AS TO THE ADMISSIBILITY OF
Application No. 18395/91
by Mathilde Elizabeth LUPKER and others
against the Netherlands
The European Commission of Human Rights sitting in private on 7
December 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 April 1991 by
Mathilde Elizabeth LUPKER and others against the Netherlands and
registered on 21 June 1991 under file No. 18395/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 27 May 1992 and the observations in reply submitted by
the applicants on 1 September 1992;
Having deliberated;
Decides as follows:
THE FACTS
This application has been submitted to the Commission by the following
persons:
1. Mathilde Elizabeth Lupker, a Dutch citizen born in 1967 and
resident at Nijmegen (the first applicant).
2. Caroline Christine van der Mandele, a Dutch citizen born in 1958
and resident at Nijmegen (the second applicant).
3. Rudolf Paesie, a Dutch citizen born in 1956 and resident at
Nijmegen (the third applicant).
4. Franciscus Johannes Joseph Maria Schoenmaeckers, a Dutch citizen
born in 1964 and resident at Nijmegen (the fourth applicant).
5. Jean Louis Bernard Seveke, a Dutch citizen born in 1964 and
resident at Nijmegen (the fifth applicant).
The applicants are represented before the Commission by Mrs. Ties
Prakken, a lawyer practising in Amsterdam.
The facts as presented by the parties may be summarised as
follows.
On 16 September 1986, parts of an office building at Nijmegen
were occupied by a number of persons as a protest against the town-
planning at Nijmegen and against a law which was seen as directed
against squatters. On 24 December 1986, the President of the Regional
Court (Arrondissementsrechtbank) of Nijmegen decided that the squatters
who occupied the building could be removed by force within three days
from the serving of this decision. The decision was served on 8
January 1987.
On 11 January 1987, some windows at the Town Hall of Nijmegen
were crushed, and there was a fire at one of the entrances of the Town
Hall.
On 14 January 1987, the Public Prosecutor (Officier van Justitie)
asked the Investigating Judge (Rechter-Commissaris) to open a judicial
investigation against X (unknown person) in regard to the fire at the
Town Hall. According to the police, those who had caused the fire were
to be found within the group of persons occupying the office building.
On 14 January 1987, the Investigating Judge decided that the
telephone of the occupied building could be tapped until 28 January
1987. In reality, telephone tapping occurred until 19 January 1987,
when the squatters were removed from the building.
In the Netherlands, telephone tapping is ruled by Sections 125f-
125h of the Code of Criminal Procedure (Wetboek van Strafvordering)
which provide:
"Art.125f. 1. In geval van ontdekking op heterdaad of van een misdrijf waarvoor voorlopige hechtenis is toegelaten, geeft ieder die werkzaam is bij een instelling van telefonie ter zake van alle verkeer hetwelk door tussenkomst van de instelling is geschied en ten aanzien waarvan het vermoeden bestaat, dat de verdachte eraan heeft deelgenomen, aan de officier van justitie of, tijdens het gerechtelijk vooronderzoek, de rechter-commissaris op diens vordering de door deze gewenste inlichtingen. 2. De artikelen 217-219 zijn van overeenkomstige toepassing. Art.125g. Tijdens het gerechtelijk vooronderzoek is de rechter-commissaris bevoegd, indien het onderzoek dit dringend vordert en een misdrijf betreft, waarvoor voorlopige hechtenis is toegelaten, te bepalen, dat telefoongesprekken, ten aanzien waarvan het vermoeden bestaat, dat de verdachte eraan deelneemt, door de opsporingsambtenaar worden afgeluisterd of opgenomen. Van het afluisteren of opnemen wordt binnen tweemaal vier en twintig uren proces-verbaal opgemaakt. Art.125h.1. De rechter-commissaris doet te zijnen overstaan processen-verbaal en andere voorwerpen, waaraan een gegeven kan worden ontleend, dat is verkregen als gevolg van de inlichtingen, bedoeld in artikel 125f, en die van geen betekenis zijn voor het onderzoek, zo spoedig mogelijk vernietigen. Van de vernietiging wordt onverwijld proces- verbaal opgemaakt. 2. De rechter-commissaris doet op dezelfde wijze onverwijld processen-verbaal en andere voorwerpen als in het vorige lid bedoeld vernietigen voor zover deze betrekking hebben op mededelingen gedaan door of aan een persoon die zich op grond van artikel 218 zou kunnen verschonen indien hem als getuige naar de inhoud van die mededelingen zou worden gevraagd. 3. De rechter-commissaris voegt de overige processen- verbaal en andere voorwerpen als in het eerste lid bedoeld uiterlijk op het tijdstip waarop de beschikking tot sluiting van het gerechtelijk vooronderzoek onherroepelijk wordt, bij de processtukken. 4. De officier van justitie doet te zijnen overstaan de processen-verbaal of andere voorwerpen, waaraan een gegeven kan worden ontleend, dat hij heeft verkregen als gevolg van de inlichtingen, bedoeld in artikel 125f, vernietigen indien hij niet binnen een maand na het verkrijgen van die inlichtingen een gerechtelijk vooronderzoek vordert. Hij maakt van de vernietiging proces-verbaal op." "Section 125f. 1. In case of flagrante delicto or of a crime which allows for detention on remand, anyone working in a telephone agency shall provide the public prosecutor or, during the preliminary judicial investigations, the investigating judge at his demand with the required information concerning all communications effected through this agency where there is a suspicion that the suspect has participated in these communications. 