FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39339/98 by M.M. against the Netherlands

The European Court of Human Rights (First Section) , sitting on 30 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 August 1997 and registered on 14 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1953 and living in The Hague, where he is a practising lawyer. He is represented before the Court by Ms T. Prakken , a lawyer practising in Amsterdam.

A. The circumstances of the case

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

In the beginning of November 1993, the applicant accepted to act as defence counsel for Mr K. in criminal proceedings brought against the latter. At that time, Mr K. was held in pre-trial detention. In this context, the applicant met various times with Mrs S., who at that time was married to Mr K.

At some point in time Mrs S. told Mr K. that on 9 November 1993 the applicant had made sexual advances towards her. During an interrogation, Mr K. informed the police officer N. of this, who in turn informed the public prosecutor, Mr T., in charge of the investigation against Mr K. and who issued instructions that a criminal complaint should be filed with the vice squad. On this basis, Mr N. contacted Mr R. of the vice squad. In consultation between Mr R. and Mr R.K. of the vice squad and Mr T., it was suggested to Mrs S. to connect a recording device on her telephone in order to allow her to tape incoming conversations with the applicant. The police subsequently installed a recording device on Mrs S.’ telephone and suggested her to steer her conversations with the applicant to the latter’s advances. Mrs S. was to operate the recording device herself. The police came to her house twice in order to change the cassette tapes.

Mrs S. recorded three conversations with the applicant, which were transcribed by the police. These transcriptions were added to the case-file on the investigation against the applicant.

On the basis of Mrs S.’ subsequent criminal complaint against the applicant for sexual assault, the applicant was arrested. Following press reports about the matter, two further criminal complaints were filed against the applicant; one by Mrs V., who alleged to have been raped and sexually assaulted by the applicant, and one by Mrs C., who complained that she had been sexually assaulted by the applicant.

The applicant was subsequently summoned to appear on 14 April 1994 before the Hague Regional Court ( Arrondissementsrechtbank ) on charges of sexual assault and rape.

In its judgment of 28 April 1994, following adversarial proceedings in the course of which a hearing was held on 14 April 1994, the Regional Court convicted the applicant of having sexually assaulted Mrs S. and Mrs C. and acquitted him of the charges brought in respect of Mrs V. The Regional Court sentenced the applicant to eight months’ imprisonment, of which four months suspended pending a probation period of two years.

Both the applicant and the public prosecutor filed an appeal with the Hague Court of Appeal ( Gerechtshof ).

At the outset of its hearing held on 17 February 1995, the Court of Appeal informed the parties that a missing page of the judgment of 28 April 1994 had now been added to its case-file and that documents submitted by the defence at the time of its final pleadings before the Regional Court, which for a certain period of time had not been included in the Court of Appeal’s case-file, had now also been located and added to the case-file. On this point, the applicant stated that he had filed a criminal complaint for theft/embezzlement in respect of these documents which, in his opinion, had been “stolen” from the case-file on the day after the hearing in first instance. The Court of Appeal further heard the applicant, Mrs S., Mr R. and Mrs C. It further decided to instruct the investigating judge ( rechter-commissaris ) to take evidence from nine witnesses amongst whom the public prosecutor Mr T. The Court of Appeal added to its case-file a copy of the pleading notes of the defence - containing inter alia the observations of the defence in respect of documents submitted to the Regional Court and which had not been included in the case-file of the Court of Appeal - as well as documents attached to these pleading notes

On 29 March 1995, the Procurator General to the Hague Court of Appeal addressed a letter to the applicant. Insofar as relevant this letter reads:

“As to your criminal complaint of inter alia theft, I refer to what the president of … this Court of Appeal has found in the course of the hearing of 17 February 1995, which findings are recorded in the hearing record.

Your final pleadings put in writing (12 pages with annexes) found themselves in a shadow file of the Regional Court and - after you had noted that they were not included in the case-file of the Court of Appeal - were immediately added to this case-file. The Court of Appeal, the public prosecutor involved and the defence have therefore been able to timely acquaint themselves with the complete case-file.

