Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23231/94

by Adrianus Theodorus Maria MULDERS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 April 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 December 1993

by Adrianus Theodorus Maria MULDERS against the Netherlands and

registered on 10 January 1994 under file No. 23231/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

1. The particular circumstances of the case

The applicant is a Dutch national, born in 1946, and resides in

Oss, the Netherlands. Before the Commission he is represented by Mr.

C.J. van Bavel, a lawyer practising in Utrecht, the Netherlands.

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

summarised as follows.

In the beginning of 1989, a preliminary judicial investigation

(gerechtelijk vooronderzoek) was opened by the investigating judge

(rechter-commissaris) at the Regional Court (Arrondissementsrechtbank)

of 's-Hertogenbosch, on suspicions that the applicant was a participant

in an organisation whose aim was the commission of criminal offences.

At that time, the applicant was a practising lawyer and interim manager

of the P. Bank.

Apart from the applicant, there were other suspects, among whom

Mr. K., Mr. G. and Mr. Van H.

On 10 March 1989, in the course of the preliminary judicial

investigation, the investigating judge issued a warrant for the tapping

of a number of telephone lines used by the applicant, including his

office telephone.

Since the suspect whose telephone was going to be tapped was a

practising lawyer, the investigating judge informed the Dean of the Bar

Association (Deken van de Orde van Advocaten) in 's-Hertogenbosch.

According to a letter from the Dean of 8 January 1991, which was

addressed to the applicant's lawyer, an agreement had been reached

between him, the investigating judge and the public prosecutor

(officier van justitie) that only telephone conversations relating to

the criminal investigation would be recorded in minutes, that the tapes

of the recorded telephone conversations and copies of the minutes would

be delivered to the Dean regularly, that the Dean could examine the

minutes to verify that no conversations about other cases of the

applicant were recorded and that he could make remarks about the

minutes should this nevertheless be the case, and that the tapes would

remain with the Dean until they could be destroyed.

On 4 December 1989, the applicant was arrested and detained on

remand. He was released on 5 February 1991.

On 13 February 1990, the applicant was summoned to appear before

the Regional Court of 's-Hertogenbosch on 12 March 1990. He was charged

with the following offences: fraud, committed either alone or together

with others; attempted fraud, committed either alone or together with

others; directing the use of a forged document, either alone or

together with others; and participation in an organisation whose aim

was the commission of criminal offences.

On 12 March 1990, the Regional Court adjourned its examination

of the case to 26 March 1990 because the applicant's lawyer did not

have all the relevant documents at his disposal. The court rejected the

applicant's request to be released from detention on remand.

On 26 March 1990, the Regional Court examined the case. It

rejected the applicant's request to be released from detention on

remand. On 9 April 1990, the Regional Court acquitted the applicant of

one charge, convicted him of the remaining three, and sentenced him to

18 months' imprisonment, the time spent in detention on remand to be

credited towards the sentence.

Both the applicant and the public prosecutor lodged an appeal

with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch against the

judgment.

On 27 November 1990, the Court of Appeal sitting in chambers

(raadkamer), composed of judges P., K. and V., rejected the applicant's

request to be released from detention on remand. The court rejected the

applicant's argument that he had to be released pursuant to Section 67a

para. 3 of the Code of Criminal Procedure (Wetboek van Strafvordering)

since there was a substantial possibility that the prison sentence that

would ultimately be imposed by the court would be shorter than the time

he had already spent in detention on remand. The Court of Appeal ruled

that this situation had not arisen.

On 30 November 1990, the Court of Appeal, composed of judges P.,

K. and V., commenced its examination of the merits of the case.

Immediately after the commencement of the session, the applicant

objected to the fact that the members of the court were the same

members as on 27 November. Referring to the Hauschildt judgment (Eur.

