AS TO THE ADMISSIBILITY OF

                      Application No. 29839/96

                      by Jason F. REMMERS and Gerard P. HAMER

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

18 May 1998, the following members being present:

           MM    S. TRECHSEL, President

                 J.-C. GEUS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 October 1995

by Jason F. REMMERS and Gerard P. HAMER against the Netherlands and

registered on 19 January 1996 under file No. 29839/96;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     19 June 1997 and the observations in reply submitted by the

     applicant on 11 August 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant is a Dutch citizen and was born in 1968. At

the time of the introduction of the application, the first applicant

was detained in a remand centre in Utrecht, the Netherlands.

     The second applicant is a Dutch citizen, born in 1954, and

residing in Amsterdam. Before the Commission the first applicant is

represented by the second applicant, who is a practising lawyer.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

A.   Particular circumstances of the present case.

     On or about 22 December 1993, the first applicant was arrested

and detained on remand on suspicion of, inter alia, having committed

an armed robbery and attempted murder of two police officers on

22 December 1993. The applicant's pre-trial detention was prolonged

several times.

     By summons dated 7 March 1994, the first applicant was ordered

to appear before the Regional Court (Arrondissementsrechtbank) of

Utrecht on charges relating to the events of 22 December 1993.

     On 7 April 1994, upon the request of the public prosecutor

(officier van justitie), the investigating judge (rechter-commissaris)

of the Regional Court of Utrecht, Mr S., opened a preliminary judicial

investigation (gerechtelijk vooronderzoek) under No. 439-III-94 against

the first applicant on suspicion of having murdered one or two

identified persons in May 1993. This preliminary investigation was not

connected to the events of 22 December 1993. Mr S. was also involved

as investigating judge in the criminal proceedings against the first

applicant as regards the facts of 22 December 1993.

     In the preliminary judicial investigation No. 439-III-94, Mr S.

issued an order on 7 April 1994 for the installation of a tapping

device on the telephone line "A", a telephone in the remand centre

where the first applicant was detained, for a period of four weeks as

from 7 April 1994.

     By decision of 3 May 1994 the tapping of telephone line "A" was

prolonged for four weeks as from 5 May 1994. Mr S. decided on

18 May 1994 also to tap telephone line "B" in the remand centre where

the first applicant was detained, for a period of four weeks as from

19 May 1994 in connection with the preliminary investigation no. 439-

III-94. The tapping of both telephone lines ended on 15 June 1994. No

appeal lies against a decision to tap a telephone line.

     On 3 January 1995, after adversarial proceedings in which the

first applicant was represented by the second applicant and following

hearings held on 10 June 1994, 6 September 1994, 18 November 1994 and

20 December 1994, the Regional Court of Utrecht convicted the applicant

of extortion and attempted murder committed on 22 December 1993 and

sentenced him to nine years' imprisonment with deduction of the time

spent in pre-trial detention.

     In its examination of the case, the Regional Court did not

consider nor use in evidence the contents of tapped telephone

conversations. The applicant filed an appeal with the Court of Appeal

(Gerechtshof) of Amsterdam.

     On 29 March 1995, the first applicant learned of the existence

of the preliminary judicial investigation No. 439-III-94. On

31 March 1995, the applicant's lawyer, i.e. the second applicant,

requested to be provided with a copy of the file of this investigation.

     On 7 April 1995, Mr S. transmitted documents from the

investigation file, including written transcripts of the tapped

telephone conversations, to the second applicant. According to the

written transcripts of the tapped conversations, eleven conversations

between the first applicant and the second applicant's office had been

overheard.

     Insofar as the first applicant had contacted the second

applicant's office by telephone, nine of these conversations appeared

in the written transcripts under the mention "NR" (not relevant)

without reproducing or giving any indication of the contents of those

conversations. Two of those conversations, however, were summarised in

the written transcripts.

     A conversation of 12 April 1994 between the first applicant and

the second applicant's office was summarised in the written transcripts

as follows :

(translation)

     "Out. (statement of telephone number of the second applicant's

     office). Jessie introduces himself as REMMERS and asks for

     Mr HAMER. The secretary goes looking (for him). Hamer comes to

     the telephone and Jessie discusses with him the situation about

     his report by the social service. Hamer will visit him shortly

     so that Jessie can sign some authorisations."

     A conversation of 7 June 1994 between the first applicant and the

second applicant's office was summarised in the written transcript as

follows:

(translation)

     "(statement of the telephone number and name of the second

     applicant's office) Jesse calls Gerard. Jesse says that he has

     heard from a friend that the (request for a) reconstruction has

     been rejected. Gerard is astonished that Jesse knows this

     already. Further NR."

     The applicant also dialled three telephone numbers which were

answered by persons described in the written transcripts as "NN"

(unidentified person). These three telephone numbers were different

from the telephone number of the second applicant's office. One

conversation between the first applicant and a person described as NN

on 30 April 1994, which was a public holiday in the Netherlands, was

in fact a conversation between the first and the second applicants.

