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VAN VONDEL v. THE NETHERLANDS - 38258/03 [2007] ECHR 871 (25 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/871.html
Cite as:
[2007] ECHR 871,
(2009) 48 EHRR 12
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THIRD
SECTION
CASE OF VAN VONDEL v. THE NETHERLANDS
(Application
no. 38258/03)
JUDGMENT
STRASBOURG
25 October
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In
the case of van Vondel v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr L.
Loucaides,
Mrs E. Fura-Sandström,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I.
Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy
Section Registrar,
Having
deliberated in private on 4 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38258/03) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Dutch national, Mr Joost
van Vondel (“the applicant”), on 28 November 2003.
The
applicant was represented by Mr G. Spong, a lawyer practising in
Amsterdam. The Dutch Government (“the Government”) were
represented by their Agent, Mr R.A.A. Böcker, of the Ministry
for Foreign Affairs.
The
applicant alleged a violation of his right to privacy as guaranteed
by Article 8 of the Convention in that (telephone) conversations he
had held with another person, Mr R., had been recorded by the latter
with devices made available by the National Police Internal
Investigation Department (rijksrecherche).
On
23 March 2006 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the recording of
the applicant's conversations with Mr R. to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1954 and lives in Leeds.
Between
1 January 1989 and 1 August 1994, he worked as a police officer and,
in this capacity, acted as a “runner”
for the Kennemerland Regional Criminal Intelligence Service
(Regionale Criminele Inlichtingendienst; “RCID”).
A. The parliamentary inquiry into criminal
investigation methods
On
26 January 1994 the Minister of Justice (Minister van Justitie)
and the Minister of the Interior (Minister van Binnenlandse Zaken)
informed the Lower House of Parliament (Tweede Kamer der
Staten-Generaal) of the disbandment in December 1993 of the
North-Holland/Utrecht Interregional Criminal Investigation Team
(Interregionaal Recherche Team; “IRT”) on account
of deployment of controversial criminal investigation methods in the
fight against organised crime (for further details, see Van
Vondel v. the Netherlands (dec.), no. 38258/03, ECHR
2006). This triggered off a parliamentary inquiry (parlementaire
enquête) into criminal investigation methods used in the
Netherlands and the control exercised over such methods.
On
6 December 1994 the parliamentary commission of inquiry on criminal
investigation methods (parlementaire enquêtecommissie
opsporingsmethoden; “PEC”) was instituted. It was
composed of nine Lower House parliamentarians.
The
PEC conducted an extensive inquiry, which lasted for about one year.
Between January and May 1995 documents were collected and examined
and preliminary interviews with more than 300 persons were held. The
PEC had subsequent informal, confidential “private
conversations” (besloten gesprekken) with a total of 139
persons – of which verbatim records were drawn up – in
order to broaden its understanding of the issues involved, to select
the persons and experts to be heard in public, and to prepare these
public hearings. On the basis of these documents, interviews and
conversations, the PEC made a selection of persons whom it wished to
hear. Those interviews and “private conversations”, which
were all held on a voluntary basis, were of a confidential nature and
the PEC gave an undertaking that, unless consent was given by the
person concerned, it would not use any direct citations.
Between
6 September and 9 November 1995, the PEC held 93 public hearings
during which 88 persons gave evidence, including the applicant who
was heard twice. These public hearings were directly broadcast on
national television. It did not hold any witness or expert hearings
in camera.
The
PEC presented its final report containing its findings and
recommendations on 1 February 1996. It concluded that there was a
crisis in the field of criminal investigation which comprised three
main elements, namely the absence of adequate legal norms for
investigating methods used in respect of organised crime, a criminal
investigation system that was not functioning properly in that it
involved too many separate organisations with little or no
co-ordination of their activities, resulting in unclear
decision-making as regards competences and responsibilities, and
problems with power structures in that the prosecution department did
not always have or exercise sufficient authority over the police.
The
PEC report has had a great impact on the organisation of criminal
investigation in the Netherlands and has formed the basis of a number
of changes to the Netherlands Code of Criminal Procedure, including
the Preliminary Judicial Investigations (Review) Act (Wet
herziening gerechtelijk vooronderzoek) and the Special
Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden)
which entered into force on 1 February 2000, amending the legal rules
on investigative powers and coercive measures in criminal
investigations.
