AS TO THE ADMISSIBILITY OF
Application No. 29839/96
by Jason F. REMMERS and Gerard P. HAMER
against the Netherlands
The European Commission of Human Rights sitting in private on
18 May 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 20 October 1995
by Jason F. REMMERS and Gerard P. HAMER against the Netherlands and
registered on 19 January 1996 under file No. 29839/96;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
19 June 1997 and the observations in reply submitted by the
applicant on 11 August 1997;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Dutch citizen and was born in 1968. At
the time of the introduction of the application, the first applicant
was detained in a remand centre in Utrecht, the Netherlands.
The second applicant is a Dutch citizen, born in 1954, and
residing in Amsterdam. Before the Commission the first applicant is
represented by the second applicant, who is a practising lawyer.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the present case.
On or about 22 December 1993, the first applicant was arrested
and detained on remand on suspicion of, inter alia, having committed
an armed robbery and attempted murder of two police officers on
22 December 1993. The applicant's pre-trial detention was prolonged
several times.
By summons dated 7 March 1994, the first applicant was ordered
to appear before the Regional Court (Arrondissementsrechtbank) of
Utrecht on charges relating to the events of 22 December 1993.
On 7 April 1994, upon the request of the public prosecutor
(officier van justitie), the investigating judge (rechter-commissaris)
of the Regional Court of Utrecht, Mr S., opened a preliminary judicial
investigation (gerechtelijk vooronderzoek) under No. 439-III-94 against
the first applicant on suspicion of having murdered one or two
identified persons in May 1993. This preliminary investigation was not
connected to the events of 22 December 1993. Mr S. was also involved
as investigating judge in the criminal proceedings against the first
applicant as regards the facts of 22 December 1993.
In the preliminary judicial investigation No. 439-III-94, Mr S.
issued an order on 7 April 1994 for the installation of a tapping
device on the telephone line "A", a telephone in the remand centre
where the first applicant was detained, for a period of four weeks as
from 7 April 1994.
By decision of 3 May 1994 the tapping of telephone line "A" was
prolonged for four weeks as from 5 May 1994. Mr S. decided on
18 May 1994 also to tap telephone line "B" in the remand centre where
the first applicant was detained, for a period of four weeks as from
19 May 1994 in connection with the preliminary investigation no. 439-
III-94. The tapping of both telephone lines ended on 15 June 1994. No
appeal lies against a decision to tap a telephone line.
On 3 January 1995, after adversarial proceedings in which the
first applicant was represented by the second applicant and following
hearings held on 10 June 1994, 6 September 1994, 18 November 1994 and
20 December 1994, the Regional Court of Utrecht convicted the applicant
of extortion and attempted murder committed on 22 December 1993 and
sentenced him to nine years' imprisonment with deduction of the time
spent in pre-trial detention.
In its examination of the case, the Regional Court did not
consider nor use in evidence the contents of tapped telephone
conversations. The applicant filed an appeal with the Court of Appeal
(Gerechtshof) of Amsterdam.
On 29 March 1995, the first applicant learned of the existence
of the preliminary judicial investigation No. 439-III-94. On
31 March 1995, the applicant's lawyer, i.e. the second applicant,
requested to be provided with a copy of the file of this investigation.
On 7 April 1995, Mr S. transmitted documents from the
investigation file, including written transcripts of the tapped
telephone conversations, to the second applicant. According to the
written transcripts of the tapped conversations, eleven conversations
between the first applicant and the second applicant's office had been
overheard.
Insofar as the first applicant had contacted the second
applicant's office by telephone, nine of these conversations appeared
in the written transcripts under the mention "NR" (not relevant)
without reproducing or giving any indication of the contents of those
conversations. Two of those conversations, however, were summarised in
the written transcripts.
A conversation of 12 April 1994 between the first applicant and
the second applicant's office was summarised in the written transcripts
as follows :
(translation)
"Out. (statement of telephone number of the second applicant's
office). Jessie introduces himself as REMMERS and asks for
Mr HAMER. The secretary goes looking (for him). Hamer comes to
the telephone and Jessie discusses with him the situation about
his report by the social service. Hamer will visit him shortly
so that Jessie can sign some authorisations."
A conversation of 7 June 1994 between the first applicant and the
second applicant's office was summarised in the written transcript as
follows:
(translation)
"(statement of the telephone number and name of the second
applicant's office) Jesse calls Gerard. Jesse says that he has
heard from a friend that the (request for a) reconstruction has
been rejected. Gerard is astonished that Jesse knows this
already. Further NR."
