SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50210/99 by Subhas Ranbier DOERGA against the Netherlands

The European Court of Human Rights (Second Section), sitting on 23 September 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni, judges , and Mr T .L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 16 June 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Subhas Ranbier Doerga, is a Netherlands [Note1] national, who was born in 1953. At the time of the introduction of the case, the applicant was serving a prison sentence in the Netherlands. He is represented before the Court by Mr P.C.M. van Schijndel, a lawyer practising in The Hague.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On or around 26 January 1995 suspicions arose that the applicant, who at that time was serving a prison sentence in the Marwei penitentiary in Leeuwarden, was involved in a false tip-off by telephone to the Leeuwarden police to the effect that three named detainees were planning to escape from prison by taking hostages. Thereafter, and in order to secure order, peace and safety in the penitentiary, the applicant’s telephone conversations were tapped and recorded on tape. These taped conversations were kept so as to allow the authorities to establish – if such a situation were to arise – whether the applicant was involved in any further false telephone tip-offs.

On 3 October 1995, as a result of the detonation of an explosive device placed in her car, Ms X. – the applicant’s former partner – suffered slight injuries. Her son, Mr Y., suffered serious injuries necessitating the amputation of the lower part of his left leg.

At the time of the explosion, the applicant was still imprisoned. As it was suspected that he was involved in the bomb attack, the national public prosecutor ( landelijk officier van justitie ) ordered that the applicant’s recorded telephone conversations be made available to the criminal investigation into the bomb attack.

On 16 May 1998, the applicant was summoned to appear before the Haarlem Regional Court ( arrondissementsrechtbank ) to stand trial on charges of, inter alia , (attempted) pre-meditated grievous bodily harm, causing an explosion endangering property and life, making a threat to kill and various counts of fraud.

On 22 August 1996, the Haarlem Regional Court convicted the applicant of making a threat to kill and one count of fraud, acquitted him of the remaining charges and sentenced him to two years’ imprisonment. Both the applicant and the public prosecutor filed an appeal with the Amsterdam Court of Appeal ( gerechtshof ).

In its judgment of 4 November 1997, following hearings held on 20 May and 21 October 1997, the Amsterdam Court of Appeal quashed the judgment of 22 August 1996, convicted the applicant of complicity in (attempted) pre-meditated grievous bodily harm, causing an explosion endangering property and life, making a threat to kill or, in any event, to inflict grievous bodily harm. He was also convicted of several counts of fraud. The applicant was sentenced to nine years’ imprisonment. As regards the determination of the applicant’s sentence, the Court of Appeal held, inter alia , that the applicant, over a period of several months, had continuously threatened Ms X. by telephone and eventually had carried out his threats by organising – from his place of detention – the placing of a bomb under her car. The detonation of this bomb had caused injuries to Ms X. and Mr Y., necessitating the amputation of the lower part of the latter’s leg. The court noted that it was only as result of rapid and adequate first aid that Mr Y. had not bled to death. In addition, the explosion had caused collateral damage to another car as well as to windows of nearby houses and that there had been a real danger that the explosion might also have (fatally) injured bystanders. The court further noted that the applicant had already been convicted in the past of having deliberately shot Ms X. in the leg.

The Court of Appeal based the applicant’s conviction on, inter alia , statements given by the applicant, a co-detainee, Mr Y., Ms X. and her neighbours, several telephone conversations between the applicant and Ms X. that had been tape-recorded by the latter, and one of the applicant’s telephone conversations that had been tapped and recorded prior to 3 October 1995 by the authorities of the penitentiary where the applicant was detained, namely a conversation between the applicant and his sister in which he warned his sister never to approach or get into Ms X’s car.

The Court of Appeal rejected the defence’s argument that the telephone conversations which had been tapped and recorded by the prison authorities before 3 October 1995 should be disregarded as unlawfully obtained evidence. Noting the reasons for which the prison authorities had decided to tap and record the applicant’s telephone conversations, the court held that the impugned measures served a lawful purpose – i.e. the preservation of order, and peace and security within the penitentiary – and that they further complied with the requirements of proportionality. It further held that, although the internal penitentiary regulations prescribed the immediate erasure of recorded telephone conversations, a reasonable interpretation of the applicable rules in relation to the aims pursued implied that the recorded conversations could be kept, since there were concrete indications of an on ‑ going escape plan. When fresh suspicion arose that the applicant was involved in another criminal offence, the information lawfully obtained on the basis of internal prison rules could be made available to the police for the purposes of the criminal investigation into that offence. The Court of Appeal referred in this connection to the general obligation contained in Article 160 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) to report, inter alia , criminal offences involving a danger to life and to the very serious nature of the offence at issue.