B. The fact-finding inquiry by the “Fort-team”
In
April 1995, with the permission of the Minister of Justice and under
the responsibility and direction of the public prosecution service
(Openbaar Ministerie), a special team of the National Police
Internal Investigation Department (rijksrecherche), the
so-called “Fort-team”, started a broad fact finding
inquiry into the manner in which the Kennemerland Regional Criminal
Intelligence Service (Regionale Criminele Inlichtingendienst;
”RCID”) operated between 1990 and 1995, in particular its
use of special investigation methods which were not dissimilar to
those having been used by the disbanded North-Holland/Utrecht IRT.
The
mission of the Fort-team was: “To carry out, as thoroughly as
possible, a fact-finding inquiry into the activities, functioning and
working methods of the Kennemerland RCID from 1990 to date. In so
doing, particular attention must be paid to the use of special
investigation methods. In addition, the responsibilities of both the
police and the public prosecution service for the RCID and RCID
operations must be mapped out. The inquiry is to result in a report
containing findings and recommendations.”
It
was agreed with the Minister of Justice and the Minister of the
Interior that the Chair and Vice-Chair of the PEC would be kept
informed from the outset of this inquiry of the findings of the
Fort-team. It was to be a fact-finding exercise, primarily aimed at
drawing lessons from facts found.
The
functioning of the Kennemerland RCID during the period under
investigation by the Fort-team had already been the subject of a
number of previous inquiries by the Kennemerland regional police
force as well as by the National Police Internal Investigation
Department. The results of the previous inquiries were incorporated
into those of the Fort-team inquiry, which covered a multitude of
aspects related to the practical functioning of the Kennemerland
RCID, including its involvement in a number of specific activities,
such as a “fruit-juice channel” – a
controlled-delivery channel involving the transport of narcotics
concealed in fruit-juice concentrates.
In
the course of its inquiry, 250 persons gave evidence, 40 of whom more
than once. The persons heard included higher officials of the police
and public prosecution department, police officers involved in
criminal investigations, police informers and other civilians. The
applicant and his former superior Mr L. also gave evidence to the
Fort-team. All persons heard by the Fort-team were given an
undertaking that their statements would not be used, without their
consent, in any criminal investigation.
According
to the final report issued by the Fort-team on 29 March 1996,
it had had contacts – from the start of its inquiry –
with Mr R., a Belgian fruit-juice producer who during the
relevant period had acted as an informer for the Kennemerland RCID
and who had been “run” by the applicant. Mr R. had
contacted the National Criminal Intelligence Service (Centrale
Criminele Inlichtingendienst; “CRI”) in April 1995
and had declared that, since the end of 1991, he had been in contact
with the applicant and subsequently with the latter's colleague Mr L.
From the end of 1991 Mr R. had provided the applicant with
information about the production of fruit-juice concentrates in
Morocco and their transport to the Netherlands. After Mr R. had set
up a fruit-juice factory in Belgium in 1992, he had met Mr L., whom
he initially knew under a pseudonym. At the request of the applicant
and Mr L., Mr R. had set up the fruit-juice factory Delta Rio in
Ecuador. Although the applicant and Mr L. had invested millions of
Netherlands guilders in both the Belgian and Delta Rio factories,
they decided in September 1994 that the Delta Rio factory was to be
closed down and sold. Mr R., who did not understand this decision,
started to distrust the applicant and Mr L. and decided to
inform the CRI about the matter. The CRI subsequently brought Mr R.
into contact with the National Police Internal Investigation
Department.
The
final report of the Fort-team further states that, during its
inquiry, the statements given by Mr R. had as far as possible been
verified by the use of observations, audio devices and documents and
that inquiries had been made as to whether and, if so, why the
applicant and Mr L. had financially supported the factory in
Belgium and had the Delta Rio factory in Ecuador set up.