The applicant also dialled three telephone numbers which were
answered by persons described in the written transcripts as "NN"
(unidentified person). These three telephone numbers were different
from the telephone number of the second applicant's office. One
conversation between the first applicant and a person described as NN
on 30 April 1994, which was a public holiday in the Netherlands, was
in fact a conversation between the first and the second applicants.
This conversation was reproduced in the written transcripts in
the following way:
(translation)
"(statement of telephone number)
Jessie: Hello?...it's me...
NN: Yes I know... I hear it..how are you?
J.: Sort of OK ... yes it is sort of rotten to call here, huh?
NN.: Yes, it is a disaster.
J.: Mmm yeah but eh...yes I cannot say very much
NN.: Yes...
J.: So I just wait until I see you again one time ..
NN.: Yes...
J.: Um uh...then we should talk about it a little.
NN.: Yes, this week will be coming H.S. (phonetic) will be
trying to drop by this week.
J.: Yes...yes naturally I can only a little ... can I ...
transmit things a... (to him) ... surely no?
NN.: Well...no but he will come to examine you...
J.: Yes...aaah...ah
NN.: You know who it is, don't you? He is a doctor.
J.: Hmmm.
NN.: Who will examine your body for and on behalf of me.
J.: Yes...aah...but you did in any event already talk about it
with dad.
NN.: When?
J.: Oh...not yet?
NN.: Yes indeed...Well no...well don't you worry.
J.: Oh..then (I) make...if you say so, then I won't worry.
NN.: Don't you worry.
J.: OK
NN.: They have gone a bit crazy everywhere...I have the feeling
J.: Yes...yes...OK...well...uh...we'll briefly discuss that
later uh..
NN.: I'll come...I will try to drop by this week...further
aahm...did you get any mail still of last week?
J.: Ahm...just checking...yesterday still yes...
NN.: Good...I will request um a...reconstruction.
J.: OK..I'll hear from you... and have a nice Queen's day OK?
NN.: I am working as you notice. Greetings."
On 10 April 1995, Mr S. closed the preliminary judicial
investigation No. 439-III-94 concerning the events of May 1993. On the
same day, the public prosecutor decided that no criminal proceedings
would be instituted against the first applicant in view of the lack of
evidence. This decision of non-prosecution was served on the first
applicant in person on 18 April 1995 in the remand centre where he was
detained.
By letter of 20 April 1995, the second applicant, as the first
applicant's lawyer, requested the re-opening of the preliminary
judicial investigation no. 439-III-94 pursuant to Article 238 of the
Code of Criminal Procedure in order for additional witnesses to be
heard and to listen to the tapes of the tapped conversations. The aim
of the request was to establish the applicant's innocence. This request
was rejected by Mr S. on 21 April 1995.
The applicant's appeal against the decision of 21 April 1995 was
declared inadmissible by the Regional Court on 8 June 1995. The
Regional Court noted that the investigation against the first applicant
had formally ended by the decision of non-prosecution and that,
consequently, the first applicant could no longer be prosecuted for
these offences unless new facts came to light, which did not appear to
be the case. No other conclusion could be reached given the relevant
statutory rules even though the request was aimed at establishing the
first applicant's innocence.
The first applicant's appeal against the judgment of
3 January 1995 of the Regional Court of Utrecht was examined before the
Court of Appeal of Amsterdam in the course of adversarial proceedings
in which hearings were held on 5 October 1995, 17 November 1995 and
9 January 1996.
By judgment of 22 January 1996, the Court of Appeal quashed the
judgment of 3 January 1995, convicted the first applicant of aggravated
theft and several counts of attempted murder and sentenced him to
twelve years' imprisonment under deduction of the time spent in pre-
trial detention.
The Court of Appeal rejected the various arguments raised by the
defence that the prosecution should be declared inadmissible for having
violated the first applicant's rights under Article 6 paras. 1 and
3 (b) and (c) of the Convention and under Article 8 para. 1 of the
Convention in that Mr S. had intentionally violated the principle of
privileged communication between the first applicant and his lawyer by
authorising the telephone tapping in the preliminary judicial
investigation No. 439-III-94.
According to the defence this authorisation had resulted in a
situation that information about the defence in the criminal
proceedings at issue before the Court of Appeal had been obtained by
Mr S. and the public prosecution department and that, consequently,
both before the Court of Appeal and previously before the Regional
Court the first applicant could not be considered as having received
a fair trial within the meaning of Article 6 paras. 1 and 3 of the
Convention. In these circumstances the defence argued that the
investigation in the present criminal proceedings could not be regarded
as having been carried out by an "independent observer".