2. Sections 217-219 equally apply. Section 125g. During the preliminary judicial investigations the investigating judge may, if the investigation urgently so requires and if it concerns a crime which allows for detention on remand, authorise the investigating official to tap or record telephone conversations where there is a suspicion that the suspect has participated in them. A procès-verbal of the tapping or recording shall be drawn up within forty-eight hours. Section 125h. 1. The investigating judge shall have destroyed, in his own presence, procès-verbaux and other items from which data can be derived which have been obtained as a result of the information, referred to in Section 125f, or by means of tapping or recording, within the meaning of the preceding Section, and which are not relevant to the investigation. A procès-verbal of the destruction shall immediately be drawn up. 2. The investigating judge shall likewise have destroyed immediately procès-verbaux and other items referred to in the preceding paragraph, insofar as they concern statements made by or to a person who, on the basis of Section 218, could refuse to testify if he would be asked as a witness about the contents of those statements. 3. The investigating judge shall include further procès- verbaux and other items referred to in the first paragraph in the case-file at the latest when the decision to close the preliminary judicial investigations becomes irrevocable. 4. The public prosecutor shall have destroyed, in his own presence, procès-verbaux and other items from which data can be derived which have been obtained as a result of the information, referred to in Section 125f, if he has not demanded preliminary judicial investigations within a month after obtaining that information. He shall draw up a procès-verbal of the destruction." On 17 January 1987, about 70 persons met in the occupied building and discussed possible resistance against a removal action by the police. Some persons whose names have not been disclosed were present and forwarded information to the police. On 19 January 1987, there was unrest at Nijmegen and the squatters were removed by the police. Ten persons were arrested but they were all released again within four days. On the same day, the Investigating Judge authorised the tapping of the telephone of another occupied building. On 21 January 1987, there was a fire at the entrance of the building of the National Police at Nijmegen. On 23 January 1987, in connection with the investigation about that fire, the Investigating Judge authorised the tapping of six more telephone lines. On 30 January 1987, he prolonged this authorisation in regard to four lines. On 2 February 1987, the Public Prosecutor requested a further judicial investigation about the incidents on 19 January 1987. On the same day, the Investigating Judge prolonged the authorisation of telephone tapping in regard to one line. On 13 February 1987, a similar prolongation was granted in regard to another three lines. On 19 March 1987, the Public Prosecutor again requested a judicial investigation. As suspects he indicated eight persons, among whom all five applicants. The charge was extended to cover "participation in a legal person whose aim is the commission of offences", this being the offence provided for in Section 140 para. 1 of the Penal Code (Wetboek van Strafrecht). On the same day, the Regional Court gave permission to make a search at five different addresses at Nijmegen. During the judicial investigation, the police tried to collect evidence by using a book containing photographs of persons who might have had something to do with the problems in connection with the removal of the squatters on 19 January 1987. This book, which contained photographs of the applicants (with the possible exception of the fourth applicant), was shown to pharmacists and car rental companies, who were asked about whether any of the persons appearing on the photographs had been their customers. These photographs had either been given to the authorities in connection with applications for a passport or a driving licence or been taken by the police in connection with a previous arrest. Journalists were also interrogated, and use was made of statements by the five unidentified persons who had informed the police about the meeting on 17 January 1987 where violent resistance against the police was being discussed and where three of the applicants had made statements as spokesmen of the squatters. On 24 March 1987, searches were carried out at five addresses at Nijmegen. Seven of the eight suspects (among whom the first, second, third and fifth applicants) were arrested on that day. The eighth suspect (the fourth applicant) was arrested on 25 March 1987. The applicants were released on 7 May 1987. Subsequently, they were indicted, together with three other suspects, before the Regional Court of Arnhem. They were charged primarily with participation in an association whose aim was to commit certain offences (Section 140 para. 1 of the Penal Code) or, subsidiarily, with incitement to, or complicity in, attempted killing, attempted serious ill-treatment, ill- treatment, violence against persons and property and arson. The trial before the Regional Court was held from 15 October to 7 December 1987. The defence tried to make the Court order the