Although
reports by the National Police Internal Investigation Department are
generally not public, the report of the Fort-team was rendered public
given the attention this inquiry, against the background of the PEC
inquiry, had attracted. Its main conclusions comprised, inter
alia, the following elements:
- the
Kennemerland RCID was to be characterised as a disorganised service,
in which no direction was given and where no substantive control
whatsoever was exercised;
- in
the Kennemerland RCID, basic rules on the “running” of
informers and infiltrators had been breached frequently and on a
large scale;
- the
police force command had seriously fallen short in the exercise of
its responsibility over the RCID in that the commander, his deputy
and the head of the criminal investigation division were not or
hardly aware of the particulars of RCID activities;
- the
scope of the CID work had for a long time been seriously
underestimated by the Haarlem public prosecution department;
-
between 1991 and 1995 the RCID chief L. and his (ex )collaborator
[the applicant] had, with a high degree of probability, spent over
five million Netherlands guilders from an undocumented source, thus
giving rise to the impression that the money had criminal origins;
- the
spending of this money had not been subjected to any form of control;
- the
RCID chief L. had consequently disregarded his duty to inform and
give explanations to his superiors and the public prosecution
department on essential points, and he had intentionally misinformed
his superiors as well as the National Criminal Investigation
Department;
-
since at least 1991 the Kennemerland RCID had used the method of
controlled drug deliveries;
- the
relevant police commanders and public prosecutors had only controlled
the application of this method by the Kennemerland RCID to a limited
extent;
- Mr
L. and the applicant had set up a CID operation in Ecuador wholly
independently (without informing their superiors or the public
prosecution department) and in this so-called “fruit-juice
channel” all rules applicable to CID activities had been
breached;
- the
most plausible explanation for the “fruit-juice channel”
was the wish to set up an infrastructure for controlled narcotics
shipments and it had remained unclear what purpose this channel still
served after the IRT had been disbanded and for what purposes major
investments were still being made;
- the
statements given by Mr L. and the applicant before the PEC about the
funds invested in the “fruit-juice channel” were, on
important points, in contradiction with the findings made in the
inquiry of the National Criminal Investigation Department;
- the
conducting of CID operations abroad (Morocco, Ecuador, the United
Kingdom, Belgium), without informing the foreign authorities, had
violated the sovereignty of these countries, making it subservient to
domestic investigation interests;
- it
had not appeared that killings in the criminal world could be
attributed to the Kennemerland RCID's practice of “running”
informers or to the targeting of such informers;
-
after the IRT's disbandment, on several occasions serious threats
against Mr L. had formed the topic of conversation, but it had
appeared after investigation that there was nothing concrete behind
these threats; yet it was noteworthy that these threats coincided
with moments when Mr L. was called to account explicitly for
far-reaching CID activities;
-
moreover, after having left the police force, the applicant had
maintained contacts with at least four informers and had – in
cooperation with former colleagues – transported drugs through
police-controlled channels and accepted money of criminal origin; and
- no
explanation had been found for a number of actions by Mr L. and the
applicant and they themselves had never given a reasonable
explanation; the question whether they had been active, within the
limits of the rule of law, in fighting crime or, whether,
intentionally or unintentionally, they had participated in that same
criminal activity could not be answered.
C. The proceedings in which the applicant was involved
On
9 October 1995, immediately after Mr L.'s appearance, the applicant
gave evidence under oath at a public hearing before the PEC.
On
30 October 1995, the PEC had a “private conversation”
with Mr R., who was referred to in the verbatim record of this
conversation as “Juice-man” (“Sapman”).
On 2 November 1995, directly after Mr L.'s second appearance,
the PEC also took evidence from the applicant in public for a second
time.
Although,
in the course of its inquiry, the Fort-team had requested the
applicant to give a statement on a number of occasions, he did so
only once, namely shortly before his second PEC hearing, and briefly
in the context of the inquiry into the “fruit-juice channel”,
and refused further cooperation.
On
31 January 1996 the PEC transmitted to the chief public prosecutor of
The Hague a formal record of perjury (proces-verbaal van meineed)
in relation to the applicant and his former superior Mr L.
concerning various parts of their statements before the PEC, in
particular those parts concerning the question of payments to Mr R.
