete specific conversations stored on an optical disk, and that in about nine regional police telecommunication tapping rooms (tapkamers) not a single recorded conversation had been deleted since 1994. The public prosecutor explained that, since 1994, a number of police tapping rooms were working with the “Comverse” system for recording intercepted telephone conversations. Such conversations were stored on optical disks. Since the system had to comply with predefined security norms, in which the impossibility to manipulate stored data was an important factor, the system had been set up so that nothing could be added or altered to that data. For this reason it was not possible to delete conversations with privileged persons that had been saved on an optical disk.

On 9 August 2001, the Almelo Regional Court examined a request by applicant no. 81 to extend the time-limit of 10 August 2001 fixed to review the optical disks, and to be provided with the written records of the destruction of conversations with privileged persons and with the indexes of each of the optical disks in the form of an Excell or Excess computer programme file. After having deliberated, the Regional Court granted the first request and rejected the remainder, holding:

“Noting the high number of intercepted conversations and that listening to the optical disks, owing to the absence of a search function ..., is a time consuming exercise, the Regional Court accepts that the defence needs more time ... to listen to the disks. [This] request is ... [therefore] ... reasonable. Since the optical disks, for the purposes of control, must thus be made available again, the Regional Court will fix the delay at a maximum of three months as from the date of this decision.

The public prosecutor has declared in court that no written records of destruction have been drawn up, as the deletion of specific conversations stored on optical disks is technically not possible. In any event, according to the public prosecutor, the conversations with privileged persons will not be transcribed nor added to the case file. Noting this and in the absence of any reason to doubt the statement of the public prosecutor, the request [to be provided with] the written records of destruction is rejected.

The public prosecutor has further declared that no indexes exist of the different optical disks in the form of an Excell, Excess or other computer programme file and that, owing to the great number of intercepted and recorded conversations, it is not possible to create an index at short notice. Considering this to be plausible, noting again the great number of recordings, the Regional Court rejects the request to be provided with the indexes asked for, the more so as [the defence] will now be given [ample time] to listen to the audio data carriers.” 

By letter of 26 September 2001, in reply to a letter sent by applicant no. 81 on 26 September 2001, the public prosecutor stated that he had instructed the police to delete those conversations falling within the ambit of the privilege of non-disclosure that had been stored on optical disks and which had been added to the case file. The public prosecutor indicated that he assumed that the destruction would take place within a week.

According to a written record dated 3 October 2001, drawn up by police officer G.B., the public prosecutor had instructed him on 26 September 2001 to select and delete from the optical disks all intercepted conversations in which privileged persons had participated. In the Choco investigation a total of 556 contacts of that nature had been selected and a total of 75 contacts in the T14-1 investigation. The audio data of all of these conversations had been deleted without making a distinction as to the contents or relevance of these conversations. The written record also contains a remark that the investigation team had not in any manner made use of the contents of stored conversations with privileged persons. An overview of the selected conversations was appended to the written record.   

On 3 October 2001, in the context of the criminal proceedings pending before the Regional Court, the investigating judge (rechter-commissaris) at the Almelo Regional Court took evidence from the expert-witness Mr B.P., who was working for the company Comverse Infosys B.V. According to Mr B.P. it was in fact technically possible not to store selected data on an optical disk and to delete data from it, but most Systems Managers stored all data as selection was a labour intensive exercise. Mr B.P. further stated that only Systems Managers could delete data but not a user, although the system could be set up so that users could also be authorised to delete data. Furthermore, searches for telephone numbers, keywords or remarks could be carried out in the main system. According to his evidence, the “Comverse” system was used by the police in ten regions. The applicants nos. 39, 81 and 104 attended this hearing and were given the opportunity to put questions to Mr B.P.

At a hearing held on 16 November 2001, the Almelo Regional Court granted the request made by applicant no. 81 to take evidence from police officers H.K. and C.T on recorded conversations with privileged persons and the destruction of those recordings.

Mr H.K. declared before the Regional Court that, on the basis of tapping logs, he had made a selection of conversations with privileged persons, i.e. the conversations between the suspect and his lawyer, doctor or counsellor (vertrouwenspersonen). The scope of his selection had been as broad as possible, but he could not certify that his selection had in fact covered every conversation of that kind. He himself had only deleted the data in the tapping logs (i.e. the record containing the references to the conversations concerned), but not the actual conversations themselves. He had done so after 30 October 2001. He had drawn up a written record of the selected conversations and he had given the list of the conversations to be deleted to his colleague Mr C.T.

Mr C.T. testified before the Regional Court that his commanding officer, Mr G.B., had ordered him to delete the conversations with privileged persons. Together with his colleague Mr H.K., he had selected the conversations with privileged persons and a written record of that selection had been made. He further stated that, after having obtained authorisation from the Systems Manager of the Nijmegen tapping room, he had deleted some 550-560 conversations from the optical disks. He had started with this on 26 September 2001 and it had taken him in total 36 hours. He had not reformatted or demagnetised the disks as this would have deleted all of the recorded conversations. Lastly, he stated that, apart from those held by the defence, no copies of the disks had been made.

After having taken evidence from these witnesses and after having given applicant no. 81 the opportunity to question them, the Regional Court ordered, at the request of applicant no. 81, and sharing the parties' concern about the recording of conversations with privileged persons, that the optical disks containing such conversations were to be handed over to, and held by, the investigating judge at the Regional Court.

On an unspecified date, at the request of the defence lawyers and in consultation with the public prosecutor, the investigating judge at the Almelo Regional Court decided to carry out an on-site inspection (schouw) of the police tapping room at the Nijmegen police headquarters.

The inspection took place on 5 June 2002 in the presence of, amongst others, applicants nos. 39, 81 and 104 and the public prosecutor. A check of conversations with lawyers that should have been deleted disclosed that the contents of one conversation, selected at random, had been deleted, but that the “conversation-related” data were still on record, and that another conversation, selected by applicant no. 104, had erroneously only been deleted from the list instead of from the disk, and that the record of the contents of that conversation was still in existence and could be listened to. Consequently, the investigating judge decided to take the audio data carriers with him and that they were to be held by him pending a (further) decision by the Regional Court.

No further information has been submitted as regards these proceedings by the applicants.

2.  Proceedings taken by the NVS and individual lawyers

a.  Request for clarification to the Minister of Justice

In view of the above incidents, the Netherlands Association of Defence Counsel (Nederlandse Vereniging van Strafrechtadvocaten – “NVS”) expressed, in its letter of 10 October 2001 to the Minister of Justice, its serious concerns about the manner in which the judicial authorities were dealing with their obligation to destroy privileged data. It summoned the Minister of Justice to clarify within two weeks where, in the police regions, the “Comverse” system was not being used, and where systems were used in which tapped telephone conversations falling within the privilege of non-disclosure were not removed and destroyed. It further requested the Minister to indicate in what manner and within what delay it was intended to ensure that the privileged data stored since 1994 under the “Comverse” system would be erased, and what measures the Minister intended to take in order to prevent breaches of Article 126aa of the CCP in the future.

b. Summary injunction proceedings before the Regional Court of The Hague

As the Minister did not provide the NVS with the clarification requested within two weeks, the NVS, the Netherlands Bar Association (Nederlandse Orde van Advocaten), and applicants nos. 39, 67, 81, 99 and 104 took summary injunction proceedings (kort geding) against the Netherlands State (the Minister of Justice) before the Regional Court of The Hague, seeking an injunction against the Netherlands State for the destruction of all stored information having been conveyed by or to lawyers enjoying the privilege of non-disclosure – at least to applicants nos. 39, 67, 81, 99 and 104 – and which should have been destroyed, pursuant to former Article 125h of the CCP, or which had to be destroyed pursuant to Article 126aa of the CCP. They further requested the Regional Court to order the Netherlands State to transmit to all lawyers concerned, at least the above five applicants, a notification within the meaning of Article 126bb of the CCP, as well as a copy of the written record of destruction. They lastly requested the Regional Court to order the Netherlands State to state publicly in what manner, and in accordance with what procedure, the provisions of Article 126aa of the CCP and the Decision would be complied with in respect of lawyers enjoying the privilege of non-disclosure.

In its judgment of 19 December 2001, following a hearing held on 10 December 2001, the President of the Regional Court of The Hague rejected the plaintiffs' first two requests and granted their third request. The President further decided that this ruling was immediately enforceable (uitvoerbaar bij voorraad). Insofar as relevant, the President held:

“4.1. For the determination of the question whether it concerns – according to the plaintiffs – a structural, or – according to the defendant – an isolated problem, a thorough investigation is required. There is no room for this in the framework of summary injunction proceedings.

