AS TO THE ADMISSIBILITY OF
Application No. 22788/93
by S.B.V.M.
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 June 1993
by S.B.V.M. against the Netherlands and registered on 19 October
1993 under file No. 22788/93;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
1. Particular circumstances of the case
The applicant is a Chilean citizen, born in 1954 and at
present serving a prison sentence in the Netherlands. Before the
Commission he is represented by Ms. E. Prakken, a lawyer
practising in Amsterdam.
The facts as presented by the applicant may be summarised
as follows.
On 1 August 1990 the applicant was arrested in Amsterdam as
suspected of having traded in narcotic drugs. At the time of his
arrest he was carrying a bag containing about two kilogrammes of
cocaine.
On 13 March 1991 the Regional Court
(Arrondissementsrechtbank) of Amsterdam convicted him of
narcotics offences and sentenced him to five years' imprisonment.
The applicant filed an appeal against this judgment with the
Court of Appeal (Gerechtshof) of Amsterdam. On 8 July 1991,
after having quashed the judgment of 13 March 1991, the Court of
Appeal found the applicant guilty of narcotics offences and
increased the sentence to seven years' imprisonment. The
applicant's appeal in cassation was rejected by the Supreme Court
(Hoge Raad) on 15 December 1992.
The evidence against the applicant consisted, inter alia,
of intercepted telephone conversations. Following a request by
the public prosecutor, the investigating judge (rechter-
commissaris) had authorised the telephone tapping as from 22 May
1990 by decisions valid for one month, which had been
successively prolonged. The telephone tapping had been going on
until the applicant was arrested on 1 August 1990.
The basis for the authorisation of the telephone tapping was
a note signed by the police inspector T. Schmidt, dated 18 May
1990, in which three persons, including the applicant, are
mentioned as being involved in drugs trade and four telephone
numbers are indicated as being of interest for interception. In
the course of the criminal proceedings against the applicant Mr.
Schmidt was examined as a witness before the Regional Court and
the Court of Appeal.
The applicant argued before the Dutch courts that police
inspector Schmidt's note contained incorrect information as well
as information of doubtful origin. In particular, he stated that
his own secret telephone number could not have been obtained in
a lawful manner. For these reasons, the telephone tapping was
unlawful and the prosecution, which was based on its results,
should be considered inadmissible. Moreover he argued that Dutch
rules on telephone tapping did not satisfy the requirements of
Articles 8 and 13 of the Convention and that he had not been able
to become acquainted with the recorded telephone conversations
in which he participated and could not verify the information on
the basis of which the tapping of his telephone had been ordered.
The applicant further stated before the Dutch courts that
in any case the evidence invoked against him had been obtained
in an unlawful manner and should therefore not be admitted.
All these arguments were rejected by the Dutch courts at all
levels. The Supreme Court accepted the Court of Appeal's finding
that the police had lawfully obtained the applicant's address and
telephone number and that there was no indication that the
evidence against the applicant had been unlawfully obtained. The
Supreme Court further considered that the Court of Appeal had
correctly held that a general complaint about the incompatibility
of the Dutch rules on telephone tapping with the Convention
without any specific complaint about the factual application of
these rules cannot result in the inadmissibility of the
prosecution. As regards the applicant's complaint that he had
not been able to become acquainted with the recorded telephone
conversations in which he participated, the Supreme Court noted
that the applicant had never requested the Court of Appeal
to be allowed to listen to the recorded conversations and that
a verification of the information forming the basis for an
interception of telephone conversations can be adequately made
by examining the responsible police officer as a witness before
the court.
2. Relevant domestic law and practice.
Sections 125 f-h of the Dutch Code of Criminal Procedure
(Wetboek van Strafvordering) contain rules about telephone
tapping.
Section 125 g of the Code of Criminal Procedure provides as
follows:
(Translation)
"During the preliminary judicial investigation the
investigating judge may, if the investigation urgently so
requires and if it concerns an offence which allows for
detention on remand, authorise the investigating official
to tap or record telephone conversations where there is a
suspicion that the suspect participates in them. A procès-
verbal of the tapping or recording shall be drawn up within
forty-eight hours."
Pursuant to Section 125 h of the Code of Criminal Procedure
records of tapped conversations without importance for the
investigation must be destroyed as soon as possible by order of
the investigating judge. The public prosecutor must also destroy
records of telephone tapping unless he asks for a preliminary
investigation within a month from the time at which he received
the information concerned.
COMPLAINTS
1. The applicant alleges a violation of Article 6 of the
Convention on the ground that the note of 18 May 1990, which was
the basis of the decision to permit telephone tapping, contained
incorrect information or information derived from unknown
sources, which could not be verified. He suggests that the
information had been obtained through unlawful police
investigations but that he is unable to have this confirmed,
since the case was not referred back to the Investigating Judge.