Your observation during the trial proceedings “that documents have been nicked from the file” therefore lacks a factual basis and is blatantly incorrect. The institution of an investigation has been superseded by the facts so that it has become devoid of any interest.

By repeating - against your better judgment - your allegation in public during the hearing of 17 February 1995 and in doing so naming the chief public prosecutor B. and the public prosecutor T. as perpetrators you have discredited the good reputation of the prosecution department to the Hague Regional Court in general and in particular that of the named public prosecutors.

Your behaviour borders transgression of the norm, which Book II, Title XVI of the Criminal Code seeks to protect. Reason for me to notify the Dean of the matter.”

In the course of the subsequent hearing held on 2 June 1995, the Court of Appeal considered a request by the defence to conduct the further proceedings in camera . The applicant’s lawyer explained that the applicant, in public proceedings, did not feel himself at liberty to speak freely and that this had been caused by the letter sent on 29 March 1995 by the Procurator General to the Dean of the Hague Bar Association. In case the Court would reject this request, the defence requested that the witnesses be heard in camera .

After having deliberated, the Court of Appeal rejected the request of the defence to proceed with the trial in camera or to hear the witnesses in camera. It held that the request was based on the tense relationship between the applicant and the public prosecution department which would not be altered by conducting the further proceedings in camera , that neither Article 273 § 1 of the Code of Criminal Procedure nor Article 6 of the Convention offered a legal basis for granting such a request and that it could not be said that a public hearing would seriously damage the interest of good administration of justice. The Court of Appeal subsequently heard Mr R. and another witness in open court.

The Court of Appeal also rejected a request of the defence to take further evidence from Mr T. before the Court of Appeal, holding that this was not necessary as Mr T., upon instructions of the Court of Appeal, had already been heard before the investigating judge on 1 May 1995 at which occasion the applicant’s lawyer had been given the opportunity to put questions to this witness, and as the court, in the light of the evidence given by Mr T. and by Mr R., found itself sufficiently informed of the facts under examination.

After having heard the parties’ final pleadings, the Court of Appeal added to the case-file a copy of the pleading notes of the defence - including proposed additions to the court record ( proces-verbaal ) of the hearing held on 17 February 1995 - as well as a number of other documents submitted by the defence and closed the trial proceedings.

In its judgment of 16 June 1995, the Court of Appeal quashed the judgment of 28 April 1994, convicted the applicant of having sexually assaulted Mrs S. and Mrs C. and acquitted him of the charges in respect of Mrs V. It sentenced the applicant to eight months’ imprisonment, of which four months suspended pending a probation period of two years, and payment of a fine of 10,000 Netherlands guilders. It based the applicant’s conviction on statements taken from the applicant, Mrs S., Mrs C. and three other persons. The recorded telephone conversations were not used in evidence.

The applicant’s subsequent appeal in cassation , in which he raised in total 51 complaints in cassation , was rejected by the Supreme Court ( Hoge Raad ) on 18 February 1997.

Insofar as the applicant, relying inter alia on Article 8 of the Convention,  complained that the Court of Appeal had unjustly rejected his argument that the prosecution should be declared inadmissible or that evidence had been unlawfully obtained in respect of the recordings made of his telephone conversations with Mrs S., the Supreme Court held:

“6.2.2. It is … correctly assumed in the cassation complaints that no interference by any public authority is permitted in the exercise of the right to “respect for his private life and his correspondence” guaranteed by Article 8 § 1 of the Convention unless and insofar as provided for by law.

6.3.1. In the instant case decisive is therefore the answer to the question whether, noting the part played by the police in the recording of the telephone conversations that S. has had with the suspect, there has been an interference by the police in the exercise in the exercise of the right of the suspect to “respect for his private life and his correspondence”.