4.2. Furthermore the defendant cannot be ordered in summary injunction proceedings to destroy what the investigating judge should have destroyed on grounds of (former) Article 125h of the CCP. It is clear that, until 1 February 2000, it was the investigating judge, exclusively, who had been assigned the obligation to destroy. In addition, the investigating judge remains competent as regards taps that had already been ordered on 1 February 2000. In this respect reference is made to the transitory rules [according to which Articles 125f-h of the CCP remained applicable in those cases in which tapping orders had been issued before 1 February 2000] and to the letter of the President of [the coordinating and the national consultative platforms for investigating judges] addressed to the investigating judges in the Netherlands on 31 January 2000, in which the President has taken note ex officio, and in which the following position as regards the transitory legal situation has been given:

The key-notion is the preliminary judicial investigation against a concrete suspect. Within that preliminary judicial investigation specific legal rules (either formerly or currently in force) are applicable. The former legal rules remain applicable to preliminary judicial investigations opened before 1 February 2000. Moreover, the management (beheer) of taps remains with the investigating judge. When a preliminary judicial investigation has been opened on or after 1 February 2000, the new legal rules apply in their entirety.

4.3. The above [considerations] result in the rejection of the claims set out under 2.1. and 2.2.

4.4. In the future, the defendant must ensure in any event that the implementation of the legal rules is tightened. This would be necessary even if, as claimed by the defendant, this was an isolated problem. The defendant has stated ... that, to this end, measures have already been taken and [that further measures] will be taken in the near future.

4.5. Having noted this and the established fact that mistakes have been made, and as it appears from the cases cited by the plaintiffs, in particular the Almelo criminal case (the Choco-investigation) and the Arnhem criminal case, that not every public prosecutor is, or was, aware of the correct way of proceeding as regards the obligation to destroy recordings of conversations with privileged persons, the claim cited above under 2.3. is eligible for an award in the manner set out below. ...

The President orders the defendant to inform the plaintiffs by Friday 11 January 2002 at the latest in what manner and according to what procedure the provisions of Article 126aa of the CCP, and the Decision in relation to the investigation of telecommunications in respect of lawyers enjoying the privilege of non-disclosure, will be complied with.”

Neither party filed an appeal against the ruling of 19 December 2001.

c.  Follow-up to the summary injunction proceedings

By letter of 10 January 2002, the Minister of Justice informed the plaintiffs in the above summary injunction proceedings that, in February 2002 at the latest, a description of the procedure for compliance with Article 126aa of the CCP would be laid down in a formal instruction of the Board of Procurators General (College van procureurs-generaal) and that, in anticipation thereof, this Board had transmitted on 21 December 2001 to the chief public prosecutors (hoofdofficieren van justitie) at the Regional Courts, the chief advocates-general (hoofdadvocaten-generaal) at the Courts of Appeal and the heads of the service departments of the Public Prosecution Service (Openbaar Ministerie), an overview of the pertinent legal rules and a schematic description of the procedure. The Board of Procurators General had requested the addressees to ensure that wide attention be given to these documents within the public prosecution and police services concerned. The overview and schematic description were appended to the Minister's letter.

On 12 March 2002, the Board of Procurators General issued a formal instruction on the “Destruction of intercepted conversations with persons enjoying the privilege of non-disclosure” (Instructie vernietiging geïntercepteerde gesprekken met geheimhouders – “the Instruction”; see below under “Relevant domestic law”), which entered into force on 1 April 2002.

3.  The enquiry of the Personal Data Protection Authority

On 4 March 2002, the NVS and applicants nos. 39, 67, 81, 99 and 104 requested the Personal Data Protection Authority (College Bescherming Persoonsgegevens - DPA), under Article 60 § 1 of the Personal Data Protection Act (Wet bescherming persoonsgegevens), to conduct an enquiry into

-      the manner in which data obtained by using digital tapping systems is processed;

-      compliance with the obligation of destruction under (former) Article 125h of the CCP and Article 126aa of the CCP in general; and

-      compliance with these provisions in relation to the collection, storage, removal and destruction of data pursuant to the Police Files Act (Wet op de politieregisters), and the Personal Data Protection Act in particular.

The DPA agreed to conduct the enquiry. It considered itself competent to do so under the Police Files Act and the Personal Data Protection Act, irrespective of the competence of the judge in criminal proceedings. It further accepted that the NVS had an interest in the matter. As regards the scope of its enquiry, the DPA decided to concentrate on the current practice of recording telecommunications with lawyers and, as to the destruction of recorded conversations, on compliance with the Instruction of 12 March 2002. For the time being it decided not to deal with the question of compliance with the obligation of destruction since 1994 when digital tapping systems came into use.

The DPA published its report on this enquiry on 16 July 2003. On the basis of information provided by the Minister of Justice, the Board of Procurators General, the National Organised Crime Prosecution Service (Landelijk Parket) and the petitioners, as well as the comments submitted in response thereto, the DPA noted the following:

“An order for the interception of telecommunications contains a telephone number. The telecom provider transmits digital conversation data being passed by that telephone number to a police tapping room. Five different digital interception systems are used in the police tapping rooms. The manner in which the different interception systems function is comparable.

The digital data transmitted by the telecom provider are stored on a hard disk in the interception system. During the storing on the hard disk, the conversations can be listened to on line. This direct listening is exceptional. The data are copied from the hard disk to an optical disk. This copying is also called archiving. Both before and after archiving, conversations having been stored on a hard disk can be listened to. When the hard disk is full, the conversations stored on the hard disk are overwritten by newly entered conversations. The listening to recorded conversations takes place, as a rule, by playing an optical disk with the aid of a special technical listening device (uitluisterunit). The data obtained through recording telephone conversations are stored in a (special) police register.

The listening to recorded conversations is firstly made by a member of the investigation team that has been entrusted with the investigation in which context the interception order has been given. If, in listening to a recorded conversation, the suspicion arises, or it appears, that it concerns a conversation with a lawyer, a transcript of the recorded telephone conversation is submitted to the public prosecutor in charge of the criminal investigation concerned. The public prosecutor assesses whether the conversation contains information that falls within the ambit of the privilege of non-disclosure. If, according to the public prosecutor, that is the case, the public prosecutor will then order the destruction of the recorded telephone conversation to the extent that it contains privileged information.

According to the explanation attached to the Instruction [of 12 March 2002], a generic order for destruction may be given as regards recorded conversations with a specific lawyer. ... To date, no use is made in practice of the possibility to give such an order.

It has been established that there has been a lack of clarity between the public prosecution service and the petitioners about the manner in which an order for destruction must be carried out. It has also been established that deleting [digital data] can be effected in various manners and that not all manners are effective, as has appeared in the [criminal proceedings before the Almelo Regional Court]. The instruction does not prescribe in what manner the destruction must take place. In the explanation to the Instruction a reference is made to the explanation attached to the Decision [on the storage and destruction of items not added to the case file], where it is stated that simply deleting [digital] files is not sufficient, but that the data carrier must be processed in such a manner that the destroyed data can no longer be recuperated.

The Netherlands Forensic Institute (Nederlands Forensisch Instituut) has, upon the instruction of the public prosecution service, carried out a further investigation. One of the results was that, as regards the Kislev [interception system], it appeared to be possible – through the efforts of an academic scientific researcher and a research assistant having four and one years' experience respectively  – to recuperate deleted conversations within a time span of 56 hours.”

The conclusions of the DPA read as follows:

“As to the current practice in respect of intercepting and recording confidential telecommunications with a lawyer or other provider of legal assistance, the DPA has reached the opinion that this is unlawful. It follows from the recent legislative history, in line with the case-law on this issue, that the interests in the protection of these confidential communications prevails over the interests in finding the truth in criminal cases, also when it concerns the exercise of special powers of investigation. The systematic interception, recording and becoming acquainted with these confidential communications by the police and the public prosecution department is a breach of that. This also leads to a violation of the provisions of Article 14 of the Police Files Act and of Articles 6, 8 and 13 of the Personal Data Protection Act.

The DPA's understanding of Article 4 of the Decision is that the interception and recording of communications, which in the lawyer-client relation must be regarded as confidential, can only take place with the utmost restraint. Only such an interpretation is compatible with the above norm on the need to respect these confidential communications. Therefore Article 4 of the Decision offers a basis for the public prosecutor to take note of recorded telecommunications with a person who presumably, or certainly, is a person enjoying the privilege of non-disclosure, within the meaning of Article 126aa § 2 of the CCP, if and insofar as it is not possible otherwise to do justice to respect confidentiality.

Should this interpretation be incorrect, the question then arises whether, on this point, Article 4 of the Decision is compatible with the special position, recognised by law and treaty, held by persons, who on grounds of their profession, enjoy the privilege of non-disclosure. However, so far the DPA has not drawn this conclusion and, instead, furthers a norm-conforming working method in the interception and recording of conversations with lawyers and other providers of legal assistance. The public prosecution department is to amend the Instruction in conformity with this restrained working method.