On
an unspecified date, the applicant was ordered to appear before the
Regional Court (arrondissementsrechtbank) of The Hague to
stand trial on charges of repeated perjury before the PEC and of
repeatedly, that is to say, on different occasions between 25 April
1996 and 11 June 1996, having sought to intimidate Mr R. when the
applicant knew or had serious reason to assume that a statement from
him would be sought in the context of the PEC inquiry.
In
its judgment of 8 April 1998, following hearings on 24 and 25 March
1998, the Regional Court convicted the applicant as charged and
sentenced him to six months' imprisonment. Both the applicant and the
prosecution lodged an appeal with the Court of Appeal (gerechtshof)
of The Hague.
In
a judgment of 5 March 2002, following nine hearings held between 14
November 2000 and 19 February 2002 and in the course of which Mr R.
had given evidence to the Court of Appeal on 17 January 2001,
the Court of Appeal quashed the judgment of 8 April 1998, convicted
the applicant of repeated perjury before the PEC (in respect of three
parts of the statements he had made at hearings before the PEC) and
of repeatedly having sought to intimidate the (potential) witness Mr
R. It acquitted the applicant of the remaining charges and sentenced
him to three months' imprisonment, suspended pending a two-year
probationary period.
The
Court of Appeal rejected the applicant's argument that the evidence
in his case had been unlawfully obtained. As regards the inquiry by
the Fort-team, the Court of Appeal noted that the tasks of the
National Police Internal Investigation Department included carrying
out inquiries into the manner in which police officers used their
statutory powers, and that, in accordance with section 19 § 3 of
the 1993 Police Act (Politiewet) in conjunction with section 2
of the Order on the functions of special-duty police officers
(Taakbeschikking bijzondere ambtenaren van politie) of
25 March 1994 (Official Gazette (Staatscourant) 1994, no.
64), the prosecutor general (Procureur-Generaal) can
instruct the National Police Internal Investigation Department to
carry out an inquiry, which may concern acts of an individual police
officer or the functioning of a particular police force unit. After
an extensive analysis of the mission of the Fort-team and the manner
in which its inquiry had evolved, the Court of Appeal found no
reasons for holding that this inquiry should be regarded as a covert
criminal investigation or that, in the course of this inquiry, the
applicant should have been regarded as a criminal suspect in
connection with the “fruit-juice channel”.
The
Court of Appeal also rejected the applicant's argument that the
recording by Mr R. of his (telephone) conversations with the
applicant with technical equipment made available by the National
Police Internal Investigation Department had infringed his right to
privacy under Article 8 of the Convention. It found it established
that, in the course of nine hearing sessions between 2 June 1995 and
7 March 1996, Mr R. had made statements to the Fort-team about
the “fruit-juice channel”, that four face to face
conversations (between April and August 1995) and four telephone
conversations (between July and August 1995) between the applicant
and Mr R. had been recorded by Mr R., that he had done so on a
voluntary basis and with the aid of devices provided by the Fort-team
at Mr R.'s own request as he was initially disbelieved and as he
also wished this for personal safety considerations, that one of the
four recorded telephone conversations only consisted of a recording
of what Mr R. had said, and that only in respect of one
particular conversation had Mr R. received specific instructions as
to what information should be obtained from the applicant, namely an
admission of payments by him to Mr R.
The
Court of Appeal held that, according to domestic case-law, the mere
tape-recording of a (telephone) conversation without the permission
(or knowledge) of the conversation partner did not, in itself, entail
a violation of that conversation partner's right to respect for
privacy; for that to be the case, additional circumstances were
required. In the instant case, the additional circumstances were that
a number of conversations had been recorded, including the
applicant's contributions to those conversations. Furthermore, the
(telephone) conversations had been conducted by the applicant as the
former “runner” of a (former) police informer about
matters having occurred during the period in which the applicant
“ran” Mr R. as informer and the winding-up of that
relationship. As these conversations – in any event on the part
of the applicant – were of an exclusively professional nature
and content, the Court of Appeal held that, in view of domestic
case-law on this point, this allowed no other conclusion than that
the applicant's private life did not come into play in respect of the
recorded (telephone) conversations at issue. It further held that Mr
R.'s recourse to a recording device – and Mr R. had been
entirely free to decide whether or not to activate it as well as to
make the recordings available to the Fort-team – had mainly
been prompted by Mr R.'s need to substantiate his account of the
“fruit-juice channel” in order to be believed. The Court
of Appeal therefore considered that it could not be said that there
had been interference on the part of the authorities in respect of
the recording. It only accepted the existence of such interference in
breach of Article 8 § 1 in respect of the one recorded
conversation for which Mr R. had received explicit instructions, to
the extent that this conversation related to matters falling within
the applicant's sphere of privacy. It did not use that particular
statement in evidence.