     This conversation was reproduced in the written transcripts in

the following way:

(translation)

     "(statement of telephone number)

     Jessie:     Hello?...it's me...

     NN:   Yes I know... I hear it..how are you?

     J.:   Sort of OK ... yes it is sort of rotten to call here, huh?

     NN.:  Yes, it is a disaster.

     J.:   Mmm yeah but eh...yes I cannot say very much

     NN.:  Yes...

     J.:   So I just wait until I see you again one time ..

     NN.:  Yes...

     J.:   Um uh...then we should talk about it a little.

     NN.:  Yes, this week will be coming H.S. (phonetic) will be

           trying to drop by this week.

     J.:   Yes...yes naturally I can only a little ... can I ...

           transmit things a... (to him) ... surely no?

     NN.:  Well...no but he will come to examine you...

     J.:   Yes...aaah...ah

     NN.:  You know who it is, don't you? He is a doctor.

     J.:   Hmmm.

     NN.:  Who will examine your body for and on behalf of me.

     J.:   Yes...aah...but you did in any event already talk about it

           with dad.

     NN.:  When?

     J.:   Oh...not yet?

     NN.:  Yes indeed...Well no...well don't you worry.

     J.:   Oh..then (I) make...if you say so, then I won't worry.

     NN.:  Don't you worry.

     J.:   OK

     NN.: They have gone a bit crazy everywhere...I have the feeling

     J.:   Yes...yes...OK...well...uh...we'll briefly discuss that

           later uh..

     NN.:  I'll come...I will try to drop by this week...further

           aahm...did you get any mail still of last week?

     J.:   Ahm...just checking...yesterday still yes...

     NN.:  Good...I will request um a...reconstruction.

     J.:   OK..I'll hear from you... and have a nice Queen's day OK?

     NN.:  I am working as you notice. Greetings."

     On 10 April 1995, Mr S. closed the preliminary judicial

investigation No. 439-III-94 concerning the events of May 1993. On the

same day, the public prosecutor decided that no criminal proceedings

would be instituted against the first applicant in view of the lack of

evidence. This decision of non-prosecution was served on the first

applicant in person on 18 April 1995 in the remand centre where he was

detained.

     By letter of 20 April 1995, the second applicant, as the first

applicant's lawyer, requested the re-opening of the preliminary

judicial investigation no. 439-III-94 pursuant to Article 238 of the

Code of Criminal Procedure in order for additional witnesses to be

heard and to listen to the tapes of the tapped conversations. The aim

of the request was to establish the applicant's innocence. This request

was rejected by Mr S. on 21 April 1995.

     The applicant's appeal against the decision of 21 April 1995 was

declared inadmissible by the Regional Court on 8 June 1995. The

Regional Court noted that the investigation against the first applicant

had formally ended by the decision of non-prosecution and that,

consequently, the first applicant could no longer be prosecuted for

these offences unless new facts came to light, which did not appear to

be the case. No other conclusion could be reached given the relevant

statutory rules even though the request was aimed at establishing the

first applicant's innocence.

     The first applicant's appeal against the judgment of

3 January 1995 of the Regional Court of Utrecht was examined before the

Court of Appeal of Amsterdam in the course of adversarial proceedings

in which hearings were held on 5 October 1995, 17 November 1995 and

9 January 1996.

     By judgment of 22 January 1996, the Court of Appeal quashed the

judgment of 3 January 1995, convicted the first applicant of aggravated

theft and several counts of attempted murder and sentenced him to

twelve years' imprisonment under deduction of the time spent in pre-

trial detention.

     The Court of Appeal rejected the various arguments raised by the

defence that the prosecution should be declared inadmissible for having

violated the first applicant's rights under Article 6 paras. 1 and

3 (b) and (c) of the Convention and under Article 8 para. 1 of the

Convention in that Mr S. had intentionally violated the principle of

privileged communication between the first applicant and his lawyer by

authorising the telephone tapping in the preliminary judicial

investigation No. 439-III-94.

     According to the defence this authorisation had resulted in a

situation that information about the defence in the criminal

proceedings at issue before the Court of Appeal had been obtained by

Mr S. and the public prosecution department and that, consequently,

both before the Court of Appeal and previously before the Regional

Court the first applicant could not be considered as having received

a fair trial within the meaning of Article 6 paras. 1 and 3 of the

Convention. In these circumstances the defence argued that the

investigation in the present criminal proceedings could not be regarded

as having been carried out by an "independent observer".

     As regards the intercepted telephone conversations in the

preliminary judicial investigation No. 439-III-94, the Court of Appeal

found it established that, pursuant to an authorisation by the

investigating judge, the first applicant's telephone conversations had

been tapped between 7 April and 7 June 1994 on telephone lines in the

remand centre where the first applicant was detained in connection with

the criminal proceedings at issue before the Court of Appeal and from

which lines the applicant could make telephone calls to persons outside

the remand centre.

