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1.1 The author of the
communication is Antonius Cornelis Van Hulst, a Dutch citizen. He claims to
be a victim of violations by the Netherlands [FN1] of articles 14 and 17 of
the Covenant. He is represented by counsel.
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[FN1] The Covenant and the Optional Protocol to the Covenant both entered
into force for the State party on 11 March 1979.
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1.2 A similar communication, based on the same facts, was submitted on 7
September 1998 by Mr. A.T.M.M., also claiming to be a victim of a violation
by the Netherlands of article 17 of the Covenant. Mr. A.T.M.M. did not
pursue his claim subsequently and, despite a reminder, did not inform the
Committee whether he wished to maintain his communication.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 During a preliminary inquiry against Mr. A.T.M.M., the author's lawyer,
telephone conversations between A.T.M.M. and the author were intercepted and
recorded. On the basis of the information obtained by this operation, a
preliminary inquiry was opened against the author himself, and the
interception of his own telephone line was authorized.
2.2 By judgment of 4 September 1990, the District Court of 's-Hertogenbosch
convicted the author of participation in a criminal organization, persistent
acquisition of property without intent to pay, fraud and attempted fraud,
extortion, forgery and handling stolen goods, and sentenced him to six
years' imprisonment.
2.3 During the criminal proceedings, counsel for the author contended that
the public prosecutor's case should not be admitted, because the
prosecution's case contained a number of reports on telephone calls between
the author and his lawyer, A.T.M.M, which it was unlawful to receive in
evidence. Counsel argued that, in accordance with article 125h, [FN2]
paragraph 2, read in conjunction with Section 218, [FN3] of the Code of
Criminal Procedure, the evidence obtained unlawfully should have been
discarded.
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[FN2] Section 125h of the Code of Criminal Procedure reads, in pertinent
parts: "(1) The investigating judge shall, as soon as possible, order the
destruction in his presence of any official reports or other objects from
which information may be obtained that has been acquired as a result of the
provision of information referred to in Section 125f, or of the interception
or recording of data traffic referred to in Section 125g, and which is of no
relevance to the investigation. An official report shall immediately be
drawn up on the said destruction. (2) The investigating judge shall, in the
same way, order the destruction without delay of any official reports or
other objects, as referred to in paragraph 1, if they relate to statements
made by or to a person who would be able to decline to give evidence,
pursuant to Section 218, if he were asked as a witness to disclose the
content of the statements. (3) [�] (4) [�]" (Translation provided by the
State party.)
[FN3] Section 218 of the Code of Criminal Procedure reads: " Those who are
bound to secrecy by virtue of their position, profession or office may
decline to give evidence or to answer certain questions, but only in so far
as the information concerned was imparted to them in that capacity."
(Translation provided by the State party.)
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2.4 Although the District Court agreed with the author that the telephone
calls between him and A.T.M.M., could not be used as evidence, insofar as
the latter acted as the author's lawyer and not as a suspect, it rejected
the author's challenge to the prosecution's case, noting that the prosecutor
had not relied on the contested telephone conversations in establishing the
author's guilt. While the Court ordered their removal from the evidence, it
admitted and used as evidence other telephone conversations, which had been
intercepted and recorded in the context of the preliminary inquiry against
A.T.M.M., in accordance with Section 125g [FN4] of the Code of Criminal
Procedure, and which did not concern the lawyer-client relationship with the
author.
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[FN4] Section 125g of the Code of Criminal Procedure reads: "During the
preliminary judicial investigation, the investigating judge is empowered to
order an investigating officer to intercept or record data traffic not
intended for the public, which is carried via the telecommunications
infrastructure, and in which he believes that the suspect is taking part,
provided this is urgently necessary in the interests of the investigation
and concerns an offence for which pre-trial detention may be imposed. An
official report of such interception or recording shall be drawn up within
forty-eight hours." (Translation provided by the State party.)
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2.5 On appeal, the author's defence counsel argued that not all records of
the tapped telephone calls, which should have been destroyed pursuant to
Section 125h, paragraph 2, had in fact been destroyed. However, by judgment
of 10 April 1992, the's-Hertogenbosch Court of Appeal rejected this defence,
stating that the author's request to examine whether the reports in question
had been destroyed would be irrelevant, "as their absence from the case file
would provide no certainty about [their destruction]." The Court convicted
the author of persistent acquisition of property without intent to pay,
forgery, and resort to physical threats, without making use of the telephone
records, and sentenced him to five years' imprisonment.
2.6 Before the Supreme Court, the author's defence counsel stated that the
Court of Appeal had not responded to his defence that the records of the
telephone conversations with his lawyer had been illegally obtained without
having subsequently been destroyed. The Supreme Court rejected this argument
and, by decision of 30 November 1993, for different reasons, it partially
quashed the judgment of the Court of Appeal on two counts, as well as the
sentence, and referred the matter back to the Arnhem Court of Appeal.
2.7 On 24 March 1995, the Arnhem Court of Appeal acquitted the author on one
count and sentenced him to three years' imprisonment on the other counts. In
his cassation appeal against this judgment, the author contended that his
defence relating to the tapped telephone calls had still not been responded
to. On 16 April 1996, the Supreme Court dismissed the appeal, without
reasons, referring to Section 101a [FN5] of the Judiciary Act.
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[FN5] Section 101a (old; currently Section 81) of the Judiciary Act reads:
"If the Supreme Court considers that a petition may not lead to cassation of
the original judgment or that it does not require that questions of law be
answered in the interests of the uniformity or development of the law, it
may confine itself to stating this opinion in that part of the judgment
containing the grounds on which it is based." (Translation provided by the
State party.)
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2.8 On 22 October 1996, the author applied to the European Commission of
Human Rights, alleging, inter alia, a violation of article 6 of the European
Convention. By decision of 8 December 1997, [FN6] the Commission declared
the application inadmissible, on the ground that "an appeal tribunal does
not violate article 6 of the Convention when, basing itself on a specific
legal provision, it rejects an appeal as having no chances of success
without giving further reasons for that decision." Regarding the author's
other complaints, the Commission considered that they "[did] not disclose
any appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols."
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[FN6] European Commission of Human Rights, Decision as to the admissibility
of Application No. 36442/97 by A.H. against the Netherlands, 8 December
1997.
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THE COMPLAINT
3.1 The author claims that the Supreme Court's dismissal, by mere reference
to Section 101a of the Judiciary Act, of his defence relating to the tapped
telephone calls, as well as the admission as evidence and use of reports on
tapped telephone calls between him and his lawyer, violated his rights under
article 14 of the Covenant, and that the interference with his right to
confidential communication with his lawyer was unlawful and arbitrary, in
violation of article 17 of the Covenant.
3.2 The author submits that the courts' failure to give any reasons for
dismissing his defence made his right to appeal his conviction meaningless.
In particular, the Supreme Court's exercise of its discretion, based on
Section 101a of the Judiciary Act, to simply state that a petition may not
lead to cassation of the original judgment or that it does not require that
questions of law be answered in the interest of the uniformity or
development of the law, deprived him of an opportunity to prepare his legal
arguments for his complaint to the Committee or, for that matter, to the
European Commission of Human Rights.
3.3 The author submits that article 121 of the Dutch Constitution requires
that judgments state the reasons on which they are based; exceptions to this
rule must be defined by law and must be restricted to an absolute minimum.
Accordingly, Section 101a, which was introduced in 1988 with a view to
reducing the workload and strengthening the efficiency of the Supreme Court,
cannot justify the denial of a defendant's right to know the reasons for
dismissal of his appeal so as to adequately prepare his defence.
3.4 The author refers to the relevant jurisprudence [FN7] of the European
Court of Human Rights, according to which national courts must indicate with
sufficient clarity on what grounds they base their decisions, so as to
enable the accused meaningfully to exercise his right to appeal. In view of
the similarities between article 6 of the European Convention and article 14
of the Covenant, it is argued that the restrictive exceptions to this
principle, which can be inferred from the European Court's jurisprudence,
also apply to article 14 of the Covenant. Accordingly, no reasons need to be
given by a court: a) if a lower court has already rendered a reasoned
judgment in the same matter; b) if a judgment is not subject to appeal; c)
in relation to non-essential arguments; d) in the context of a leave system;
and e) in relation to a decision on admissibility.
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[FN7] European Court of Human Rights, Hadjianastassiou v. Greece, judgment
of 16 December 1992, Series A, no. 252.