Court H.R., judgment of 24 May 1989, series A no. 154), he alleged that

the impartiality of the court was in question. He argued that a

tribunal that orders detention on remand must, pursuant to Section 67

para. 3 of the Code of Criminal Procedure, find it likely that the

accused is guilty. He further argued that a tribunal that finds that

the situation referred to in Section 67a para. 3 of the Code of

Criminal Procedure does not arise, anticipates the sentence that will

ultimately be imposed and must therefore have formed an opinion on the

evidence and the suspect's guilt, and that this opinion cannot be based

merely on a summary examination of the case-file. The applicant stated,

however, that he would not avail himself of the right to challenge the

judges (wraking). The Court of Appeal rejected the objection,

considering, inter alia:

"The argument that the court, in its decision of

27 November 1990, gave a decision on the sentence to be

imposed...is incorrect.

....

After all, the decision that in the present case the

situation referred to in Section 67a para. 3 of the Code of

Criminal Procedure does not arise, only means that in the

present state of the proceedings it cannot reasonably be

expected that the sentence will not be longer than the

detention on remand. Such a decision does not express an

opinion about the sentence that will ultimately be imposed

in the case of a conviction, because that opinion can only

be formed through the examination at the trial; in the

phase of the pretrial investigation only a summary

examination and assessment take place."

The applicant disputed in a general sense the correctness of the

transcriptions and the selection of tapped telephone conversations in

which he had participated. He further requested to be provided with

copies of the case-files of all his co-suspects. The Court of Appeal

rejected this request, considering:

"According to the law, [the] accused has a right to [be

provided with] copies of documents in his own case, that is

to say the case as it is submitted to the judge by the

prosecution.

The request to be provided with copies of all documents in

[the] cases of all his co-suspects has no legal basis, if

only because such a practice could lead to an inadmissible

interference with the privacy of other suspects."

Also on 30 November 1990, the Court of Appeal examined police

officer J., who had been involved in the drawing up of minutes of

recorded telephone conversations. J. was examined at the request of the

applicant.

On the same day, the Court of Appeal rejected the applicant's

request to be released from detention on remand. The court adjourned

its further examination of the case until 5 February 1991.

On 4 and 29 January 1991, the Court of Appeal sitting in

chambers, both times composed of judges P., K. and V., rejected the

applicant's request to be released from detention on remand.

On 5 February 1991, the Court of Appeal, composed of judges P.,

K. and V., examined at the applicant's request four witnesses, among

whom the co-suspects K., G. and Van H.

Also on 5 February, the Court of Appeal ordered that the

applicant be released from detention on remand. It adjourned its

further examination of the case until 16 April 1991.

On 16 April 1991, the Court of Appeal, composed of judges P., K.

and V., examined at the applicant's request four new witnesses (three

police officers and Mr. H.), and three witnesses who had already been

heard before (police officer J. and co-suspects G. and Van H.).

At the same hearing, the applicant again requested to be provided

with copies of the case-files of all his co-suspects. He submitted that

his co-suspects had no objections. The Court of Appeal rejected the

request, stating that the request had no legal basis and that the fact

that the co-suspects consented did not justify a different conclusion.

The applicant further requested that he be given the opportunity

to listen to all the tapes of the telephone conversations that had been

tapped in his case, so that transcripts of exculpating conversations

could be added to his case-file. The Court of Appeal rejected this

request as well, considering, inter alia:

"Section 125h paragraph 1 of the Code of Criminal Procedure

states that the investigating judge must destroy minutes

and tapes as soon as possible, if these are not relevant to

the investigation. According to paragraph 2 of that

Section, the same rule applies to information given by or

to a person who could, on the basis of Section 218 of the

Code of Criminal Procedure, be exempted from testifying. On

the basis of paragraph 3 of the first-mentioned Section,

the investigating judge adds the remaining relevant minutes

and tapes to the case-file when the decision to close the

preliminary judicial investigation becomes final. It is

evident from this that the selection of relevant minutes

and tapes is a discretionary task of the investigating

judge. This leads to the conclusion that the accused only

has the right to inspect or listen to, the minutes and the

tapes that have been added to the case-file by the

investigating judge. In the present case, [the] accused has

not substantiated his objection that the last-mentioned

minutes are not correct transcripts of the conversations

recorded on tape; therefore [the] accused has no interest

in listening to those tapes."