As to the obligation of destruction, the DPA is of the opinion that Article 126aa § 2 of the CCP is not respected in the cases that have arisen. The public prosecution department is to take those measures within their powers to ensure as far as possible that, after the destruction of privileged data, it will not be possible in the context of criminal proceedings to become acquainted, via relatively simple means, with destroyed data.”

The DPA formulated the following four recommendations:

“1. Lawyers and other providers of legal assistance are to ensure that there is clarity about their capacity when participating in telecommunications. To this end the lawyer can make it unambiguously clear at the beginning of a telecommunication that he participates in his capacity as a lawyer, where it concerns a confidential communication with his client.

2. The public prosecution department is to prescribe a number recognition system to select conversations in which lawyers participate exclusively in their professional capacity. As regards an unrecognised number, only the first conversation has to be listened to. A separation of functions ... in listening to and assessing conversations could offer a final safeguard...

3. The public prosecution department is to give concrete substance to the norm that destroyed conversations should no longer be accessible, specifically in the context of criminal proceedings, by including in the Instruction a sufficiently specific norm on which the actual implementation of the obligation of destruction in respect of the different tapping systems can be based.

4. The public prosecution department is to give effect to its responsibility for compliance with the obligation of destruction by making further agreements with the police force managers (korpsbeheerders) who are responsible for the actual implementation of the obligation of destruction. The public prosecution department is to verify that adequate implementation be given to the obligation of destruction and will ensure that, on this point, it will be informed half a year after the introduction of a new Instruction.”

4.  Initiatives taken by the Government

On 25 March 2003, in response to the negative publicity the matter had attracted in the media, the Minister of Justice and the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) informed the Lower House of Parliament (Tweede Kamer) that they intended to commission a vulnerability risk assessment of the telecommunication interception systems. On 5 December 2003, these Ministers transmitted to the Lower House an accountants' report on the five different systems used in the Netherlands. The main conclusion of this report (dated 25 August 2003) reads, insofar as relevant:

“During our investigation we have found, in all of the five interception organisations examined, important lacunas in both the management of the interception system and the technical security of the interception systems themselves. This means that there exist, in all the interception organisations examined, risks that may lead directly to accessing, altering or (non-)deletion of intercepted information or therewith connected meta-information (such as traffic data) ... by unauthorised third persons. In our opinion, such risks are to be addressed without delay.

How far such risks have also in fact led to abuse has, given the aim of the assessment, has not been examined. A mitigating circumstance in the insufficiency of the technical security is that the interception systems are used within the compartmented surroundings of the police so that the hereto related risks are primarily of an internal police nature.”

The Ministers stated, in their accompanying letter to the Lower House, that although no cases of abuse had been reported, the management and data security in the interception centres assessed had been found to be insufficiently formalised. They informed the Lower House of the measures already taken and the measures planned for the future to remedy the shortcomings as soon as possible.

5.  Subsequent developments

By letter of 29 September 2003, the Minister of Justice informed the DPA that he did not subscribe to the findings of the DPA made in its report of 16 July 2003. The Minister considered that the practice of intercepting all conversations conducted via a tapped telephone number, including telephone conversations with a lawyer, with a subsequent control by the public prosecutor whether any of these conversations fell with the scope of the privilege of non-disclosure enjoyed by lawyers was in accordance with Article 126aa of the Code of Criminal Procedure and Article 4 of the Decision. Consequently, the Minister would not follow the DPA recommendations.

On 25 October 2004, the DPA informed the Minister of Justice that, given the difference of opinion about the meaning of the applicable domestic legal rules, it now advised the Minister to amend these legal rules, by setting rules aimed at preventing that information conveyed to or by a person enjoying the privilege of non-disclosure be rendered public. The DPA further advised the Minister to entrust to the investigating judge the task of selecting what information should be classified as privileged.

B.  Relevant domestic law and practice

1. Preliminary judicial investigation

It is open to the public prosecutor, under Section 181 of the Code of Criminal Procedure (CCP), to request the investigating judge to open what is called – in order to distinguish it from the subsequent investigation at the trial – a preliminary judicial investigation (gerechtelijk vooronderzoek). It is the task of the investigating judge to conduct such an investigation in which he/she is to ensure that evidence is obtained in accordance with the law. The judge must also act impartially by collecting evidence which might exculpate the suspect. It is on the basis of the judge's investigation that the prosecution decides whether to take the matter further, by committal for trial, or whether to close it.

Article 33 of the CCP, as amended on 1 February 2000, reads as follows:

“Access to all documents in the case file, either the originals or copies thereof, may not be denied to the suspect as soon as the preliminary judicial investigation has been closed or has ended, or, where there has been no preliminary judicial investigation, as soon as the notification of further prosecution or the summons for appearance at the trial in first instance has been served [on the suspect].”

The trial court may suspend proceedings for further inquiries by the investigating judge (Article 316 of the CCP).

2. Situation before 1 February 2000 as regards the interception of telecommunications in criminal investigations

Until 1 February 2000, the rules about the interception of communications made through public telecommunication networks or services were set out in Articles 125f-h of the CCP. Further rules on the practical exercise of the power to intercept communications were set out in the Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person. The text of these Guidelines had further been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989. These Guidelines, which did not have the formal character of law, had been issued as a model letter from the senior public prosecutors to the police. The above rules initially covered only communications by telephone. As from 1 March 1993, when the Act on Computer Criminality (Wet op de Computercriminaliteit) entered into force, they also covered communications by fax and e-mail.

Pursuant to Article 125g of the CCP, the tapping of telecommunications could only be ordered in relation to offences for which detention on remand (voorlopige hechtenis) could be imposed, i.e. offences of a certain gravity carrying a punishment of imprisonment of four years or more (Article 67 of the CCP). The tapping could only concern communications in which a suspect was likely to participate, and it could only be ordered where the investigation urgently required it. It was subject to the prior authorisation of the investigating judge, and a written record (proces-verbaal) of the tapping had to drawn up within 24 hours.

Under Article 125h of the CCP, records without importance for the investigation had to be destroyed as soon as possible by order of the investigating judge and a written record of destruction should be drawn up without delay. As to the destruction of information obtained through the interception of telephone conversations, the standard practice in fact differed from the Guidelines. On the basis of, inter alia, the Court's findings in the cases of Kruslin and Huvig v. France (judgments of 24 April 1990, Series A no. 176-A and B) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case. Anyone requesting access to such material was required to give reasons for such a request.

Where no suspect could be identified immediately and in order to obtain a tapping authorisation from the investigating judge, a preliminary judicial investigation against a person or persons unknown (“NN”) could be opened. As soon as the name(s) of the suspected perpetrator(s) could be established, the preliminary judicial investigation was to be put in the name of the suspect(s) concerned (Article 181 § 3 of the CCP). By subsequently availing him or herself of the right to be granted access to the case file (Article 30 § 1 and Article 33 of the CCP), a suspect could become aware of the fact that communications had been tapped during the investigation.

3.  Situation after 1 February 2000 as regards the interception of telephone conversations in criminal investigations

On 1 February 2000, the Preliminary Judicial Investigations (Review) Act (Wet herziening gerechtelijk vooronderzoek) and the Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden) entered into force, amending the legal rules on criminal investigative powers and coercive measures in criminal investigations, including the rules on intercepting and recording telecommunications, including telephone conversations.

The provisions of Article 125f-h of the CCP were replaced by Articles 126m (recording of telecommunications) and 126n (metering of telecommunications) of the CCP. Under the transitory rules, Articles 125f-h of the CCP remained applicable to those cases in which orders for intercepting and recording telecommunications had been issued before 1 February 2000.

Article 126m of the CCP provides as follows:

“1. In case of suspicion of an offence referred to in Article 67 § 1 [of the CCP, i.e. an offence in respect of which detention on remand is permitted] which – in view of its nature or its connection with other offences committed by the suspect – constitutes a serious breach of the legal order, the public prosecutor may, if the investigation urgently so requires, order an officer with powers of investigation (opsporingsambtenaar) to record telecommunications with a technical device.

2. Telecommunication is, under this provision, to be understood as a communication not intended for the general public, taking place via a public communication network or by use of public telecommunication services.

3. The order for recording telecommunications shall be in writing and contain:

a. the offence and, if known, the name or otherwise a precise as possible indication of the suspect;

b. the facts or circumstances from which it appears that the conditions set out in the first paragraph are fulfilled;

c. the number with which the individual user of telecommunication [services] is identified as well as, insofar as known, the name and address of the user;

d. the term of validity of the order.