As regards the intercepted telephone conversations in the
preliminary judicial investigation No. 439-III-94, the Court of Appeal
found it established that, pursuant to an authorisation by the
investigating judge, the first applicant's telephone conversations had
been tapped between 7 April and 7 June 1994 on telephone lines in the
remand centre where the first applicant was detained in connection with
the criminal proceedings at issue before the Court of Appeal and from
which lines the applicant could make telephone calls to persons outside
the remand centre.
The Court of Appeal found it established that on 7 April 1995
Mr S. had provided the second applicant with a copy of all documents
in the case-file of the preliminary judicial investigation No. 439-III-
94, including the full transcripts of the telephone conversations
tapped between 7 April and 7 June 1994 and that, in support of the
arguments it advanced in the proceedings before the Court of Appeal,
the defence had submitted its own selection from these transcripts,
this selection consisting of ten pages.
The Court of Appeal assumed that at the relevant time Mr S. as
the investigating judge in the investigation No. 439-III-94 was aware
that the second applicant was the first applicant's lawyer in the
criminal proceedings now pending before the Court of Appeal. As regards
the motives alleged by the defence for the tapping of the telephone
conversations, the Court of Appeal considered that it had not been made
plausible that Mr S., when issuing the first tapping authorisation,
knew, should have known or reasonably could have known that the first
applicant would converse with his lawyer via the telephone connection
in respect of which tapping had been authorised, in particular
conversations with contents as indicated by the defence.
The Court of Appeal further found that it had not been made
plausible and that it had not become apparent from the contents of the
selection of the transcripts submitted by the defence that Mr S. had
issued the respective tapping authorisations in order to become
acquainted with what was being said between the first and second
applicants about the defence in the present criminal proceedings and
thus to discover the defence strategy or that it was clear to Mr S. to
a degree of bordering to certainty that the telephone conversations
between the first and second applicants would be about the defence in
the present proceedings.
Insofar as the defence argued that in particular the conversation
of 30 April 1994 constituted an important indication as to the alleged
motive advanced by the defence, the Court of Appeal noted that the
telephone number called by the first applicant was apparently the
second applicant's private telephone number and not the telephone
number of his office, which had become known in the meantime.
It held that it had not been stated nor made plausible that Mr S.
or the police were aware that this number was the second applicant's
private number or a number used by him. Bearing this in mind, the Court
of Appeal held that the contents of this recorded conversation were not
of such a nature that Mr S., the public prosecutor or the police
involved knew or should have understood that this was a conversation
between the first applicant and his lawyer. According to the Court of
Appeal this conversation did not, therefore, constitute an indication
that Mr S., as regards the tapping authorisations issued after
30 April 1994, had issued such authorisations in order to become
acquainted with what was being said between the first and second
applicants about the present criminal proceedings.
After having found it established that the public prosecutor in
the present case was not the same person as the public prosecutor
involved in the investigation No. 439-III-94, the Court of Appeal
found that no facts had appeared or become plausible on grounds of
which it should be assumed that the police or prosecution involved in
the present criminal proceedings had requested Mr S. in the
investigation No. 439-III-94 to order the telephone tapping or that
they had knowledge of the contents of the formal minutes on the results
of the tapping.
Having found that the second applicant had been provided with the
full transcripts of the tapped telephone conversations, the Court of
Appeal rejected the argument by the defence that, as the vast majority
of the tapes with the recorded conversations had been destroyed without
the first applicant ever having taken notice of these tapes, the impact
of the tapping must be considered as fatal. It noted that the second
applicant had submitted a selection of these transcripts in support of
the defence arguments raised and that those tapped conversations, the
contents of which were not included in the transcripts, were indicated
in the transcript as "not relevant" or "not important". The court thus
found that it could not be held that the contents of these
conversations could be considered relevant to the present proceedings.
The Court of Appeal further rejected, as not being supported by
the facts, the argument by the defence that no reasonable suspicion
could be derived from the case No. 439-III-94. Nor did it find that the
closure of the case No. 439-III-94 and the subsequent communication of
this closure and the reasons for this closure to the first applicant
constituted an indication that the real aim of the tapping had been to
gather information about the defence strategy in the present criminal
proceedings.
As to the argument raised by the defence that the first applicant
had not been informed about the telephone tapping pending the
preliminary judicial investigation No. 439-III-94, the Court of Appeal
held that there was no legal basis for this argument. Insofar as the
defence submitted that Mr S., as the investigating judge in case
No. 439-III-94, had violated Article 125h paras. 1 and 2 of the Code
of Criminal Procedure in that the tapped conversations between the
first and the second applicants had not been destroyed, the Court of
Appeal recalled its finding that the conversation of 30 April 1994 was
not of such a nature that Mr S. should have known or understood that
it was a privileged conversation between the first applicant and his
lawyer and that, therefore, Article 125h of the Code of Criminal
Procedure had not been violated as regards this conversation.