On 24 May 1991, the Court of Appeal, composed of judges P., K.,

and V., resumed its examination of the case. In his final pleadings,

the applicant argued that the Court of Appeal should declare its

examination of the case null and void and should refer the case to

another chamber of the court because the court in its present

composition was not impartial in view of the fact that the members of

the court had on several occasions rejected his requests to be released

from detention on remand.

He further argued that the prosecution should be declared

inadmissible, the tapping of his telephones being unlawful since it

disregarded his professional obligation to secrecy and violated the

interests of clients who had nothing to do with the criminal

investigation against him.

The applicant complained once again of the rejection of his

requests to be provided with copies of the case-files of his co-

suspects or to be permitted to consult their case-files, and to listen

to all the tapes of the tapped telephone conversations in which he had

participated. He submitted that there had been no fair trial and that

his defence was harmed. He further stated that the Dutch rules on

telephone tapping are not in conformity with Article 8 of the

Convention if neither the judge nor the defence can verify whether or

not exculpating material is left out of consideration by the

investigating judge or the police officers.

On 7 June 1991, the Court of Appeal quashed the Regional Court's

judgment, acquitted the applicant of one charge, convicted him of the

remaining three and sentenced him to two years' imprisonment, the time

spent in detention on remand to be credited towards the sentence.

The Court of Appeal used in evidence statements made to the

police by, inter alia, the applicant, his co-suspects K., G. and Van

H., and by Mr. H., as well as statements made by the latter four before

the Court of Appeal. The Court of Appeal further used in evidence a

number of documents, including minutes containing the transcripts of

recorded telephone conversations between the applicant and co-suspect

Van H., between the applicant and a notary, and between the applicant

and Mr. H.

As regards its alleged partiality, the Court of Appeal stated,

inter alia:

"- that counsel had at his disposal...the legal remedy of

challenging, but that at the hearing on 30 November 1990,

when he raised this objection for the first time, he

explicitly stated that he did not want to use this legal

remedy;

- that the court, for that reason,...sees no grounds to

refer the case to a different chamber;".

As regards the lawfulness of the tapping of the applicant's

telephones, the Court of Appeal considered that the Code of Criminal

Procedure permits the tapping of a telephone of a lawyer who himself

is a suspect. It further considered:

"- that...tapping [a telephone line of a person who enjoys

the privilege of non-disclosure] can result in the

recording of confidential conversations, but that this...

does not have as a consequence that the telephone line of

a person who enjoys the privilege of non-disclosure may

never be tapped...;

- that it is true that the interest of society in giving

everyone the opportunity to consult freely and without fear

of disclosure a person who enjoys the privilege of non-

disclosure -in the present case a lawyer- is an interest of

great importance, but that this interest has to be balanced

against the equally important interest of society in

finding the truth about a person who enjoys the privilege

of non-disclosure and who is a suspect;

- that in the opinion of the court the result of this

balancing cannot be that the first-mentioned interest must

be given absolute precedence;

- that the safeguard for those who wish to consult a person

who enjoys the privilege of non-disclosure is the fact that

the recorded conversations are initially only listened to

in order to determine whether they are of a confidential

character and that, when the confidential character has

been established, the minutes and the tapes relating to

those conversations are, pursuant to Section 125h paragraph

2 of the Code of Criminal Procedure, destroyed immediately

by the investigating judge."

As to the last argument of the applicant, the Court of Appeal

reiterated its decision that the law does not grant the accused the

right to examine the case-files of his co-suspects or the right to

listen to all tapes of recorded telephone conversations. It added:

"- the Court is of the opinion that the principle of fair

trial was guaranteed sufficiently because the accused had

the opportunity to summon as witnesses the persons with

whom he had had the recorded telephone conversations."

The applicant subsequently lodged an appeal in cassation with the

Supreme Court (Hoge Raad). He reiterated the objections he had raised

before the Court of Appeal.

On 16 February 1993, the Advocate General (Advocaat-Generaal) at

the Supreme Court submitted his written conclusions, which were sent

to the applicant, who replied on 17 March 1993.

