VAN PELT v. THE NETHERLANDS
Doc ref: 20555/92 • ECHR ID: 001-1826
Document date: April 6, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 20555/92
by Theodorus Wilhelmus Henricus VAN PELT
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
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 19 August
1992 by Theodorus Wilhelmus Henricus VAN PELT against the
Netherlands and registered on 28 August 1992 under file No.
20555/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
18 June 1993 and the observations in reply submitted by the
applicant on 25 September 1993;
Having deliberated;
Decides as follows:
THE FACTS
1. Particular circumstances of the case
The applicant is a Dutch citizen, born in 1953 and at
present detained at Maastricht. He is represented before the
Commission by
Mr. G. Spong, a lawyer practising in The Hague.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In the course of a preliminary judicial investigation on the
basis of the suspicion that the applicant was involved in drug
trafficking, the investigating judge (rechter-commissaris)
authorised the tapping of the applicant's telephone. His
telephone was tapped from 8 January 1987 until 31 October 1988.
The facts in the following two paragraphs are disputed
between the parties.
According to the Government, the investigating judge
prolonged his authorisation 21 times, as every authorisation was
valid for the period of one month, and each time upon request by
the public prosecutor. To substantiate that a prolongation was
urgently required in the interest of the criminal investigation,
the public prosecutor appended an official police report to each
request.
According to the applicant, several decisions to prolong the
tapping authorisation were not based on a request by the public
prosecutor but on a procès-verbal drawn up by a police officer,
which contained a statement about the desirability of a tapping
order. There were also some decisions on prolongation which were
based neither on a request by the public prosecutor nor on a
procès-verbal by the police.
On 27 July 1989 the Regional Court (Arrondissementsrecht-
bank) of 's-Hertogenbosch sentenced the applicant for drugs
offences to sixteen years' imprisonment. On 11 October 1990, the
Court of Appeal (Gerechtshof) of 's-Hertogenbosch quashed the
Regional Court's judgment and sentenced the applicant for drugs
offences to five years' imprisonment. The applicant's subsequent
appeal in cassation was, except as regards the legal
qualification of one of the offences, rejected on 10 March 1992
by the Supreme Court (Hoge Raad).
In the course of the hearing on 19 September 1990 before the
Court of Appeal the applicant raised an issue of inadmissibility
of the prosecution:
"(...) in verband met het feit dat de termijn,
gedurende welke de telefoon van verdachte is getapt,
steeds is verlengd zonder dat uit de stukken blijkt
waarom."
"(...) in connection with the fact that the period,
during which the telephone of the suspect has been
tapped, has continuously been prolonged, whereas it
does not appear from the file why."
After having adjourned the hearing and deliberated, the
Court rejected this objection finding:
"(...) dat uit de processtukken blijkt dat de rechter-
commissaris telkenmale tot de verlenging van de
termijn, gedurende welke de telefoon van verdachte kon
worden getapt, heeft beslist en redelijkerwijze heeft
kunnen beslissen en dat het beroep op de niet-
ontvankelijkheid daarom wordt verworpen."
"(...) that it appears from the case-file that the
investigating judge each time decided and could
reasonably decide to prolong the period, during which
the suspect's telephone could be tapped, and therefore
rejects the request for inadmissibility."
Before the Supreme Court the applicant argued that these
reasons were insufficient. He referred to the Guidelines
regarding Interception of Telephone Conversations (Richtlijnen
Onderzoek van Telefoongesprekken), issued on 2 July 1984, and
pointed out that according to these Guidelines a request for
prolongation of a tapping order shall be made in writing and
include reasons. Moreover an interim report on telephone tapping
shall be made to the public prosecutor (officier van justitie)
and the investigating judge already after two weeks. The
applicant stated that it did not appear from the file that those
rules had always been respected in the present case. It was
therefore not understandable how the Court of Appeal had been
able to conclude that the investigating judge had always, for a
period of almost two years, been justified in prolonging the
tapping authorisation.
The applicant further pointed out that several decisions to
prolong the tapping authorisation were not based on a request by
the public prosecutor but on a procès-verbal drawn up by a police
officer, which contained a statement about the desirability of
a tapping order. There were also some decisions on prolongation
which were based neither on a request by the public prosecutor
nor on a procès-verbal by the police.