As to the recorded summaries of the telephone conversations
between the first and the second applicants between 7 April 1994 and
7 June 1994, the Court of Appeal noted that, as Mr S. had communicated
the transcripts to the second applicant on 7 April 1995, it was thus
clear that the contents of these conversations between the first and
the second applicants had not been destroyed as soon as possible.
The Court of Appeal agreed with the defence that Mr S. had been
obliged, pursuant to Article 125h of the Code of Criminal Procedure,
to destroy as soon as possible whatever was stated in the transcripts
about these conversations. After having noted the contents of the
transcripts, Mr S. could have instructed the responsible investigation
officers to delete these conversations from the tape and to delete the
text from the transcript. Mr S. could further have prohibited the
investigating officers from listening to, tapping and recording the
contents of any further conversations between the first and the second
applicants, this being the task of an investigating judge when
authorising telephone tapping.
As to the question whether, by his failure to comply with
Article 125h para. 2 of the Code of Criminal Procedure in respect of
these summarised conversations, Mr S. had thus indicated that he
considered these conversations relevant to the present criminal
proceedings, the Court of Appeal found no facts or circumstances in
support of this possibility given its previous findings as to the
tapping authorisations and the contents of the tapped conversations
between the first and the second applicants.
The Court of Appeal found that the apparent negligence and
inadvertence of Mr S. in respecting his obligations under Article 125h
para. 2 of the Code of Criminal Procedure in the investigation No. 439-
III-94, which failure was not in any way connected with the present
proceedings, could not lead to a finding that Mr S. in his activities
as investigating judge in the present proceedings could not or no
longer be considered as an "independent observer".
The Court of Appeal concluded that:
(translation)
"Noting all the above, no facts or circumstances have become
plausible on grounds of which it should be held that the
investigating judge in the present case, Mr S., by issuing the
cited tapping authorisations in the criminal proceedings under
Nr. 439-III-94, knowingly violated the communication between the lawyer and the suspect which is guaranteed in the present proceedings, in that by respectively tapping, taping and/or recording telephone conversations in the criminal proceedings under Nr. 439-III-94 such information or information in such a manner has reached the investigating judge or the public prosecution in the present criminal case that as a result thereof ... Article 6 para. 3 (b) or (c), and/or Article 6 para. 1, and/or Article 8 para. 1 of the Convention ... have been violated or that ... the suspect in the present criminal proceedings can no longer obtain a 'fair trial' or has not obtained a 'fair trial' in first instance." The Court of Appeal did not use in evidence the contents of any of the first applicant's telephone conversations which had been tapped between 7 April and 7 June 1994 on telephone lines in the remand centre where he was detained at that time. The applicant's appeal in cassation against the judgment of 22 January 1996 is currently still pending before the Supreme Court (Hoge Raad). An appeal in cassation is limited to points of law. The Supreme Court cannot review factual findings by the trial courts. B. Relevant domestic law and practice Article 125f-h of the Code of Criminal Procedure (Wetboek van Strafvordering) permits the interception of telephone conversations in which a suspect is likely to participate, provided that the suspected offences are of a certain gravity - i.e. offences for which pre-trial detention (voorlopige hechtenis) may be imposed - and the investigation urgently requires interception. It must be authorised by the investigating judge. Furthermore, the Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which can be obtained by any interested person and the text of which has been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989, state how the power to intercept telephone conversations is to be exercised in practice. These Guidelines, which do not have the formal character of law, have been issued as a model letter from the senior public prosecutors to the police. Written transcripts of intercepted telephone conversations must be prepared within 48 hours and transcripts without relevance must be destroyed as soon as possible by order of the investigating judge. Article 125h para. 2 of the Code of Criminal Procedure requires the destruction of transcripts insofar as they concern statements made by or to a person who, on the basis of Article 218 of the Code of Criminal Procedure, enjoys the privilege of non-disclosure. Lawyers fall in the category of persons having a professional obligation to secrecy and thus enjoy the privilege of non-disclosure, unless they themselves are suspects (cf. Hoge Raad, judgment of 29 June 1993, Nederlandse Jurisprudentie 1993, nr. 692). As regards the destruction of information obtained via interception of telephone conversations, standard practice differs from the guidelines. On the basis of the Court's findings in the cases of Kruslin and Huvig (Eur. Court HR, Kruslin v. France judgment of 24 April 1990, Series A no. 176-A; and Huvig v. France judgment of 24 April 1990, Series A no. 176-B) and relevant case-law of the Netherlands Supreme Court (cf. Hoge Raad, judgment of 29 June 1993, Nederlandse Jurisprudentie 1993, nr. 692; and Hoge Raad, judgment of 17 October 1995, Nederlandse Jurisprudentie 1996, nr. 147) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations are not destroyed immediately but are kept until shortly after the closure of the case. Anyone requesting access to such material must state reasons for such a request. A Bill proposing an amendment to the Code of Criminal Procedure incorporating this standard practice is currently pending before the Dutch Parliament. In the course of 1997 it was discovered by a number of lawyers, including the