     The Court of Appeal found it established that on 7 April 1995

Mr S. had provided the second applicant with a copy of all documents

in the case-file of the preliminary judicial investigation No. 439-III-

94, including the full transcripts of the telephone conversations

tapped between 7 April and 7 June 1994 and that, in support of the

arguments it advanced in the proceedings before the Court of Appeal,

the defence had submitted its own selection from these transcripts,

this selection consisting of ten pages.

     The Court of Appeal assumed that at the relevant time Mr S. as

the investigating judge in the investigation No. 439-III-94 was aware

that the second applicant was the first applicant's lawyer in the

criminal proceedings now pending before the Court of Appeal. As regards

the  motives alleged by the defence for the tapping of the telephone

conversations, the Court of Appeal considered that it had not been made

plausible that Mr S., when issuing the first tapping authorisation,

knew, should have known or reasonably could have known that the first

applicant would converse with his lawyer via the telephone connection

in respect of which tapping had been authorised, in particular

conversations with contents as indicated by the defence.

     The Court of Appeal further found that it had not been made

plausible and that it had not become apparent from the contents of the

selection of the transcripts submitted by the defence that Mr S. had

issued the respective tapping authorisations in order to become

acquainted with what was being said between the first and second

applicants about the defence in the present criminal proceedings and

thus to discover the defence strategy or that it was clear to Mr S. to

a degree of bordering to certainty that the telephone conversations

between the first and second applicants would be about the defence in

the present proceedings.

     Insofar as the defence argued that in particular the conversation

of 30 April 1994 constituted an important indication as to the alleged

motive advanced by the defence, the Court of Appeal noted that the

telephone number called by the first applicant was apparently the

second applicant's private telephone number and not the telephone

number of his office, which had become known in the meantime.

     It held that it had not been stated nor made plausible that Mr S.

or the police were aware that this number was the second applicant's

private number or a number used by him. Bearing this in mind, the Court

of Appeal held that the contents of this recorded conversation were not

of such a nature that Mr S., the public prosecutor or the police

involved knew or should have understood that this was a conversation

between the first applicant and his lawyer. According to the Court of

Appeal this conversation did not, therefore, constitute an indication

that Mr S., as regards the tapping authorisations issued after

30 April 1994, had issued such authorisations in order to become

acquainted with what was being said between the first and second

applicants about the present criminal proceedings.

     After having found it established  that the public prosecutor in

the present case was not the same person as the public prosecutor

involved in the investigation No. 439-III-94, the Court of Appeal

found that no facts had appeared or become plausible on grounds of

which it should be assumed that the police or prosecution involved in

the present criminal proceedings had requested Mr S. in the

investigation No. 439-III-94 to order the telephone tapping or that

they had knowledge of the contents of the formal minutes on the results

of the tapping.

     Having found that the second applicant had been provided with the

full transcripts of the tapped telephone conversations, the Court of

Appeal rejected the argument by the defence that, as the vast majority

of the tapes with the recorded conversations had been destroyed without

the first applicant ever having taken notice of these tapes, the impact

of the tapping must be considered as fatal. It noted that the second

applicant had submitted a selection of these transcripts in support of

the defence arguments raised and that those tapped conversations, the

contents of which were not included in the transcripts, were indicated

in the transcript as "not relevant" or "not important". The court thus

found that it could not be held that the contents of these

conversations could be considered relevant to the present proceedings.

     The Court of Appeal further rejected, as not being supported by

the facts, the argument by the defence that no reasonable suspicion

could be derived from the case No. 439-III-94. Nor did it find that the

closure of the case No. 439-III-94 and the subsequent communication of

this closure and the reasons for this closure to the first applicant

constituted an indication that the real aim of the tapping had been to

gather information about the defence strategy in the present criminal

proceedings.

     As to the argument raised by the defence that the first applicant

had not been informed about the telephone tapping pending the

preliminary judicial investigation No. 439-III-94, the Court of Appeal

held that there was no legal basis for this argument. Insofar as the

defence submitted that Mr S., as the investigating judge in case

No. 439-III-94, had violated Article 125h paras. 1 and 2 of the Code

of Criminal Procedure in that the tapped conversations between the

first and the second applicants had not been destroyed, the Court of

Appeal recalled its finding that the conversation of 30 April 1994 was

not of such a nature that Mr S. should have known or understood that

it was a privileged conversation between the first applicant and his

lawyer and that, therefore, Article 125h of the Code of Criminal

Procedure had not been violated as regards this conversation.

     As to the recorded summaries of the telephone conversations

between the first and the second applicants between 7 April 1994 and

7 June 1994, the Court of Appeal noted that, as Mr S. had communicated

the transcripts to the second applicant on 7 April 1995, it was thus

clear that the contents of these conversations between the first and

the second applicants had not been destroyed as soon as possible.

