No ban on wiretapping of Dutch lawyers
The Dutch association of criminal defence lawyers (NVSA) has lost a court
case (preliminary proceedings) demanding an immediate stop to the practice
of wiretapping their confidential telephone conversations with clients. On
15 March 2005 the administrative Court of the Hague ruled that these
conversations do not per definition fall under the professional secrecy.
There is a specific decree in the Netherlands that allows for the
wiretapping of lawyers. First a full report of the wiretap on a suspect is
made and read by the specific prosecutor responsible for the case. If the
prosecutor concludes that the report contains confidential conversations
with a lawyer, he can decide to have those parts deleted en removed from
the file.
The lawyers association, supported by a destructive report by the Dutch
Data Protection Authority from 2003, claimed in practice these
conversations are often not deleted and used by the prosecutor to help
build a case. In their view, the police should immediately stop a wiretap
as soon as it becomes clear that it is a confidential conversation, for
example with the help of telephone number recognition.
The lawyers association is furious about the ongoing practice of
wiretapping. “The essence of the pledge of professional secrecy is that a
citizen should be able to freely consult a lawyer and communicate with him
without any interference from the government.” The fact that the State
does not respect this, leads to a ‘back room’ atmosphere, where lawyers
have to secretly make appointments with their clients, possibly even at
secret locations. “This marginalises the contact between citizen and legal
council, as if there were something wrong about it,” said council Taru
Spronken in her plea at the court.
The Dutch minister of Justice refuses to take any steps to protect the
lawyers. He claims the telephone numbers of lawyers cannot be excepted, as
they might become criminal refuges, or can be hacked via the Internet for
use by criminals. The Court of the Hague doesn’t address any of these
objections, but finds the current practice in the Netherlands to be in
line with the European Convention of Human Rights.
The NVSA will appeal and is also considering to start full civil
proceedings to get a more balanced, in depth analysis. They have already
shown their tenacity in 2001, when they first started preliminary
proceedings against the State with the same demand; to have confidential
conversations deleted from the files. In response, the State created an
instruction for prosecutors. But the lawyers did not find these guidelines
acceptable and 113 of them joined forces in a case at the European Court
of Human Rights. The ECHR did not accept the case, roughly summarised
because a wiretap can only be ordered by an investigating judge. For a
practical and detailed examination of the practice, the ECHR referred the
lawyers back to a Dutch court.
Verdict preliminary proceedings (in Dutch, 15.03.2005)
http://zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp?searchtype=ljn&ljn=AT0304&u_ljn=AT0304
Decision ECHR in Aalmoes and others v. The Netherlands (25.11.2004)
http://echr.coe.int
(no direct link possible, please search HUDOC for Aalmoes)