In
the opinion of the Court of Appeal, these findings were not altered
by the fact that the Fort-team, for its part, had an interest in
recording the conversations for the purposes of verifying information
relevant to its fact finding inquiry, provided by Mr R., about
the involvement in the “fruit juice channel” of
staff attached to the Kennemerland RCID, the unit forming the object
of the Fort-team inquiry. The Court of Appeal found it relatively
obvious that this verification, in view of the accounts of the
inquiry in subsequent reports, had taken place in the form of
tape-recordings and the preparation of transcripts and, in this
connection, recalled its finding that the inquiry was not to be
regarded as a (covert) criminal investigation.
The
applicant lodged an appeal in cassation with the Supreme Court (Hoge
Raad) in which he raised a total of 15 grievances, including a
complaint – in which he relied inter alia on Article 8
of the Convention – that the Court of Appeal had unjustly
rejected his argument that his right to privacy had been violated on
account of the recording of his (telephone) conversations with Mr R.
The
applicant's appeal in cassation was rejected by the Supreme Court on
8 July 2003. It dismissed the alleged violation of the applicant's
right to privacy, holding:
“The complaint does not provide grounds for
overturning the ruling of the Court of Appeal (kan niet tot
cassatie leiden). Having regard to section 81 of the Judiciary
(Organisation) Act (Wet op de rechterlijke organisatie), no
further reasoning is called for, since the complaint does not give
rise to a need for a determination of legal issues in the interest of
legal unity or legal development.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Netherlands Constitution
Article
10 of the Constitution (Grondwet) of the Kingdom of the
Netherlands provides as follows:
“1. Everyone shall have the right to respect for
his privacy, without prejudice to restrictions laid down by or
pursuant to Act of Parliament.
2. Rules to protect privacy shall be laid down by Act of
Parliament in connection with the recording and dissemination of
personal data.
3. Rules concerning the rights of persons to be informed
of data recorded concerning them and of the use that is made thereof,
and to have such data corrected shall be laid down by Act of
Parliament.”
Article
13 of the Constitution reads:
“1. The privacy of correspondence shall not be
violated except in the cases laid down by Act of Parliament, by order
of the courts.
2. The privacy of the telephone and telegraph shall not
be violated except, in the cases laid down by Act of Parliament, by
or with the authorisation of those designated for the purpose by Act
of Parliament.”
B. The Netherlands Criminal Code
According
to the relevant provisions of the Netherlands Criminal Code (Wetboek
van Strafrecht) as in force at the material time (section
139a-e), it is not a criminal offence when a conversation partner
taps or records a (telephone) conversation with a technical device or
when a conversation partner passes a recording of such a conversation
on to another person. It is further not a criminal offence when a
person makes available to another person a recording device, unless
the former is aware or in all reasonableness should be aware that the
device concerned contains unlawfully made recordings or unlawfully
obtained and stored data.
C. The Parliamentary Inquiries Act
Pursuant
to section 3 § 2 of the 1850 Parliamentary Inquiries Act (Wet
op de Parlementaire Enquête – “the Act”),
all persons residing in the Netherlands are obliged to comply with a
summons to appear before a parliamentary commission of inquiry in
order to be heard as a witness or expert. In case a person fails to
comply with a summons to appear, the commission may issue an order
for the person concerned to be brought before it (bevel tot
medebrenging) within the meaning of section 13 of the Act. The
commission may require such witnesses to take the oath or make a
solemn affirmation that they will state the whole truth and nothing
but the truth (section 8 §§ 1 and 2 of the Act).