4. Article 126l §§ 4-8 [of the CCP] shall apply by analogy.”

Article 126l of the CCP, in its relevant part, reads as follows:

“1. In case of suspicion of an offence referred to in Article 67 § 1 [of the CCP] which – in view of its nature or its connection with other offences committed by the suspect – constitutes a serious breach of the legal order, the public prosecutor may, if the investigation urgently so requires, order an officer with powers of investigation ... to record private [conversations] with a technical device.

2. ... For the purposes of executing the order [the public prosecutor] can order that a home will be entered without the permission of the person entitled [to use the premises], if the investigation so requires urgently and the suspicion concerns an offence attracting by law a prison sentence of eight years or more. ...“

4. The order can only be issued after written authorisation has been given by the investigation judge on the request of the public prosecutor. The authorisation concerns all elements of the order. ...

5. The order can only be given for a maximum period of four weeks. It may be prolonged for a period of four weeks each time.

6. Article 126g §§ 6-8 [of the CCP] shall apply by analogy, on the understanding that the public prosecutor – for changing, broadening or prolonging [the order] – must have the authorisation of the investigation judge. .... As soon as the conditions set out in the second sentence of the second paragraph [of this Article] are no longer fulfilled, the public prosecutor shall direct that the execution of the order be ended.

7. In case of urgent necessity, the authorisation of the investigating judge, referred to in the fourth and sixth paragraph [of this Article], may be given orally, unless the second sentence of the second paragraph is applied. In that case the investigating judge shall draw up an authorisation in writing within three days.

8. A written record (proces-verbaal) of the recording [of private conversations] shall be drawn up within three days.”

Article 126g of the CCP, insofar as relevant, provides:

“1. In case of suspicion of an offence, the public prosecutor may, in the interests of the investigation, order that an officer with powers of investigation systematically follows a person or systematically observes the latter's presence or conduct.   ...

6. In case of urgent necessity, the order may be given orally. In that case the public prosecutor shall draw up an order in writing within three days.

7. As soon as the conditions set out in the first paragraph [of this Article] cease, the public prosecutor shall direct that the execution of the order be ended.

8. The order can be amended, broadened or terminated in writing, with an indication of the reasons. In case of urgent necessity, the decision may be given orally. In that case the public prosecutor shall put that in writing within three days.”

Article 126aa of the CCP, insofar as relevant, provides:

“1. The public prosecutor adds to the case file the written records and other objects from which information can be derived that have been obtained in application of one of the powers set out in Titles IVa to Va [e.g. systematic observation, infiltration, recording private conversations with a technical device, and intercepting and recording telecommunications] or [objects seized] in application of Article 126ff [of the CCP].

2. To the extent that the written records or other objects contain information conveyed by or to a person entitled to rely on the privilege of non-disclosure by virtue of Article 218 [of the CCP] if he or she were to be questioned as a witness about the contents of that information, these written records and other objects shall be destroyed. Rules for this shall be given by Order in Council (Algemene Maatregel van Bestuur). Insofar as the written records and other objects contain information other than that meant in the first sentence hereof and has been conveyed by or to a person referred to above, [that material] shall only be added to the case file after an authorisation by the investigating judge. ...”

Pursuant to Article 126bb of the CCP, the public prosecutor shall, as soon as the interests of the investigation so allow, notify in writing to the person concerned (i.e. the suspect or user of the telecommunication or technical devices with which intercepted telecommunications have taken place) that his or her communications have been monitored and/or recorded in application of the investigative powers under the CCP. Such notification is not required if it is not reasonably possible. If the person concerned is the suspect, notification is not required if he or she has already become aware of the interceptions, for instance by having obtained access to the case file (Article 30 § 1 and Article 33 of the CCP).

Article 126cc of the CCP provides as follows:

“1 As long as the case has not ended, the public prosecutor shall keep the written records and other objects from which information can be derived which have been obtained by observation with the aid of a technical device that records signals, the recording of private conversations, or the investigation of telecommunications – insofar as these have not been added to the case file – and keeps them for the investigation.

2. Two months after the case has ended and the last notification referred to in Article 126bb [of the CCP] has been made, the public prosecutor shall have destroyed the written records and other objects referred to in the first paragraph. A written record of the destruction shall be drawn up.

3. A preparatory investigation (voorbereidend onderzoek) that, according to reasonable expectations, will not result in [further criminal proceedings] is to be equated with the end of a case and the application of the [second] paragraph.

4. Rules will be given by Order in Council on the manner in which the written records and other objects referred to in the first paragraph shall be stored and destroyed.”

4. The privilege of non-disclosure in criminal proceedings

Article 218 of the CCP, which provision was referred to in Articles 125f-h of the CCP and is still in force, provides as follows:

“Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.”

Article 125h § 2 of the Code of Criminal Procedure required the investigating judge to order the destruction without delay of official records and other objects from which information can be derived insofar as they concerned statements made by or to a person who, on the basis of Article 218 of the CCP, enjoyed the privilege of non-disclosure.

In a judgment of 29 June 1993, the Supreme Court held that lawyers fall within the category of persons having a professional obligation to secrecy, and thus enjoy the privilege of non-disclosure under Article 218, unless they themselves are suspects (Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1993, no. 692).

Already in a judgment of 10 April 1979, the Supreme Court had ruled that Article 125g of the CCP did not allow the investigating judge to authorise the tapping of telephone conversations made to or from a telephone used by a lawyer, who him or herself was not a suspect, in the exercise of his profession (NJ 1979, nr. 374). In its judgments of 17 May 1988 (NJ 1989, no. 439) and 9 June 1992 (NJ 1992, no. 776), the Supreme Court further ruled that the tapping of telephone conversations made to or from a telephone of a person with a professional obligation to secrecy was allowed when the telephone line was used primarily for private calls.

In a judgment given on 12 January 1999, the Supreme Court ruled that, pursuant to Article 125h § 2 of the CCP, information obtained by tapping telecommunications that falls within the ambit of the privilege of non-disclosure under Article 218 of the CCP cannot be used in criminal proceedings and that, in the case at issue, the trial court had unjustly used in evidence the contents of telephone conversations between a co-accused and his lawyer. The Supreme Court considered that Article 125h § 2 was aimed at protecting the interests of everyone in having the possibility to consult a lawyer in all liberty, and without fear of something becoming public which had been entrusted to a lawyer in the latter's professional capacity. According to the Supreme Court this principle would be impaired if a third person had to take account of the possibility that information entrusted to a lawyer might become known to others, even if this would occur in a procedure to which he or she was not be a party (NJ 1999, no. 290).

In a further judgment of 30 November 1999 (Jurisprudentie OnLine 1999, 270) in a case concerning criminal proceedings taken against a lawyer on charges of participation in certain activities of a criminal organisation, the Supreme Court held that it was for the investigating judge, preferably in joint consultation with the President of the local Bar Association or the latter's deputy, to determine what information did or did not fall within the ambit of the privilege of non-disclosure. It further took into consideration the fact that the decision of the investigating judge could subsequently be challenged before the court in a complaints procedure under Article 552a of the CCP. Under this provision, interested parties including the suspect may file an objection against, inter alia, a seizure, the use of seized objects and the failure to order their return. If the competent court finds the objection well-founded, it will issue the corresponding order. The Supreme Court confirmed this ruling in a later judgment of 18 June 2002 (NJ 2003, no. 621) involving other criminal proceedings against a lawyer.

The further implementation rules referred to in the above-cited Articles 126aa and 126cc of the CCP are set out in the Decision on the storage and destruction of items not added to the case file (Besluit bewaren en vernietigen niet-gevoegde stukken) which was published in the Bulletin of Acts and Decrees (Staatsblad) 1999 no. 548. The Decision entered into force on 1 February 2000.

Article 4 of the Decision provides as follows:

“1. The officer with powers of investigation who, by the exercise of one of the powers set out in Titles IVa to Va of the CCP, becomes acquainted with information of which he knows, or reasonably can know, that it has been conveyed to or by a person enjoying the privilege of non-disclosure, shall inform the public prosecutor of this without delay.

2. In case the public prosecutor determines that it concerns information referred to in the first sentence of Article 126aa § 2 [of the CCP], he shall immediately order the destruction of the written records and other objects, insofar as they contain such information. A written record of the destruction shall be drawn up and shall be sent to the public prosecutor.

3. Insofar as the information referred to in the first paragraph has been conveyed by or to a person enjoying the privilege of non-disclosure but who is being considered as a suspect, the public prosecutor shall seek the opinion of an authoritative member of the professional group to which the privileged person belongs on the question whether the information is to be regarded as information within the meaning of Article 126aa § 2, second sentence, of the CCP. If the public prosecutor decides to deviate from the opinion of the authoritative member of the professional group, reasons for this decision shall be given.”

Article 5 of the Decision reads as follows:

“1. If the written record is stored on a separate data-carrier, it is equated with the destruction of written records when the date-carrier is processed in such a manner that the data that could be derived from it prior to processing cannot, after such processing, be recuperated.

2. To be equated to the destruction of an object is its processing in such a manner that the data which could be derived from it prior to processing cannot be recuperated thereafter.”

The Explanatory Memorandum to the Decision, insofar as relevant, is set out as an Annex I to this decision.

A formal step-by-step instruction to investigating officers is contained in the “Destruction of intercepted conversations with persons enjoying the privilege of non-disclosure” issued by the Board of Procurators General on 12 March 2002. Its relevant part is set out at Annex II to this decision.

It has been accepted in the Supreme Court's case-law that unlawful acts by the criminal investigation and prosecution authorities can, in certain circumstances, result in such a serious breach of the principles of proper proceedings that this should lead to one of the consequences set out above, including the inadmissibility of the prosecution. This sanction may follow if the acts at issue concern serious breaches of those principles by which, deliberately or with gross negligence, the accused's right to a fair hearing has been disrespected (Supreme Court, 19 December 1995, NJ 1996, no. 249, and 3 July 2001, NJ 2002, no. 8).

5. Unlawful acts committed by criminal investigation authorities

Article 359a of the CCP reads, insofar as relevant, as follows:

“1. The [trial court] can, if it appears that in the preliminary investigation procedures have been disrespected that can no longer be repaired and the legal consequences thereof do not appear from the law, determine that:

a. the gravity of the sentence be mitigated in relation to the seriousness of the defect, if the disadvantage caused by the fault can be compensated in this way;

b. the results of the investigation having been obtained by the defect may not be used in evidence;

c. the prosecution is inadmissible, if owing to the defect there cannot be an examination of the case in compliance with the principles of proper proceedings.

2. In applying the first paragraph, the [trial court] takes into account the interests served by the infringed rule, the seriousness of the defect and the disadvantage caused by it.”

6. Civil proceedings against the State for a wrongful act

In cases where no remedy is available against acts or decisions of public authorities, Netherlands law has traditionally recognised the competence of the civil courts to grant relief against public authorities. In such circumstances, civil proceedings against the State can be instituted, claiming that the contested decision or act constitutes a wrongful act (onrechtmatige daad) within the meaning of Article 6:162 of the Civil Code (Burgerlijk Wetboek). The civil court can award damages for torts committed and can grant injunctions against public authorities.

7. Summary injunction proceedings

In civil cases where urgency is required, summary injunction proceedings (kort geding) before the President of the Regional Court may be taken in order to obtain an immediate or interim measure. Such proceedings may be initiated where the parties cannot wait for a decision on the merits (bodemprocedure). Summary injunction proceedings are governed by Articles 289-297 of the CCP (Wetboek van Burgerlijke Rechtsvordering).

They are concluded speedily and focus on the oral submissions at the hearing. As these proceedings are characterised by speed, the issues raised are only examined summarily. Decisions taken in summary injunction proceedings are usually handed down within a week after the hearing and are immediately enforceable. Such decisions may be appealed before the Court of Appeal (gerechtshof) and may subsequently form the object of an appeal in cassation to the Supreme Court. Decisions given in summary injunction proceedings may not be detrimental to the outcome of the proceedings on the merits (beslissingen bij voorraad brengen geen nadeel toe aan de zaak ten principale”). The court determining the merits of the case is not bound by the decision handed down by the President of the Regional Court in summary injunction proceedings.

8. The Personal Data Protection Authority

The Personal Data Protection Authority (DPA) – a body set up in implementation of Article 28 of the European Union Privacy Directive 95/46/EC – supervises compliance with and the application of the legal rules governing the use of personal data as contained in, inter alia, the Personal Data Protection Act (Article 51 § 1), the Police Files Act (Article 26 § 1) and the Municipal Database (Personal Files) Act (Wet Gemeentelijke Basisadministratie Persoonsgegevens) (Article 120 § 1). Furthermore, pursuant to Articles 151a § 6 and 195a § 4 of the CCP, the DPA must be heard in the determination of the rules, to be set out in an Order in Council, on the processing, storing and destruction of DNA profiles.

In the exercise of its various functions, the DPA advises the Government on legislation, assesses codes of conduct, studies technological developments, gives information, mediates and handles complaints, evaluates the processing of personal data and, if necessary and subject to the provisions of the General Administrative Law Act (Algemene Wet Bestuursrecht), may issue decisions and take enforcement action in respect of non-compliance with the legal rules on processing personal data.

Under Article 60 § 1 of the Personal Data Protection Act, the DPA has a discretionary power to initiate, either acting ex officio or at the request of an interested party, an enquiry into the manner in which the provisions under or based on this Act are applied as regards data processing.

COMPLAINTS

1. The applicants complain that the powers of investigation under the CCP, as amended on 1 February 2000, and the regulations for implementing Article 126aa of the CCP are in violation of their rights under Article 8 of the Convention. The applicants consider that these rules do not comply with the requirement of foreseeability and do not offer sufficient protection against the arbitrary exercise of these powers or the unjustified breaches of their professional secrecy. The applicants point out inter alia that, under the new rules, even the telecommunications of persons who themselves are not a suspect may be tapped, whereas under the rules in force until 1 February 2000; only telecommunications could be intercepted in which a suspect was likely to participate; that under the Decision and the Instruction it is the police who at the outset take notice of privileged information and subsequently the public prosecutor who examines whether such information is privileged and, if so, orders its destruction. This entails that both the police and the public prosecutor become aware of each confidential communication between a lawyer and a client that has been intercepted by means of an investigative power. According to the applicants, the regulations concerned do not guarantee the required level of protection and thus cannot be regarded as being “in accordance with the law” or “necessary in a democratic society” as the interferences which they entail are disproportionate.

2. The applicants also complain under Article 8 of the Convention that, as became apparent in the proceedings before the Rotterdam Regional Court and the Almelo Regional Court, the obligation of destruction under former Article 125h and Article 126aa of the CCP has been disrespected on a large scale, and possibly since 1994, entailing that confidential information conveyed to or by each of them might still be kept in digital files held by the judicial authorities without any possibility for the applicants to obtain clarity on this point.

3. The applicants lastly complain that domestic law does not provide for an effective remedy, within the meaning of Article 13 of the Convention, for repairing a violation of Article 8 on account of the application of a special investigative measure in respect of lawyers, or on account of a failure to comply with the obligation of destruction under Article 126aa of the CCP.

THE LAW

1. The applicants complain that the powers of investigation under the CCP and the regulations for the implementation of Article 126aa of the CCP are incompatible with Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court recalls at the outset that, whilst Article 33 of the Convention permits a High Contracting Party to refer to the Court “any alleged breach” of the Convention by another High Contracting Party, Article 34 requires that an individual applicant should be able to claim to be actually affected by the measure of which he or she complains. Article 34 may not be used to found an action in the nature of an actio popularis; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33). The question therefore arises whether, in the instant case, all of the applicants or only some of them may claim to be a victim within the meaning of Article 34 of the Convention.

Further noting that no appeal was filed against the ruling of the President of the Regional Court of The Hague of 19 December 2001, that no civil proceedings on the merits were taken by the applicants whereas, at the request of five applicants and the NVS, the Personal Data Protection Authority accepted to carry out an enquiry which resulted in four recommendations, the question also arises whether the applicants have complied with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.

However, the Court does not find it necessary to determine these questions as the application is in any event manifestly ill-founded for the reasons set out below.

As regards the substance of the applicants' complaints under Article 8, the Court notes that they are focussed on the rules set out in the CCP, as amended on 1 February 2000, and the implementing regulations set out in the Decision and the Instruction, governing the tapping of telecommunications, including telecommunications in which a lawyer participates. The applicants argued that theses rules lack the clarity and foreseeability required by the concept of lawfulness as enshrined in the Convention, and they invoked the danger of abuse.

The Court considers that telecommunications, irrespective whether these are made from a private home or business premises, are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1, and that the interception, retention and subsequent use by domestic criminal investigation authorities of the contents of such communications amount to an interference with the right guaranteed by Article 8 § 1.

Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims.

The expression “in accordance with the law” does not only imply the existence of a legal basis in domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of the interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to such secret measures (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1017, § 49; and Khan v. the United Kingdom, no. 35394/97, § 26, ECHR 2000-V). The Court further reiterates that, while the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the key considerations are the likelihood of such action and the safeguards provided to protect against it (see Klass and Others, cited above, p. 27, § 59).

The Court notes that, pursuant to Article 126m in conjunction with Article 126l of the CCP, telecommunications may only be intercepted and recorded on the basis of a written order, with the authorisation of the investigating judge, for a defined category of offences of a certain gravity, and for a maximum duration of four weeks, which period, subject to the investigating judge's authorisation, may be extended by four weeks each time. Furthermore, according to the case-law of the Supreme Court under Article 218 of the CCP, an investigating judge may not authorise the tapping of the telecommunications made by a lawyer in his or her professional capacity, unless it is the lawyer who is the suspect of the offence under investigation.