The applicant’s subsequent appeal in cassation was rejected by the Supreme Court ( Hoge Raad ) on 2 March 1999. As regards the applicant’s complaint that his telephone conversations had been unlawfully tapped, recorded and kept by the penitentiary authorities, the Supreme Court held:

“3.2. The complaint has to be considered in the following framework of legal rules. Article 15 § 4 of the Constitution ( Grondwet ) [1] ... Article 8 [of the Convention] [2] ... Article 92a of the ... applicable [1953] Prison Rules ( Gevangenismaatregel ) [3] ... Article 4 § 1 of the [1953] Prison Rules [4] ... [the] circular no. 1183/379 of the Deputy Minister of Justice ( Staatssecretaris van Justitie ) of 1 April 1980 [5] ... [and] an internal regulation issued by the Governor of the Marwei penitentiary under Article 23 of the [1951] Prison Act ( Beginselenwet Gevangeniswezen ) [6] ...

3.3. Under the heading “The lawfulness of the evidence obtained” ... the Court of Appeal found that the recording of the applicant’s telephone conversations conducted in the Marwei penitentiary served a lawful purpose, namely maintaining order, peace and security in the penitentiary and further complied with the requirement of proportionality. This finding does not reveal any incorrect interpretation of the law. In the first place, this finding recognises that this recording can be justified in view of the aims set out in Article 8 § 2 of [the Convention], in particular the prevention of disorder. In the second place, it recognises that the Court of Appeal has also examined whether, in a democratic society, the interference at issue with the right set out in Article 8 § 1 of [the Convention] was necessary for attaining the stated aim. Insofar as that finding further established that the tape-recording at issue pursued this aim and that the interference was also necessary, these matters are factual and not incomprehensible.

3.4. This recording is further foreseen by law as required by Article 8 § 2 of [the Convention]. After all, the system of legal rules set out under 3.2 complies with the requirements of accessibility and foreseeability. The system concerns regulations of which the most important features have been published in generally accessible sources or have been deposited in places accessible to detainees. They provide sufficient clear indication to detainees about the fact that telephone conversations can be tapped and recorded and the reasons for this.

3.5. The above considerations lead to the conclusion that the finding of the Court of Appeal as to the lawfulness of the tape-recording can be upheld. Questions still remain about the finding of the Court of Appeal as to the keeping of the recordings and the failure to erase them immediately, the ... making available to the criminal investigation authorities of these tape-recordings, ... their being listened to by the latter for the purposes of the investigation into ... [the car bomb attack] and the subsequent use in evidence of a document containing a transcript of one of the recorded telephone conversations (evidence item 23). It must first be noted that the cassation complaint apparently only seeks to challenge the finding of the Court of Appeal as to the use in evidence of the formal record ( proces-verbaal ) containing the transcript of a telephone conversation between the [applicant] and his sister (evidence item 23).

3.6. The internal regulation set out under 3.2 provides that tape-recordings shall not be kept and will be immediately erased. Against the background of a reasonable interpretation, it is difficult to explain that provision otherwise than to mean that the keeping of tape-recordings must be terminated and the tapes erased as soon as the danger giving rise to the recording has ceased to exist. Under the heading “The lawfulness of the evidence obtained” ... the Court of Appeal found that the telephone conversation used in evidence had been recorded, inter alia , after suspicions had arisen that the [applicant] was involved in a false telephone tip-off about an intended hostage-taking and that this tape ‑ recording was kept in order to be able to establish – if such a situation were to arise – whether the [applicant] would again be involved in false telephone tip-offs affecting the order, peace and security of the penitentiary. It follows from this that according to the Court of Appeal – quite irrespective of the existence of any concrete indication for the existence of an escape plan as noted by the Court of Appeal – the keeping and failure to erase the recordings occurred against the background of the danger which gave rise to the decision to tap the conversations. The Court of Appeal thus found that there was no violation of the relevant internal regulation. Without stating further reasons, this finding is not incomprehensible.

3.7. Taking into account the above considerations, the handing over of the tapes to the national public prosecutor for the purpose of the criminal investigation, after suspicions against the [applicant] had arisen that from his place of detention he was involved in a bomb attack, and when this official had become aware of the existence of those tapes, it is not unlawful bearing in mind the provisions of Article 162 § 2 of the Code of Criminal Procedure and the circumstance that, failing a voluntary surrender [of the tapes], the judicial authorities could have taken recourse to seizure ( inbeslagname ).