second applicant, that in at least one remand centre all telephone conversations of detainees, including conversations with their lawyers, were tapped by the authorities as a standard practice without any judicial authorisation. The Ministry of Justice confirmed that most remand centres in the Netherlands have available equipment for the tapping of telephone conversations of detainees. Following discussions between the Bar Association and the Ministry of Justice, the latter gave assurances on 5 September 1997 that the interception and recording of telephone conversations between detainees and their lawyers had been stopped in the meantime and that in each remand centre a separate telephone line, from which tapping will not be possible, will be installed from which detainees can call their lawyer. In cases where no administrative or other appeal lies against acts or decisions of public authorities Dutch law has traditionally recognised the competence of the civil courts to grant relief against public authorities. In such circumstances civil proceedings against the State can be instituted, claiming that the contested decision or act constitutes a wrongful act (onrechtmatige daad) within the meaning of Article 6:162 of the Civil Code (Burgerlijk Wetboek). In such proceedings the civil court can award damages for torts committed and it can grant injunctions against public authorities. It appears from the case-law of the Netherlands Supreme Court as regards wrongful acts that the State is liable to compensate material damages inflicted by the police in the course of the lawful use of force in cases where the police have entered premises for investigation purposes where at a later point in time it appears that the suspicions constituting the justification for that police action are unfounded in the sense that the occupants of these premises are innocent (Hoge Raad, 26 January 1990, Nederlandse Jurisprudentie 1990, nr. 794; and Hoge Raad, 23 November 1990, Nederlandse Jurisprudentie 1991, nr. 92). Pursuant to Article 3:310 of the Civil Code a claim for damages is statute-barred after five years from the day on which the claimant becomes aware of the damage and the responsible person or organ and in any event after twenty years from the date of the tortious act which caused the damage. Pursuant to Article 238 para. 2 of the Code of Criminal Procedure a suspect may request the investigating judge to reopen a preliminary judicial investigation which has been closed by the investigating judge. An appeal against a refusal to reopen lies with the Regional Court. After a decision of non-prosecution it is not possible for a suspect to seek a reopening of a preliminary judicial investigation. According to Article 246 of the Code of Criminal Procedure a case formally ends with the notification of a decision of non-prosecution by the public prosecution department. Under Article 12 of the Code of Criminal Procedure a directly interested party (direct belanghebbende) may file an objection (beklag) against a decision of non-prosecution with the Court of Appeal. Although this possibility primarily concerns the victims of criminal offences, the case-law of the Supreme Court indicates that in certain circumstances the suspected person may be considered as a directly interested person within the meaning of Article 12 of the Code of Criminal Procedure (Hoge Raad, judgment of 28 February 1984, Nederlandse Jurisprudentie 1984, nr. 490). COMPLAINTS 1. The applicants complain that the tapping of their respective telephone conversations, either with each other or with third persons, constituted an unjustified interference with their rights under Article 8 of the Convention.2. The first applicant complains that the tapping of his conversations with the second applicant was contrary to his rights under Article 6 para. 3 (c) of the Convention in that it affected the effective exercise of his defence rights. 3. The first applicant also complains that his detention was not in accordance with the requirements of Article 5 of the Convention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 20 October 1995 and registered on 19 January 1996. On 11 April 1997 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 19 June 1997. The applicants replied on 11 August 1997. On 19 September 1997 the Commission granted the first applicant legal aid. THE LAW 1. The applicants complain that the tapping of their respective telephone conversations, either with each other or between the first applicant and third persons, constituted an unjustified interference with their rights under Article 8 (Art. 8) of the Convention. The applicants submit in this respect that, contrary to Dutch law, the tapes of the tapped conversations between them were not destroyed. Article 8 (Art. 8) of the Convention, insofar as relevant, reads: "1. Everyone has the right to respect for his private ... life, ... 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, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Government submit in the first place that the applicants have failed to exhaust domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. In respect of the criminal proceedings currently pending before the Supreme Court, the Government submit that, in its judgment of 22 January 1996, the Court of Appeal examined in great detail the applicants' arguments in respect of the alleged influence of the telephone tapping on the criminal proceedings against the first applicant. According to the Government this demonstrates that, as regards this part of the application, there was a legal remedy open to the applicants. Noting that these proceedings are currently pending before the Supreme Court, the Government consider that therefore domestic remedies within the meaning of Article 26 (Art. 26) of the Convention have not been exhausted. As regards the investigation of which the telephone tapping formed a part and which did not lead to criminal proceedings, the Government submit, referring to two judgments of the Netherlands Supreme Court (HR 26 January 1990, NJ 1990, nr. 794; and HR 23 November 1990, NJ 1991, nr. 92) that the applicants could have applied to the courts on the basis of Article 6:162 of