Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22788/93

by S.B.V.M.

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 14 June 1993

by S.B.V.M. against the Netherlands and registered on 19 October

1993 under file No. 22788/93;

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. Particular circumstances of the case

The applicant is a Chilean citizen, born in 1954 and at

present serving a prison sentence in the Netherlands. Before the

Commission he is represented by Ms. E. Prakken, a lawyer

practising in Amsterdam.

The facts as presented by the applicant may be summarised

as follows.

On 1 August 1990 the applicant was arrested in Amsterdam as

suspected of having traded in narcotic drugs. At the time of his

arrest he was carrying a bag containing about two kilogrammes of

cocaine.

On 13 March 1991 the Regional Court

(Arrondissementsrechtbank) of Amsterdam convicted him of

narcotics offences and sentenced him to five years' imprisonment.

The applicant filed an appeal against this judgment with the

Court of Appeal (Gerechtshof) of Amsterdam. On 8 July 1991,

after having quashed the judgment of 13 March 1991, the Court of

Appeal found the applicant guilty of narcotics offences and

increased the sentence to seven years' imprisonment. The

applicant's appeal in cassation was rejected by the Supreme Court

(Hoge Raad) on 15 December 1992.

The evidence against the applicant consisted, inter alia,

of intercepted telephone conversations. Following a request by

the public prosecutor, the investigating judge (rechter-

commissaris) had authorised the telephone tapping as from 22 May

1990 by decisions valid for one month, which had been

successively prolonged. The telephone tapping had been going on

until the applicant was arrested on 1 August 1990.

The basis for the authorisation of the telephone tapping was

a note signed by the police inspector T. Schmidt, dated 18 May

1990, in which three persons, including the applicant, are

mentioned as being involved in drugs trade and four telephone

numbers are indicated as being of interest for interception. In

the course of the criminal proceedings against the applicant Mr.

Schmidt was examined as a witness before the Regional Court and

the Court of Appeal.

The applicant argued before the Dutch courts that police

inspector Schmidt's note contained incorrect information as well

as information of doubtful origin. In particular, he stated that

his own secret telephone number could not have been obtained in

a lawful manner. For these reasons, the telephone tapping was

unlawful and the prosecution, which was based on its results,

should be considered inadmissible. Moreover he argued that Dutch

rules on telephone tapping did not satisfy the requirements of

Articles 8 and 13 of the Convention and that he had not been able

to become acquainted with the recorded telephone conversations

in which he participated and could not verify the information on

the basis of which the tapping of his telephone had been ordered.

The applicant further stated before the Dutch courts that

in any case the evidence invoked against him had been obtained

in an unlawful manner and should therefore not be admitted.

All these arguments were rejected by the Dutch courts at all

levels. The Supreme Court accepted the Court of Appeal's finding

that the police had lawfully obtained the applicant's address and

telephone number and that there was no indication that the

evidence against the applicant had been unlawfully obtained. The

Supreme Court further considered that the Court of Appeal had

correctly held that a general complaint about the incompatibility

of the Dutch rules on telephone tapping with the Convention

without any specific complaint about the factual application of

these rules cannot result in the inadmissibility of the

prosecution. As regards the applicant's complaint that he had

not been able to become acquainted with the recorded telephone

conversations in which he participated, the Supreme Court noted

that the applicant had never requested the Court of Appeal

to be allowed to listen to the recorded conversations and that

a verification of the information forming the basis for an

interception of telephone conversations can be adequately made

by examining the responsible police officer as a witness before

the court.

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.

Section 125 g of the Code of Criminal Procedure provides as

follows:

(Translation)

"During the preliminary judicial investigation the

investigating judge may, if the investigation urgently so

requires and if it 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. A procès-

verbal of the tapping or recording shall be drawn up within

forty-eight hours."

Pursuant to Section 125 h of the Code of Criminal Procedure

records of tapped conversations 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.

COMPLAINTS

1. The applicant alleges a violation of Article 6 of the

Convention on the ground that the note of 18 May 1990, which was

the basis of the decision to permit telephone tapping, contained

incorrect information or information derived from unknown

sources, which could not be verified. He suggests that the

information had been obtained through unlawful police

investigations but that he is unable to have this confirmed,

since the case was not referred back to the Investigating Judge.