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3.5 For the author, the above exceptions do not apply in his case because:
(a) none of the courts seized with his case responded, in a substantive and
comprehensive manner, to his challenge to the use of the tapped telephone
calls in the criminal proceedings; (b) although the judgment of the Supreme
Court of 16 April 1996 was not subject to further appeal at the national
level, it should have been reasoned in order to allow the author to prepare
a complaint to the Committee and/or the European Commission of Human Rights;
(c) his defence could not be dismissed as non-essential, since it related to
violations of his rights to privacy and to a fair trial; and (d) the Supreme
Court's discretion to dismiss a cassation appeal on the basis of Section
101a of the Judiciary Act cannot be compared to a leave system, as the
provision empowers the Court "to waive any provision of reasons altogether."
3.6 With regard to his claim under article 17, the author submits that, as a
client of Mr. A.T.M.M., he should have been accorded judicial protection
from the wire tapping and recording of his telephone conversations with his
lawyer, since he could not know that the latter was a suspect in criminal
investigations. The right to consult a lawyer of one's own choice is
undermined if the protection of confidentiality depends on whether a lawyer
is himself a criminal suspect or not.
3.7 The author submits that his right, under article 17, not to be subjected
to arbitrary or unlawful interference with his privacy includes a right to
confidential communication with his lawyer, which can only be restricted (a)
in accordance with the law; (b) for a legitimate purpose; and (c) if the
interference is proportionate to the aim pursued.
3.8 Although the author concedes that combating crime is a legitimate
purpose, he challenges the Supreme Court's jurisprudence that Section 125h,
paragraph 2, of the Code of Criminal Procedure, while requiring the
destruction of reports on tapped telephone calls involving a person entitled
to decline to give evidence, does not preclude that cognizance may be taken
of information which falls within the scope of Section 218 of the Code of
Criminal Procedure, as it is not clear in advance whether the conversation
involves a person bound by law to observe confidentiality. Rather, Section
125h, paragraph 2, should be read to forbid strictly the tapping of
telephone connections of a lawyer/suspect, "as all confidential
conversations must immediately be destroyed." Otherwise information could be
gathered by means of interception and recording, which could normally not be
obtained through the statements of witnesses or suspects. The author adds
that the tapping of telephone calls between him and his lawyer was a
disproportionate measure.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 In its observations dated 23 April 2003, the State party, while not
contesting the admissibility of the communication, argues that neither the
Supreme Court's reference to Section 101a of the Judiciary Act, nor the
admission as evidence of tapped telephone conversations between the author
and Mr. A.T.M.M., violated the author's right to a fair trial under article
14, and that the interference with his privacy and correspondence was
neither unlawful nor arbitrary.
4.2 While conceding that the right to a fair trial, in principle, requires
tribunals to state the grounds for their judgments, the State party submits
that the right to have a reasoned judicial decision is not absolute, but
rather depends on the nature of the decision, the circumstances of each
individual case and the stage of the proceedings. The European Court's
jurisprudence [FN8] that appellate courts may, in principle, simply endorse
the reasons stated in the lower court's decision must a fortiori also apply
to the reasoning required from Supreme Courts, which, like Constitutional
Courts, often dismiss appeals in a cursory manner.
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[FN8] European Court of Human Rights, Garcia Ruiz v. Spain, Application no.
30544/96, Judgment of 21 January 1999, at para. 26.
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4.3 Section 101a of the Judiciary Act was introduced as an efficiency
measure, to ensure that the Supreme Court would be able to handle its
growing workload. The provision was examined, and complaints against it
declared manifestly ill-founded, by the European Court. [FN9] The mere
existence of Section 101a cannot therefore be said to violate article 14 of
the Covenant.
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[FN9] The State party refers to the European Court's decisions in Polman v.
the Netherlands, Application no. 48334/99, decision on admissibility of 9
July 2002 and Mink Kok v. The Netherlands, Application no. 43149/98,
decision on admissibility of 4 July 2000.
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4.4 The State party rejects the author's argument that the application of
Section 101a reduced his possibilities to defend himself before the
Committee, arguing that the guarantees of article 14 of the Covenant only
apply to appeals at the national level. Insofar as the author complains that
his right to petition the Committee was curtailed by the fact that the
Supreme Court confined itself to merely referring to Section 101a, the State
party submits that the decision of the Supreme Court in no way affected the
detailed reasons given by the courts in earlier stages of the proceedings.
The author's allegation that no judicial body ever responded substantively
to his defence relating to the tapped telephone calls with his lawyer was
unfounded. Moreover, the Supreme Court only made reference to Section 101a
of the Judiciary Act after it had partially quashed the judgment of the
Court of Appeal of 10 April 1992, and referred the case back to the Arnhem
Court of Appeal by judgment of 30 November 1993.
