Tapping of telephone calls between lawyers and their clients in the Netherlands

On October 27, 2015, the Court of Appeal of The Hague upheld an earlier decision of the District Court to stop the tapping of telephone calls between lawyers and clients by the Dutch Intelligence and Security Service (AIVD). A translation of the decision can be found here. 

 

Lawyers of the Amsterdam law firm Prakken d’Oliveira complained about the tapping of telephone calls between them and their clients. The Review Committee for the Intelligence and Security Services (CTIVD) submitted an opinion to the Dutch Minister of the Interior and Kingdom Relations declaring the complaints partially unfounded and partially well-founded insofar they concerned indirect tapping. Indirect tapping is tapping a suspect who calls his lawyer. Direct tapping is tapping the lawyer himself. 

 

Prakken took the case to Court. In the summary proceedings, an order was asked to stop the tapping of the lawyers. The CCBE intervened and asked for an extension of the order to all lawyers within the meaning of article 1 of Directive 77/249/EEC.

 

In first instance, the State was ordered, effective after six months, to cease and discontinue the (direct and indirect) tapping, receiving, recording, monitoring and transcribing of any form of communication with lawyers unless the State had, before the six months period, taken measures to ensure review by an independent body with the power to prevent or terminate such actions. Furthermore the State was prohibited, effective immediately, to stop the use of results obtained from tapping lawyers, without a prior independent review having taken place with regard to the lawfulness thereof.

The Court concluded that, based upon the jurisprudence of the ECHR, monitoring of natural persons without a legal privilige must be provided with a form of independent supervision. Monitoring those who do enjoy a legal privilege may therefor (also) not be allowed without independent supervision.
 

Although the decision sees only to the tapping of lawyer client communication, this motivation clearly illustrates that the current practice of tapping by the security services in The Netherlands must be changed for all people. The decision is also of interest for other countries that do not have a system of review in place by an independent body with the authority to stop and prevent the tapping. The case is a clear victory of the rights of privacy and fair trial and a big success for the CCBE.

 

Olivier Van Hardenbroek