Public Prosecutor to make the records about the telephone tapping available so as to be able to make an assessment of whether the right to tap telephones had been used correctly, but the Court refused to make such an order. The Court also refused to make records available about the investigations in regard to pharmacists and car rental companies. When policemen were heard as witnesses, the defence wished to put questions about informers, but the Court ruled that such questions were inadmissible. At the request of the Court, the Investigating Judge heard seven unidentified witnesses as well as two other persons. During the last court hearing, on 7 December 1987, there was unrest in the courtroom, and the President of the Court ordered persons present to be removed, which occurred with the use of force. The defence objected to the participation of all three members of the Court, but these objections were rejected. The lawyers then left the courtroom. On 21 December 1987, the Regional Court pronounced its judgment. All the accused were acquitted in respect of the primary charge but convicted in respect of the subsidiary charge and sentenced to eight months' imprisonment, out of which four months' imprisonment would be a conditional sentence. Both the sentenced persons and the Public Prosecutor appealed. On 23 September 1988, the hearing was held before the Court of Appeal (Gerechtshof) of Arnhem. On 7 October 1988, the Court of Appeal convicted the accused of the primary charge. As to the conviction, the Court of Appeal gave the following reasons: "Het geproclameerde verzet impliceerde het plegen van misdrijven, met gebruikmaking van onder meer rookbommen, verfbommen, barricademateriaal en brandende autobanden. Uit de bewijsmiddelen leidt het Hof voorts af dat het samenwerkingsverband niet slechts het plegen van een enkel misdrijf in het kader van één enkele actie als oogmerk had, doch het op deze wijze ageren wilde voortzetten ten dienste van het verzet tegen de leegstandswet, onderdrukking van de zwarte bevolking in Zuid-Afrika en nog een reeks andere zaken, in verband waarmede meerdere objecten als doelwit werden aangemerkt." "The announced resistance implied committing crimes, using inter alia smoke bombs, paint bombs, material for barricades and burning tires. The Court further infers from the evidence that the co-operation did not only aim at committing a single crime as part of one single action, but that by these means it wanted to pursue the action in favour of the resistance against the law pertaining to unoccupied buildings, against the repression of the black population in South Africa and some other matters in respect of which several objects were considered as a target." The accused were sentenced to nine months' imprisonment, three months of which would be a conditional sentence. All the eight sentenced persons appealed on 18 October 1988 to the Supreme Court (Hoge Raad). The case-file was transmitted to the Supreme Court on 18 August 1989. In its judgment of 16 October 1990, the Supreme Court rejected the appeals of seven of the sentenced persons. In respect of the eighth person (the fourth applicant), the judgment of the Court of Appeal was quashed. In its judgment, the Court, inter alia, stated that the Court of Appeal clearly had considered that the charges referred to the aim of committing offences not only on the day of the removal of the squatters from the building but also a considerable time before that day. The Supreme Court also rejected a plea of nullity concerning the use of information provided by anonymous police informers. The Court observed in this respect that it did not appear from the case-file that the applicants had requested an opportunity to interrogate the anonymous informers or that they had contested the correctness of the information provided by these persons. The Court added that there was also other important evidence to support the conclusion in these cases. COMPLAINTS The applicants allege violations of the Convention in the following regards: Article 6 of the Convention 1. The cassation procedure before the Supreme Court which took more than two years exceeded the "reasonable time" requirement in Article 6 para. 1. 2. In the cassation procedure, the Supreme Court declared that more had been proven than the Court of Appeal had actually found proven, as a result of which the applicants were deprived of one level of jurisdiction and of a "fair hearing" as referred to in Article 6 para. 1 (this complaint only refers to the first, second, third and fifth applicants). The applicants submit that contrary to what was said in the Supreme Court's judgment, the Court of Appeal had n made any finding about a criminal aim before the day of the removal of the squatters from the building. 3. As evidence, use was made of information given to a police inspector by five anonymous police informers, which information had only in general terms been recorded in a memorandum of this police officer, this being a breach of Article 6 paras. 1 and 3 (this complaint only refers to the first, second, third and fifth applicants). Articles 7 and 6 para. 2 of the Convention 4. The principle of legality was violated in that the applicants were prosecuted and convicted in respect of "participation in a legal person whose aim is the commission of offences", this being a too vague definition whose scope and application could not be foreseen (this complaint only concerns the first, second, third and fifth applicants). Article 8 of the Convention 5. Without the applicants' consent, the police used in their investigations a book containing the photographs of the applicants. This was an interference with their right to respect for their private life which was not "in accordance with the law" as required by Article 8 para. 2. 