the Civil Code which covers unlawful acts by the authorities and others. As the applicants failed to take such proceedings, the Government are of the opinion that also as regards this part of the application the applicants failed to exhaust domestic remedies. As to the substance of the complaint under Article 8 (Art. 8) of the Convention the Government admit that the telephone tapping at issue constitutes an interference with the rights guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention, but are of the opinion that this interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention. The Government state that the tapping was conducted in accordance with the relevant statutory rules, that it pursued the legitimate aim of prevention of disorder or crime as there were grounds for suspicion that the applicant had been involved in or was guilty of murder or manslaughter and that the interference was necessary in a democratic society within the meaning of paragraph 2 of Article 8 (Art. 8-2). As to the latter aspect the Government submit that, in view of the safeguards contained in the relevant rules as regards the information obtained by the use of telephone tapping, the first applicant cannot claim that the breach of his privacy exceeded what was necessary to achieve a justifiable objective. Insofar as the second applicant was affected by the tapping of the telephone conversations of the first applicant, the Government submit that the tapping was aimed at the first applicant and not the second applicant. However, the Government admit that it is unusual that the transcripts at issue state several times that the first applicant contacted the second applicant, as it is standard practice for investigating judges not to record conversations with lawyers and not to mention them in tapping transcripts. According to the Government, this was caused by negligence on the part of Mr S. However, the Government consider that the substance of these references is not such as to give grounds for claims that the applicants' privacy had been breached to such a serious and disproportionate extent as to constitute a violation of Article 8 (Art. 8) of the Convention. As regards the telephone conversation of 30 April 1994, the Government submit that the participation of the second applicant in this conversation was not evident at the relevant time. The second applicant's name was not mentioned during this conversation and even if the authorities had identified the telephone number at issue as that of the second applicant it still could have been possible that the conversation had been conducted with another person. The Government submit that on more than one occasion in the official reports a caller is referred to as "NN" even though the number has been traced, if it is not clear from the conversation to whom the first applicant was talking. Moreover, without knowing the identity of the caller, the subject of the conversation was not such that the investigating judge could or should have known that it was a conversation between the first and the second applicants. The Government are therefore of the opinion that the interference with the applicants' rights under Article 8 para. 1 (Art. 8-1) of the Convention was justified under paragraph 2 of this provision. The applicants contest the Government's arguments as to the exhaustion of domestic remedies. As regards the pending criminal proceedings, the applicants submit that the Supreme Court cannot examine the compatibility of the telephone tapping at issue with the Convention as the tapping did not take place in the context of these proceedings and as the tapped telephone conversations have not been used in evidence by the Court of Appeal in these proceedings. Furthermore, the investigation in the course of which the first applicant's telephone conversations were tapped did not result in any criminal proceedings and their request to reopen the preliminary judicial investigation was rejected by the Regional Court on 8 June 1995. According to the applicants there was no further remedy available to them in respect of the investigation that did not result in the institution of criminal proceedings. As to the Government's reference to Article 6:162 of the Civil Code, the applicants submit that such proceedings are concerned with compensation for material damage suffered on account of an act by the authorities. It is not the aim of proceedings under the Civil Code to challenge a decision before a higher criminal court. As to the substance of their complaint under Article 8 (Art. 8) of the Convention, the applicants maintain that the telephone tapping at issue violated their rights under this provision. They argue that the rules on telephone tapping do not entail an element of foreseeability in that it was not possible for them to foresee that their conversations could be tapped and that only about one year after the opening of the preliminary judicial investigation No. 439-III-94 was the first applicant informed of the existence of this investigation against him. Moreover, in the light of information available to the investigating authorities at the relevant time, the applicants submit that the alleged justification for the tapping, i.e. the prevention of disorder or crime, did not exist or in any event had ceased to exist when the tapping at issue occurred in that there were no reasonable suspicions against the first applicant. The applicants further submit that the tapping at issue cannot be regarded as necessary, reasonable and proportionate. The investigating authorities did not make a correct assessment of the necessity to tap the first applicant's telephone conversations in the light of the information already at their disposal, the tapping interfered with both applicants' privacy and it also breached the principle that conversations between a suspect and his lawyer are privileged; contrary to the applicable rules of tapping, the investigating judge Mr S. failed to have the references to the telephone conversations between the applicants removed from the transcripts. As to their conversation of 30 April 1994, the applicants submit that the mere fact that the telephone number called by the first