DISSENTING OPINION OF JUDGE PALM

I do not agree with the opinion of the majority that there has been a violation of Article 8 of the Convention, for the following reasons:

The case concerns the delicate and difficult issue of evaluating the police's actions in relation to private persons. Or in other words, where the line is to be drawn between on the one hand an unlawful interference by the police with a person's rights under Article 8 and on the other hand accepted police behaviour consisting of extending advice and giving help to a distressed citizen.

In the present case, was the police involved in the tape–recording to such an extent that the State's responsibility under the Convention was engaged? Or can the police actions be considered more in the nature of giving information and advice of a kind that does not amount to an interference under Article 8?

The majority of the Chamber has found that there was an unlawful interference with the applicant's right to respect for his “correspondence”. I, for my part, am of a different opinion and I find the Netherlands courts' reasoning and conclusions very convincing.

The Supreme Court subscribed to the Court of Appeal's finding that the police had not acted in such a directive manner as to amount to an interference by a public authority within the meaning of Article 8 § 2 of the Convention. And the Supreme Court went on to say:

“After all, [the case] 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 the aid of a device connected by the police to her own telephone line, of an incoming telephone conversation which the perpetrator conducts with her –, which act does not, for that woman, she being a party to the telephone conversation recorded, constitute an act prohibited by law.”

In my opinion the Supreme Court has indicated all the essential points. The situation in which Mrs S. found herself is unfortunately not an unusual one. It is a well-known fact that in cases which concern sexual harassment and violence against women it is difficult for the woman to be believed. Her word stands against that of the perpetrator. In the present case she was all the more vulnerable as her husband was in jail and the perpetrator was the husband's lawyer. I see the police action, as the Supreme Court did, as a suggestion or information to Mrs S. that one way of getting evidence would be for her to use her legal right to tape-record an incoming telephone

call. It was left entirely to her to decide whether she wanted to make use of the recorder and the tapes.

The majority of the Chamber refers to the case A. v. France and finds that the same considerations as in that case apply in the present case (paragraphs 38 and 39). They also express the view that the present case, like that of A. v. France , is characterised by the police setting up a private individual to collect evidence in a criminal case (paragraph 40 above). In my opinion the present case can be clearly distinguished from the A. v. France case. In the A. v. France case, a man came to the police headquarters and spoke to a Chief Superintendent. The man volunteered to call up a person and make that person speak about a planned murder. The superintendent agreed and the conversation was taped by the superintendent on his tape-recorder which was connected to his telephone in his office. The superintendent afterwards kept the tapes.

In that case, everything happened on police premises, and the whole operation was managed by the police in such a way that it came close to beginning a police investigation. The facts in the present case are quite different on the essential points, as have been described above.

The role of the police in a modern society is very much debated and it is a common understanding today that the police force should, apart from usual police work, also offer help to the individual citizen who turns to them where this can be done without harming other interests. It is to be hoped that this judgment will not result in making police work more difficult and the police themselves less motivated to inform and help the public.