     The Court of Appeal agreed with the defence that Mr S. had been

obliged, pursuant to Article 125h of the Code of Criminal Procedure,

to destroy as soon as possible whatever was stated in the transcripts

about these conversations. After having noted the contents of the

transcripts, Mr S. could have instructed the responsible investigation

officers to delete these conversations from the tape and to delete the

text from the transcript. Mr S. could further have prohibited the

investigating officers from listening to, tapping and recording the

contents of any further conversations between the first and the second

applicants, this being the task of an investigating judge when

authorising telephone tapping.

     As to the question whether, by his failure to comply with

Article 125h para. 2 of the Code of Criminal Procedure in respect of

these summarised conversations, Mr S. had thus indicated that he

considered these conversations relevant to the present criminal

proceedings, the Court of Appeal found no facts or circumstances in

support of this possibility given its previous findings as to the

tapping authorisations and the contents of the tapped conversations

between the first and the second applicants.

     The Court of Appeal found that the apparent negligence and

inadvertence of Mr S. in respecting his obligations under Article 125h

para. 2 of the Code of Criminal Procedure in the investigation No. 439-

III-94, which failure was not in any way connected with the present

proceedings, could not lead to a finding that Mr S. in his activities

as investigating judge in the present proceedings could not or no

longer be considered as an "independent observer".

     The Court of Appeal concluded that:

(translation)

     "Noting all the above, no facts or circumstances have become

     plausible on grounds of which it should be held that the

     investigating judge in the present case, Mr S., by issuing the

     cited tapping authorisations in the criminal proceedings under

     Nr. 439-III-94, knowingly violated the free

     communication between the lawyer and the suspect which is

     guaranteed in the present proceedings, in that by respectively

     tapping, taping and/or recording of the

     telephone conversations in the criminal proceedings under Nr.

     439-III-94 such information or information in such a manner has

     reached the investigating judge or the public prosecution in the

     present criminal case that as a result thereof ... Article 6

     para. 3 (b) or (c), and/or Article 6 para. 1, and/or Article 8

     para. 1 of the Convention ... have been violated or that ... the

     suspect in the present criminal proceedings can no longer obtain

     a 'fair trial' or has not obtained a 'fair trial' in first

     instance."

     The Court of Appeal did not use in evidence the contents of any

of the first applicant's telephone conversations which had been tapped

between 7 April and 7 June 1994 on telephone lines in the remand centre

where he was detained at that time.

     The applicant's appeal in cassation against the judgment of

22 January 1996 is currently still pending before the Supreme Court

(Hoge Raad). An appeal in cassation is limited to points of law. The

Supreme Court cannot review factual findings by the trial courts.

B.   Relevant domestic law and practice

     Article 125f-h of the Code of Criminal Procedure (Wetboek van

Strafvordering) permits the interception of telephone conversations in

which a suspect is likely to participate, provided that the suspected

offences are of a certain gravity - i.e. offences for which pre-trial

detention (voorlopige hechtenis) may be imposed - and the investigation

urgently requires interception. It must be authorised by the

investigating judge.

     Furthermore, the Guidelines for the Interception of Telephone

Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of

2 July 1984, a copy of which can be obtained by any interested person

and the text of which has been published in, inter alia, the

Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de

Mensenrechten) of July/August 1989, state how the power to intercept

telephone conversations is to be exercised in practice. These

Guidelines, which do not have the formal character of law, have been

issued as a model letter from the senior public prosecutors to the

police.

     Written transcripts of intercepted telephone conversations must

be prepared within 48 hours and transcripts without relevance must be

destroyed as soon as possible by order of the investigating judge.

     Article 125h para. 2 of the Code of Criminal Procedure requires

the destruction of transcripts insofar as they concern statements made

by or to a person who, on the basis of Article 218 of the Code of

Criminal Procedure, enjoys the privilege of non-disclosure. Lawyers

fall in the category of persons having a professional obligation to

secrecy and thus enjoy the privilege of non-disclosure, unless they

themselves are suspects (cf. Hoge Raad, judgment of 29 June 1993,

Nederlandse Jurisprudentie 1993, nr. 692).

     As regards the destruction of information obtained via

interception of telephone conversations, standard practice differs from

the guidelines. On the basis of the Court's findings in the cases of

Kruslin and Huvig (Eur. Court HR, Kruslin v. France judgment of

24 April 1990, Series A no. 176-A; and Huvig v. France judgment of

24 April 1990, Series A no. 176-B) and relevant case-law of the

Netherlands Supreme Court (cf. Hoge Raad, judgment of 29 June 1993,

Nederlandse Jurisprudentie 1993, nr. 692; and Hoge Raad, judgment of

17 October 1995, Nederlandse Jurisprudentie 1996, nr. 147) as regards

the possibility of inspection by the judge and by the defence, the

official records and transcripts of tapped telephone conversations are

not destroyed immediately but are kept until shortly after the closure

of the case. Anyone requesting access to such material must state

reasons for such a request.

     A Bill proposing an amendment to the Code of Criminal Procedure

incorporating this standard practice is currently pending before the

Dutch Parliament.