applicant was that of the second applicant constitutes sufficient reason not to record this conversation. Moreover, it could in any event be inferred from the contents of this conversation, in particular the reference to a reconstruction, that it was a conversation between the first applicant and his lawyer. As regards the question whether the applicants have duly exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, the Commission recalls that the obligation to exhaust domestic remedies requires only that an applicant make use of remedies likely to be effective and adequate, that this rule does not require the use of a remedy which clearly lacks any prospect of success and that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf. No. 23413/94, Dec. 28.11.95, D.R. 83, p. 31). The Commission notes that the case-law of the Netherlands Supreme Court referred to by the Government involves compensation awarded for material damage arising out of police actions which later appear to have been founded on groundless suspicions. The situation in the present case does not concern a situation in which material damage has been inflicted by the investigating authorities. As the Government have not referred to any case-law under Article 6:162 of the Civil Code in connection with interception of communications in cases which have not resulted in the institution of criminal proceedings, the Commission is not convinced that the remedy suggested by the Government can be regarded as a remedy which should be exhausted for the purposes of Article 26 (Art. 26) of the Convention as to the lawfulness of telephone tapping. As to the substance of the applicants' complaint under Article 8 (Art. 8) of the Convention, the Commission recalls that telephone communications are covered by the notion of "private life" and "correspondence" within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention (cf. Eur. Court HR, Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, para. 26; Huvig v. France judgment of 24 april 1990, Series A no. 176-B, p. 52, para. 25; and A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 49, para. 37). The Commission finds that the tapping of the two telephone lines at issue constituted an interference by a public authority with the first applicant's right to respect for his private life and correspondence. The same applies to the second applicant, insofar as the tapped conversations between the first applicant and him were mentioned in the written transcripts. Such an interference will contravene Article 8 (Art. 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 (cf. Eur. Court HR, Domenichini v. Italy judgment of 15 November 1996, Reports 1996-V, p. 1799, para. 28). A further element to be considered is that the second applicant acted as the first applicant's lawyer which in principle renders their contacts privileged (cf. Eur. Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, p. 18, para. 18). As regards the question whether this interference was "in accordance with the law", the Commission recalls that this expression does not only imply compliance with domestic law, which is primarily a matter for the national courts to determine, but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with the rights protected by Article 8 (Art. 8) of the Convention (cf. Eur. Court HR, Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1017, para. 49). The Commission further recalls that, as regards the compatibility of rules on secret surveillance with Article 8 (Art. 8) of the Convention, the Court has accepted that the possibility of improper action by a negligent official can never be completely ruled out whatever the system. Relevant for the purposes of Article 8 (Art. 8) of the Convention are the likelihood of such action and the safeguards provided to protect against it (Eur. Court HR, Klass and Others v. Germany judgment of 6 September 1978, Series A No. 28, p. 27, para. 59). The Commission recalls that it has previously examined the Dutch rules on telephone tapping as contained in, inter alia, Article 125f-h of the Dutch Code of Criminal Procedure and found these rules sufficiently precise to be considered as "law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention (cf. No. 21207/93, Dec. 30.11.94, D.R. 79, p. 31). The Commission finds no reason to take a different view in the present case. Moreover, the Commission finds no elements in the present case which would create doubts as to whether the conditions laid down in Article 125f-h of the Code were satisfied in the present case, namely that telephone tapping was needed for the purposes of a preliminary judicial investigation against the first applicant on suspicion of involvement in a criminal offence and that it was likely that the first applicant would use the telephone line which was to be tapped. As to the failure to delete references to conversations between the first applicant and the office of his lawyer from the transcripts, the Commission observes in the first place that the Court of Appeal held that the contents of the recorded conversation between the applicants of 30 April 1994 was not of such a nature that the investigating judge Mr S., the public prosecutor or the police involved knew or should have understood that this was a conversation between the first applicant and his lawyer. The Commission cannot find this conclusion to be unreasonable or arbitrary. As to the remaining contacts between the applicants recorded in the transcripts, the Commission observes that the Court of Appeal held that these conversations had no relevance to the criminal proceedings brought against the first applicant and that it expressly acknowledged the privileged nature of the contacts between the first applicant and his lawyer and further acknowledged that the investigating judge Mr S. had been negligent in ensuring respect for the requirements of Article 125h of the Code of Criminal Procedure but rejected the allegation that he had done so intentionally. Considering that the negligence was noted and acknowledged by the Court of Appeal in the present case and that the transcripts were not used in and did not give rise to criminal proceedings brought against the first