3.8. The complaint has therefore been raised to no avail.”

B. Relevant domestic law

Article 15 §  4 of the Constitution ( Grondwet ) provides:

“A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights insofar as the exercise of such rights is not compatible with the deprivation of liberty.”

Article 92a of the [1953] Prison Rules ( Gevangenismaatregel ), insofar as relevant, provides:

“The Governor may permit detainees to speak by telephone to persons outside the penitentiary.”

Article 4 § 1 of the [1953] Prison Rules reads:

“The Governor is responsible for the regular running of the penitentiary. In the exercise of his duties he is bound by the restrictions imposed on him by Our Minister, whether laid down in the Internal Regulations ( huishoudelijk reglement ) or otherwise.”

In the circular no. 1183/379 of the Deputy Minister of Justice ( Staatssecretaris van Justitie ) of 1 April 1980 it has been provided:

“Every closed institution must have telephone rules, which must be tailored to the penitentiary’s regime and to its staff capacity and facilities and must be submitted to me for approval. These rules should include the following: (...)

- the way in which the content of the calls is monitored (it must be possible to listen to the calls by way of retrospective check); the rules must specify whether all calls are monitored on the Governor’s instructions; (...)”

An internal regulation issued by the Governor of the Marwei penitentiary under Article 23 of the [1951] Prison Act ( Beginselenwet Gevangeniswezen ) provides:

“It is possible that instructions are given by the Governor or on his behalf, as a spot check and/or if there are grounds for doing so, to record your telephone conversation. Partly to protect your privacy, only the head of security or his deputy will listen to such tape recordings. They are responsible for ensuring that the tapes are not retained and that they are erased immediately.”

On 12 December 1994 and on the basis of Article 22 of the 1951 Prison Act, the Minister of Justice issued Internal Regulations for Prisons ( Huishoudelijk Reglement voor de gevangenissen ). These regulations entered into force on 15 January 1995.

According to Article 116 of the Internal Regulations for Prisons, detainees have the right – for ten minutes and at least once per week, and at times fixed by the Governor – to speak by telephone to persons outside the penitentiary. In accordance with Article 127 § 4 of the Internal Regulations, the Governor may restrict – where this is found necessary for the order in the penitentiary, for the prevention or investigation of crimes, or for thwarting escape plans – a particular detainee’s right to have visits, to correspond or to have telephone conversations. Pursuant to Article 91 §§ 5, 6 and 7 of the 1953 Prison Rules, a reasoned decision to this effect must be communicated within twenty-four hours to the detainee, who may challenge it before the penitentiary’s Supervisory Board ( Commissie van Toezicht ). A further appeal lies with the Appeals Board of the Central Council for the Application of Criminal Law ( Beroepscommissie van de Centrale Raad voor Strafrechttoepassing ).

Although the Internal Regulations for Prisons contain specific provisions concerning the monitoring of detainees’ visits and correspondence, they make no specific provision for monitoring detainees’ telephone conversations with persons from the outside world.

On 1 January 1999, the 1953 Prison Rules ( Gevangenismaatregel ) were replaced by new Prison Rules ( Penitentiaire Maatregel ). The new Prison Rules make no specific provision for the right of detainees to have contacts with the outside world. On the same day, the 1951 Prison Act ( Beginselenwet gevangeniswezen ) was replaced by a new Prison Act ( Penitentiaire Beginselenwet ). Article 39 of the new Prison Act, insofar as relevant, reads:

“1.  The detainee has the right, with the exception of the restrictions provided for in paragraphs two to four inclusive, to conduct – at least once per week, at a time and place determined in the internal regulations and with a thereto designated telephone, and for ten minutes – one or more telephone conversations with persons outside the penitentiary. Unless the Governor provides otherwise, the costs thereof are to be borne by the detainee.

2.  The Governor may order that telephone conversations of a detainee be monitored where this is necessary to determine the identity of the person with whom a detainee is having a conversation or in the light of an interest referred to in Article 36 § 4 [of the Prison Act]. This monitoring can comprise listening in to or recording telephone conversations. The person concerned will be informed beforehand of the nature and reason for monitoring.”

Article 36 § 4 of the new Prison Act provides:

“The Governor may refuse to send or deliver certain letters or other items sent by mail if this is necessary in the light of one of the following interests:

a.  the maintenance of order or security in the institution;

b.  the prevention or investigation of criminal offences;

c.  the protection of victims of crimes or persons otherwise involved in crimes.”

Article 160 § 1 of the Code of Criminal Procedure, insofar as relevant, reads as follows:

“Any person who has knowledge of one of the offences defined in Articles 92 ‑ 110 of the Criminal Code, in Book II, Title VII of the Criminal Code, insofar as this has caused a danger to life ... is obliged to report this immediately to an investigating officer.”