4.5 As to the admission as evidence of certain recorded telephone
conversations between the author and Mr. A.T.M.M., the State party submits
that it is generally for the national courts, and not for the Committee, to
assess the evidence before them, unless there are clear indications of a
violation of article 14. For the State party, the proceedings as a whole
must be considered fair because: (a) the District Court only admitted
recordings of conversations between the author and his lawyer, insofar as
they related to the latter's involvement in the commission of a criminal
offence, and made it clear that neither the public prosecutor nor the Court
itself based their findings on protected lawyer-client conversations; (b) no
transcripts of the recordings were made or introduced in the case file, the
recordings merely having been mentioned at trial, in compliance with the
European Court's judgment in Kruslin v. France, [FN10] where the Court
stressed the need to communicate such recordings in their entirety for
possible inspection by the judge and the defence; (c) the reliability of the
evidence was never disputed by the author, who merely complained that the
information should have been erased; and (d) because the case file indicates
that the author's conviction was not based on tapped conversations in which
Mr. A.T.M.M. acted as a lawyer rather than a suspect.
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[FN10] Judgement of 24 April 1990, Series A-176-A, at para. 35.
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4.6 Regarding the author's claim under article 17, the State party concedes
that telephone calls made from or to a law firm may be covered by the
notions of "privacy" or "correspondence" and that the interception of the
author's telephone calls constituted "interference" within the meaning of
this provision. By reference to the Committee's General Comment 16, [FN11]
it denies that this interference was unlawful or arbitrary within the
meaning of article 17, which only prohibits interference not envisaged by
law ("unlawful"), and which itself must comply with the provisions, aims and
objectives of the Covenant, or which is not reasonable in the in the
particular circumstances ("arbitrary").
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[FN11] General Comment 16 [32], at paras. 3-4.
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4.7 The State party argues that the applicable law at the time, i.e.
Sections 125 litera f to h of the Code of Criminal Procedure, did not forbid
the tapping of telephone conversations with persons bound by law to secrecy.
The legislator, when enacting these provisions in 1971, did not indicate
that they should not apply to persons bound by law to secrecy, within the
meaning of Section 218 of the Code of Criminal Procedure. Moreover, the
applicable law, which then included detailed Guidelines for the Examination
of Telephone Conversations, was sufficiently precise to authorize
interference with the right to privacy, setting out procedural safeguards
against abuse of power, such as the requirement of a judicial authorization
of telephone taps and provision for the preparation and, in certain cases,
destruction of official records on any interception.
4.8 The State party argues that the interference with the author's right to
privacy pursued a legitimate purpose (combating crime) and was
proportionate, as the District Court ensured that the tapped conversations,
in which Mr. A.T.M.M. acted as the author's lawyer, rather than a suspect of
criminal offences, were not taken into account in the criminal proceedings
against the author. As for the conversations which were intercepted because
A.T.M.M. was a suspect, thus not involving professional communication
between a lawyer and his client, the State party argues that it is
unreasonable to expect total impunity for the author and A.T.M.M. on the
mere basis that the latter is also a lawyer.
4.9 Lastly, the State party argues that the detriments caused to the author
by the fact that the conversation with A.T.M.M. was tapped are primarily a
matter between private parties, as the author could have initiated civil
proceedings against A.T.M.M., who could further be held responsible by means
of disciplinary proceedings.
AUTHOR'S COMMENTS
5.1 In his comments, dated 15 July 2003, on the State party's observations,
the author reiterates his claims and expands on his argumentation relating
to the alleged breach of article 17. He submits that the practical
consequence of the Dutch courts' decisions is that, whenever a lawyer is
suspected of a criminal offence and his telephone line is tapped for that
reason, his clients can no longer claim the confidentiality of lawyer-client
relationship or the guarantee of immediate destruction of the records of
such telephone taps.
5.2 The author contends that the State party failed to differentiate between
counsel-client conversations and suspect-suspect conversations, when it
tapped the calls he made to A.T.M.M., which concerned a completely different
matter than the one in which his lawyer was considered a suspect, thus
putting the police onto the track of a possible new criminal offence, or
when it subsequently tapped his own telephone connection, thereby putting
the police on yet another track relating to an offence that again differed
from the one for which the telephone was tapped, and of which his lawyer was
then also suspected. The core of his complaint is the fact that the
suspicion against him was raised as a result of intercepting confidential
telephone contacts, the records of which should have been destroyed
immediately, rather than including them in the court file as evidence
against him.