Unlike
the situation in criminal proceedings, persons heard by a
parliamentary commission of inquiry do not have the right to remain
silent. The only persons who enjoy the privilege of non-disclosure
before a parliamentary commission of inquiry are those who – by
virtue of their office, their profession or their position –
are bound to secrecy, but only in relation to matters the knowledge
of which has been entrusted to them in that capacity (section 19 of
the Act) or in case disclosure of secret information would entail
disproportionate damage to the exercise of the profession of the
person concerned or to the interest of his or her company or the
company for which he or she works or has worked (section 18 of the
Act).
Section
24 of the Act provides that, with the exception of the situation
referred to in section 25, statements given to a parliamentary
commission of inquiry can never be used in evidence in judicial
proceedings against the person having given such statements or
against any third party. This reflects the principle that the purpose
of a parliamentary inquiry is to find out the truth about facts and
events having taken place in the past and not to determine personal
liabilities under civil or criminal law.
Section
25 of the Act provides, inter alia, that perjury (meineed)
on the part of a witness heard by a parliamentary commission of
inquiry attracts the penalties provided for in the Criminal Code for
giving false testimony in civil proceedings. It further provides that
the written record of the hearing concerned constitutes legal
evidence.
D. The National Police Internal Investigation
Department
Section
43 of the 1993 Police Act (Politiewet) provides:
“1. For tasks determined by the Minister of
Justice, after consultation with the Minister of Internal Affairs,
the Procurator General shall have at his disposal special duty
police officers (bijzondere ambtenaren van politie).
2. The special-duty police officers shall ... be
appointed, promoted, suspended and dismissed by the Minister of
Justice.”
The
main task of the National Police Internal Investigation Department is
to investigate (purported) punishable behaviour of civil servants
which affects the integrity of the administration of justice and/or
that of the public administration. It exercises this task by
conducting either a fact-finding inquiry or a criminal investigation,
depending on the mission given. As a fact-finding inquiry is solely
aimed at obtaining factual clarification, the National Police
Internal Investigation Department cannot avail itself of any
investigative powers (opsporingsbevoegdheden) or coercive
measures (dwangmiddelen) in conducting such an inquiry. On the
other hand, when conducting a criminal investigation, it can use such
powers and measures and a criminal investigation may follow a
fact-finding inquiry.
E. Rules governing surveillance and recording of
telecommunications in criminal investigations
The
rules, as in force at the material time, concerning the interception
and recording of telecommunications by the investigation authorities
in criminal proceedings are set out in the Court's judgment in the
case of M.M. v. the Netherlands, (no. 39339/98, §§
22-28, 8 April 2003) and in its decision on admissibility in the case
of Aalmoes and Others v. the Netherlands (no. 16269/02, 25
November 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
Relying
on Article 8 of the Convention, the applicant complained of a
violation of his right to privacy in that a number of his (telephone)
conversation with Mr R. had been recorded by the latter with
recording devices made available by the National Police Internal
Investigation Department to Mr R. who had also been given suggestions
by the National Police Internal Investigation Department about the
substance of the conversations to be held with the applicant.
Article
8 of the Convention reads as follows:
“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 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 contested that argument.
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The
applicant maintained that there had been a violation of his right to
privacy as guaranteed by Article 8 of the Convention.
The
Government submitted that the authorities did not themselves record
the conversations concerned but that these were recorded by one of
the parties to the conversations. In the Government's opinion, such
cases give rise to State responsibility under the Convention only if
the authorities “made a crucial contribution to the execution
of the scheme” and, in the instant case and unlike the cases of
A. v. France (judgment of 23 November 1993,
Series A no. 277 B, p. 49, § 36) and
M.M. v. the Netherlands (cited above, § 40), it
could not be said that there was either a “crucial
contribution” or a “scheme”.
In
the case at hand, Mr R. recorded various conversations with the
applicant but Mr R. himself decided whether he would record a
conversation and, if so, whether he would hand the tape over to the
National Police Internal Investigation Department. Mr R.'s acts were
based on his wish to demonstrate his own credibility in respect of
the statements given by him in the Fort-team fact-finding inquiry as
well as for personal safety considerations. Against this background,
the Government considered the provision of recording equipment as a
perfectly responsible move on the part of the National Police
Internal Investigation Department. As the recording of the
conversations by Mr R. could not be equated with an investigative act
by a private citizen, the Government submitted that there had been no
interference with the applicant's rights under Article 8 § 1 of
the Convention requiring justification under the second paragraph of
this provision. The Government further added that, in their view, a
strict interpretation of the M.M. v. the Netherlands judgment
would mean that in future the authorities would be unnecessarily
cautious in rendering assistance to members of the public.