     In the course of 1997 it was discovered by a number of lawyers,

including the second applicant, that in at least one remand centre all

telephone conversations of detainees, including conversations with

their lawyers, were tapped by the authorities as a standard practice

without any judicial authorisation. The Ministry of Justice confirmed

that most remand centres in the Netherlands have available equipment

for the tapping of telephone conversations of detainees.

     Following discussions between the Bar Association and the

Ministry of Justice, the latter gave assurances on 5 September 1997

that the interception and recording of telephone conversations between

detainees and their lawyers had been stopped in the meantime and that

in each remand centre a separate telephone line, from which tapping

will not be possible, will be installed from which detainees can call

their lawyer.

     In cases where no administrative or other appeal lies against

acts or decisions of public authorities Dutch 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). In such

proceedings the civil court can award damages for torts committed and

it can grant injunctions against public authorities.

     It appears from the case-law of the Netherlands Supreme Court as

regards wrongful acts  that the State is liable to compensate material

damages inflicted by the police in the course of the lawful use of

force in cases where the police have entered premises for investigation

purposes where at a later point in time it appears that the suspicions

constituting the justification for that police action are unfounded in

the sense that the occupants of these premises are innocent (Hoge Raad,

26 January 1990, Nederlandse Jurisprudentie 1990, nr. 794; and Hoge

Raad, 23 November 1990, Nederlandse Jurisprudentie 1991, nr. 92).

     Pursuant to Article 3:310 of the Civil Code a claim for damages

is statute-barred after five years from the day on which the claimant

becomes aware of the damage and the responsible person or organ and in

any event after twenty years from the date of the tortious act which

caused the damage.

     Pursuant to Article 238 para. 2 of the Code of Criminal Procedure

a suspect may request the investigating judge to reopen a preliminary

judicial investigation which has been closed by the investigating

judge. An appeal against a refusal to reopen lies with the Regional

Court. After a decision of non-prosecution it is not possible for a

suspect to seek a reopening of a preliminary judicial investigation.

     According to Article 246 of the Code of Criminal Procedure a case

formally ends with the notification of a decision of non-prosecution

by the public prosecution department. Under Article 12 of the Code of

Criminal Procedure a directly interested party (direct belanghebbende)

may file an objection (beklag) against a decision of non-prosecution

with the Court of Appeal. Although this possibility primarily concerns

the victims of criminal offences, the case-law of the Supreme Court

indicates that in certain circumstances the suspected person may be

considered as a directly interested person within the meaning of

Article 12 of the Code of Criminal Procedure (Hoge Raad, judgment of

28 February 1984, Nederlandse Jurisprudentie 1984, nr. 490).

COMPLAINTS

1.   The applicants complain that the tapping of their respective

telephone conversations, either with each other or with third persons,

constituted an unjustified interference with their rights under

Article 8 of the Convention.2.   The first applicant complains that the

tapping of his conversations with the second applicant was contrary to

his rights under Article 6 para. 3 (c) of the Convention in that it

affected the effective exercise of his defence rights.

3.   The first applicant also complains that his detention was not in

accordance with the requirements of Article 5 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 October 1995 and registered

on 19 January 1996.

     On 11 April 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

19 June 1997.  The applicants replied on 11 August 1997.

     On 19 September 1997 the Commission granted the first applicant

legal aid.

THE LAW

1.   The applicants complain that the tapping of their respective

telephone conversations, either with each other or between the first

applicant and third persons, constituted an unjustified interference

with their rights under Article 8 (Art. 8) of the Convention. The

applicants submit in this respect that, contrary to Dutch law, the

tapes of the tapped conversations between them were not destroyed.

     Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

     "1.   Everyone has the right to respect for his private ... life,

     ... 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 ... 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 Government submit in the first place that the applicants have

failed to exhaust domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

     In respect of the criminal proceedings currently pending before

the Supreme Court, the Government submit that, in its judgment of

22 January 1996, the Court of Appeal examined in great detail the

applicants' arguments in respect of the alleged influence of the

telephone tapping on the criminal proceedings against the first

applicant. According to the Government this demonstrates that, as

regards this part of the application, there was a legal remedy open to

the applicants. Noting that these proceedings are currently pending

before the Supreme Court, the Government consider that therefore

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention have not been exhausted.

     As regards the investigation of which the telephone tapping

formed a part and which did not lead to criminal proceedings, the

Government submit, referring to two judgments of the Netherlands

Supreme Court (HR 26 January 1990, NJ 1990, nr. 794; and HR

23 November 1990, NJ 1991, nr. 92) that the applicants could have

applied to the courts on the basis of Article 6:162 of the Civil Code

which covers unlawful acts by the authorities and others. As the

applicants failed to take such proceedings, the Government are of the

opinion that also as regards this part of the application the

applicants failed to exhaust domestic remedies.