6.3.2. Against the background of the facts and circumstances … the finding of the Court of Appeal that the police has not acted in such a directive manner - in which finding the Court of Appeal apparently had in mind the entire part played by the police in the recording of the telephone conversations by S. - that there has been an interference by any public authority within the meaning of Article 8 § 2 of the Convention is not incomprehensible, whereas it further does not reflect an incorrect legal conception, in particular not as regards the contents of that provision of the Convention …

After all it concerns in essence a (female) victim of a sexual offence, this woman not having any other prima facie evidence than her own account and to whom the police has given information about a possibility for her to obtain additional proof and to whom and to this end the police has subsequently provided practical (technical) aid for performing certain acts - the recording, in her own home and in the absence of the police and with aid of a device placed by the police on her own telephone line, of an incoming telephone conversation that the perpetrator conducts with her -, which act for that woman, as a party to the telephone conversation recorded, does not constitute an act prohibited by law.

The finding that the circumstance that the suspect in his capacity of a lawyer has a “privileged status” is not relevant in this matter also does not reflect an incorrect legal conception. On grounds of the above, the Court of Appeal could conclude that this was not a situation referred to in Article 125g of the Code of Criminal Procedure. The findings of the Court of Appeal are sufficiently reasoned.”

As regard the applicant’s complaint that the Court of Appeal had unjustly failed to determine the request made by the defence during the hearing of 2 June 1995 to make additions to the record of the hearing held on 17 February 1995, the Supreme Court held that this complaint disregarded the fact that the law does not provide for a possibility to alter a court record that has been determined in accordance with Article 327 of the Code of Criminal Procedure.

Referring to Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie ) and without stating further reasons, the Supreme Court also rejected a large number of the applicant’s complaints in cassation   as not prompting a determination of legal issues in the interest of legal unity and legal development.

B. Relevant domestic law and practice

Article 125f-h of the Code of Criminal Procedure ( Wetboek van Strafvordering ) permits the interception of telephone conversations in which a suspect is likely to participate, provided that the suspected offences are of a certain gravity - i.e. offences for which pre-trial detention ( voorlopige hechtenis ) may be imposed - and the investigation urgently requires interception. It must be authorised by the investigating judge.

Furthermore, the Guidelines for the Interception of Telephone Conversations ( Richtlijnen Onderzoek van Telefoongesprekken ) of 2 July 1984, a copy of which can be obtained by any interested person and the text of which has been published in, inter alia , the Netherlands Journal for Human Rights ( Nederlands Tijdschrift voor de Mensenrechten ) of July/August 1989, state how the power to intercept telephone conversations is to be exercised in practice. These 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.

Written transcripts of intercepted telephone conversations must be prepared within 48 hours and transcripts without relevance must be destroyed as soon as possible by order of the investigating judge.

Article 125h § 2 of the Code of Criminal Procedure requires the destruction of transcripts insofar as they concern statements made by or to a person who, on the basis of Article 218 of the Code of Criminal Procedure, enjoys the privilege of non-disclosure. Lawyers fall in the category of persons having a professional obligation to secrecy and thus enjoy the privilege of non-disclosure, unless they themselves are suspects (cf. Hoge Raad , judgment of 29 June 1993, Nederlandse Jurisprudentie 1993, nr . 692).

Insofar as relevant, Article 327 of the Code of Criminal Proceedings reads:

“The court record will be determined by the president or by one of the judges having examined the case and the registrar and will be signed as soon as possible after the closure of the trial proceedings and in any event within the delay stated in Article 365 .”

Article 101a of the Judicial Organisation Act provides:

“If the Supreme Court considers that a complaint submitted cannot lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development, it can limit itself to this finding when giving the reasons of its decision on that point.”

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that, with the knowledge of the public prosecutor, the police placed a recording device on the telephone line of Mrs S. and that conversations thus recorded were used in evidence. The applicant submits that, under Dutch law, the tapping of telephone conversations is regulated in Article 125 f-h of the Code of Criminal Procedure, according to which provision the tapping of telephone communications can only be ordered by an investigating judge within the context of a preliminary judicial investigation.

2. The applicant complains that the criminal proceedings against him were taken on the basis of evidence obtained in violation of Article 8 of the Convention and therefore contrary to his rights under Article 6 §§ 1 and 2 of the Convention.

