Information Note on the Court’s case-law 52

April 2003

M.M. v. the Netherlands - 39339/98

Judgment 8.4.2003 [Section II]

Article 8

Article 8-1

Respect for correspondence

Recording of telephone conversation by one party with the assistance of the police: violation

Facts : The applicant, a lawyer, met with S., the wife of a client who was in pre-trial detention. S. told her husband that the applicant had made s exual advances towards her. He informed the police, who in turn informed the public prosecutor. It was suggested to S. that a tape recorder be connected to her telephone with a view to recording incoming calls from the applicant. Police officers went to he r home to connect the tape recorder and show her how to operate it. They suggested that she steer the conversation towards the sexual advances. The police later took away recordings of several conversations. The applicant was convicted of sexual assault. T he Court of Appeal quashed the judgment but also convicted the applicant of sexual assault. It did not rely on the recordings.

Law : Article 8 – It was not in dispute that the police had suggested to S. that she record her conversations with the applicant. The police, with the permission of the public prosecutor, had connected the tape recorder to her phone, had instructed her how to use it, had suggested that she steer the conversations towards the sexual advances and had gone to her home to collect the tap es. The police had thus made a crucial contribution to the execution of the scheme as well as being responsible for its inception and both they and the public prosecutor had acted in the performance of their official duties. The responsibility of the State was therefore engaged and there had been an interference by a “public authority” with the applicant's right to respect for his correspondence. At the relevant time, the tapping or interception of telecommunications presupposed a preliminary judicial inves tigation and an order by an investigating judge, neither of which conditions was met in the present case. The interference was consequently not in accordance with the law.

Conclusion : violation (6 votes to 1).

Article 41 – The Court made an award in respec t of costs and expenses. The applicant had not sought any non-pecuniary damages.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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