Lexploria

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)

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VAN PELT v. THE NETHERLANDS

VAN PELT v. THE NETHERLANDS