SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40045/98
by Petronella GREUTER
against the Netherlands
The European Court of Human Rights (Second Section), sitting on 19 March 2002 as a Chamber composed of
MrJ.-P. Costa, President,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 21 January 1998 and registered on 27 February 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Petronella Greuter, is a Dutch national, born in 1964 and living in Amsterdam. She is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s partner, Mr P., was killed on 23 March 1997 in Beverwijk during a fight between supporters of the Amsterdam soccer club Ajax and supporters of the Rotterdam soccer club Feijenoord. Following an investigation by the regional police Haarlem–Kennemerland of the killing of Mr P., a number of suspects were arrested.
Shortly afterwards, the regional police Amsterdam-Amstelland opened an investigation into whether and to what extent Ajax supporters formed part of a criminal organisation specifically involved in (the organisation of) fights and/or street vandalism and violence. In this context, the Amsterdam public prosecutor (officier van justitie) opened a preliminary judicial investigation (gerechtelijk vooronderzoek) against NN (nomen nescio; i.e. against a person or persons unknown).
In the course of this preliminary judicial investigation and upon the request of the public prosecutor, the investigating judge (rechter‑commissaris) authorised the tapping of a telephone line, the number for which was registered in the applicant’s name. It was tapped between 28 March and 11 April 1997. In addition, the investigating judge authorised that a print-out be obtained of all telephone communications having taken place on this line between 1 January 1997 and 1 May 1997. At no point did any suspicions arise that the applicant herself had been involved in any criminal activities.
The lawyer who was acting on the applicant’s behalf in the criminal proceedings against the suspected perpetrators of the killing of Mr P., and who also acted as defence counsel in criminal proceedings against a soccer supporter called W., learned of the existence of the tapping of the applicant’s telephone, as it was mentioned in W.’s case-file. With W.’s permission, the lawyer informed the applicant of the tapping of her telephone.
In a letter of 9 October 1997, the applicant’s lawyer put the following questions to the public prosecutor:
“a. Is it correct that the above telephone number has been tapped under your responsibility?
b. If so, during which period has this taken place?
c. Can you tell me when you informed my client of this, i.e. that her telephone was tapped during a certain period?
d. In case this has not taken place so far, when would you have intended to do so and, if so, mentioning what grounds?
e. What were the reasons for the “tapping” and of what criminal offence was she suspected?
f. Is she still suspected of having committed that criminal offence?
g. Would you kindly provide me, on behalf of In his reply of 15 October 1997, the public prosecutor informed the applicant’s lawyer as follows: “In answer to a number of your questions I could refer you to the formal record that is already in your possession in your capacity as the lawyer of the suspect W. On page 26 of that record it is set out that and why the telephone of your client a. Yes. b. From 28 March 1997 to 11 April 1997. c. I have not informed her of this. d. I did not have the intention to inform her of this, since the tapping took place in the context of a preliminary judicial investigation against NN. e. Your client was the partner of Mr P., who was killed during the clash between Ajax and Feijenoord supporters in Beverwijk and who was formerly a barkeeper in the café U., that was owned by your client and where, according to the information of the Criminal Intelligence Service (Criminele Inlichtingen Dienst; “CID”), the hard core group of Ajax supporters gathered. On this ground it was considered plausible that as yet unknown members of the hard core group, who were involved in acts of violence, could have contacts via the telephone number at issue. Your client was not suspected of a criminal offence in this connection. f. See the last sentence under e. g. No. The tapping has – as said – not taken place in the context of criminal proceedings against your client. A number of intercepted telephone conversations have been added to the note requesting authorisation to conduct a house search in connection with one of the suspects. In consultation with the investigating judge, it has been decided to grant you access to those conversations.” In his letter of 17 October 1997 to the public prosecutor, the applicant’s lawyer pointed out, inter alia, that the applicant had sold café U. nearly three years ago and that it would have been understandable had the café’s telephone been tapped, but the fact that the applicant’s private telephone line had been tapped was incomprehensible. The lawyer requested the information which had led to the telephone tapping, and a copy of the memoranda and other evidentiary items indicating that the applicant’s telephone line would be used by members of the hard core group, and that these persons maintained contacts via this telephone. In his reply of 23 October 1997, the public prosecutor stated inter alia: “... My answer is possibly understandable ... when you see the situation as a whole and not only for a part thereof. Let me, in spite of this, formulate it differently: your client was the owner of a café where the group of Ajax hard core supporters met regularly. The suspicion that members of this hard core group would maintain contacts via the private telephone line of your client is not so incomprehensible when account is taken of the fact that your client’s partner, Mr P., apparently belonged to that group since he went along to the planned violent clash between the hard core of Ajax supporters and the hard core of Feijenoord supporters, during which clash he was killed. In any event, the investigating judge considered this sufficient to issue an authorisation for tapping the telephone number concerned. Since your client is not a suspect in this case, I will not add the ‘memoranda and other evidentiary items’ requested by you.” On 27 October 1997, the applicant’s lawyer transmitted a copy of the letter of 23 October 1997 to the investigating judge, requesting a copy of the documents he had asked for in his letter of 17 October 1997. Despite a reminder sent on 13 January 1998, it remained unanswered. B. Relevant domestic law and practice Until 1 February 2000, the rules about the interception of communications made through public telecommunication networks or services were set out in Articles 125f-h of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering; the “CCP”). Further rules on the practical exercise of the power to intercept communications were set out in the Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person. The text of these Guidelines had further been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989. These Guidelines, which did not have the formal character of law, had been issued as a model letter from the senior public prosecutors to the police. The above rules initially only covered communications by telephone. As from 1 March 1993, when the Act on Computer Criminality (Wet op de Computercriminaliteit) entered into force, they also covered communications by fax and e-mail. On 1 February 2000, when the Act of 27 May 1999 on amendments of the CCP in relation to special methods of criminal investigation entered into force, the provisions of Article 125f-h of the CCP were replaced by Articles 126m and 126n of the CCP. Pursuant to Article 125g of the CCP, as in force at the material time, the tapping of communications can only be effected in regard to offences for which detention on remand (voorlopige hechtenis) may be imposed, i.e. offences of a certain gravity carrying a punishment of imprisonment of four years or more (Article 67 CCP). The tapping can only concern communications in which a suspect is likely to participate, and it can only be ordered where the investigation urgently requires it. It must be authorised by the investigating judge. Furthermore, a record (proces-verbaal) of the tapping must be prepared within 24 hours. Under Article 125h of the CCP, as in force at the relevant time, records without importance for the investigation must be destroyed as soon as possible by order of the investigating judge. As to the destruction of information obtained via the interception of telephone conversations, the standard practice in fact differed from the Guidelines. On the basis of, inter alia, the Court’s findings in the cases of Kruslin and Huvig v. France (judgments of 24 April 1990, Series A no. 176-A&B) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case. Anyone requesting access to such material was required to give reasons for such a request. Where no suspect can be identified immediately and in order to obtain a tapping authorisation from the investigating judge, a preliminary judicial investigation against a person or persons unknown (“NN”) may be opened. As soon as the name(s) of the suspected perpetrator(s) can be established, the preliminary judicial investigation is to be put in the name of the suspect(s) concerned (Article 181 § 1 of the CCP). By subsequently availing him or herself of the right to be granted access to the case-file (Article 30 § 1 of the CCP), a suspect can become aware of the fact that communications have been tapped during the investigation. Until 1 February 2000, the Code of Criminal Procedure itself contained no provision on the period during which tapping of telecommunications may be carried out. However, pursuant to the Guidelines on the Interception of Telephone Conversations, a period of not more than four weeks was set. Prolongations could also not exceed four weeks. After two weeks the responsible police officer was required to submit an interim report to the public prosecutor and the investigating judge. The provisions of Articles 126m and 126n of the Criminal Code, as in force as from 1 February 2000, incorporated these four-week rules. COMPLAINT The applicant complains under Article 8 of the Convention that, although she was never suspected of any criminal offence, the Netherlands criminal investigating authorities tapped her telephone without formal notification, without any intention of ever informing her of this, and without granting her access to the formal records of the tapping. THE LAW The applicant complains that the tapping of her telephone without her knowledge and without granting her access to the records thereof violated her rights under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ... .” The Court recalls that telephone communications are covered by the notions of "private life" and "correspondence" within the meaning of Article 8 § 1 of the Convention, and that the storing by a public authority of data relating to an individual’s private life and the subsequent use of it amount to an interference with the right to respect for private life and correspondence within the meaning of Article 8 § 1 of the Convention (cf. Amann v. Switzerland [GC], no 27798/95, ECHR 2000-II, §§ 45 and 70). The Court is therefore of the opinion that the tapping of the applicant’s telephone line constituted an interference by a public authority with her right to respect for her private life and correspondence. Such an interference will contravene Article 8 of the Convention unless it is "in accordance with the law", pursues one or more of the legitimate aims referred to in paragraph 2 of this provision and is "necessary in a democratic society" in order to achieve these aims. It has not been argued that this interference was not "in accordance with the law", and the Court has found no indication that the conditions laid down in Articles 125f-h of the CCP and the Guidelines on the Interception of Telephone Conversations have not been respected in the present case. As to the legitimate aim pursued, the Court notes that telephone tapping at issue was ordered for the purposes of a preliminary judicial investigation against a person or persons unknown on suspicion of involvement in (the organisation of) fights between supporters of rival soccer clubs. In these circumstances, the Court is satisfied that the tapping of the applicant’s telephone pursued the aim of the prevention of disorder or crime within the meaning of Article 8 § 2 of the Convention. The question remains whether the means employed to achieve that aim remained within the bounds of what is necessary in a democratic society, in particular having regard to the fact that, under the domestic rules, there is no obligation for the Netherlands criminal investigating authorities to inform persons who are not themselves a suspect in a criminal investigation of the tapping of their telephone line. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. The Court considers that in order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain supervisory safeguards established by law in order to prevent arbitrariness. Supervisory procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law. This implies inter alia that the interference by the executive authorities with an individual’s rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (cf. Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, § 59). The fact that information about an individual is being gathered by way of secret surveillance, and that its storage and possible release is not disclosed to the person concerned, does not of itself warrant the conclusion that such an interference is not “necessary in a democratic society” (cf. the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 27, § 66). The Court notes that the applicant was the partner of Mr P., who apparently belonged to the hard core group of Ajax fans, and who was killed in a clash between Ajax and Feijenoord supporters, which clash was at the centre of the criminal investigation in the present case. Consequently, the Court considers that the possibility of potential suspects contacting the applicant by telephone cannot be considered wholly implausible or unfounded. The Court further notes that the tapping took place with the authorisation and under the supervision of an investigating judge, as required by the relevant statutory and regulatory provisions. The Court finally notes that, when the applicant asked the public prosecutor whether her telephone had been tapped, she received an affirmative reply and, as appears from the public prosecutor’s letter of 15 October 1997, was subsequently granted access to the records of the intercepted telephone conversations. In these circumstances, the Court cannot find that the interference to which the applicant was subjected was unreasonable or arbitrary, or that it was disproportionate to the legitimate aim pursued. The Court is therefore of the opinion that the interference complained of can reasonably be regarded as being “necessary in a democratic society ... for the prevention of disorder or crime”, within the meaning of Article 8 § 2 of the Convention. It follows that the application must be rejected as being manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. S. DolléJ.-P. Costa
RegistrarPresident
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