6. Telephone tapping was performed in regard to at least eight telephone lines. All the applicants participated in conversations on one or more of these telephone lines. Their right to respect for their private life and their correspondence was therefore interfered with without any justification under Article 8 para. 2. The applicants state that, before the Dutch courts, they raised, in particular, the following aspects of the telephone tapping: - the telephone tapping was not exclusively aimed at investigating and prosecuting criminal acts but had the more general aim of "getting knowledge about the activities of the group", - several times, telephone tapping was authorised with retroactive effect, i.e. from 00.00 hours on the day the decision was taken or, in the case of the decision of 19 January 1987, from 18 January at 00.00 hours, - no substantive reasons were given for the decisions to permit telephone tapping, - insufficient minutes were kept about the telephone tapping, - the telephone tapping was applied much more extensively than was justified in the interest of the investigation and the prosecution. Even arbitrarily selected telephone lines were tapped of organisations of politically like-minded people against whom there was however no suspicion of participation in criminal acts, - the telephone tapping was effected by the general information service of the police, whose task is not to investigate concrete criminal acts, and this strengthens the impression that the aim was to get a general picture of the squatters movement at Nijmegen rather than investigate specific facts, - none of the holders of the tapped telephone lines was subsequently informed about the tapping, - the Dutch legislation makes it easy to abuse telephone tapping, since there are no adequate control mechanisms. The applicants are of the opinion that in their case the legal limits for telephone tapping have not been respected and that, moreover, the law itself, as interpreted by the Supreme Court, does not fulfil the requirements of the "rule of law", as last indicated by the European Court of Human Rights in the cases of Kruslin and Huvig (Eur. Court H.R., Kruslin judgment of 24 April 1990, Series A no. 176a; Eur. Court H.R., Huvig judgment of 24 April 1990, Series A no. 176b). In particular, when a criminal investigation is carried out against unknown persons, the Supreme Court allows telephone tapping on a large scale against the whole circle of persons within which the offenders may be found. When there is a suspect, he may not have a chance of complaining successfully about telephone tapping, as his right to privacy is not considered to be protected. There is no obligation to put the tapes at the disposal of the judge, and it is unclear for which offences telephone tapping is permitted. The law provides no rules about the duration of telephone tapping, and in practice there are no rules about the records to be kept. The obligation to destroy transcripts of tapped telephone conversations is incomplete, and although telephone tapping must be authorised by the Investigating Judge, this may be done orally, which makes control difficult. The person whose telephone line is tapped may also be unaware of the fact that there is a criminal investigation going on against him. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 8 April 1991 and registered on 21 June 1991. On 20 February 1991, the Commission decided to communicate the application to the Netherlands Government and to ask for their observations on its admissibility and merits. The Government's observations were submitted on 27 May 1992. The applicants submitted their observations in reply on 1 September 1992. THE LAW 1. The applicants submit that the cassation procedure before the Supreme Court exceeded the "reasonable time" requirement as referred to in Article 6 para. 1 (Art. 6-1) of the Convention. Article 6 para. 1 (Art. 6-1), insofar as relevant, provides: "1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The Government submit that the period to be taken into onsideration under Article 6 para. 1 (Art. 6-1) lasted slightly less than 3 years and 7 months. Viewed as a whole, this period cannot be considered as unreasonable as the case was a complicated one with eight suspects and a substantial file. For the same reasons, the length of the procedure before the Supreme Court cannot be considered as unreasonable. The Government concede that the statutory time-limit of 54 days laid down in Section 433 para. 3 of the Code of Criminal Procedure for the sending of the documents from the Registry of the Court of Appeal to the Supreme Court was not respected. However, they submit that this delay can rarely be observed in practice. This provision was therefore amended as of 1 May 1992, the fixed limit of 54 days having been replaced by the words "as soon as possible". The applicants remind that under Section 433 of the Code of Criminal Procedure, the documents concerning their case should have been sent to the Supreme Court within a maximum of 54 days from the day of the decision of the Court