Article 162 § 2 of the Code of Criminal Procedure, insofar as relevant provides:

“They [public bodies and officials] shall upon request provide the public prosecutor ... with all information about criminal offences whose investigation has not been entrusted to them and which information has come to their attention in the course of their duties.”

COMPLAINTS

1. The applicant complained that his telephone conversations were tapped and recorded, and the recordings retained instead of being immediately erased, in violation of his rights under both the domestic legal rules and Article 8 of the Convention.

2. The applicant further complains under Article 6 of the Convention that, since the tapes of the recordings had been obtained in violation of his rights under Article 8 of the Convention, the domestic court should have disregarded this material as unlawfully obtained evidence.

THE LAW

1 . The applicant complains that the tapping and recording of his telephone conversations and the storage of the tapes violated his rights under Article 8 of the Convention, which reads, in relevant part, as follows:

“1.  Everyone has the right to respect for his private and family life, ... 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 ... public safety ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”

The Government submitted that the interference of the applicant’s rights under Article 8 § 1 of the Convention was justified under the second paragraph of this provision. It was based on accessible legal rules, including the Circular no. 1183/397 of the Deputy Minister of Justice and the internal regulations of the Marwei penitentiary. The Deputy Minister’s Circular, which was public knowledge and accessible to all, was understood by all as meaning that it was permissible not only to listen to telephone calls, but also to record them and to keep the tapes, since only in that manner is a retrospective control possible. In the case-law of the Appeals Board of the Central Council for the Application of Criminal Law, this practice was accepted as permissible in the interests of the order and security in prisons.

Like other prisons, the Marwei penitentiary drew up its own internal regulations on the basis of the Circular. Relying on the Court’s findings in the case of Malone v. the United Kingdom (judgment of 2 August 1984, Series A no. 82, p. 33, § 69), the Government argued that the relevant statutory basis for intercepting communications may consist inter alia of a “settled administrative practice”. As regards the accessibility of the relevant legal rules, the Government pointed out that the applicant was informed by the Marwei authorities – by being notified of the Marwei internal regulations – of the possibility that detainees’ telephone conversations could be tapped.

As to the compatibility with the rule of law of the domestic legal rules on covert surveillance of detainees’ telephone calls, the Government submitted that detainees have the possibility to complain to the Supervisory Board of any allegedly arbitrary application of a penitentiary’s internal regulations, and that only the Governor could order the tapping of telephone calls of a particular detainee against whom definite suspicions were harboured of involvement in a criminal offence. The calls tapped were recorded as a safeguard, since a retrospective control could only be effective if the conversation had been recorded.

The Government further submitted that the interference complained of took place in the interests of safeguarding order and security within the penitentiary which included preventing criminal offences and thwarting escape attempts. It thus pursued the legitimate aims of protecting public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others, as set out in Article 8 § 2 of the Convention.

As to the question whether the interference was “necessary in a democratic society”, the Government argued that – relying on the Court’s findings in the case of Golder v. the United Kingdom (judgment of 21 February 1975, Series A no. 18, p. 21, § 45) where it accepted that the “necessity” for interference of the rights of a convicted prisoner under Article 8 of the Convention must be appreciated having regard to the ordinary and reasonable requirements of imprisonment and that the “prevention of disorder of crime” may justify wider measures of interference in the case of such a prisoner than in that of a person at liberty – the authorities must have some room to manoeuvre to prevent convicted detainees in a penitentiary from either becoming involved in plotting escapes or from continuing to make systematic threats against individuals and to plot serious life-threatening criminal offences. The exercise of control on a prisoner’s contacts with the outside world is essential in this regard and is an intrinsic element of detention after conviction. On the basis of a penitentiary’s internal regulations, a prisoner may reasonably be expected to know that his telephone calls may be tapped, whether in a spot check or in case of a particular reason, and therefore must have a different expectation of privacy.

When the applicant’s telephone conversations were tapped and recorded, there were concrete suspicions that he possessed knowledge of a violent escape plan involving hostage-taking. As to the duration of the retention of these recordings, the Government were of the opinion that any reasonable reading of the internal regulations – in the context of the interests or order, peace and security within the penitentiary – implies that they could be kept until the danger of a disturbance of security had been averted. In the instant case, there were firm suspicions of the existence of an escape plan involving violence and this danger had not yet been averted. The Government therefore concluded that the interference at issue cannot be regarded as disproportionate, in that the applicant was entitled to assume that the tapes would be erased as soon as they had lost their immediate relevance.