On 29 June 1993, the Supreme Court rejected the applicant's

appeal in cassation. As regards the alleged partiality of the Court of

Appeal, it considered, inter alia:

"When evaluating a plea on the absence of judicial

impartiality within the meaning of Article 6 para. 1 of the

Convention, it should be of primary importance that a

judge...must be presumed to be impartial, unless

exceptional circumstances arise that provide clear

indications that a judge is prejudiced against the suspect,

[or] at least that the suspect's fear on that subject is

objectively justified.

The mere fact that a tribunal that deals with the suspect's

case on appeal has repeatedly rejected requests to lift or

suspend the detention on remand, does not mean that the

case is not dealt with by an impartial tribunal within the

meaning of Article 6 para. 1 of the Convention. Exceptional

circumstances, that in the present case should have led to

a different opinion, have not been established, nor have

they become apparent from the case-file. The fact that this

tribunal, in rejecting [the requests to lift or suspend the

detention on remand], considered that the situation

referred to in Section 67a para. 3 of the Code of Criminal

Procedure did not arise, cannot be regarded as such a

fact."

As regards the tapping of the applicant's telephone lines, the

Supreme Court considered that the tapping of a telephone line of a

person who enjoys the privilege of non-disclosure is not unlawful and

that the legislation on telephone tapping does not lead to the

conclusion that a lawyer's telephone can only be tapped in very

exceptional circumstances.

As regards the fairness of the trial, the Supreme Court stated,

inter alia:

"The right to inspect or to receive copies of documents

belonging to cases against co-suspects cannot be derived

from Article 6 of the Convention.

....

A reasonable interpretation, in the light of the right to

a fair trial laid down in Article 6 para. 1 and the

beginning of para. 3 and sub-para b of that paragraph of

the Convention, entails that in Section 125h, paragraph 1,

of the Code of Criminal Procedure, the words 'as soon as

possible' have to be read in such a manner - unless Section

125h, paragraph 2 is applicable - that the destruction of

minutes and items within the meaning of that provision will

not be carried out until after the defence has had

sufficient opportunity to request that, in the interest of

the defence, one or more of those be added to the case-

file, and a decision has been given on that request. A

right to listen to tapes which have not been added to the

case-file, cannot, however, be derived from the

aforementioned Convention provisions."

2. Relevant domestic law and practice

Pursuant to Section 67 para. 3 of the Code of Criminal Procedure,

detention on remand (voorlopige hechtenis) can only be ordered when

there are serious indications ("ernstige bezwaren") against the

suspect, meaning that it is likely that he has committed the offence

he is accused of.

Pursuant to Section 67a para. 3 of the Code of Criminal

Procedure, (the prolongation of) detention on remand will not be

ordered when there is a substantial possibility ("wanneer ernstig

rekening moet worden gehouden met de mogelijkheid dat") that the

suspect will not be sentenced to an unconditional prison sentence or

when there is a substantial possibility that the prison sentence to be

imposed will be shorter than the time spent in detention on remand.

Sections 125g and 125h paras. 1 - 3 of the Code of Criminal

Procedure read as follows:

125g "During the preliminary judicial investigation the

investigating judge may, if the investigation urgently so

requires and concerns an offence which allows for detention

on remand, authorise the investigating official to tap or

record telephone conversations where there is a suspicion

that the suspect participates in them. Minutes of the

tapping or recording shall be drawn up within forty-eight

hours."

125h.1 "The investigating judge shall have destroyed, as

soon as possible, in his presence, any minutes and other

items from which information can be derived that has been

obtained...by tapping or recording..., and which are not

relevant to the investigation. Minutes of the destruction

shall be drawn up immediately."

125h.2 "The investigating judge shall likewise have

immediately destroyed any minutes and other items referred

to in the preceding paragraph, insofar as they concern

statements made by or to a person who, on the basis of

Section 218 [of the Code of Criminal Procedure] could be

exempted from testifying if he were questioned as a witness

about the contents of those statements."

125h.3 "The investigating judge shall add the remaining

minutes and other items referred to in the first paragraph

to the case-file, at the latest, when the decision to close

the preliminary judicial investigation becomes final."