     As to the substance of the complaint under Article 8 (Art. 8) of

the Convention the Government admit that the telephone tapping at issue

constitutes an interference with the rights guaranteed by Article 8

para. 1 (Art. 8-1) of the Convention, but are of the opinion that this

interference was justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

     The Government state that the tapping was conducted in accordance

with the relevant statutory rules, that it pursued the legitimate aim

of prevention of disorder or crime as there were grounds for suspicion

that the applicant had been involved in or was guilty of murder or

manslaughter and that the interference was necessary in a democratic

society within the meaning of paragraph 2 of Article 8 (Art. 8-2). As

to the latter aspect the Government submit that, in view of the

safeguards contained in the relevant rules as regards the information

obtained by the use of telephone tapping, the first applicant cannot

claim that the breach of his privacy exceeded what was necessary to

achieve a justifiable objective.

     Insofar as the second applicant was affected by the tapping of

the telephone conversations of the first applicant, the Government

submit that the tapping was aimed at the first applicant and not the

second applicant. However, the Government admit that it is unusual that

the transcripts at issue state several times that the first applicant

contacted the second applicant, as it is standard practice for

investigating judges not to record conversations with lawyers and not

to mention them in tapping transcripts. According to the Government,

this was caused by negligence on the part of Mr S. However, the

Government consider that the substance of these references is not such

as to give grounds for claims that the applicants' privacy had been

breached to such a serious and disproportionate extent as to constitute

a violation of Article 8 (Art. 8) of the Convention.

     As regards the telephone conversation of 30 April 1994, the

Government submit that the participation of the second applicant in

this conversation was not evident at the relevant time. The second

applicant's name was not mentioned during this conversation and even

if the authorities had identified the telephone number at issue as that

of the second applicant it still could have been possible that the

conversation had been conducted with another person. The Government

submit that on more than one occasion in the official reports a caller

is referred to as "NN" even though the number has been traced, if it

is not clear from the conversation to whom the first applicant was

talking. Moreover, without knowing the identity of the caller, the

subject of the conversation was not such that the investigating judge

could or should have known that it was a conversation between the first

and the second applicants. The Government are therefore of the opinion

that the interference with the applicants' rights under Article 8

para. 1 (Art. 8-1) of the Convention was justified under paragraph 2

of this provision.

     The applicants contest the Government's arguments as to the

exhaustion of domestic remedies. As regards the pending criminal

proceedings, the applicants submit that the Supreme Court cannot

examine the compatibility of the telephone tapping at issue with the

Convention as the tapping did not take place in the context of these

proceedings and as the tapped telephone conversations have not been

used in evidence by the Court of Appeal in these proceedings.

Furthermore, the investigation in the course of which the first

applicant's telephone conversations were tapped did not result in any

criminal proceedings and their request to reopen the preliminary

judicial investigation was rejected by the Regional Court on

8 June 1995. According to the applicants there was no further remedy

available to them in respect of the investigation that did not result

in the institution of criminal proceedings.

     As to the Government's reference to Article 6:162 of the Civil

Code, the applicants submit that such proceedings are concerned with

compensation for material damage suffered on account of an act by the

authorities. It is not the aim of proceedings under the Civil Code to

challenge a decision before a higher criminal court.

     As to the substance of their complaint under Article 8 (Art. 8)

of the Convention, the applicants maintain that the telephone tapping

at issue violated their rights under this provision. They argue that

the rules on telephone tapping do not entail an element of

foreseeability in that it was not possible for them to foresee that

their conversations could be tapped and that only about one year after

the opening of the preliminary judicial investigation No. 439-III-94

was the first applicant informed of the existence of this investigation

against him. Moreover, in the light of information available to the

investigating authorities at the relevant time, the applicants submit

that the alleged justification for the tapping, i.e. the prevention of

disorder or crime, did not exist or in any event had ceased to exist

when the tapping at issue occurred in that there were no reasonable

suspicions against the first applicant.

     The applicants further submit that the tapping at issue cannot

be regarded as necessary, reasonable and proportionate. The

investigating authorities did not make a correct assessment of the

necessity to tap the first applicant's telephone conversations in the

light of the information already at their disposal, the tapping

interfered with both applicants' privacy and it also breached the

principle that conversations between a suspect and his lawyer are

privileged; contrary to the applicable rules of tapping, the

investigating judge Mr S. failed to have the references to the

telephone conversations between the applicants removed from the

transcripts.

     As to their conversation of 30 April 1994, the applicants submit

that the mere fact that the telephone number called by the first

applicant was that of the second applicant constitutes sufficient

reason not to record this conversation. Moreover, it could in any event

be inferred from the contents of this conversation, in particular the

reference to a reconstruction, that it was a conversation between the

first applicant and his lawyer.

     As regards the question whether the applicants have duly

exhausted domestic remedies within the meaning of Article 26 (Art. 26)

of the Convention, the Commission recalls that the obligation to

exhaust domestic remedies requires only that an applicant make use of

remedies likely to be effective and adequate, that this rule does not

require the use of a remedy which clearly lacks any prospect of success

and that the burden of proving the existence of available and

sufficient domestic remedies lies upon the State invoking the rule (cf.

