Information Note on the Court’s case-law 40

March 2002

Greuter v. the Netherlands (dec.) - 40045/98

Decision 19.3.2002 [Section II]

Article 8

Article 8-1

Respect for private life

Telephone tapping in the context of a preliminary investigation: inadmissible

The applicant’s partner was killed during a fight between supporters of two rival football teams. Shortly after the incident, the police opened an invest igation into whether and to what extent a group of supporters, with whom the applicant’s partner had been in close contact, formed part of a criminal organisation involved in premeditated acts of violence. The public prosecutor launched a preliminary inves tigation against a person or persons unknown. As part of the preliminary investigation and at the request of the public prosecutor, the investigating judge authorised the tapping of the applicant’s telephone line. She was never suspected of being involved in any related criminal activities. Her lawyer learnt about the telephone tapping by finding it mentioned in the case-file of another client of his. In reply to a letter of the applicant’s lawyer, the public prosecutor confirmed that her telephone line had been tapped without her being informed of it, which was authorised by law as it was done in the context of a preliminary investigation against a person or persons unknown and not of criminal proceedings against the applicant. Considering that her partner had been closely connected with a group of supporters presumed responsible for acts of violence, it appeared quite plausible that members of this group as yet unidentified might call the applicant’s number. With the investigation judge’s approval, access t o the intercepted conversations was given to the applicant’s lawyer.

Inadmissible under Article 8: The tapping of the applicant’s telephone line constituted an interference with her right to respect for her private life and correspondence. This interferenc e was in accordance with the law and pursued the legitimate aim of prevention of disorder or crime. Under domestic law, there is no obligation for the criminal investigating authorities to inform a person who is not himself a suspect in a criminal investig ation that his telephone line is being tapped. In order for systems of secret surveillance to be compatible with Article 8, they must contain supervisory safeguards established by law in order to prevent arbitrariness. Supervisory procedures must follow th e values of a democratic society as faithfully as possible, in particular the rule of law. This implies, inter alia , that the interference by the executive authorities with an individual’s rights be subject to effective supervision, which should normally b e carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure. The fact that information about an individual is being gathered by way of secret surveilla nce, and that its storage and possible release is not disclosed to the person concerned, does not of itself warrant the conclusion that such an interference is not necessary in a democratic society. The applicant’s partner, who apparently belonged to a gro up of violent supporters, was killed in a clash between supporters of rival football teams. This particular fight was the core issue of the criminal investigation. Consequently, the possibility of potential suspects contacting the applicant by telephone co uld not be considered implausible or unfounded. Furthermore, the tapping took place with the authorisation and under the supervision of an investigating judge, as required by domestic law. Finally, when the applicant asked the public prosecutor whether her telephone had been tapped, she received an affirmative answer and was granted access to the records of the intercepted telephone conversations. In conclusion, the interference with the applicant’s rights could not be considered unreasonable, arbitrary or disproportionate to the legitimate aim pursued: manifestly ill-founded.

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

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