AS TO THE ADMISSIBILITY OF
Application No. 20555/92
by Theodorus Wilhelmus Henricus VAN PELT
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 19 August
1992 by Theodorus Wilhelmus Henricus VAN PELT against the
Netherlands and registered on 28 August 1992 under file No.
20555/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
18 June 1993 and the observations in reply submitted by the
applicant on 25 September 1993;
Having deliberated;
Decides as follows:
THE FACTS
1. Particular circumstances of the case
The applicant is a Dutch citizen, born in 1953 and at
present detained at Maastricht. He is represented before the
Commission by
Mr. G. Spong, a lawyer practising in The Hague.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In the course of a preliminary judicial investigation on the
basis of the suspicion that the applicant was involved in drug
trafficking, the investigating judge (rechter-commissaris)
authorised the tapping of the applicant's telephone. His
telephone was tapped from 8 January 1987 until 31 October 1988.
The facts in the following two paragraphs are disputed
between the parties.
According to the Government, the investigating judge
prolonged his authorisation 21 times, as every authorisation was
valid for the period of one month, and each time upon request by
the public prosecutor. To substantiate that a prolongation was
urgently required in the interest of the criminal investigation,
the public prosecutor appended an official police report to each
request.
According to the applicant, several decisions to prolong the
tapping authorisation were not based on a request by the public
prosecutor but on a procès-verbal drawn up by a police officer,
which contained a statement about the desirability of a tapping
order. There were also some decisions on prolongation which were
based neither on a request by the public prosecutor nor on a
procès-verbal by the police.
On 27 July 1989 the Regional Court (Arrondissementsrecht-
bank) of 's-Hertogenbosch sentenced the applicant for drugs
offences to sixteen years' imprisonment. On 11 October 1990, the
Court of Appeal (Gerechtshof) of 's-Hertogenbosch quashed the
Regional Court's judgment and sentenced the applicant for drugs
offences to five years' imprisonment. The applicant's subsequent
appeal in cassation was, except as regards the legal
qualification of one of the offences, rejected on 10 March 1992
by the Supreme Court (Hoge Raad).
In the course of the hearing on 19 September 1990 before the
Court of Appeal the applicant raised an issue of inadmissibility
of the prosecution:
"(...) in verband met het feit dat de termijn, gedurende welke de telefoon van verdachte is getapt, steeds is verlengd zonder dat uit de stukken blijkt waarom." "(...) in connection with the fact that the period, during which the telephone of the suspect has been tapped, has continuously been prolonged, whereas it does not appear from the file why." After having adjourned the hearing and deliberated, the Court rejected this objection finding: "(...) dat uit de processtukken blijkt dat de rechter- commissaris telkenmale tot de verlenging van de termijn, gedurende welke de telefoon van verdachte kon worden getapt, heeft beslist en redelijkerwijze heeft kunnen beslissen en dat het beroep op de niet- ontvankelijkheid daarom wordt verworpen." "(...) that it appears from the case-file that the investigating judge each time decided and could reasonably decide to prolong the period, during which the suspect's telephone could be tapped, and therefore rejects the request for inadmissibility." Before the Supreme Court the applicant argued that these reasons were insufficient. He referred to the Guidelines regarding Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken), issued on 2 July 1984, and pointed out that according to these Guidelines a request for prolongation of a tapping order shall be made in writing and include reasons. Moreover an interim report on telephone tapping shall be made to the public prosecutor (officier van justitie) and the investigating judge already after two weeks. The applicant stated that it did not appear from the file that those rules had always been respected in the present case. It was therefore not understandable how the Court of Appeal had been able to conclude that the investigating judge had always, for a period of almost two years, been justified in prolonging the tapping authorisation. The applicant further pointed out that several decisions to prolong the tapping authorisation were not based on a request by the public prosecutor but on a procès-verbal drawn up by a police officer, which contained a statement about the desirability of a tapping order. There were also some decisions on prolongation which were based neither on a request by the public prosecutor nor on a procès-verbal by the police. Moreover, the applicant submitted that the rule in the Guidelines about interim reports every second week had not been respected. Reference was made to the judgments of the European Court of Human Rights in the Kruslin and Huvig cases (judgments of 24 April 1990, Series A no. 176 A and B), according to which the national law in this area must satisfy certain quality requirements, one of them being that the tapping must be limited in time and be subjected to certain controls. The Supreme Court, in its rejection of this ground of appeal, stated as follows: "The Court of Appeal, by rejecting the ground of defence, as stated above under (...), has found on the basis of the relevant documents that the investigating judge had prolonged on sufficient grounds the period during which telephone conversations could be tapped. Consequently, the Court of Appeal, without violating any legal rule such as in particular the Convention rules referred to in the ground of appeal, has rejected the defence on grounds which can justify this decision. The Court of Appeal was not obliged to give further reasons. In this respect the ground of appeal is therefore unfounded. Insofar as the ground of appeal implies that the case- file creates a direct and serious suspicion that the Guidelines referred to in the ground of appeal have not been respected, this cannot lead to cassation, already because these Guidelines cannot be regarded as 'law' within the meaning of Section 99 of the Act on the Judicial Organisation, as they have not been duly published." 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. According to Sections 125 g and h telephone tapping may only be effected in regard to offences for which detention on remand (voorlopige hechtenis) may be imposed, i.e. offences of a certain gravity. The tapping may only concern telephone conversations in which the suspect is likely to participate, and it may only be ordered where the investigation urgently requires it. It must be authorised by the investigating judge. Furthermore, a record of the telephone tapping must be prepared within 24 hours. Records 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. The Code of Criminal Procedure contains no provision on the period for which telephone tapping may be carried out. The Guidelines regarding Interception of Telephone Conversations of 2 July 1984 indicate that a request for authorisation for telephone tapping shall concern a period of not more than four weeks. A request for prolongation shall also concern a period not exceeding four weeks. After two weeks the responsible police officer shall submit an interim report to the public prosecutor and the investigating judge. The 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. A copy of the text of the Guidelines can be obtained by any interested person upon request and its text has been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989. According to Dutch case-law, the courts may disregard evidence as unlawfully obtained when it has been obtained via telephone conversations which have been tapped after a certain date determined by the court (Gerechtshof Amsterdam, judgment no. 1575/87 of 12 November 1987 and judgment no. 1205/91 of 8 July 1991). Section 99 of the Act on the Judicial Organisation (Wet op de Rechterlijke Organisatie) contains the grounds on which the Supreme Court may quash judicial acts and decisions. One of these grounds is a violation of the law (schending van het recht). COMPLAINT The applicant complains of a violation of Article 8 of the Convention. He argues that if, as the Supreme Court has found, the Guidelines of 2 July 1984 are not to be regarded as "law", Dutch legislation on telephone tapping does not satisfy the requirement "in accordance with the law" of Article 8 para. 2. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 19 August 1992 and registered on 28 August 1992. On 31 March 1993, the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application. The Government's observations were submitted on 18 June 1993 and the applicant's observations in reply were submitted on 25 September 1993. THE LAW The applicant alleges a violation of Article 8 (Art. 8) of the Convention. He submits that if, as the Supreme Court has found, the Guidelines of 2 July 1984 are not to be regarded as "law", Dutch legislation on telephone tapping does not satisfy the requirement "in accordance with the law" of Article 8 para. 2 (Art. 8-2). Article 8 (Art. 8) of the Convention, insofar as relevant, reads: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society (...) for the prevention of disorder or crime (...)." The Government are of the opinion that the tapping of the applicant's telephone conversations was a measure which was in accordance with the law, since it complied with Sections 125 g-h of the Code of Criminal Procedure. The measure was also necessary in a democratic society for the prevention of disorder or crime, since the investigation concerned drugs offences which constituted a serious violation of the legal order. The Government submit that the telephone tapping, as authorised by the investigating judge, took place from 8 January 1987 to 31 October 1988 in the course of a preliminary judicial investigation against the applicant. As every authorisation was valid for the period of one month, the investigating judge prolonged his authorisation 21 times, each time upon request by the public prosecutor. To substantiate that a prolongation was urgently