Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21207/93

by K.D.

against the Netherlands

The European Commission of Human Rights sitting in private on

30 November 1994, the following members being present:

Present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

M.A. NOWICKI

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 3 December 1992

by K.D. against the Netherlands and registered on 20 January 1993 under

file No. 21207/93;

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 citizen, born in 1952, residing in

Venlo, the Netherlands. Before the Commission he is represented by

Mr. H.H.M. van Dijk, a lawyer practising in Oss, the Netherlands.

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

summarised as follows.

On 25 January 1988, the applicant was arrested and subsequently

detained on remand for suspicion of drug offences. He was released on

7 April 1988.

At the time of his arrest, the applicant worked as a probation

officer with the Health Centre for Alcohol and Drug Abuse (Consultatie-

bureau voor Alcohol en Drugs) in Venlo. During the preliminary judicial

investigation (gerechtelijk vooronderzoek), the investigating judge

(rechter-commissaris) authorised the tapping of the applicant's home

telephone. Information obtained in this way had resulted in the

applicant's arrest.

On 3 March 1989, the Regional Court (Arrondissementsrechtbank)

of Roermond convicted the applicant of four drug offences and sentenced

him to one year and six months' imprisonment and confiscation of a

number of bank accounts.

On 11 December 1990, the Court of Appeal (Gerechtshof) of

's-Hertogenbosch quashed the Regional Court's judgment on technical

grounds, convicted the applicant of four drug offences, and sentenced

him to one year and six months' imprisonment and a fine of 100.000

Dutch guilders.

In the proceedings before the Court of Appeal, the applicant

alleged that the evidence against him had been obtained unlawfully.

Referring to a judgment of the Dutch Supreme Court (Hoge Raad) of 10

April 1979, he argued that the tapping of his home telephone was

unlawful because it disregarded his professional obligation to secrecy

and his privilege of non-disclosure. The Court of Appeal rejected the

argument, considering that it was the applicant's home telephone that

had been tapped whilst it had not been demonstrated that the applicant

used his home telephone in the exercise of his profession.

The applicant lodged an appeal in cassation with the Supreme

Court. On 28 April 1992, the Advocate General (Advocaat-Generaal) at

the Supreme Court submitted his written conclusions (conclusie), which

were sent to the applicant's lawyer. On 22 May 1992, the applicant's

lawyer responded to the written conclusions. On 9 June 1992, the

Supreme Court rejected the appeal in cassation.

In paragraph 2.2 of its judgment, the Supreme Court stated that

it had examined the response from the applicant's lawyer, dated 22 May

1992. As to the tapping of the applicant's home telephone, the Supreme

Court held that the decision of the Court of Appeal was correct. The

Supreme Court added, as obiter dictum:

"Voor zover aan het middel voorts ten grondslag ligt de stelling,

dat de rechter-commissaris onder geen enkele omstandigheid

bevoegd is om te bepalen dat telefoongesprekken worden

afgeluisterd welke worden gevoerd met of vanuit enige

telefoonaansluiting staande op naam van een reclasserings-

ambtenaar zonder dat deze daartoe toestemming heeft gegeven,

faalt het, aangezien die stelling geen steun vindt in het recht."

"Insofar as the plea is also based on the argument that the

investigating judge is under no circumstances entitled to

authorise the tapping of telephone conversations that are made

to or from a telephone that is registered in the name of a

probation officer, without the latter having given permission for

the tapping, it fails, as it has no legal basis."

2. Relevant domestic law and practice

Telephone tapping is regulated by Sections 125 f-h of the Dutch

Code of Criminal Procedure (Wetboek van Strafvordering). Telephone

tapping may only be utilised for investigation of offences for which

detention on remand (voorlopige hechtenis) may be imposed, i.e.

offences of a certain gravity. Only telephone conversations the suspect

is likely to participate in may be monitored, and the tapping may only

be ordered when the investigation urgently requires it. The tapping

must be authorised by the investigating judge. A written record of the

telephone conversations that are tapped must be prepared within 48

hours. Records without relevance must be destroyed as soon as possible

by order of the investigating judge.