The
Court reiterates that the term “private life” must not be
interpreted restrictively. In particular, respect for private life
comprises the right to establish and develop relationships with other
human beings; furthermore, there is no reason of principle to justify
excluding activities of a professional or business nature from the
notion of “private life”. There is therefore a zone of
interaction of a person with others, even in a public context, which
may fall within the scope of “private life” (see Niemietz
v. Germany, judgment of 16 December 1992, Series A no.
251-B, pp. 33-34, § 29; Halford v. the United Kingdom,
judgment of 25 June 1997, Reports of Judgments and Decisions
1997 III, p. 1015, § 42; and P.G. and J.H. v.
the United Kingdom, no. 44787/98, § 56, ECHR
2001 IX).
The
Court is of the opinion that the obtention by the National Police
Internal Investigation Department – for the purposes of an
officially commissioned fact-finding inquiry – of recordings of
(telephone) conversations between the applicant and Mr R. that had
been made by the latter with technical equipment made available for
this purpose by the National Police Internal Investigation Department
constituted an interference with the applicant's private life and/or
correspondence (in the sense of telephone communications) which was
imputable to a public authority. The Court would note that the
recording of private (telephone) conversations by a conversation
partner and the private use of such recordings does not per se
offend against Article 8 if this is done with private means, but that
by its very nature this is to be distinguished from the covert
monitoring and recording of communications by a private person in the
context of and for the benefit of an official inquiry –
criminal or otherwise – and with the connivance and technical
assistance of public investigation authorities. In that respect, the
Court observes that in the present case, although the recordings of
the applicant's conversations were made by Mr R. on a voluntary basis
and for his own purposes, the equipment was provided by the
authorities, who on at least one occasion gave him specific
instructions as to what information should be obtained from the
applicant. In these circumstances, the Court considers that the
authorities “made a crucial contribution to executing the
scheme” and it is not persuaded that it was ultimately Mr R.
who was in control of events. To hold otherwise would be tantamount
to allowing investigating authorities to evade their responsibilities
under the Convention by the use of private agents (see M.M. v.
the Netherlands, cited above, § 40).
It
must therefore be determined whether the interference in the present
case was justified under Article 8 § 2, notably whether it was
“in accordance with the law” and “necessary in a
democratic society” for one or more of the purposes enumerated
in that paragraph.
As
to the question whether the interference was “in accordance
with the law”, the Court reiterates that this expression
requires firstly that the impugned measure should have some basis in
domestic law; it also refers to the quality of the law in question,
requiring that it should be accessible to the person concerned, who
must moreover be able to foresee its consequences for him, and be
compatible with the rule of law (see, for instance, Narinen v.
Finland, no. 45027/98, § 34, 1 June 2004).
The
Court notes that the Government have not presented any arguments to
the effect that the interference at issue was based on and in
compliance with any statutory or other legal rule. It further notes
that, as the investigation in the context of which the interference
occurred was a fact finding inquiry, the National Police
Internal Investigation Department was not allowed to have recourse to
any investigative powers such as, for instance, the covert recording
of (telephone) conversations.
Although
the Court understands the practical difficulties for an individual
who is or who fears to be disbelieved by investigation authorities to
substantiate an account given to such authorities and that –
for that reason – such a person may need technical assistance
from these authorities, it cannot accept that the provision of that
kind of assistance by the authorities is not governed by rules aimed
at providing legal guarantees against arbitrary acts. It is therefore
of the opinion that, in respect of the interference complained of,
the applicant was deprived of the minimum degree of protection to
which he was entitled under the rule of law in a democratic society.
In
the light of the foregoing, the Court finds that the interference in
issue was not “in accordance with law”. This finding
suffices for the Court to hold that there has been a violation of
Article 8 of the Convention. It is not therefore necessary to examine
whether the interference in question pursued a “legitimate aim”
or was “necessary in a democratic society” in pursuit
thereof (see Heglas v. the Czech Republic, no. 5935/02,
§ 75, 1 March 2007).