Section 218 of the Code of Criminal Procedure states that

witnesses who have a professional obligation to secrecy have the

privilege of non-disclosure and are exempted from testifying on matters

that are confided to them in their professional capacity. Practising

lawyers fall within the ambit of this provision.

Pursuant to Section 516 of the Code of Criminal Procedure, an

accused can challenge a judge.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the Court of Appeal was not impartial, since the same three judges

who decided on his requests to be released from detention on remand

also decided on the merits of his case. He argues, citing Sections 67

para. 3 and 67a para. 3 of the Code of Criminal Procedure, that the

Court of Appeal anticipated its determination of his guilt and the

sentence it would ultimately impose.

2. The applicant complains under Article 6 of the Convention that

the equality of arms between the prosecution and the defence was

violated by the rejection of his requests to be provided with copies

of the case-files of all his co-suspects or to be permitted to examine

those case-files, and his requests for permission to listen to all the

tapes of recorded telephone conversations in which he had participated.

He argues that the Court of Appeal, by considering that the prosecuting

authorities shall decide which documents are to be included in the

case-file, disregarded the principle of equality of arms.

3. He complains under Article 8 of the Convention that the Dutch

legislation on telephone tapping does not meet the requirements of that

provision because it does not afford adequate safeguards against abuse

and leaves too many issues open for judicial discretion. Furthermore,

referring to the Niemietz case (Eur. Court H.R., judgment of 16

December 1992, Series A no. 251-B), the applicant complains under

Article 8 of the Convention that the tapping of his telephones was a

disproportionate interference with his professional obligation to

secrecy. He submits that all his telephone conversations, including

those with clients who had nothing to do with the criminal

investigation, were overheard and that the interests of his clients,

who thought they could communicate confidentially with their lawyer,

were harmed.

THE LAW

1. The applicant makes two complaints under Article 6

(Art. 6) of the Convention, which, insofar as relevant, reads as

follows:

"1. In the determination...of any criminal charge against him,

everyone is entitled to a fair...hearing...by an...impartial

tribunal....

....

3. Everyone charged with a criminal offence has the following

minimum rights:

....

b. to have adequate time and facilities for the

preparation of his defence;

...."

a) The applicant's first complaint under Article 6 (Art. 6) is that,

in the determination of the criminal charges against him, he did not

receive a hearing by an impartial tribunal.

Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with this matter after all domestic remedies have been

exhausted. The Commission recalls the applicant's statement before the

Court of Appeal that he would not avail himself of the right to

challenge the judges concerned. At the same time, however, he put

before the Court of Appeal the arguments he now submits to the

Commission as regards the alleged partiality of these judges. These

arguments were considered and rejected by the Court of Appeal and,

subsequently, by the Supreme Court. In these circumstances the

Commission cannot find that the applicant's complaint of partiality of

the Court of Appeal is inadmissible under Article 27 para. 3

(Art. 27-3) of the Convention for non-exhaustion of domestic remedies.

As regards the substance of this complaint, the Commission

recalls that the existence of impartiality for the purposes of Article

6 para. 1 (Art. 6-1) of the Convention must be determined according to

a subjective test, that is on the basis of the personal conviction of

a particular judge in a given case, and also according to an objective

test, that is ascertaining whether the judge offered guarantees

sufficient to exclude any legitimate doubt in this respect (Eur. Court

H.R., Hauschildt case, judgment of 24 May 1989, Series A no. 154,

p. 21 para. 46; Eur. Court H.R., Padovani case, judgment of

26 February 1993, Series A no. 257-B, p. 20 para. 25).

The Commission notes that the applicant has not questioned the

personal impartiality of the members of the Court of Appeal.

As to the objective test, it must be determined whether, quite

apart from the judge's conduct, there are ascertainable facts which may

raise doubts as to his impartiality. In this respect even appearances

may be of importance. What is at stake is the confidence which the

courts in a democratic society must inspire in the public and above

all, as far as criminal proceedings are concerned, in the accused. It

follows that, in deciding whether in a given case there is a legitimate

reason to fear that a particular judge lacks impartiality, the

standpoint of the accused is important but not decisive. What is

decisive is whether this fear can be regarded as objectively justified

(Padovani judgment, loc. cit., p. 20 para. 27).

In the Hauschildt case the European Court expressed the view that

the mere fact that a judge has also made pre-trial decisions in a case,

including those concerning detention on remand, cannot be held, in

itself, as justifying fears concerning his impartiality, but that

special circumstances may, in a given case, be such as to warrant a

different conclusion (Hauschildt judgment, loc. cit., p. 22 paras.

50-52).

In the present case the Court of Appeal, when it had to decide

on the applicant's detention on remand, did not have to answer the same

questions as those which were decisive for its final judgment. The

issue the Court of Appeal was faced with when deciding on the

applicant's detention on remand, i.e. a summary examination and

assessment of the charges against him, was not the same as the issue

it had to settle when deciding whether the evidence placed before it

was sufficient to find the applicant guilty of the offences he was

charged with and to convict him of these offences (cf. No. 13157/87,

Dec. 27.5.91, D.R. 70 p. 167).

Moreover, the Court of Appeal's finding that the situation

referred to in Section 67a para. 3 of the Code of Criminal Procedure

had not arisen, does not imply that the court was no longer impartial.

It is true that Section 67a para. 3 required the Court of Appeal to

anticipate the sentence that might ultimately be imposed, but the

opinion that the situation referred to in Section 67a para. 3 was not

at hand could be reached after a summary examination and a provisional

assessment of the case.

Consequently, in the circumstances of the present case, the

Commission finds no elements that warrant misgivings about the

impartiality of the Court of Appeal.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

b) The applicant's second complaint under Article 6 (Art. 6) of the

Convention is that the equality of arms between the prosecution and the

defence was violated by the rejection of his requests to be provided

with copies of the case-files of all his co-suspects or to be permitted

to examine those case-files, and his requests for permission to listen

to all the tapes of recorded telephone conversations in which he had

participated. He argues that the Court of Appeal, by holding that it

is the prosecuting authorities who decide which documents are to be

included in the case-file, disregarded the principle of equality of

arms.

The Commission will examine this complaint under paras. 1 and 3

(b) of Article 6 (Art. 6-1+6-3-b) of the Convention taken together.

The Commission finds that the mere fact that it is the prosecutor

who composes the case-file of an accused does not lead to the

conclusion that the equality of arms between the prosecution and the

defence is disregarded. Moreover, the selection of the tapped telephone

conversations was in the present case entrusted to the investigating

judge - whose function it is to gather not only inculpating evidence

but also exculpating evidence (cf. Baegen v. the Netherlands,

Comm. Rep. of 20.10.94; and Doorson v. the Netherlands, Comm. Rep. of

11.10.94) - and not to the prosecution.

The case-files of the co-suspects and the tapes and the recorded

telephone conversations that were not selected by the investigating

judge, were not a part of the applicant's case-file that was

subsequently submitted by the prosecution to the trial judge.

The documents submitted by the applicant disclose no appearance

of a violation of the principle of equality of arms. It has not been

alleged that the prosecution has used material which the applicant was

unaware of, nor that the applicant's conviction was based on evidence

that he could not challenge. It has furthermore not been argued that

during the proceedings the domestic courts placed the prosecution in

a more advantageous position than the applicant.

The Commission finds no indication that the applicant's trial was

otherwise unfair. Considering the proceedings as a whole, it notes that

the applicant was provided with ample opportunity to present his case

and to challenge the evidence against him. At his request nine

witnesses were heard by the Court of Appeal, including his co-suspects

K., G. and Van H. Two of the witnesses who were heard at the

applicant's request were persons with whom he had had telephone

conversations that were included in his case-file (Mr. H. and co-

suspect Van H.). The Commission also observes that the applicant's

requests to be given the opportunity to listen to all the tapes of

recorded telephone conversations in which he had participated and to

be provided with copies of the case-files of all his co-suspects had

not been shown to be based on any necessity to safeguard the

applicant's defence.