Moreover, the applicant submitted that the rule in the
Guidelines about interim reports every second week had not been
respected.
Reference was made to the judgments of the European Court
of Human Rights in the Kruslin and Huvig cases (judgments of 24
April 1990, Series A no. 176 A and B), according to which the
national law in this area must satisfy certain quality
requirements, one of them being that the tapping must be limited
in time and be subjected to certain controls.
The Supreme Court, in its rejection of this ground of
appeal, stated as follows:
"The Court of Appeal, by rejecting the ground of
defence, as stated above under (...), has found on the
basis of the relevant documents that the investigating
judge had prolonged on sufficient grounds the period
during which telephone conversations could be tapped.
Consequently, the Court of Appeal, without violating
any legal rule such as in particular the Convention
rules referred to in the ground of appeal, has
rejected the defence on grounds which can justify this
decision. The Court of Appeal was not obliged to give
further reasons. In this respect the ground of appeal
is therefore unfounded.
Insofar as the ground of appeal implies that the case-
file creates a direct and serious suspicion that the
Guidelines referred to in the ground of appeal have
not been respected, this cannot lead to cassation,
already because these Guidelines cannot be regarded as
'law' within the meaning of Section 99 of the Act on
the Judicial Organisation, as they have not been duly
published."
2. Relevant domestic law and practice.
Sections 125 f-h of the Dutch Code of Criminal Procedure
(Wetboek van Strafvordering) contain rules about telephone
tapping. According to Sections 125 g and h telephone tapping may
only be effected in regard to offences for which detention on
remand (voorlopige hechtenis) may be imposed, i.e. offences of
a certain gravity. The tapping may only concern telephone
conversations in which the suspect is likely to participate, and
it may only be ordered where the investigation urgently requires
it. It must be authorised by the investigating judge.
Furthermore, a record of the telephone tapping must be
prepared within 24 hours. Records without importance for the
investigation must be destroyed as soon as possible by order of
the investigating judge. The public prosecutor must also destroy
records of telephone tapping unless he asks for a preliminary
investigation within a month from the time at which he received
the information concerned.
The Code of Criminal Procedure contains no provision on the
period for which telephone tapping may be carried out. The
Guidelines regarding Interception of Telephone Conversations of
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. After two weeks the responsible police
officer shall submit an interim report to the public prosecutor
and the investigating judge. The 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. A copy of the
text of the Guidelines can be obtained by any interested person
upon request and its text has been published in, inter alia, the
Netherlands Journal for Human Rights (Nederlands Tijdschrift voor
de Mensenrechten) of July/August 1989.
According to Dutch case-law, the courts may disregard
evidence as unlawfully obtained when it has been obtained via
telephone conversations which have been tapped after a certain
date determined by the court (Gerechtshof Amsterdam, judgment no.
1575/87 of 12 November 1987 and judgment no. 1205/91 of 8 July
1991).
Section 99 of the Act on the Judicial Organisation (Wet op
de Rechterlijke Organisatie) contains the grounds on which the
Supreme Court may quash judicial acts and decisions. One of these
grounds is a violation of the law (schending van het recht).
COMPLAINT
The applicant complains of a violation of Article 8 of the
Convention. He argues that if, as the Supreme Court has found,
the Guidelines of 2 July 1984 are not to be regarded as "law",
Dutch legislation on telephone tapping does not satisfy the
requirement "in accordance with the law" of Article 8 para. 2.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 August 1992 and
registered on 28 August 1992.
On 31 March 1993, the Commission decided to communicate the
application to the respondent Government and to invite them to
submit written observations on the admissibility and merits of
the application.
The Government's observations were submitted on 18 June 1993
and the applicant's observations in reply were submitted on 25
September 1993.
THE LAW
The applicant alleges a violation of Article 8 (Art. 8) of
the Convention. He submits that if, as the Supreme Court has
found, the Guidelines of 2 July 1984 are not to be regarded as
"law", Dutch legislation on telephone tapping does not satisfy
the requirement "in accordance with the law" of Article 8 para.
2 (Art. 8-2).
Article 8 (Art. 8) of the Convention, insofar as relevant,
reads:
"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 (...) for the prevention of
disorder or crime (...)."