of Appeal. In the present case the Court of Appeal took its decision on 7 October 1988 but the documents concerning the applicants' case were not received by the Registry of the Supreme Court until 18 August 1989, i.e. more than ten months later. They also submit that, as it was presented before the Supreme Court, their case was no more of a complex nature, but limited to a few unequivocal juridical questions. The Commission notes that the period to be taken into consideration under Article 6 para. 1 (Art. 6-1) began on the day when the applicants were substantially affected by the proceedings against them and ended on the day of their final conviction (cf. No. 9132/80, Dec. 12.12.83, D.R. 41 p. 13). It thus started with the applicants' arrests on 24 and 25 March 1987 and ended with the Supreme Court's decision of 16 October 1990, lasting a little less than three years and seven months. Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the complaint concerning the length of the proceedings, and in particular of the delay in trasmitting the case-file to the Supreme Court (Eur. Court H.R., Abdoella judgment of 25 November 1992 to be published in Series A no. 248-A; J.B. v. the Netherlands, Comm. Rep. 1.4.92, now pending before the European Court of Human Rights), raises complex issues of fact and law which can only be resolved by an examination of the merits. This part of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established. 2. The first, second, third and fifth applicants also submit that in the cassation proceedings, the Supreme Court declared that more had been proved than the Court of Appeal had actually found proved, as a result of which the applicants were deprived of one level of jurisdiction and of a "fair hearing" as referred to in Article 6 para. 1 (Art. 6-1) of the Convention. The applicants submit that contrary to what was said in the Supreme Court's judgment, the Court of Appeal had never made any finding about the existence of a criminal aim before the day of the removal of the squatters from the building. The Commission first recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the parties in the Convention. In particular, it is not competent to deal with a complaint alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its constant case-law (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). As regards the applicants' complaints about the proceedings concerned, the Commission first notes that in its judgment of 16 October 1990, the Supreme Court stated that the Court of Appeal had clearly found that the association was aimed at committing offences not only on the day of the removal of the squatters but also a considerable time before that day. In the second place the Commission observes that the Court of Appeal stated that "the association (was) not only (aimed) at committing a single crime as part of one single action, but that by these means (the association has wanted) to pursue the action in favour of the resistance against the law pertaining to unoccupied buildings, ...". The Commission observes that the point at issue in connection with these statements was to ascertain whether the applicants had created a temporary or a more permanent association. In this respect, the Supreme Court stated that the Court of Appeal had clearly found that the association had not been a temporary one. The Commission considers that, whether or not the applicants' observation is as such well-founded, the contested statement of the Supreme Court did not affect the fairness of the proceedings against the applicants. Consequently this part of the application is manifestly ill- founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention. 3. The first, second, third and fifth applicants also complain of an infringement of their right to a fair hearing as a result of the use as evidence of information given to a police inspector by five anonymous police informers, which information had only been recorded in general terms in a memorandum of this police officer. They invoke Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention. As the Commission has previously pointed out, the relationship between paragraphs 1 and 3 of Article 6 (Art. 6-3, 6-1) of the Convention is that of the general to the particular. Paragraph 3 lists certain specific rights which constitute essential elements of the general notion of "fair trial" in criminal cases (cf. Jespers v. Belgium, Comm. Rep. 14.12.1981, para. 54, D.R. 27, pp. 71, 72). The Government submit that the applicants have not exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention in that they never expressed the wish to question these persons or have them questioned as part of the preliminary judicial investigations or at the hearing nor did they seem to have any doubts as to the accuracy of the information which they provided. As to the merits of the complaint, the Government observe that there was also other important evidence to support the decisions taken by the Dutch Courts. The applicants submit that before the Kostovski judgment (Eur. Court H.R., Kostovski judgment of 20 November 1989, Series A no. 166), they had absolutely no chance of having the anonymous persons heard as witnesses before the Dutch courts. They also explain that the reason why they did not contest the anonymous statements was that they had chosen to remain silent at the hearing. The Commission considers that it is not necessary to decide