The Commission therefore finds no indication of a violation of

Article 6 (Art. 6) of the Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant makes two complaints under Article 8 (Art. 8) of

the Convention. He argues that the Dutch legislation on telephone

tapping does not meet the requirements of that provision because it

does not afford adequate safeguards against abuse and leaves too many

issues open for judicial discretion, and he complains that the tapping

of his telephones was a disproportionate interference with his

professional obligation to secrecy.

Article 8 (Art. 8) of the Convention 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 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 H.R.,

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

and No. 10862/84, Dec. 6.3.86, D.R. 46 pp. 136-137).

The Commission therefore finds that the tapping of the

applicant's telephones constituted an interference by a public

authority with his right to respect for his private life and

correspondence.

The question which remains to be answered is whether the

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

Convention.

The Commission must first examine whether the tapping of the

applicant's telephones was "in accordance with the law" within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

The Commission recalls in this respect that, where the Convention

refers to domestic law, it is primarily the task of the national

authorities to apply and interpret domestic law, and that the

Convention organs have a limited jurisdiction in controlling the manner

in which this is done (cf. No. 10689/83, Dec. 14.5.84, D.R. 37 p. 225).

However, the phrase "in accordance with the law" does not merely refer

back to domestic law, but also relates to the quality of law, requiring

it to be compatible with the rule of law (cf. Eur. Court H.R., Olsson

judgment of 24 March 1988, Series A no,. 130, p. 30 para. 61).

The Commission has previously examined the Dutch regulations on

telephone tapping as contained in, inter alia, Sections 125 f-h of the

Dutch Code of Criminal Procedure, and has found that these regulations

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

of Article 8 para. 2 (Art. 8-2) (No. 18395/91, Dec. 7.12.92,

unpublished; No. 20555/92, Dec. 6.4.94, unpublished; No. 22788/93,

Dec. 6.4.94, unpublished; No. 21207/94, Dec. 30.11.94, D.R. 79-A). The

Commission finds no reason to take a different view in the present

case.

The Commission observes that under Dutch law persons enjoying the

privilege of non-disclosure are not exempt from telephone tapping when

they themselves are suspected of having committed criminal offences and

that, in the present case, the national courts ruled that the tapping

of the applicant's telephones was lawful.

The Commission cannot find this ruling unreasonable or arbitrary

and finds no indication of non-observance of the relevant provisions

of the Dutch Code of Criminal Procedure. Consequently, the Commission

considers that the interference at issue was "in accordance with the

law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

The Commission finds that the interference pursued an aim that

was legitimate under Article 8 para. 2 (Art. 8-2) of the Convention,

namely the prevention of crime.

As to the question whether the interference was "necessary in a

democratic society", the applicant submits that the tapping of his

telephones constituted a disproportionate interference with his right

to professional secrecy and violated the rights of his clients who had

nothing to do with the investigation against him.

The Commission observes that the present case differs from the

Niemietz case to which the applicant has referred (Eur. Court H.R.,

judgment of 16 December 1992, Series A no. 251-B) in that the applicant

in the present case was himself suspected of criminal offences.

The Commission further observes that the tapping of the

applicant's telephones was accompanied by procedural safeguards, namely

Section 125h para. 2 of the Code of Criminal Procedure, and the

involvement of the Dean of the Bar Association (cf. Niemietz judgment,

loc. cit., pp. 36-37 para. 37), in order to protect the interests of

clients of the applicant who had nothing to do with the criminal

investigation against him.

The Commission finds that the interference with the applicant's

private life and correspondence, having regard also to his right to

professional secrecy and the rights of his clients, was not

disproportionate to the legitimate aim, namely the prevention of crime.

The interference can thus reasonably be regarded as having been

necessary in a democratic society.

It follows that the interference with the applicant's private

life and correspondence was justified under Article 8 para. 2

(Art. 8-2) of the Convention.

This part of the application is, therefore, also 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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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MULDERS v. THE NETHERLANDS

MULDERS v. THE NETHERLANDS

LEXI