required in the interest of the criminal investigation, the public prosecutor appended an official police report to each request. The telephone tapping in this case was thus in full conformity with Sections 125 g-h of the Code of Criminal Procedure and the Guidelines regarding Interception of Telephone Conversations of 2 July 1984. The Government finally submit that the Guidelines, which are available to the general public, have been accepted in Dutch case-law and that in practice they are observed by the Dutch investigating judges. The applicant submits in reply that the current Dutch tapping regulations are generally considered not to comply with Article 8 (Art. 8) of the Convention, in particular as they do not specify a strict time-limit on telephone tapping. The Supreme Court does not regard the Guidelines, which contain time-limits, as constituting "law" within the meaning of Section 99 of the Act on the Judicial Organisation, as they have not been duly published. Consequently, the Guidelines do not constitute "law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention because of lack of "accessibility". It is obvious that, as the Guidelines are not considered as "law", the judge is not obliged to apply them, nor is it possible to examine the actual tapping in the light of these rules in cassation proceedings. The applicant further argues that in order to protect an accused against endless telephone tapping at random, the investigating judge should have made it clear in a reasoned decision why, when the principles of proportionality and subsidiarity were balanced against the information already obtained from the investigation, continuation of tapping outweighed the privacy of the accused. The argument of the Government that the Guidelines were known to the investigating judge and that the latter therefore acted in accordance with them is not tenable. The applicant considers that the procedure failed to comply with the Guidelines on various points. 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 (Eur. Court H.R., Huvig judgment of 24 April 1990, Series A no. 176-B, p. 52, para. 25 and No. 10862/84, Dec. 6.3.86, D.R. 46 p. 123). The telephone tapping at issue constituted an "interference by a public authority" with these rights. The question arises whether the interference complained of was justified under para. 2 of Article 8 (Art. 8-2) of the Convention, namely whether it was "in accordance with the law" and necessary in a democratic society for one or more of the legitimate aims referred to in this provision. The Commission recalls that, since telephone tapping represents a serious interference with private life and correspondence, it must be based on a "law" that is precise and that it is essential to have sufficiently detailed rules on the subject (Eur. Court H.R., Kruslin judgment of 24 April 1990, Series A no. 176-A, p. 23-24, paras. 33 and 35). The Commission notes that there are rules about telephone tapping in Sections 125 f-h of the Dutch Code of Criminal Procedure. These rules specify, inter alia, the category of offences which may give rise to telephone tapping and also contain various safeguards regarding, in particular, which telephones may be tapped and about the records of the measures taken. Moreover, an authorisation by the investigating judge is required. It is true that the Code of Criminal Procedure does not regulate the period for which telephone tapping may be authorised. However, under the Guidelines regarding Interception of Telephone Conversations, a request for authorisation for telephone tapping shall concern a period of not more than four weeks, and a request for prolongation shall also concern a period not exceeding four weeks. These Guidelines are not a binding law under the Dutch legal system. The Commission finds that the basic conditions for telephone tapping in the Netherlands are laid down in the Code of Criminal Procedure, which is undoubtedly a law within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The fact that the periods for which telephone tapping may be authorised are not regulated by law but only appear from non-binding guidelines does not mean, in the Commission's opinion, that there was in the present case a lack of a sufficient legal basis for the tapping of the applicant's telephone. Moreover, the Commission finds no reason to doubt that this tapping was effected in accordance with the applicable law. The Commission further considers that the telephone tapping pursued a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention, namely the prevention of crime. Moreover, having regard to the fact that the applicant was suspected of serious criminal offences, the interference could reasonably be considered necessary in a democratic society for that aim. It follows that the interference with the applicant's private life and correspondence was justified under Article 8 para. 2 (Art. 8-2) of the convention and that the application is 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. Secretary to the Second Chamber President of the Second Chamber (K. ROGGE) (S. TRECHSEL)
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