European Court of Human Rights

Resolution CM/ResDH(2010)105¹

Execution of the judgment of the European Court of Human Rights

Van Vondel against the Netherlands

(Application No. 38258/03, judgment of 25 October 2007, final on 25 January 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found in this case concerns the interception of the applicant’s telephone conversations by a private person with the help of the police without a legal basis (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2010)105

Information about the measures to comply with the judgment in the case of

Van Vondel against the Netherlands

Introductory case summary

This case concerns a breach of the right to respect for the private life and correspondence of the applicant, a police officer, due to the unlawful interception of certain of his telephone conversations by a private individual with the assistance of the police (violation of Article 8).

In January 1996 criminal proceedings were instituted against the applicant for perjury on the basis of statements he had made under oath before a parliamentary inquiry in October 1995. In addition to the parliamentary inquiry, a special team of the National Criminal Investigation Department (Rijksrecherche) conducted, in 1995, an internal fact-finding inquiry into the operation methods of the Regional Criminal Intelligence Service, for which the applicant had worked between 1989 and 1994. In the course of this fact-finding inquiry, covert recordings of telephone conversations between a certain Mr R. and the applicant were made. Some parts of these recordings were used, inter alia, as evidence in the criminal proceedings. On 5/03/2002 the Court of Appeal convicted the applicant of perjury before the parliamentary inquiry and of having repeatedly sought to intimidate the (potential) witness Mr R. It sentenced him to three months’ imprisonment, suspended for two years.

The Court considered that, although the recordings had been made voluntarily by and on the initiative of the individual concerned, the equipment had been provided by the authorities, who had, on at least one occasion, given him specific instructions as to what information should be obtained from the applicant. The Court noted that the police were conducting an internal inquiry with a view to establishing the facts concerning certain methods of investigation and that, in this specific context, they were not authorised by law to use certain investigatory powers such as the covert recording of (telephone) conversations.

I. Individual measures

The European Court made no award for just satisfaction, as the applicant had submitted no claim. On 10/02/2009 the Supreme Court reduced his conditional term of imprisonment to two months in revised proceedings following the Court’s judgment. Furthermore, the recordings and transcripts of the telephone conversations are no longer in the applicant’s case file. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The case presents similarities to that of M.M. (see Resolution CM/ResDH(2007)130, adopted on 31/10/2007), which also concerned unlawful telephone interceptions by a private individual with the assistance of the police, but in the context of a criminal investigation. As the incident in the present case was an isolated one, the Dutch authorities do not find it necessary to amend the existing law or to create a special legal basis for taping and recording of telephone conversations in a fact-finding enquiry.

The Dutch authorities considered that, given the direct effect of the Court’s judgments in the Netherlands, all courts and authorities concerned are expected to align their practice with the Convention’s requirements under Article 8 as they emerge from the present judgment and also to respect strictly the conditions set forth by the Netherlands legislation on interception of telephone conversations. For this purpose, the Court’s judgment was published in various legal journals (European Human Rights Cases, 2007/145, pp.1413-17; Rechtspraak van de Week, 2008/93, p.56; Nederlands Juristenblad, 2007, p. 2171), was sent out to courts, and was mentioned in the book Actualiteiten Zakboek Strafvordering voor de opsporingsambtenaar (2008), as well as in the manual on special criminal investigations (Handboek bijzondere opsporingsbevoegdheden) which is used in the training of police officers.

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1, of the Convention.