The Government are of the opinion that the tapping of the
applicant's telephone conversations was a measure which was in
accordance with the law, since it complied with Sections 125 g-h
of the Code of Criminal Procedure. The measure was also necessary
in a democratic society for the prevention of disorder or crime,
since the investigation concerned drugs offences which
constituted a serious violation of the legal order.
The Government submit that the telephone tapping, as
authorised by the investigating judge, took place from 8 January
1987 to 31 October 1988 in the course of a preliminary judicial
investigation against the applicant. As every authorisation was
valid for the period of one month, the investigating judge
prolonged his authorisation 21 times, each time upon request by
the public prosecutor. To substantiate that a prolongation was
urgently required in the interest of the criminal investigation,
the public prosecutor appended an official police report to each
request. The telephone tapping in this case was thus in full
conformity with Sections 125 g-h of the Code of Criminal
Procedure and the Guidelines regarding Interception of Telephone
Conversations of 2 July 1984.
The Government finally submit that the Guidelines, which are
available to the general public, have been accepted in Dutch
case-law and that in practice they are observed by the Dutch
investigating judges.
The applicant submits in reply that the current Dutch
tapping regulations are generally considered not to comply with
Article 8
(Art. 8) of the Convention, in particular as they do not specify
a strict time-limit on telephone tapping. The Supreme Court does
not regard the Guidelines, which contain time-limits, as
constituting "law" within the meaning of Section 99 of the Act
on the Judicial Organisation, as they have not been duly
published. Consequently, the Guidelines do not constitute "law"
within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention because of lack of "accessibility". It is obvious
that, as the Guidelines are not considered as "law", the judge
is not obliged to apply them, nor is it possible to examine the
actual tapping in the light of these rules in cassation
proceedings.
The applicant further argues that in order to protect an
accused against endless telephone tapping at random, the
investigating judge should have made it clear in a reasoned
decision why, when the principles of proportionality and
subsidiarity were balanced against the information already
obtained from the investigation, continuation of tapping
outweighed the privacy of the accused. The argument of the
Government that the Guidelines were known to the investigating
judge and that the latter therefore acted in accordance with them
is not tenable. The applicant considers that the procedure failed
to comply with the Guidelines on various points.
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 (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 p. 123). The telephone tapping at issue
constituted an "interference by a public authority" with these
rights.
The question arises whether the interference complained of
was justified under para. 2 of Article 8 (Art. 8-2) of the
Convention, namely whether it was "in accordance with the law"
and necessary in a democratic society for one or more of the
legitimate aims referred to in this provision.
The Commission recalls that, since telephone tapping
represents a serious interference with private life and
correspondence, it must be based on a "law" that is precise and
that it is essential to have sufficiently detailed rules on the
subject (Eur. Court H.R., Kruslin judgment of 24 April 1990,
Series A no. 176-A, p. 23-24, paras. 33 and 35).
The Commission notes that there are rules about telephone
tapping in Sections 125 f-h of the Dutch Code of Criminal
Procedure. These rules specify, inter alia, the category of
offences which may give rise to telephone tapping and also
contain various safeguards regarding, in particular, which
telephones may be tapped and about the records of the measures
taken. Moreover, an authorisation by the investigating judge is
required.
It is true that the Code of Criminal Procedure does not
regulate the period for which telephone tapping may be
authorised. However, under the Guidelines regarding Interception
of Telephone Conversations, a request for authorisation for
telephone tapping shall concern a period of not more than four
weeks, and a request for prolongation shall also concern a period
not exceeding four weeks. These Guidelines are not a binding law
under the Dutch legal system.
The Commission finds that the basic conditions for telephone
tapping in the Netherlands are laid down in the Code of Criminal
Procedure, which is undoubtedly a law within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention. The fact that the
periods for which telephone tapping may be authorised are not
regulated by law but only appear from non-binding guidelines does
not mean, in the Commission's opinion, that there was in the
present case a lack of a sufficient legal basis for the tapping
of the applicant's telephone. Moreover, the Commission finds no
reason to doubt that this tapping was effected in accordance with
the applicable law.
The Commission further considers that the telephone tapping
pursued a legitimate aim under Article 8 para. 2 (Art. 8-2) of
the Convention, namely the prevention of crime. Moreover, having
regard to the fact that the applicant was suspected of serious
criminal offences, the interference could reasonably be
considered necessary in a democratic society for that aim.
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 and that the application is
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) (S. TRECHSEL)