There
has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds that there is no call to award the
applicant any sum for just satisfaction.
Done in English, and notified in writing on 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinion of Mr
Myjer is annexed to this judgment.
B.M.Z.
S.H.N.
SEPARATE OPINION OF JUDGE MYJER
1. In
the Observations of the Government, much reference is made to an
annotation to the case of M.M. v. the Netherlands
(judgment of 8 April 2003)
which was published in the NJCM-bulletin (Netherlands Human Rights
Law Review) 2003, p. 653-658:
'If
the present judgment by the ECtHR stands, it would mean – by
extension – that in future, if a criminal makes all manner of
threats to a victim by telephone, the victim goes to the police, and
the police (with the victim's) consent put a tap on his phone, the
criminal would win his case in Strasbourg on the ground that his
fundamental rights have been violated because his threatening calls
had been recorded without a statutory basis; likewise, a kidnapper
who rings the family of his victim to make the ransom demand could
successfully claim to have been a victim of a violation of Article 8
ECtHR if the police record these telephone calls with the family's
consent but without a basis in statute law. In my opinion, it is
really going too far to require that recordings of this kind may only
be made in accordance with statutory procedures. A perpetrator who
phones a victim to prepare for his offence or actually to commit the
offence should not be able to pose successfully as a victim on the
grounds that the recording of incoming calls at the victim's end
violated his right to the peaceful enjoyment of telephone
communication. Or does the ECtHR truly mean to suggest that, in a
case such as this one, the police should have sought permission under
the rules of the Code of Criminal Procedure to place a normal tap on
the telephone of none other than the victim, with all the extra
infringements of her privacy that would entail? Or would the ECtHR
perhaps prefer the lawyer's own telephone to have been tapped in
accordance with all the rules, including all the safeguards against
violations of his right to refuse to give evidence.'
Since it
was I – in another capacity and before I was elected to
this Court – who wrote the annotation with which the Government
apparently agree and which was indeed very critical of the
reasoning of the majority in that judgment, and since I voted in the
Van Vondel case in favour of a violation of Article 8, I feel
obliged to write this separate opinion.
2. Yes,
as far as the judgment in the case of M.M. is concerned, I am still
convinced that the reasoning of the majority in that case may lead to
bizarre and unwanted consequences. In that particular case the police
had helped a woman who had told the police that M.M., the defence
counsel of her detained husband, had made sexual advances towards
her. She feared that her word (the only available evidence) would be
insufficient against that of M.M. The police then supplied her with a
tape recorder linked to her telephone, so that she could record
incoming telephone conversations with that lawyer in order to obtain
evidence against him. The majority concluded that Article 8 had been
violated. My objections are basically the same as those made in the
dissenting opinion of former judge Elisabeth Palm, who was appointed
by the Dutch Government to replace the former Dutch judge Wilhelmina
Thomassen, who had withdrawn from the case. To me it was crucial
that, unlike the A. v. France case (judgment of 23 November
1993) – where the police made a crucial contribution by making
available for a short time the office of the police superintendent,
his telephone and his tape recorder and where an outgoing call
was made to collect evidence – in the case of M.M. the woman
only recorded incoming calls from M.M. Besides, she could
decide herself if she wanted to hand these recordings over to the
police or not. I am of the opinion that in these circumstances, from
the point of view of the Convention, there was no relevant
interference with M.M.'s privacy rights.
3. In
the present case, however, there is no matter of someone just waiting
until the 'suspect' might phone and make his self-incriminating
remarks. Here, like in the case of Heglas v. the Czech Republic
(judgment of 1 March 2007)
and like in a lot of B-movies, a 'walking bug' went himself to the
applicant and recorded the conversations. The very fact that the
police provided the devices (and in respect of one conversation gave
specific instructions as to what information should be obtained)
constitutes a crucial contribution to an interference with the
privacy rights of the applicant, as was laid down in the reasoning in
paragraph 49. Since that interference was not 'in accordance with the
law', there was also in my opinion a violation of Article 8.