5.3 The author concludes that the authorities' freedom to initiate
investigations, on the basis of confidential information obtained through
telephone interception, into any possible criminal offence that may have
been committed by the client of a lawyer, whose telephone is tapped because
he is the suspect of a criminal offence, constitutes a disproportionate
interference with article 17 of the Covenant, which cannot be justified by
the aim pursued. Any other interpretation would make the right to
confidential telephone communication with one's lawyer illusory.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee has ascertained, in accordance with article 5, paragraph 2
(a) and (b), of the Optional Protocol, that the same matter is not being
examined under another procedure of international investigation or
settlement and that the author has exhausted domestic remedies.
6.3 Insofar as the author alleges that the mere reference to Section 101a of
the Judiciary Act, in the Supreme Court's decision of 16 April 1996,
deprived him of an opportunity adequately to elaborate the arguments in
support of the present communication, the Committee observes that the
guarantees of article 14, paragraphs 3 (b) and 5, which apply to domestic
criminal proceedings, do not extend to the examination of individual
complaints before international instances of investigation or settlement.
This part of the communication is therefore inadmissible under article 3 of
the Optional Protocol
6.4 With regard to the author's claim that his right under article 14,
paragraph 5, to have his conviction and sentence reviewed by a higher
tribunal was violated, because the judgments other than that of 16 April
1996 by the Supreme Court did not give sufficient reasons for the courts'
dismissal of his defence challenging the lawfulness of the evidence
obtained, the Committee recalls that, where domestic law provides for
several instances of appeal, a convicted person must have effective access
to all of them. To ensure the effective use of this right, the convicted
person is entitled to have access to duly reasoned, written judgments in the
trial court and at least in the court of first appeal.
6.5 The Committee notes that the judgments of the 's-Hertogenbosch District
and Appeal Courts, as well as the judgment of the Supreme Court dated 30
November 1993 and the judgment of the Arnhem Court of Appeal, do give
reasons for the dismissal of the author's defence. It recalls that it is
generally for the national tribunals, and not for the Committee, to evaluate
the facts and evidence in a particular case, unless it can be ascertained
that the proceedings before these tribunals were clearly arbitrary or
amounted to a denial of justice. The Committee considers that the author has
not substantiated, for purposes of admissibility, that the reasons given by
the Dutch courts for rejecting his challenge to the admissibility of the
prosecution's case were arbitrary or amounted to a denial of justice. It
must therefore follow that this part of the communication is inadmissible
under article 2 of the Optional Protocol.
6.6 Concerning the claim that the admission as evidence of certain tapped
telephone conversations between the author and A.T.M.M., and their use
during the criminal proceedings in general, violated his right to a fair
trial, the Committee does not consider that the District Court's
differentiation between records of tapped telephone calls that could be used
as evidence, as they related to conversations which were intercepted in the
context of the preliminary inquiry against A.T.M.M., and records of
conversations, in which A.T.M.M. acted as the author's lawyer, that could
not be used as evidence and should be removed from the file and destroyed,
was arbitrary. Although the author contends that the Dutch authorities did
not differentiate between counsel-client and suspect-suspect conversations,
since his calls to Mr. A.T.M.M. concerned different matters than the one in
which his lawyer was a suspect, he has not substantiated this claim. This
part of the communication is also inadmissible under article 2 of the
Optional Protocol.
6.7 The Committee considers that the author has substantiated, for purposes
of admissibility, that the interception of telephone conversations between
him and his lawyer, as well as the State party's failure to destroy the
recordings of certain tapped calls, may raise issues under article 17 of the
Covenant. It therefore concludes that the communication is admissible
insofar as it raises issues under article 17.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
7.2 The issue before the Committee is whether the interception and recording
of the author's telephone calls with Mr. A.T.M.M. constituted an unlawful or
arbitrary interference with his privacy, in violation of article 17 of the
Covenant.
7.3 The Committee recalls that, in order to be permissible under article 17,
any interference with the right to privacy must cumulatively meet several
conditions set out in paragraph 1, i.e. it must be provided for by law, be
in accordance with the provisions, aims and objectives of the Covenant and
be reasonable in the particular circumstances of the case. [FN12]
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[FN12] General Comment 16 [32], at paras. 3-4.