whether or not the applicants have exhausted the domestic remedies available to them, since this part of the application is manifestly ill-founded for the reasons set out below. The Commission first recalls that the admissibility of evidence is primarily a matter for regulation by national law and that it is for the national courts to assess the evidence before them (cf. Kostovski judgment, loc. cit., p. 19, para. 39). The Commission's task is to ascertain whether the proceedings considered as a whole, including the way the evidence was taken, were fair. The Commission further recalls that, in principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d) of the Convention, provided that the rights of the defence have been respected. As a general rule these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (cf. Kostovski judgment, loc. cit., p. 20, para. 41 with further reference). The Commission first observes that as a result of the applicants' appeal a full review of the facts and the evidence took place before the Court of Appeal. It is however difficult to assess the importance of the statements made to the police inspector by the five anonymous persons since the reasoning of the Court of Appeal in its judgment is brief and stereotyped and does not refer to the various pieces of evidence invoked in the case. It is clear, however, that there was also a great deal of other evidence in the case. The Commission further notes that the applicants, who were represented by a lawyer during the respective proceedings against them, had the opportunity to state their case and to challenge the statements by the anonymous informers and the other evidence against them of which possibility the applicants chose not to avail themselves. The Commission also attaches weight to the fact that the applicants have not even in their submissions to the Commission specified in what way they disagree with the statements made by the anonymous persons to the police inspector. The Commission therefore considers that in the present circumstances there is no indication that the rights of the defence were restricted to such an extent that it constituted a breach of paragraphs 1 and 3 (d) of Article 6 (Art. 6-1+6-3-d) taken together. It follows that this part of the application is manifestly ill- founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention. 4. Invoking Articles 7 and 6 para. 2 (Art. 6-2, 7) of the Convention, the first, second, third and fifth applicants also submit that the principle of legality was violated in that they were prosecuted and convicted in respect of "participation in a legal person whose aim is the commission of offences", this being a too vague definition the scope and application of which could not be foreseen. Article 7 (Art. 7) of the Convention provides as follows: "1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations." Article 6 para. 2 (Art. 6-2) of the Convention provides: "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." The Commission notes that the crucial point of the present complaint is one of the foreseeability of the law and the function of the courts in clarifying or developing vague legal provisions. The Commission recalls that the European Court has stated that "a norm cannot be regarded as 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice" (Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 31, para. 49). The Commission has also considered that the mere fact that a legislative provision may give rise to problems of interpretation does not mean, that it is so vague and imprecise as to lack the quality of "law" in this sense (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51 p. 136 with further references). Applying these principles to the present case, the Commission is of the opinion that the contested provision (Section 140 of the Penal Code) is sufficiently precise for individuals to be able to regulate their conduct. It also notes that the facts the applicants were charged with objectively correspond to the definition of the offence and that the courts have not exceeded the limits of a reasonable interpretation of this provision. The Commission also considers that there is no indication of a violation of the principle of presumption of innocence as guaranteed in Article 6 para. 2 (Art. 6-2) of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 5. Invoking Article 8 (Art. 8) of the Convention the applicants also complain that without their consent, the police used in their investigations a book containing their photographs. They submit that this was an interference with their right to respect for their private life which was not "in accordance with the law" as required by paragraph 2 of this provision. Article 8 (Art. 8) of the Convention provides 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Government submit that the photographs were requested and made available in accordance with a circular issued by the Minister of Foreign Affairs on 26 February 1986 and with an existing practice based on Section 120, subsection 2 (old) of the Road Traffic Regulation (Wegenverkeerswet). They were shown only to witnesses who stated they recognised persons who might have been involved in the offences in order to identify suspects. The Government point out that any criminal investigation inevitably entails an intrusion upon privacy for potential suspects and that the investigation concerned serious offences committed by