However, where a criminal charge is based on unlawful

investigations, the prosecution may be inadmissible under Dutch

law, and in any case unlawfully obtained evidence is inadmissible

under Dutch law. On this basis, he considers that the criminal

proceedings against him were unfair and contrary to Article 6.

2. The applicant further alleges a violation of Article 8 of

the Convention, on the one hand because the Dutch rules on

telephone tapping are not sufficiently precise to be accepted as

"law" within the meaning of Article 8 para. 2 and on the other

hand because in the present case the decision to undertake

telephone tapping was based on the note of 18 May 1990 which

contained incorrect information or information of uncertain

origin. Consequently, it has not been established that the

conditions of Section 125 g of the Code of Criminal Procedure

were satisfied in the present case, in particular as to whether

telephone tapping was urgently needed or whether there was a real

suspicion that the applicant would participate in telephone

conversations on the telephone lines in question.

3. The applicant finally complains of a violation of Article

13 of the Convention in that there is no effective control of the

telephone tapping as a result of the practice to collect and

store the data obtained from tapped telephone conversations

without indicating their origin.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of

the Convention in that the telephone tapping, which was the basis

of the criminal proceedings against him, had been based on

unverifiable and incorrect or dubious information.

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

insofar as relevant:

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

him, everyone is entitled to a fair and public hearing

(...) by an independent and impartial tribunal (...)."

The Commission notes that the applicant argued before the

domestic courts that the prosecution against him and the evidence

upon which he was convicted were inadmissible, since the

telephone tapping had been ordered on the basis of incorrect or

unreliable information. However, the applicant's argument was

not accepted by the Dutch courts. The Commission finds no reason

for considering that the domestic courts made an unfair

assessment of the evidence in this respect.

The Commission finds no other ground for questioning the

fairness of the criminal proceedings against the applicant.

Consequently, the applicant's complaint of a violation of

Article 6 (Art. 6) of the Convention 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 alleges a violation of Article 8

(Art. 8) of the Convention on two grounds, namely on the one hand

because the Dutch rules on telephone tapping are not sufficiently

precise to be accepted as "law" and on the other hand because in

the present case the telephone tapping had been authorised on the

basis of incorrect or doubtful information contained in the note

of 18 May 1990.

Article 8 (Art. 8) of the Convention provides 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 according to the case-law of the

Convention organs, 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).

Consequently, the Commission finds that there was in the

present case an interference with the applicant's private life

and correspondence.

The question which remains to be answered is therefore

whether this measure was justified under paragraph 2 of Article

8 (Art. 8-2).

The Commission has already in a previous case found that

Sections 125 f-h of the Dutch Code of Criminal Procedure are

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

of Article 8 para. 2 (Art. 8-2) (No. 18395/91 Lupker and others

v. the Netherlands, Dec. 7.12.92, unpublished). It finds no

reason to take a different view in the present case.

Moreover, there is, in the Commission's view no element

which would create doubts as to whether the conditions laid down

in Section 125 g of the Code of Criminal Procedure were satisfied

in the present case, namely that telephone tapping was urgently

needed for the purposes of the investigation and that there was

a suspicion that the applicant would participate in the tapped

telephone conversations.

It follows that the measure complained of was "in accordance

with the law". Its purpose was "the prevention of crime", and

the Commission considers that the Dutch authorities could

reasonably consider the telephone tapping necessary in a

democratic society for that purpose.

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

2 (Art. 8-2) were satisfied and that this complaint is manifestly

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

of the Convention.

3. The applicant finally complains of a violation of Article

13(Art. 13) of the Convention in that there is no effective control

of the telephone tapping as a result of the practice to collect

and store the data obtained from tapped telephone conversations

without indicating their origin.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission recalls that, according to the case-law of

the Convention organs, the right under Article 13 (Art. 13) to

an effective remedy exists only when there is an arguable claim

that the Convention has been violated.

In the present case, assuming that the applicant did raise

this complaint within the six months' time-limit contained in

Article 26

(Art. 26) of the Convention, the Commission has found the

applicant's complaints regarding violations of Articles 6 and 8

(Art. 6, 8) of the Convention to be manifestly ill-founded. It

follows that he has no arguable claim in these respects and that

he can therefore not claim a remedy under Article 13 (Art. 13).

His complaint based on that Article 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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S.B.V.M. v. THE NETHERLANDS

S.B.V.M. v. THE NETHERLANDS