The Court observes that, pursuant to Article 152 of the CCP, all acts and findings of officials in a criminal investigation must be recorded in writing and that, pursuant to Article 126aa § 1 of the CCP, all recorded information obtained by the interception of telecommunications must be added to the case file.

However, pursuant to Article 126aa § 2 of the CCP, information obtained by the tapping of telecommunications may not be added to the case file, must be destroyed and may not be used in evidence, if that information falls within the ambit of the privilege of non-disclosure under Article 218 of the CCP, as enjoyed by, inter alia, lawyers. In case the information obtained by the interception of telecommunications does not fall within that category, but has been conveyed to or by a person enjoying the privilege of non-disclosure, it can only be added to the case file with the authorisation of the investigating judge. Furthermore, if the suspect is a person enjoying the privilege of non-disclosure on account of his or her profession, domestic law prescribes the involvement of a member in authority of the professional group concerned in identifying what information may and may not be added to the case file in the light of the privilege of non-disclosure. In this situation, it is again the investigating judge who eventually authorises what information conveyed to or by the suspect may be included in the case file.

Accordingly, domestic law provides for various procedural safeguards designed to ensure that the interception of telecommunications is not ordered haphazardly, irregularly or without due and proper consideration. It requires this measure to remain under the permanent supervision of a judge.

The Court also observes that the statutory and other provisions at issue lay down strict rules for the processing, retention and destruction of information obtained by the interception of telecommunications, and that – after it had appeared at the domestic level that in practice the rules on the destruction of information not added to the case file were not adequately complied with in all cases – these rules were further tightened and clarified in the Instruction issued on 12 March 2002. As regards the question whether after 12 March 2002 there has been adequate compliance with the rules, the Court considers that it has not been demonstrated by the applicants that this would not be the case.

In these circumstances, the Court is satisfied that the Netherlands regulations governing the interception of telecommunications in the context of criminal investigations are sufficiently precise and comprehensive, and provide for adequate safeguards, to be considered as “law” for the purposes of Article 8 § 2.

It further considers that the possibility to intercept telecommunications in the context of a criminal investigation pursues an aim that is legitimate under Article 8 § 2, namely the prevention of crime.

It remains to be determined whether the procedures for supervising the interception of telecommunications in which a lawyer participates are such as to limit the “interference” to what is “necessary in a democratic society”. The Court recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Messina v. Italy (no. 2), no. 25498/94, § 65, ECHR 2000-X).

In this connection and in agreement with the considerations of the Supreme Court in its judgment of 12 January 1999, the Court considers that it is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged (see Foxley v. the United Kingdom, no. 33274/96, § 43, 20 June 2000). The suggestion that information conveyed by or to a lawyer in the latter's professional capacity is susceptible to interception, particularly by criminal investigation authorities who may have a direct interest in obtaining such information, is not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his or her clients. It is for this reason that, in principle, lawyers have in their professional contacts with clients a reasonable expectation of protection and respect for their professional privacy.

In order to secure respect for this reasonable expectation, it is therefore required that the interception of telecommunications be subject to an adequate system of supervision. In this area, faced with evolving and sophisticated technology and the possibility of human error or abuse, the Court considers that it is in principle desirable to entrust the supervisory control to a judge.

It notes that, under the Netherlands domestic rules, judicial supervision takes place at various stages:

-      when the investigating judge authorises the public prosecutor to issue an initial interception order and on each occasion when the investigating judge authorises a prolongation thereof;

-      when the public prosecutor seeks authorisation from the investigating judge to add to the case file information not falling within the ambit of the privilege of non-disclosure under Article 218 of the CCP, but which information has been conveyed to or by a person enjoying the privilege of non-disclosure;

-      when – a lawyer being the suspect – the public prosecutor seeks authorisation from the investigating judge to add to the case file information that has been identified by the public prosecutor – with the assistance of the competent member of the local Bar Association – as not falling within the ambit of the privilege of non-disclosure; and,

-      when the suspect is committed for trial, in the proceedings before the trial court where an argument based on Article 359a of the CCP can be raised, claiming that information falling within the ambit of the privilege of non-disclosure had been unlawfully obtained and/or unlawfully retained.

In the light of these considerations and its detailed examination of the impugned legal rules on the interception of telecommunications, the Court is of the opinion that the possible interference with the exercise of the applicants' right to respect for private life and correspondence in this field can reasonably be regarded as falling within the limits of what is necessary in a democratic society for the prevention of crime, as envisaged by Article 8 § 2.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants also complain under Article 8 of the Convention that, as became apparent in the proceedings before the Rotterdam Regional Court and the Almelo Regional Court, the obligation of destruction under former Article 125h and Article 126aa of the CCP has been ignored on a large scale, possibly since 1994. This has possibly entailed confidential information conveyed to or by each of them being kept in digital files held by the judicial authorities without any possibility for the applicants to obtain clarity on this point.

The Court notes that in the proceedings before the Almelo Regional Court, the public prosecutor stated that, since 1994, no recorded telephone conversation had been deleted in the nine police tapping rooms. The Rotterdam and Almelo trial courts examined the issue in depth and, insofar as can be established from the applicants' submissions, any failings found in these cases were apparently the result of a lack of professional knowledge and/or negligence on the part of the responsible officials in the respective criminal investigations.

The Court further notes that, in the summary proceedings before the President of the Regional Court of The Hague, the claim that there was a longstanding structural failure to comply with the obligation of destruction was not determined as this would have required a thorough investigation outside the scope of the summary proceedings in question. Moreover, the Personal Data Protection Authority decided not, for the time being, to examine this point during its enquiry. No civil proceedings on the merits were taken by the applicants in order to obtain a judicial determination of the issue.

Although the Court appreciates the applicants' concerns, it is nevertheless of the opinion that, given the circumstances as a whole, and particularly the constructive reaction of the authorities in response to the applicants' complaints, their claim that the obligation to destroy intercepted, privileged telecommunications has been ignored, either structurally or at least at a large scale, remains speculative.

The Court concludes therefore that this part of the application is also to be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. The applicants lastly complained that there is no effective remedy, within the meaning of Article 13 of the Convention, to repair a violation of Article 8 caused by the application of a special investigative measure affecting lawyers, or a failure to comply with the obligation of destruction under former Article 125h and Article 126aa of the CCP.

Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates at the outset that Article 13 does not go so far as to require a remedy whereby the laws of a Contracting State may be impugned before a national authority as being in themselves contrary to the Convention (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 39, § 90) and that it has consistently interpreted Article 13 as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV).

The Court accepts that, in the circumstances of the present case, the applicants' claims were sufficiently “arguable” for the purposes of Article 13 of the Convention. Consequently, they were entitled to an effective domestic remedy within the meaning of this provision.

The Court further reiterates that the “authority” referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see Klass and Others, cited above, p. 30, § 67).

The Court notes in the first place that where it appears that information conveyed by or to a lawyer, which has been obtained and/or included in the case file in violation of the domestic rules on privileged information, the suspect may raise an argument based on Article 359a of the CCP before the trial court, claiming that the prosecution is defective and should be declared inadmissible. Although it is true that such an outcome would benefit the accused rather than the lawyer concerned, the Court has no doubt that this possibility of sanctioning the prosecution is an important incentive for the criminal investigation authorities to comply with those rules.

The Court observes that in the summary proceedings taken in the present case, the President of the Regional Court of The Hague did not declare the plaintiffs' action inadmissible for lack of competence but accepted jurisdiction in the matter and, insofar as those proceedings provided sufficient scope to determine the plaintiffs' claims, the problems were examined. Furthermore, in compliance with the injunction issued by the President on that occasion, the Government took measures to clarify and tighten the relevant rules. Insofar as these measures would, in the applicants' opinion, be inadequate or insufficient, the Court finds no indication that it would not have been possible for the applicants to pursue the matter further in civil proceedings on the merits, rather than by the already tried summary action.

Given that the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Lacko and Others v. Slovakia (dec.), no. 47237/99, 2 July 2002), the Court considers that the above elements – taken together – provided the applicants with an effective remedy (see Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, pp. 29-30, § 77).