However, where a criminal charge is based on unlawful
investigations, the prosecution may be inadmissible under Dutch
law, and in any case unlawfully obtained evidence is inadmissible
under Dutch law. On this basis, he considers that the criminal
proceedings against him were unfair and contrary to Article 6.
2. The applicant further alleges a violation of Article 8 of
the Convention, on the one hand because the Dutch rules on
telephone tapping are not sufficiently precise to be accepted as
"law" within the meaning of Article 8 para. 2 and on the other
hand because in the present case the decision to undertake
telephone tapping was based on the note of 18 May 1990 which
contained incorrect information or information of uncertain
origin. Consequently, it has not been established that the
conditions of Section 125 g of the Code of Criminal Procedure
were satisfied in the present case, in particular as to whether
telephone tapping was urgently needed or whether there was a real
suspicion that the applicant would participate in telephone
conversations on the telephone lines in question.
3. The applicant finally complains of a violation of Article
13 of the Convention in that there is no effective control of the
telephone tapping as a result of the practice to collect and
store the data obtained from tapped telephone conversations
without indicating their origin.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of
the Convention in that the telephone tapping, which was the basis
of the criminal proceedings against him, had been based on
unverifiable and incorrect or dubious information.
Article 6 para. 1 (Art. 6-1) of the Convention provides,
insofar as relevant:
"In the determination of (...) any criminal charge against
him, everyone is entitled to a fair and public hearing
(...) by an independent and impartial tribunal (...)."
The Commission notes that the applicant argued before the
domestic courts that the prosecution against him and the evidence
upon which he was convicted were inadmissible, since the
telephone tapping had been ordered on the basis of incorrect or
unreliable information. However, the applicant's argument was
not accepted by the Dutch courts. The Commission finds no reason
for considering that the domestic courts made an unfair
assessment of the evidence in this respect.
The Commission finds no other ground for questioning the
fairness of the criminal proceedings against the applicant.
Consequently, the applicant's complaint of a violation of
Article 6 (Art. 6) of the Convention must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further alleges a violation of Article 8
(Art. 8) of the Convention on two grounds, namely on the one hand
because the Dutch rules on telephone tapping are not sufficiently
precise to be accepted as "law" and on the other hand because in
the present case the telephone tapping had been authorised on the
basis of incorrect or doubtful information contained in the note
of 18 May 1990.
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 Commission recalls that according to the case-law of the
Convention organs, 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 (Eur. Court
H.R., Huvig judgment of 24 April 1990, Series A no. 176 - B, p.
52, para. 25).
Consequently, the Commission finds that there was in the
present case an interference with the applicant's private life
and correspondence.
The question which remains to be answered is therefore
whether this measure was justified under paragraph 2 of Article
8 (Art. 8-2).
The Commission has already in a previous case found that
Sections 125 f-h of the Dutch Code of Criminal Procedure are
sufficiently precise to be considered as "law" within the meaning
of Article 8 para. 2 (Art. 8-2) (No. 18395/91 Lupker and others
v. the Netherlands, Dec. 7.12.92, unpublished). It finds no
reason to take a different view in the present case.
Moreover, there is, in the Commission's view no element
which would create doubts as to whether the conditions laid down
in Section 125 g of the Code of Criminal Procedure were satisfied
in the present case, namely that telephone tapping was urgently
needed for the purposes of the investigation and that there was
a suspicion that the applicant would participate in the tapped
telephone conversations.
It follows that the measure complained of was "in accordance
with the law". Its purpose was "the prevention of crime", and
the Commission considers that the Dutch authorities could
reasonably consider the telephone tapping necessary in a
democratic society for that purpose.
It follows that the conditions laid down in Article 8 para.
2 (Art. 8-2) were satisfied and that this complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
3. The applicant finally complains of a violation of Article
13
(Art. 13) of the Convention in that there is no effective control
of the telephone tapping as a result of the practice to collect
and store the data obtained from tapped telephone conversations
without indicating their origin.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls that, according to the case-law of
the Convention organs, the right under Article 13 (Art. 13) to
an effective remedy exists only when there is an arguable claim
that the Convention has been violated.
In the present case, assuming that the applicant did raise
this complaint within the six months' time-limit contained in
Article 26
(Art. 26) of the Convention, the Commission has found the
applicant's complaints regarding violations of Articles 6 and 8
(Art. 6, 8) of the Convention to be manifestly ill-founded. It
follows that he has no arguable claim in these respects and that
he can therefore not claim a remedy under Article 13 (Art. 13).
His complaint based on that Article is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy