La défense des droits des avocats aux Pays-Bas

Defending Lawyers Rights in the Netherlands

by Olivier van Hardenbroek

Tapping of Dutch lawyers by the national security service AIVD, was illegal. Dutch Court forbids the State to tap lawyer-client communication. 

The right to communicate freely and unhindered with an attorney, the professional legal privilege, may only be infringed in exceptional circumstances and under strict safeguards. 

The CCBE, represented by Olivier van Hardenbroek and Sébas Diekstra, successfully intervened in summary proceedings initiated by lawyers of the Dutch lawfirm Prakken d’Oliveira and the Dutch association of criminal law. They required a prohibition to be tapped after the supervising Committee on the national security services (CTIVD) confirmed that conversations between a client and a lawyer of Prakken d’Oliveira had been tapped and processed. CCBE intervened and requested to forbid tapping of all lawyers as defined in Directive 77/249/EEC. 

The Dutch state argued that national security may, in exceptional circumstances, require tapping lawyers and their conversations with clients. The findings may even be shared with the public prosecutor. Internal guidelines of the services would ensure requirements of necessity, proportionality and subsidiarity are met. 

The Court decided that the professional legal privilege is a fundamental right. Infringements are possible only in accordance with the law and when necessary in a democratic society. According to the law does not only imply a legal basis but also accessibility, foreseeability and safeguards to ensure compliance with the law. 

As the minister is not independent of the national security services and the CTIVD can only check afterwards, the existing policy regarding tapping lawyers by Dutch security services is ordered unlawful. The decision applies to all lawyers as defined in Directive 77/249/EEC. 

By decision of July 1, 2015, the Dutch State is ordered to stop to tap, receive, record, listen to and process any form of communication of and with lawyers. The order will not enter force when the State instates, within six months, an independent body with the authority to prevent and stop the use of special powers regarding lawyers. It is forbidden the State to share any revenues of the use of special powers regarding lawyers with the public prosecutor unless an assessment regarding the legality was made by an independent body beforehand. 

The decision is a great success and a confirmation of the importance of the professional legal privilege. We will keep you posted of future developments. The original decision (in Dutch) is published here. For more information contact this adress. 

by Olivier van Hardenbroek