It follows that this part of the application must similarly be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

 

LIST OF APPLICANTS

Name:     Residing in:  Born in:

1.    Ms M.H. Aalmoes  Amsterdam  1967

2.    Mr J. Anker   Leeuwarden  1953

3.    Mr F.G.L. van Ardenne  Barendrecht  1965

4.    Mr H. van Asselt   Roosendaal  1959

5.    Mr W.H.G. van Baarle  Breda   1948

6.    Mr R.P. Baetens   Loon op Zand  1953

7.    Mr M. Baijens   Oude Willem  1954

8.    Ms M. Bakker   Rotterdam  1969

9.    Mr P.H. Bakker Schut  Amsterdam  1941

10.  Mr R.J. Baumgardt  Spijkenisse  1961

11.  Mr A.B. Baumgarten  Voorburg  1964

12.  Mr C.J. van Bavel  Utrecht   1964

13.  Mr A.S. van der Biezen  's-Hertogenbosch 1962

14.  Mr R.T.M. Borsjé  Bentveld  1942

15.  Mr H.K. ter Brake  Hoorn   1954

16.  Mr H.E. Brink   Amsterdam  1965

17.  Mr J.-L.A.M. le Cocq d'Armandville  Rotterdam  1949

18.  Mr R.J.H. Corten   Sittard   1954

19.  Mr J.T.C.M. Crepin  Rotterdam  1955

20.  Mr E.J.H. Damman  Amersfoort  1964

21.  Mr C.N.M. Dekker  Amsterdam  1953

22.  Mr H.H.M. van Dijk  Oss   1954

23.  Mr R.E. Drenth   Breda   1966

24.  Mr F.A. Dronkers   Roermond  1966

25.  Mr B.C.W. van Eijck  Rotterdam  1963

26.  Mr A. Ester   Zwijndrecht  1963

27.  Mr J.H.J. Evers   Zutphen  1969

28.  Mr D. Fasseur   Zeist   1949

29.  Mr A.A. Franken   Amsterdam  1967

30.  Mr R.A.L.F. Frijns  Rotterdam  1965

31.  Mr J.K. Gaasbeek   Haarlem  1951

32.  Mr J.L.G. Gerrits   Oosterhout  1949

33.  Mr R. de Gooijer   Amstelveen  1940

34.  Ms J. Goudswaard  Den Haag  1941

35.  Mr A.W. Grijseels  Rotterdam  1955

36.  Mr J.W.E.M. Guzik  Weert   1954

37.  Mr R.V. Hagenaars  Rotterdam  1966

38.  Mr G.P. Hamer   Amsterdam  1954

39.  Mr G.F. van der Hardt Aberson  Rotterdam  1948

40.  Ms M.I.J. Hegeman  Maastricht  1950

41.  Mr L.J.L. Heukels  Overveen  1949

42.  Mr M.P.J.C. Heuvelmans  Venlo   1964

43.  Mr W.A. Holland   Nijmegen  1959

44.  Mr H.A. van der Hout  Bergen op Zoom 1952

45.  Mr J. Italianer   Abcoude  1957

46.  Mr J.I.M.G. Jahae  Amsterdam  1960

47.  Mr M. Jansen   Spijkenisse  1968

48.  Mr F.E.J. Janzing   Wijchen  1954

49.  Mr F.J.B. de Jong   Assen   1960

50.  Mr O.M. Karam   Amsterdam  1947

51.  Mr D.C. Keuning   Groningen  1952

52.  Mr P.M.J. Kleijngeld  Tilburg   1957

53.  Mr M. de Klerk   Amsterdam  1965

54.  Mr J. Knap   Amsterdam  1944

55.  Mr V.L. Koppe   Amsterdam  1964

56.  Mr W.G.A. Kousemaker  Breda   1932

57.  Mr P.W. van der Kruijs  's-Hertogenbosch 1949

58.  Mr L. de Leon   Utrecht   1968

59.  Mr R. Lonterman   Amsterdam  1965

60.  Mr R.M. Maanicus  Amersfoort  1965

61.  Ms E.A.M. Mannheims  Amsterdam  1953

62.  Mr J.L.E. Marchal  Maastricht  1947

63.  Ms M. Meerman-Padt  Haarlem  1947

64.  Mr N.C.J. Meijering  Amsterdam  1962

65.  Mr G. Meijers   Amsterdam  1948

66.  Mr T.Th.L. van der Meulen Arnhem  1950

67.  Mr G.P.F.M. Mols  Neer   1951

68.  Mr G.J.P.M. Mooren  Oisterwijk  1966

69.  Mr M. Moszkowicz sr.  Maastricht  1926

70.  Mr H.E.C.M. Nieland  Bergen op Zoom 1954

71.  Mr H.O. den Otter  Amsterdam  1966

72.  Ms E.M. van den Oudenaller Dordrecht  1960

73.  Mr H.J. Pellinkhof  Assen   1950

74.  Mr J.S. Pen   Amsterdam  1949

75.  Mr M.A.M. Pijnenburg  Amsterdam  1962

76.  Ms A.G. van der Plas  Amsterdam  1950

77.  Mr J.P. Plasman   Amsterdam  1952

78.  Ms E. Prakken   Maastricht  1937

79.  Mr P.S.S. Radhakishun  Amsterdam  1962

80.  Mr J.M. Rammelt   Amsterdam  1954

81.  Mr C.W. Reintjes   Arnhem  1956

82.   Mr P.H.W.M. Roelofs  Nijmegen  1950

83.   Mr A.E.M.F. Roelofs  Rotterdam  1942

84.   Mr B.G.J. de Rooij  Tilburg   1957

85.   Mr E.J. Rotshuizen  Leeuwarden  1947

86.   Ms A.E.M. Röttgering  Amsterdam  1960

87.   Mr E.A.C. Sandberg  Rotterdam  1958

88.   Ms M.P.H. Sanders  Doetinchem  1962

89.   Mr B.J. Schadd   Arnhem  1948

90.   Mr J.P.A. van Schaik  Barneveld  1969

91.   Mr F. Schneider   Amsterdam  1954

92.   Mr J.F.C. Schnitzler  Best   1957

93.   Mr H.Th.A. Seegers  Amsterdam  1947

94.   Mr J.M. Sjöcrona  Den Haag  1956

95.   Mr E.G.M. Smit   Middelburg  1955

96.   Mr A.J. Sol   Terneuzen  1960

97.   Mr J.R. Soons   Nijmegen  1942

98.   Mr C.W.A.M. Spierings  Amsterdam  1953

99.   Mr T.E. van der Spoel  Rotterdam  1954

100. Mr G. Spong   Amsterdam  1946

101. Mr C.N.G.M. Starmans  Utrecht   1959

102. Ms T.B. Trotman   Den Haag  1969

103. Mr D. Vermaat   Barendrecht  1951

104. Mr R.J. Verweij   Nijmegen  1964

105. Mr A.P. Visser   Den Haag  1955

106. Mr H.S.M. Vogelaar  Deurne   1949

107. Mr R.P.G. van der Weide Amsterdam  1967

108. Mr J.J. Weldam   Nieuwegein  1957

109. Ms I.N. Weski   Rotterdam  1955

110. Mr M.F. Wijngaarden  Amsterdam  1960

111. Mr M.A.I. Witlox  Amsterdam  1962

112. Mr S.J. van der Woude  Amsterdam  1956

113. Mr G.A.F.M. Wouters  Gorinchem  1962

 

ANNEX I

Decision on the storage and destruction of items not added to the case file (Besluit bewaren en vernietigen niet-gevoegde stukken), Bulletin of Acts and Decrees (Staatsblad) 1999 no. 548. Explanatory memorandum

“On the basis of [the amended provisions of the CCP], technical devices which record signals may be used for detecting criminal offences. ... An important difference between gathering information by using technical devices and collecting information in another manner is that a large quantity of information about persons is gathered [using the former method] and recorded in a rather unselective manner. This means that not only information of relevance to the investigation is recorded, but also irrelevant information about persons who have nothing whatsoever to do with the criminal offence. For this reason the new Article 126cc of the CCP provides rules on the storage and destruction of written records and other objects containing information recorded by such technical devices and which have not been added to the investigation case file. It is, on the one hand, important that this information will be kept for a certain period of time so that the defence may take notice thereof in view of possible exculpatory evidence. On the other hand, the protection of personal privacy requires this storage period to be no longer than is strictly necessary and that, in principle, after the expiry of this period the data will be destroyed. Article 126cc § 4 of the CCP stipulates that further rules on the manner in which such written records and objects are to be stored and destroyed are to be given by Order in Council [which are set out in the present Decision].

In addition, pursuant to Article 126aa § 2 of the CCP, [further] rules must be made for the destruction of written records and other objects, to the extent that they contain information conveyed by or to a person enjoying the privilege of non-disclosure. These rules are also included in the present Decision.

A number of aspects concerning the storage and destruction of written records and other objects have already been regulated in Article 126cc of the CCP. This provision defines, inter alia, who is responsible for the storage, the period of storage, the obligation of destruction and the obligation to draw up a written record of destruction. In addition to this, in the [instant] Decision, rules are given in respect of the place of storage, the registration of the stored written records and objects, the order for destruction and the manner of destruction of data-carriers that can be used anew.