The Code of Criminal Procedure does not limit the tapping of

telephones to a certain period. However, the "Guidelines regarding

Interception of Telephone Conversations", dated 2 July 1984, indicate

that a request for authorisation for telephone tapping shall concern

a period of not more than four weeks. A request for prolongation shall

also concern a period not exceeding four weeks. The guidelines are

public and have been published.

Section 125h para. 2 requires the destruction of procès-verbaux

insofar as they concern statements made by or to a person who, on the

basis of Section 218, enjoys the privilege of non-disclosure.

Section 218 of the Code of Criminal Procedure states that those

who have a professional obligation to secrecy, have the privilege of

non-disclosure concerning matters confided to them in a professional

capacity. In a decision of 20 June 1968, the Supreme Court recognised

the (limited) right of non-disclosure of probation officers.

In a judgment of 10 April 1979 (Nederlandse Jurisprudentie 1979,

nr. 374), the Supreme Court ruled that Section 125g of the Code of

Criminal Procedure does not allow the investigating judge to authorise

the tapping of telephone conversations made to or from a telephone used

by a lawyer, who himself is not suspected, in the exercise of his

profession.

In judgments of 17 May 1988 (Nederlandse Jurisprudentie 1989, nr.

439) and 9 June 1992 (Nederlandse Jurisprudentie 1992, nr. 776), the

Supreme Court ruled that the tapping of telephone conversations that

are made to or from a telephone of a person with a professional

obligation to secrecy is allowed, when the telephone is used primarily

for private calls.

In a judgment of 29 June 1993 (Nederlandse Jurisprudentie 1993,

nr. 692), the Supreme Court ruled that an investigating judge may order

the tapping of a lawyer's professional telephone if the lawyer himself

is a suspect.

COMPLAINTS

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

the judgment of the Supreme Court does not indicate that the Supreme

Court took into account or read the letter of 22 May 1992 which the

applicant's lawyer sent in response to the written conclusions of the

Advocate General at the Supreme Court.

2. The applicant further complains under Article 8 of the Convention

that the tapping of his home telephone was not in accordance with the

law, because, as he was a probation officer, tapping of his home

telephone was not allowed under the relevant provisions of the Dutch

Code of Criminal Procedure.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that his reply to the submissions of the Advocate General

was not taken into account by the Supreme Court.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

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

everyone is entitled to a fair (...) hearing (...) by a (...)

tribunal (...)."

The Commission notes from paragraph 2.2 of the Supreme Court's

judgment of 9 June 1992 that it examined the response from the

applicant's lawyer, dated 22 May 1992. The applicant's first complaint,

therefore, lacks foundation and must be rejected as manifestly ill-

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

Convention.

2. The applicant further complains that the tapping of his home

telephone violated his rights under Article 8 (Art. 8) of the

Convention. 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 home telephone constituted an interference by a public

authority with his right to respect for his private life and

correspondence.

The question which thus remains to be answered is whether this

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

Convention.

The Commission has first examined whether the tapping of the

applicant's home telephone 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 rules on

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

Dutch Code of Criminal Procedure, and found that these rules 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; and No. 22788/93, Dec. 6.4.94,

unpublished).

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 their telephone is used primarily for private calls or when such

persons themselves are suspected of having committed criminal offences.

The Commission notes that, in the present case, the national

courts ruled that the tapping of the applicant's home telephone was

lawful, considering that it had not been demonstrated that he used his

home telephone in the exercise of his profession. Moreover, the Supreme

Court added that the applicant's argument that a probation officer's

telephone can never be tapped, has no legal basis.

The Commission cannot find these findings 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 finally observes that the applicant has not

complained that the tapping of his home telephone had no legitimate aim

or was not necessary in a democratic society.

Having regard to the fact that the applicant was suspected of

drug offences, the Commission considers that in the present case the

tapping of the applicant's home telephone was "in accordance with the

law" and can reasonably be regarded as being necessary in a democratic

society for the legitimate aim of the prevention of crime within the

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

It follows that the interference with the applicant's private

life and correspondence can be regarded as 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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K.D. v. THE NETHERLANDS

K.D. v. THE NETHERLANDS

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