No. 23413/94, Dec. 28.11.95, D.R. 83, p. 31).

     The Commission notes that the case-law of the Netherlands Supreme

Court referred to by the Government involves compensation awarded for

material damage arising out of police actions which later appear to

have been founded on groundless suspicions. The situation in the

present case does not concern a situation in which material damage has

been inflicted by the investigating authorities. As the Government have

not referred to any case-law under Article 6:162 of the Civil Code in

connection with interception of communications in cases which have not

resulted in the institution of criminal proceedings, the Commission is

not convinced that the remedy suggested by the Government can be

regarded as a remedy which should be exhausted for the purposes of

Article 26 (Art. 26) of the Convention as to the lawfulness of

telephone tapping.

     As to the substance of the applicants' complaint under Article 8

(Art. 8) of the Convention, the Commission recalls that telephone

communications are covered by the notion of "private life" and

"correspondence" within the meaning of Article 8 para. 1 (Art. 8-1) of

the Convention (cf. Eur. Court HR, Kruslin v. France judgment of 24

April 1990, Series A no. 176-A, p. 20, para. 26; Huvig v. France

judgment of 24 april 1990, Series A no. 176-B, p. 52, para. 25; and A.

v. France judgment of 23 November 1993, Series A no. 277-B, p. 49,

para. 37).

     The Commission finds that the tapping of the two telephone lines

at issue constituted an interference by a public authority with the

first applicant's right to respect for his private life and

correspondence. The same applies to the second applicant, insofar as

the tapped conversations between the first applicant and him were

mentioned in the written transcripts.

     Such an interference will contravene Article 8 (Art. 8) of the

Convention unless it is "in accordance with the law", pursues one or

more of the legitimate aims referred to in paragraph 2 of this

provision and is "necessary in a democratic society" in order to

achieve these aims (cf. Eur. Court HR, Domenichini v. Italy judgment

of 15 November 1996, Reports 1996-V, p. 1799, para. 28). A further

element to be considered is that the second applicant acted as the

first applicant's lawyer which in principle renders their contacts

privileged (cf. Eur. Court HR, Campbell v. the United Kingdom judgment

of 25 March 1992, Series A no. 233, p. 18, para. 18).

     As regards the question whether this interference was "in

accordance with the law", the Commission recalls that this expression

does not only imply compliance with domestic law, which is primarily

a matter for the national courts to determine, but also relates to the

quality of that law, requiring it to be compatible with the rule of

law. In the context of 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 the rights protected by

Article 8 (Art. 8) of the Convention (cf. Eur. Court HR, Halford v. the

United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1017,

para. 49).

     The Commission further recalls that, as regards the compatibility

of rules on secret surveillance with Article 8 (Art. 8) of the

Convention, the Court has accepted that the possibility of improper

action by a negligent official can never be completely ruled out

whatever the system. Relevant for the purposes of Article 8 (Art. 8)

of the Convention are the likelihood of such action and the safeguards

provided to protect against it (Eur. Court HR, Klass and Others v.

Germany judgment of 6 September 1978, Series A No. 28, p. 27, para.

59).

     The Commission recalls that it has previously examined the Dutch

rules on telephone tapping as contained in, inter alia, Article 125f-h

of the Dutch Code of Criminal Procedure and found these rules

sufficiently precise to be considered as "law" within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention (cf. No. 21207/93, Dec.

30.11.94, D.R. 79, p. 31). The Commission finds no reason to take a

different view in the present case.

     Moreover, the Commission finds no elements in the present case

which would create doubts as to whether the conditions laid down in

Article 125f-h of the Code were satisfied in the present case, namely

that telephone tapping was needed for the purposes of a preliminary

judicial investigation against the first applicant on suspicion of

involvement in a criminal offence and that it was likely that the first

applicant would use the telephone line which was to be tapped.

     As to the failure to delete references to conversations between

the first applicant and the office of his lawyer from the transcripts,

the Commission observes in the first place that the Court of Appeal

held that the contents of the recorded conversation between the

applicants of 30 April 1994 was not of such a nature that the

investigating judge Mr S., the public prosecutor or the police involved

knew or should have understood that this was a conversation between the

first applicant and his lawyer. The Commission cannot find this

conclusion to be unreasonable or arbitrary.

     As to the remaining contacts between the applicants recorded in

the transcripts, the Commission observes that the Court of Appeal held

that these conversations had no relevance to the criminal proceedings

brought against the first applicant and that it expressly acknowledged

the privileged nature of the contacts between the first applicant and

his lawyer and further acknowledged that the investigating judge Mr S.

had been negligent in ensuring respect for the requirements of

Article 125h of the Code of Criminal Procedure but rejected the

allegation that he had done so intentionally.

     Considering that the negligence was noted and acknowledged by the

Court of Appeal in the present case and that the transcripts were not

used in and did not give rise to criminal proceedings brought against

the first applicant, the Commission accepts that the judicial control

exercised by the Court of Appeal in the present case, albeit in the

nature of an indirect control, constituted an adequate and sufficient

protection for the purposes of Article 8 (Art. 8) of the Convention as

regards negligence on the part of Mr S. in the supervision of the

telephone tapping at issue.