As regards the destruction of written records and other objects containing information conveyed by or to a person enjoying the privilege of non-disclosure (Article 126aa § 2 of the CCP), the following remarks can be made. In its judgment in the case of Kopp v. Switzerland of 25 March 1998, the European Court of Human Rights held that, in certain circumstances, [the Convention] is not opposed to the tapping [of communications] of persons enjoying the privilege of non-disclosure. However, the [requirement of] foreseeability when using the power in respect of privileged persons must be complied with, and this power must be surrounded by extra safeguards. This relates to the tapping of a telephone line as well as the recording of confidential communications. By laying down in the [CCP] that, in certain circumstances, information involving privileged persons may also be recorded in application of the power to investigate telecommunications or the recording of confidential communications, the requirement of foreseeability has been met. The extra safeguards for these special situations are to be found in two conditions.

In the first place, the investigating judge must issue an authority for the tapping or recording of confidential communications. As an independent judge, he will examine the use of these powers in respect of a privileged person. Furthermore, an extra second safeguard has developed in practice where the privileged person is the suspect. In that case, the public prosecutor shall seek the opinion of an authoritative member of the professional group to which the privileged person belongs on the question whether information conveyed to or by the privileged person is to be qualified as information falling within the ambit of the privilege of non-disclosure. This procedure has been set out in Article 4 of this [Decision]. Lastly, a further additional safeguard has been included in the [CCP]. Article 126aa § 2, third sentence, of the CCP provides that the written records and other objects, from which can be derived information conveyed to or by a privileged person, can only be added to the [criminal] case file after the authorisation of the investigating judge. This concerns of course only information not falling within the ambit of the privilege of non-disclosure. ...

[Article 5 of the Decision] concerns the destruction of written records and other objects ... within the meaning of Article 4 of this Decision.

First paragraph

This provision sees to the destruction of written records stored on separate data-carriers, for instance a diskette. An infallible manner of destruction of these digitally stored written records is the “physical” destruction of the data-carrier, for instance by cutting up or burning the diskette. It is also possible to keep the data-carrier whilst destroying the recorded data. In that case destruction is to be understood as the processing of the data-carrier is such a manner that the data recorded on it can no longer be consulted. This implies that the mere deletion of stored data is insufficient. With relatively simple programming, the originally stored data may be recuperated. One must, for instance, reformat the diskette.

Second paragraph

This provision is of the same nature as the first paragraph of this Article. In accordance with this provision, objects such as cassette-tapes and diskettes do not have to be [physically] destroyed. It concerns the destruction of data. Therefore, as regards the destruction of objects like cassette-tapes, their demagnetisation is the equivalent of destruction since all data are thereby destroyed.

It must be indicated in the written record of destruction in what manner the written records and other objects have been destroyed.”

 

ANNEX II

The formal instruction on the “Destruction of intercepted conversations with persons enjoying the privilege of non-disclosure” issued by the Board of Procurators General on 12 March 2002 (in its relevant part)

Background

In December 2001, summary injunction proceedings took place which had been initiated by, amongst others, the Netherlands Bar Association and the NVS against the Netherlands State (the Minister of Justice). The central subject of these proceedings was the implementation of (former) Article 125h and Article 126aa of the CCP, insofar as these provisions concerned the destruction of intercepted communications with persons enjoying the privilege of non-disclosure.

It appeared [in these proceedings] that the implementation of the statutory provisions has not been flawless in all cases. For this reason the Board has found it appropriate, in addition to the Handbook on Special Investigative Powers (Handboek bijzondere opsporingsbevoegdheden), to elaborate the rules further in an instruction. This instruction has the aim, by way of a step-by-step procedure, to ensure a full and uniform implementation of the legal rules.

Summary

This instruction seeks, by giving procedural rules, to ensure a uniform implementation of Article 126aa § 2 of the CCP and Articles 4 and 5 of the Decision on the storage and destruction of items not added to the case file.

Criminal Procedure

A summarised overview of the relevant statutory framework is appended. A more elaborate overview can be found in paragraph 5.3 of the Investigative Practice Handbook (Handboek voor de opsporingspraktijk). For the purposes of clarity and accessibility, this framework is set out below in a step-by-step manner. For each step, a distinction has been made, as far as possible, between each of the actors involved. This format has been chosen in order to set out, in an unequivocal and easily traceable manner, the tasks and responsibilities of the different officials involved. For each step and, where necessary, an explanation is given.

 

A. The procedure scheme

1. The investigating officer (opsporingsambtenaar), assigned the task of transcribing [in a written record] intercepted communications, thinks that he/she has come across a communication with a privileged person (geheimhouder).

2. [This] officer processes the contents of the communication for the purposes of a notification to the public prosecutor.

3. [This] officer informs the [criminal investigation] team-management (teamleiding) without delay of the finding.

4. The team-management instructs that the finding be notified without delay to the public prosecutor.

5. The public prosecutor assesses whether the contents of the communication contains information conveyed to or by a privileged person (Article 126aa of the CCP).

6. If so: The public prosecutor immediately issues a written order to destroy the contents of the communication. This involves both the processed conversation and the communication recorded on other data carriers. The public prosecutor transmits this written order to the team-management.

7. The team-management is responsible for the implementation of this order.

8. The team-management ensures the implementation of the order for destruction insofar as this relates to intercepted communication[s] held by the criminal investigation department (recherche). This also includes the communication[s] transcribed in a written record.

9. The team-management draws up a written record of destruction. This record shall not, of course, contain any of the information referred to in Article 126aa of the CCP.

10. The Systems Manager (beheerder) of the interception centre ensures the destruction of the material in the interception system and the material already stored on a data carrier.

11. The Systems Manager of the interception centre draws up a written record of destruction.

12. The Systems Manager of the interception centre transmits the written record of destruction to the team-management. This record shall not, of course, contain any of the information referred to in Article 126aa of the CCP.

13. The team-management transmits both written records of destruction to the public prosecutor.

B. Explanations about the scheme

...

Ad 2. ... The processing of the communication has the aim to create the possibility for the public prosecutor to determine whether the regime of Article 126aa of the CCP applies. The wording “processing” (verwerken) instead of “transcribing” (uitwerken) has been chosen because the entire communication does not per se have to be transcribed in the written record. The transcription must take place insofar as it is necessary to enable the public prosecutor to exercise his statutory task. How far that transcription should go cannot be indicated in general but is dependent on the circumstances of each case. ... Noting the ratio of the law, it is obvious that no more than is strictly necessary should be transcribed. It is also evident that these data should not, in the meantime, be accessible via any generally accessible automated system. The circle of persons who may take notice of these transcriptions must, of course, remain as small as possible.

When the public prosecutor, on the basis of a partial transcription, cannot assess whether the regime of Article 126aa § 2 of the CCP applies, he can instruct the investigation officer to transcribe the further [contents of the] communication in a written record. This may also take place in view of the last sentence of Article 126aa § 2 of the CCP. After the prior authorisation of the investigating judge, written records and other objects may indeed be added to the case file, insofar as these contain information conveyed to or by a privileged person that does not fall within the ambit of the privilege of non-disclosure. Although in practice this only occurs rarely, an (initially) full transcription is a requirement for this. ...

Ad 5. The mere fact that a privileged person has taken part in an intercepted conversation is not exclusively decisive for the assessment whether [that] communication falls under the regime of Article 218 of the CCP, and thus under Article 126aa of the CCP. For this, the contents of the communication are of decisive importance. The public prosecutor must thus, either in full or in part, become aware of the contents of the communication.

Ad 6. The order for destruction is in principle given for each intercepted communication. It is however feasible that the public prosecutor, in the course of a tap and in respect of a specifically defined privileged person (geïndividualiseerde geheimhouder), issues a generic order for the destruction of all communications in which this privileged person has participated. ... This does imply that each intercepted communication, in which the privileged person concerned has participated, must be separately destroyed and a written record thereof drawn up.

Ad 8 and 10. ... the notions “other objects” and “to destroy” require further explanation.

The “other objects” are also designated as “data carriers”. This may concern the automated storage of a text, for instance of the written record on the transcription of the communication (Article 5 § 1 of the Decision), or the storage in any form of other data, such as audio or visual materials (Article 5 § 2 of the Decision). Conceivably, other objects and data carriers could be, for instance, tapes, diskettes, CD-ROMs, optical disks, hard disks and the like.

According to the Decision, destruction does not mean that such objects must be physically destroyed. Article 5 of the Decision qualifies as destruction the processing of the data carrier/object is such a manner that the data concerned are no longer recoverable (kenbaar). As appears from the explanation to the Decision, the mere deletion of the [data] file is insufficient. The data carrier must be processed in such a manner that the data to be destroyed can no longer be accessed ...”

AALMOES AND OTHERS  v. THE NETHERLANDS DECISION


AALMOES AND OTHERS  v. THE NETHERLANDS DECISION