a large number of suspects. The applicants allege that there is no legal basis for using such photographs in a subsequent criminal investigation. They are of the opinion that the circular of 26 February 1986 cannot be considered as a "law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The Commission has noted the following elements in the case as it has been presented: first, that the photographs were not taken in a way which constitutes an intrusion upon the applicants' privacy; secondly that the photographs were kept in police or other official archives since they had been either provided voluntarily in connection with applications for a passport or a driving licence or taken by the police in connection with a previous arrest; and thirdly that they were used solely for the purpose of the identification of the offenders in the criminal proceedings against the applicants and there is no suggestion that they have been made available to the general public or used for any other purpose. Bearing these facts in mind, the Commission finds that the use of the photographs of the applicants could not be considered to amount to an interference with their private life within the meaning of Article 8 (Art. 8) of the Convention (cf. mutatis mutandis No. 5877/72, Dec. 12.10.73, Yearbook 16 p. 328). It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 6. The applicants finally complain of a violation of their right to respect for their private life and their correspondance in that telephone tapping was performed in regard to at least eight telephone lines while they all participated in conversations on one or more of these telephone lines. They stress that this interference took place without any justification under Article 8 para. 2 (Art. 8-2) of the Convention. The Government are of the opinion that the tapping of the applicants' telephone conversations, insofar as it affected the applicants, was a measure which was in accordance with the law, since it was in accordance with Sections 125g-h of the Code of Criminal Procedure and was effected with the required authorisation of the Investigation Judge. It was also necessary in a democratic society for the prevention of disorder or crime, since the investigation concerned serious criminal offences which constituted a serious violation of the legal order and which, it was suspected, had been committed by a group of people who were difficult to identify. The Government explain that the telephone tapping was part of preliminary judicial investigations which had been ordered by the Investigating Judge, as is compulsory for such measures under the provisions of the Code of Criminal Procedure. Tapping took place only after actual offences had been committed for which pre-trial detention is permitted (a condition laid down in Section 125g of the Code of Criminal Procedure) and which could be deemed to be serious violations of the legal order. According to police information, the suspects were to be found amongst the group of squatters in Nijmegen. The preliminary judicial investigations started on 14 January 1987 as the result of an act of arson (at the town hall), and following a second act of arson (at Nijmegen police station) were extended on 2 February 1987. Arson is a criminal offence under Section 157 of the Penal Code and is an offence for which pre-trial detention may be ordered. During the police investigation it appeared that, because the offenders had acted as a group, it was extremely difficult to establish to which degree each person had participated in the offences. It was then decided to base the investigation on Section 140 of the Penal Code (participation in a legal person whose objective is to commit criminal offences). On 19 March 1987, another application for preliminary judicial investigations was made, which contained the names of the suspects, including those of the applicants, in accordance with Section 182 of the Code of Criminal Procedure. The Government further state that since the case involved a group of suspects residing in several different municipalities, it was unavoidable that tapping would affect a large number of people and that a great deal of information would thus be obtained. However, tapping is subject to a statutory safeguard: the Investigating Judge assesses the relevance to the investigation of the material obtained and orders all "superfluous" information to be destroyed as soon as possible, pursuant to Section 125h of the Code of Criminal Procedure, and a procès-verbal of the destruction of the material is drawn up. Permission to tap telephones may be given orally or in writing by the Investigating Judge. Since the need to put a tap on a telephone is often an urgent one, the Government did not impose far-reaching, binding requirements for authorisation to tap when drafting the legislation. Verbal permission has been sufficient according to rulings by the Supreme Court. However, it must be included in substance in the official report of the preliminary judicial investigation. The Government finally submit that in the present case all telephone tapping took place with the authorisation of the Investigating Judge. The applicants claim that permission to tap telephone conversations was given retroactively. They draw this conclusion from the fact that the permission and subsequent extensions were given as from midnight. If the decisions were indeed not given at that time (which is now impossible to