     The question whether or not these suspicions against the first

applicant were reasonable and sufficient in the light of information

held by the investigation authorities at the time Mr S. authorised the

tapping of the first applicant's telephone conversations is a matter

which in principle lies in the discretionary powers of the national

judicial authorities. Moreover, the Commission notes that, on this

point, the Court of Appeal held that the alleged absence of a

reasonable suspicion was not supported by the facts.

     In these circumstances the Commission sees no reason to call into

question the findings of the national judicial authorities and accepts

that the decision to authorise the tapping of the first applicant's

telephone conversations pursued the legitimate aim of prevention of

disorder or crime within the meaning of Article 8 para. 2 (Art. 8-2)

of the Convention.

     The Commission finally considers that the tapping of the

telephone conversations at issue, the first applicant being a suspect

of a serious criminal offence, can reasonably be regarded as "necessary

in a democratic society" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

     It follows that the conditions laid down in Article 8 para. 2

(Art. 8-2) of the Convention were satisfied and that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.   The first applicant complains that the tapping of his

conversations with the second applicant was contrary to his rights

under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention in that it

affected the effective exercise of his defence rights.

     Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads:

     "Everyone charged with a criminal offence has the following

     minimum rights:

     ...

     c.    to defend himself in person or through legal assistance of

     his own choosing or, if he has not sufficient means to pay for

     legal assistance, to be given it free when the interests of

     justice so require; ..."

     The Commission notes that the first applicant was under suspicion

of having killed one or two persons in May 1993 and that, on the basis

of this suspicion, the investigating judge on 7 April 1994 opened a

preliminary judicial investigation under No. 439-III-94, which included

the interception of the first applicant's telephone conversations.

     The Commission further notes that this investigation was closed

on 10 April 1995 and that it did not lead to the institution of any

criminal proceedings against the first applicant.

     For the purposes of Article 6 (Art. 6) of the Convention, the

Commission considers that the opening of a preliminary judicial

investigation which involves the interception of telephone

conversations of a suspect does not, as such, constitute a "criminal

charge" within the meaning of this provision (cf. No. 22942/93, Dec.

18.5.95, unpublished). It follows that this part of the complaint falls

outside the scope of Article 6 (Art. 6) of the Convention.

     Insofar as it is alleged that the interception of the telephone

conversations at issue was connected to the criminal proceedings in

which the Court of Appeal convicted and sentenced the applicant on

22 January 1996, the Commission notes that the Court of Appeal, when

it convicted the first applicant in these proceedings, did not consider

or use in evidence the tapped telephone conversations.

     The Commission further notes that the alleged connection between

the interception of the conversations between both applicants and the

criminal proceedings currently pending before the Supreme Court have

been extensively debated and examined in the adversarial proceedings

before the Court of Appeal. In its judgment of 22 January 1996, the

Court of Appeal did not find that this alleged connection had been made

plausible after having noted, inter alia, that the public prosecutor

in these proceedings was not the same person as the public prosecutor

in the investigation No. 439-III-94.

     The Commission recalls in the first place that in determining the

fairness of criminal proceedings, it must examine them as a whole. Such

an examination is in principle not possible if the proceedings are

still pending (cf. No. 17083/90, Dec. 8.4.91, D.R. 71, p. 269).

     The Commission notes that in the present case, the first

applicant's appeal in cassation is currently still pending before the

Supreme Court. However, as an appeal in cassation is limited to points

of law, the Commission accepts that the factual finding of the Court

of Appeal that the telephone tapping had no link with nor any bearing

on the criminal proceedings against the first applicant is not a matter

which the Supreme Court could review in cassation proceedings.

     Whether or not the Court of Appeal appraised the evidence on this

point correctly is a question which lies beyond the competence of the

Commission under the terms of Article 19 (Art. 19) of the Convention.

Noting that in the proceedings before the Court of Appeal, the defence

was given ample opportunity to argue this point and to submit whatever

it found relevant in this context, the Commission finds no basis for

a finding that in this respect the first applicant's defence rights

under  Article 6 para. 3 (Art. 6-3) of the Convention were not complied

with.

     It follows that, insofar as the present complaint falls within

the scope of Article 6 (Art. 6) of the Convention, it must be rejected

for being manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

3.   The first applicant also complains that his detention was not in

accordance with the requirements of Article 5 (Art. 5) of the

Convention.

     The Commission notes that the first applicant's complaint under

Article 5 (Art. 5) of the Convention, which guarantees the right to

liberty and security of person, has remained fully unsubstantiated.

     The Commission has found no indication in the case-file that the

first applicant's detention was contrary to Article 5 (Art. 5) of the

Convention.

     It follows that this complaint must also be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                         S. TRECHSEL

         Secretary                            President

     to the Commission                    of the Commission