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7.4 The Committee notes that Section 125g of the Dutch Code of Criminal
Procedure authorizes the investigating judge to order, during the
preliminary judicial investigation, the interception or recording of data
traffic, in which the suspect is believed to be taking part, provided that
this is strictly required in the interests of the investigation and relates
to an offence for which pre-trial detention may be imposed. The author has
not contested that the competent authorities acted in accordance with the
requirements of this provision. The Committee is therefore satisfied that
the interference with his telephonic conversations with Mr. A.T.M.M. was
lawful within the meaning of article 17, paragraph 1, of the Covenant.
7.5 One other question which arises is whether the State party was required
by Section 125h, paragraph 2, read in conjunction with Section 218 of the
Code of Criminal Procedure, to discard and destroy any information obtained
as a result of the interception and recording of the author's conversations
with Mr. A.T.M.M., insofar as the latter acted as his lawyer and as such was
subject to professional secrecy. The Committee notes, in this regard, that
the author challenges the Supreme Court's jurisprudence that cognizance may
be taken of tapped telephonic conversations involving a person entitled to
decline evidence, even though Section 125h, paragraph 2, provides that the
reports on such conversations must be destroyed. The Committee considers
that an interference is not "unlawful", within the meaning of article 17,
paragraph 1, if it complies with the relevant domestic law, as interpreted
by the national courts.
7.6 Finally, the Committee must consider whether the interference with the
author's telephonic conversations with Mr. A.T.M.M. was arbitrary or
reasonable in the circumstances of the case. The Committee recalls its
jurisprudence that the requirement of reasonableness implies that any
interference with privacy must be proportionate to the end sought, and must
be necessary in the circumstances of any given case. [FN13] The Committee
has noted the author's argument that clients can no longer rely on the
confidentiality of communication with their lawyer, if there is a risk that
the content of such communication may be intercepted and used against them,
depending on whether or not their lawyer is suspected of having committed a
criminal offence, and irrespective of whether this is known to the client.
While acknowledging the importance of protecting the confidentiality of
communication, in particular that relating to communication between lawyer
and client, the Committee must also weigh the need for States parties to
take effective measures for the prevention and investigation of criminal
offences.
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[FN13] See Communication No. 488/1992, Toonen v. Australia, at para. 8.3.
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7.7 The Committee recalls that the relevant legislation authorizing
interference with one's communications must specify in detail the precise
circumstances in which such interference may be permitted and that the
decision to allow such interference can only be taken by the authority
designated by law, on a case-by-case basis. [FN14] It notes that the
procedural and substantive requirements for the interception of telephone
calls are clearly defined in Section 125g of the Dutch Code of Criminal
Procedure and in the Guidelines for the Examination of Telephone
Conversations of 2 July 1984. Both require interceptions to be based on a
written authorization by the investigating judge.
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[FN14] General Comment 16 [32], at para. 8.
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7.8 The Committee considers that the interception and recording of the
author's telephone calls with A.T.M.M. did not disproportionately affect his
right to communicate with his lawyer in conditions ensuring full respect for
the confidentiality of the communications between them, as the District
Court distinguished between tapped conversations in which A.T.M.M.
participated as the author's lawyer, and ordering their removal from the
evidence, and other conversations, which were admitted as evidence because
they were intercepted in the context of the preliminary inquiry against
A.T.M.M. Although the author contested that the State party accurately made
this distinction, he has failed to substantiate this challenge.
7.9 Insofar as the author claims that the reports of the tapped
conversations between him and his lawyer should have been destroyed
immediately, the Committee notes the State party's uncontested argument that
the records of the tapped conversations were kept intact in their entirety,
separately from the case file, for possible inspection by the defence. As
the right to privacy implies that every individual should have the right to
request rectification or elimination of incorrect personal data in files
controlled by public authorities, [FN15] the Committee considers that the
separate storage of the recordings of the author's tapped conversations with
Mr. A.T.M.M. cannot be regarded as unreasonable for purposes of article 17
of the Covenant.
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[FN15] Ibid., at para. 10.
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7.10 In the light of the foregoing, the Committee concludes that the
interference with the author's privacy in regard to his telephone
conversations with A.T.M.M. was proportionate and necessary to achieve the
legitimate purpose of combating crime, and therefore reasonable in the
particular circumstances of the case, and that there was accordingly no
violation of article 17 of the Covenant.
7.11 The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose
any violation of article 17 of the Covenant.
_______________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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