ascertain), this does not mean that the tapping also began at that time. Furthermore, the information thus obtained was not used as evidence, nor did the applicants argue in their defence in first instance that as a result of the telephone tapping they made statements which they would otherwise not have made. The applicants first state that when a criminal investigation is carried out against unknown persons, the Supreme Court allows telephone tapping on a large scale against the whole circle of persons within which the offenders may be found. When there is a suspect, he cannot successfully complain of the telephone tapping, since the Supreme Court considers that the law is only concerned with the protection of the privacy of persons other than the suspect. They also submit that although the law provides that telephone tapping can only occur in respect of offences for which detention on remand is permissible, it is possible that the result of the telephone tapping is used as evidence of other offences or against other offenders. They also claim that the law does not specify the duration of the telephone tapping. According to certain guidelines, the maximum duration should be four weeks, but prolongations beyond that time are common. In the present case, the telephone tapping lasted, in respect of some telephone lines, for one and a half month. They further submit that in practice there are no rules about the records to be kept. It is true that the law speaks about certain records, but they do not have to contain the contents of the tapped telephone conversations. The obligation to destroy transcripts of tapped telephone conversations is incomplete and ineffective. Conversations may be invoked as evidence even after the tapes containing these conversations have been destroyed. In the present case records were made of some conversations which the police found useful as evidence. The applicants do not know whether other conversations were also recorded. In addition, there is no obligation to make the tapes available to the court or the defence. In the present case the defence was refused access to large parts of the records containing the tapped telephone conversations. Furthermore, the obligation to destroy records of telephone conversations only concerns those facts which are considered not to be relevant to the case. Consequently, there is no protection of privacy in regard to conversations which are considered to be of relevance. In the present case the Court ordered the destruction of such tapped facts as had not been used in the investigation. It is unclear whether destruction has in fact taken place. It is likely that other tapped conversations are being preserved. The applicants further complain that the Supreme Court has accepted that an order for telephone tapping may be issued orally by the judge and that, if the order exists in writing, it does not have to be included in the case-file. This makes control difficult. They finally note that the person whose telephone is tapped may also be unaware of the fact that there is a criminal investigation going on against him. In the present case the applicants were informed, a short time after their arrest, that there was a criminal investigation against them. In any event the tapping of eight telephones during a long period was not necessary in a democratic society for any of the aims indicated in Article 8 para. 2 (Art. 8-2) of the Convention. The Commission recalls that according to the case-law of the Convention organs, telephone communications are covered by the notion of "private life" and "correspondance" within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention (Eur. Court H.R., Huvig judgment of 24 April 1990, Series A no. 176b, p. 52, para. 25; No. 10862/84, Dec. 6.3.86, D.R. 46 pp. 136-137). Accordingly, the applicants may rely on the right guaranteed by this provision. Interference with the exercise of such rights is only permissible when done by a public authority and if it is in accordance with the law and necessary in a democratic society for one of the purposes listed in Article 8 para. 2 (Art. 8-2). The Commission notes that the telephone tapping in the present case was authorised by a judge and took place in accordance with Sections 125f-h of the Code of Criminal Procedure. It also considers these provisions to be sufficiently precise and that, consequently, the tapping was in accordance with the law within the meaning of Article 8 (Art. 8) of the Convention. The Commission further notes that the applicants' complaints concerning the telephone tapping are mostly directed at the law and the way it is applied in Dutch case-law. The Commission first observes that it cannot examine in the abstract questions of the conformity of domestic law with the Convention. Insofar as the telephone tapping in the present case concerned the five applicants, the Commission is of the opinion that it could be considered necessary in a democratic society for the prevention of disorder or crime. The Commission considers that the telephone tapping was therefore justified under Article 8 para. 2 (Art. 8-2) of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicants' complaint concerning the length of the criminal proceedings against them, DECLARES INADMISSIBLE the remainder of the application. Secretary to the Commission President of the Commission (H.C. Krüger) (C.A. Nørgaard)
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