Information Note on the Court’s case-law No. 63
April 2004
Doerga v. the Netherlands - 50210/99
Judgment 27.4.2004 [Section II]
Article 8
Article 8-1
Respect for private life
Recording and storing by penitentiary authorities of a prisoner’s telephone conversations subsequently used as evidence to convict him for another criminal offence: violation
Facts: The applicant, who was serving a prison sentence, was suspected of giving a false tip-off to the police about an escape plan by other detainees. His telephone conversations were therefore tapped and recorded on tape. Still whilst in detention, the applicant was suspected of having organised - from prison - the detonation of an explosive device in the car of his former partner. The telephone conversations which had been recorded were made available to the criminal investigation into the bomb attack. The applicant was convicted by the Court of Appeal of complicity in pre-meditated grievous bodily harm and making a threat to kill. The conviction was based, inter alia, on some of the applicant’s telephone conversations recorded by the prison authorities prior to the bomb attack, in particular one in which he warned his sister never to approach his former partner’s car. The Court of Appeal rejected the applicant’s arguments that the conversations should be disregarded as unlawfully obtained evidence, finding that their recording served the lawful purpose of preserving order within the penitentiary. Although the internal prison regulations prescribed the immediate erasure of recorded conversations, they had been stored as there were indications of an on-going escape plan. The Supreme Court rejected the applicant’s cassation appeal, finding that the erasure obligation in the internal prison regulations could be interpreted in such a manner that the keeping of the recorded telephone conversations could be justified until the danger which gave rise to their recording ceased to exist.
Law: Article 8 – The recording of the applicant’s telephone conversations had constituted an interference with his rights under Article 8. Whilst it was accepted that the interception, recording and retention of the applicant’s telephone conversations had a basis in domestic law - a Circular by the Deputy Minister of Justice of 1980 and the internal regulations issued by the Governer of the penitentiary - the interference was not compatible with the “in accordance with law” requirement. This phrase implied conditions beyond the existence of a legal basis in domestic law and required the legal basis to be “accessible” and “foreseeable”. The rules in question lacked both in clarity and detail and gave no precise indications as to the circumstances in which prisoners’ conversations could be monitored, recorded or retained by penitentiary authorities or the procedures to be observed. Whilst accepting, having regard to the ordinary and reasonable requirements of imprisonment, that it could be necessary to monitor detainee’s contacts with the outside world, including contacts by telephone, the Court found that the rules did not afford appropriate protection against arbitrary interference by the authorities with the applicant’s right to respect for his private life. Given that the interference was not “in accordance with the law”, there had been a violation of Article 8. In these circumstances, an examination of the necessity of the interference was not required.
Conclusion: violation (unanimously).
Article 41 – The Court made an award in respect of costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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