The applicant submitted that the possibility to tap the telephone conversations of detainees and to retain the tapes of the recorded conversations only had a very narrow legal basis. It was not based on a specific power derived from a statutory provision, but on a general restriction laid down in Article 15 § 4 of the Constitution, a Circular issued by the Deputy Minister of Justice and the internal regulations of the Marwei penitentiary. According to the applicant, the arrangements contained in the Circular and these internal regulations conferred on the prison authorities wide powers, in that they were formulated too broadly and too vaguely without clearly defining any limits. In his opinion, the resulting possibility to retain recorded telephone conversations for an unlimited period of time cannot be regard as compatible with the requirements of Article 8 of the Convention.

The applicant further submitted that where the aim of order and security in a penitentiary would allow the tapping and recording of the telephone conversations of detainees – however vague the relevant regulations –, such measures may not serve any purpose other than these. Furthermore, when the order and security in the penitentiary are no longer at issue, there are no grounds for retaining the recordings of tapped conversations. In the applicant’s opinion, it is unlawful to tap and record conversations of detainees and to retain such recordings when the tapping and recording has not taken place on grounds of prison’s order and security. This was not the case here as regards the retention of the recordings.

Insofar as the Government argued that the retaining of the recorded conversations was necessary given firm suspicions of the existence of an escape plan involving violence and this danger had not yet been averted, the applicant considers this argument to be erroneous as the information about this plan was false. Although the applicant could accept the reasoning that, on grounds of a false tip-off, his telephone conversations were recorded and that these recordings were kept for the sake of order and security in the penitentiary, he did not accept that that could be done indefinitely. If, after 26 January 1995, there was no further indication at all that he was involved in any false tip-offs, the retention of his recorded conversations could not be regarded as lawful.

In the light of the parties’ submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained under Article 6 of the Convention that the domestic court should have disregarded the tape-recordings of the telephone conversation as unlawfully obtained evidence since they had been obtained in violation of his rights under Article 8 of the Convention.

Article 6 of the Convention, insofar as relevant, provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a .... tribunal established by law.”

The Government submitted that the applicant did have a fair hearing as required by Article 6 § 1 of the Convention. The domestic courts examined the question whether the tape recordings could be qualified under domestic law as unlawfully obtained evidence and the applicant had ample opportunity to challenge the admission of the disputed evidence. The domestic courts concluded that the tapes at issue had not been unlawfully obtained and/or kept, and that they could be admitted as evidence. Furthermore, the applicant’s conviction was not solely based on these tapes but also on other evidence, including statements made by the two victims and witnesses, as well as the content of other telephone conversations between the applicant and his ex-partner.

The applicant emphasised that the tape recordings had been retained in clear breach of the applicable internal regulations. The fact that both the Court of Appeal and the Supreme Court failed to acknowledge this obvious breach rendered his trial unfair.

The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, §§ 45 and 46, and, for a more recent example in a different context, Teixeira de Castro v. Portugal , judgment of 9 June 1998, Reports 1998-IV, § 34). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found (see Khan v. the United Kingdom [NM2] , no. 35394/97, § [NM3] 34, ECHR 2000-V [NM4] ).

In the present case the applicant had ample opportunity of challenging the authenticity of the recordings and of opposing its use in evidence. In addition, the warnings given by the applicant to his sister in the telephone conversation that was used in evidence were made voluntarily. The complaint of “unlawfulness” in the instant case relates exclusively to the fact that there was no statutory authority for the interference with the applicant’s right to respect for private life and that, consequently, such interference was not “in accordance with the law”, as that phrase has been interpreted under Article 8 § 2 of the Convention. The Court further attaches weight to the fact that the recording of the applicant’s telephone conversation with his sister was not the only evidence on which the applicant’s conviction was based.

It follows that the rights of the defence under Article 6 of the Convention have not been disrespected and that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 of the Convention concerning [Note5] the tapping and recording of his telephone conversations and the keeping of the tapes; and, by a majority,

Declares the remainder of the application inadmissible.

T.L. Early J.-P. Costa              Deputy Registrar President

[1] See page 5 below.

[2] See page 8 below.

[3] See page 5 below.

[4] See page 6 below.

[5] See page 6 below.

[6] See page 6 below.

[Note1] To be checked.

[NM2] 1 Delete if necessary. If the judgment does not concern the merits but another matter, the judgment type should follow the State (e.g. "(friendly settlement)").

[NM3] 1 Add a second "§" if referring to more than one paragraph.

[NM4] 1 If the judgment is to be published but the volume number is not known add an ellipsis (e.g. ECHR 2002-...).

[Note5] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.