applicant, the Commission accepts that the judicial control exercised by the Court of Appeal in the present case, albeit in the nature of an indirect control, constituted an adequate and sufficient protection for the purposes of Article 8 (Art. 8) of the Convention as regards negligence on the part of Mr S. in the supervision of the telephone tapping at issue. The question whether or not these suspicions against the first applicant were reasonable and sufficient in the light of information held by the investigation authorities at the time Mr S. authorised the tapping of the first applicant's telephone conversations is a matter which in principle lies in the discretionary powers of the national judicial authorities. Moreover, the Commission notes that, on this point, the Court of Appeal held that the alleged absence of a reasonable suspicion was not supported by the facts. In these circumstances the Commission sees no reason to call into question the findings of the national judicial authorities and accepts that the decision to authorise the tapping of the first applicant's telephone conversations pursued the legitimate aim of prevention of disorder or crime within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The Commission finally considers that the tapping of the telephone conversations at issue, the first applicant being a suspect of a serious criminal offence, can reasonably be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. It follows that the conditions laid down in Article 8 para. 2 (Art. 8-2) of the Convention were satisfied and that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The first applicant complains that the tapping of his conversations with the second applicant was contrary to his rights under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention in that it affected the effective exercise of his defence rights. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads: "Everyone charged with a criminal offence has the following minimum rights: ... c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ..." The Commission notes that the first applicant was under suspicion of having killed one or two persons in May 1993 and that, on the basis of this suspicion, the investigating judge on 7 April 1994 opened a preliminary judicial investigation under No. 439-III-94, which included the interception of the first applicant's telephone conversations. The Commission further notes that this investigation was closed on 10 April 1995 and that it did not lead to the institution of any criminal proceedings against the first applicant. For the purposes of Article 6 (Art. 6) of the Convention, the Commission considers that the opening of a preliminary judicial investigation which involves the interception of telephone conversations of a suspect does not, as such, constitute a "criminal charge" within the meaning of this provision (cf. No. 22942/93, Dec. 18.5.95, unpublished). It follows that this part of the complaint falls outside the scope of Article 6 (Art. 6) of the Convention. Insofar as it is alleged that the interception of the telephone conversations at issue was connected to the criminal proceedings in which the Court of Appeal convicted and sentenced the applicant on 22 January 1996, the Commission notes that the Court of Appeal, when it convicted the first applicant in these proceedings, did not consider or use in evidence the tapped telephone conversations. The Commission further notes that the alleged connection between the interception of the conversations between both applicants and the criminal proceedings currently pending before the Supreme Court have been extensively debated and examined in the adversarial proceedings before the Court of Appeal. In its judgment of 22 January 1996, the Court of Appeal did not find that this alleged connection had been made plausible after having noted, inter alia, that the public prosecutor in these proceedings was not the same person as the public prosecutor in the investigation No. 439-III-94. The Commission recalls in the first place that in determining the fairness of criminal proceedings, it must examine them as a whole. Such an examination is in principle not possible if the proceedings are still pending (cf. No. 17083/90, Dec. 8.4.91, D.R. 71, p. 269). The Commission notes that in the present case, the first applicant's appeal in cassation is currently still pending before the Supreme Court. However, as an appeal in cassation is limited to points of law, the Commission accepts that the factual finding of the Court of Appeal that the telephone tapping had no link with nor any bearing on the criminal proceedings against the first applicant is not a matter which the Supreme Court could review in cassation proceedings. Whether or not the Court of Appeal appraised the evidence on this point correctly is a question which lies beyond the competence of the Commission under the terms of Article 19 (Art. 19) of the Convention. Noting that in the proceedings before the Court of Appeal, the defence was given ample opportunity to argue this point and to submit whatever it found relevant in this context, the Commission finds no basis for a finding that in this respect the first applicant's defence rights under Article 6 para. 3 (Art. 6-3) of the Convention were not complied with. It follows that, insofar as the present complaint falls within the scope of Article 6 (Art. 6) of the Convention, it must be rejected for being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. The first applicant also complains that his detention was not in accordance with the requirements of Article 5 (Art. 5) of the Convention. The Commission notes that the first applicant's complaint under Article 5 (Art. 5) of the Convention, which guarantees the right to liberty and security of person, has remained fully unsubstantiated. The Commission has found no indication in the case-file that the first applicant's detention was contrary to Article 5 (Art. 5) of the Convention. It follows that this complaint must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION INADMISSIBLE. M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission
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