3. The applicant complains under Article 6 § 1 of the Convention that he was deprived of a fair hearing in that:

- the public prosecutor failed to add to the case-file a fax of one of the alleged victims, Mrs V., in which she declared to have filed a criminal complaint against the applicant under pressure of the police;

- the Court of Appeal failed to rectify the hearing record of 17 February 1995, and to take a decision on that point as requested by the defence on 2 June 1995, by including that the defence had submitted copies of documents forming a part of the case-file of the first instance court and which had gone missing since they were not included in the case-file of the Court of Appeal, as well as the comments made in this respect by the defence;

- the Court of Appeal failed to rectify the hearing record of 17 February 1995, and to take a decision on that point as requested by the defence on 2 June 1995, by including a number of specific questions put by the defence to the witness Mrs S. during the hearing on 17 February 1995 and her answers thereto, as well as the comments made in this respect by the defence, so that no successful complaint in cassation could be raised on this point; and that

- he has been put under pressure by the Procurator General by the prospect of a possible further set of criminal proceedings against him for slander and by the Procurator General’s influencing of pending disciplinary proceedings against him by writing a letter to the Dean of the Bar Association, which resulted in the situation that he did not dare to attend the hearing on 2 June 1995 and that in this manner his right to attend his trial in person was violated.

4. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that he was not provided with the possibility to question the public prosecutor Mr T. during the trial proceedings before the Court of Appeal on the manner in which Mr T. handled the criminal complaint filed by Mrs V.

5. The applicant complains under Article 6 § 1 of the Convention that he was deprived of a fair trial in that the Supreme Court rejected the main part of his complaints in cassation without stating any substantial reasons.

THE LAW

1. The applicant complains that the recording of his telephone conversations with Mrs S. constitutes a violation of his rights under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private … 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 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 Court is of the opinion that this complaint must be brought to the notice of the Netherlands Government in accordance with Rule 54 § 3 (b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits of this complaint.

2. The applicant complains that the criminal proceedings against him were taken on the basis of evidence obtained in violation of Article 8 of the Convention and therefore contrary to his rights under Article 6 §§ 1 and 2 of the Convention.

He further complains under Article 6 § 1 of the Convention that he was deprived of a fair hearing in that the public prosecutor failed to add to the case-file a fax of Mrs V., in that the Court of Appeal failed to rectify the hearing record of 17 February 1995 - and to take a decision on that point as requested by the defence on 2 June 1995 - on two points, and in that his right to attend his trial in person was violated in that he did not dare to attend the second hearing held before the Court of Appeal on the basis of actions undertaken by the Procurator General that had intimidated him.

The applicant also complains under Article 6 §§ 1 and 3 (d) of the Convention that he was not provided with the possibility to question the public prosecutor Mr T. before the Court of Appeal on the manner in which Mr T. had handled the complaint filed by Mrs V..

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

“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by a …  tribunal …

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

3. Everyone charged with a criminal offence has the following minimum rights: …

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The Court is of the opinion that also this part of the application must be brought to the notice of the Netherlands Government in accordance with Rule 54 § 3 (b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits.

3. As regards the applicant’s complaint that the Supreme Court, applying Article 101a of the Judicial Organisation Act, dismissed the main part of his complaints in cassation with summary reasoning, the Court recalls that Article 6 requires judgments of tribunals adequately to state the reasons on which they are based, but it does not go so far as to require a detailed answer to every argument put forward; nor is the European Court called upon to examine whether arguments are adequately met (cf. Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61). The Court further recalls that in dismissing an appeal an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (cf. García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, p. 99, § 29).

The Court is therefore of the opinion that the application of Article 101a of the Judicial Organisation Act for rejecting complaints raised in cassation proceedings is not incompatible with the requirements of Article 6 of the Convention (cf. Kok v. the Netherlands (dec.), no. 43149/98, 4.7.2000, to be reported in ECHR 2000-VI).

It follows that this complaint must be rejected under Article 35 § 3 of the Convention for being manifestly ill-founded.

For these reasons, the Court unanimously

Declares inadmissible the complaint under Article 6 § 1 of the Convention that the Supreme Court, applying Article 101a of the Judicial Organisation Act, dismissed part of his complaints in cassation with summary reasoning; and

Decides to adjourn the examination of the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President