Dutch government breaches legal professional privilege

Dutch Commission of Jurists (NJCM) supports the case of lawyers whose phones were tapped

The government of the Netherlands must stop the systematic infringement of the legal professional privilege of lawyers. That is what the Dutch section of the International Commission of Jurists (NJCM) and the Public Interest Litigation Project (PILP) argue in a letter to the court in The Hague. The case on the phone tapping of lawyers by the Dutch government took place on June 17, 2015.

Last year it was disclosed that the General Intelligence and Security Service of the Netherlands (AIVD) tapped phone calls of lawyers from Prakken d’Oliveira, a law office in Amsterdam, on a large scale. The firm filed a complaint with the Minister of the Interior and Kingdom Relations.

The minister stated that the direct tapping of lawyers was met with sufficient guarantees, since the AIVD has internal policies and guidelines with regard to this special power. However, for the indirect tapping of confidential communication between lawyers and third parties there are no policies or guidelines and therefore on this specific point the complaint of Prakken d’Oliveira was considered justified.

However, the minister still refuses to take measures in order to stop the indirect tapping of lawyers’ phone calls.

In its court case the law firm therefore demanded for the AIVD to stop tapping and registering phone calls of lawyers as long as the procedure does not meet with the conditions of the European Convention on Human Rights.

The Dutch section of the ICJ and PILP endorse the claim to condemn the government and to impose adjustment of the current procedures.

By tapping lawyers’ phone calls the state is infringing on their legal professional privilege. This right is protected by the European Court of Human Rights (ECtHR). A breach of this right is only permitted when it is prescribed by law, necessary in a democratic society and in the interest of national security.

Furthermore, the state infringed on the right to a fair trial since a well-functioning, independent legal profession is essential for a fair justice system. Clients must be able to assume that the conversations they have with their lawyers are confidential and will never be used against them.

On Tuesday, July 1st, 2015, the Hague District Court held in this case that the State should stop tapping on lawyers’ phone calls. The State is given six months to adjust this policy. You can find the text of the verdict (in Dutch) here.

On Tuesday, 27 October, 2015, the Hague court of appeal upheld the verdict of the judge in preliminary relief proceedings of the Hague District Court. The text of the verdict (in Dutch) can be accessed here.

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Leave to appeal in criminal proceedings

In Dutch law, it is not always possible to appeal one’s criminal conviction. In relatively small cases it is necessary to ask leave to appeal, and the court can deny leave to appeal if it is not in the interests of justice. This system, however, lacks procedural guarantees. Defendants often do not get the necessary information about the case that allows them to effectively request leave to appeal. Without this information, the court cannot examine the request for leave on its merits, taking into account all of the relevant factors.

The Human Rights Committee has twice found the Netherlands in violation of article 14(5) of the International covenant on civil and political rights (ICCPR) because of its leave to appeal system. The Committee holds that this system fails to provide adequate facilities for the preparation of the proceedings and provides inadequate conditions for a genuine review.

According to the Human Rights Committee, the Dutch State should bring the relevant legal framework into conformity with the ICCPR and is under an obligation to prevent similar violations in the future.

The Dutch government now has plans to abolish the system on leave to appeal in criminal proceedings. However, this may still take a long time to be effectuated. Meanwhile, many defendants still encounter the same problems; their human rights are still violated.

Lawyer Willem Jebbink, who conducted the abovementioned proceedings before the Human Rights Committee, has started summary proceedings before the civil court in order to deter the application of the leave to appeal system in a particular case that is now pending. The proceedings will be held on 11 March 2015.

NJCM PILP has intervened in these proceedings and drafted an Amicus Curiae brief setting out the human rights aspects of the case. You can find the Amicus Curiae HERE [Dutch].

 

Updates:

  • The summary judgment took take place on the 1st of April 2015 at 09:00, at the Hague District Court.
  • On April 15 2015, the Hague District Court ruled that there is no unconditional right for leave of appeal in criminal proceedings and that the system of leave does not necessarily cause a breach of art. 6 ECHR and art. 14 ICCPR. You can find the text of the verdict (in Dutch here).