European Court of Human Rights

Resolution CM/ResDH(2011)137¹

Execution of the judgment of the European Court of Human Rights

Doerga against Netherlands

(Application No. 50210/99, judgment of 27/04/2004, final on 27/07/2004)

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 in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns unlawful interference with the applicant’s right to privacy due to his conviction in 1997 on the basis of the improper use of information obtained through the interception of a telephone conversation (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;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

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(2011)137

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

Doerga against Netherlands

Introductory case summary

The case concerns the recording by prison authorities of telephone conversations of the applicant, a prisoner at the material time, after he had given the police a false tip-off about an alleged escape attempt by other detainees. These tapes were kept and subsequently used as evidence in another case relating to a bomb explosion in October 1995 which wounded the applicant’s ex-partner and her son. The applicant was convicted and sentenced to nine years’ imprisonment. The conviction was based not least on the applicant’s telephone conversations which were recorded in relation to the investigation concerning the false tip-off.

The European Court stated that although it accepted that it may be necessary to monitor detainees’ contacts with the outside world (including contacts by telephone), the Netherlands rules concerning such monitoring (Circular No. 1183/379 and internal regulations of the Marwei penitentiary) were not sufficiently clear and detailed to afford appropriate protection against arbitrary interference by the authorities with the applicant’s right to respect for his private life and correspondence. According to the Court these rules did not give any precise indication as to the circumstances in which prisoners’ telephone conversations were monitored, recorded and retained by penitentiary authorities or the procedures to be observed (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The recordings and the transcripts were destroyed and are thus no longer in the possession of the Netherlands authorities. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Following the European Court’s judgment, new provisions were introduced concerning the monitoring and recording of detainees’ contacts with the outside world by law of 7 April 2005. These provisions were elaborated further by Regulation of 23 September 2010, concerning the monitoring of prisoners’ telephone conversations in judicial institutions (Besluit van 23 september 2010, houdende wijziging van het Reglement justitiële jeugdinrichtingen, Reglement verpleging ter beschikking gestelden en de Penitentiare maatregel, in verband met regels over het bewaren en verstrekken van opgenomen telefoongesprekken (Besluit toezicht telefoongesprekken in justitiële inrichtingen)). This Regulation entered into force on 1 January 2011.

The Regulation created clear and detailed rules for detainees to be informed of the recording of telephone conversations, special conditions on the matter of professional secret holders, the maximum period for retaining records, and rules on the possibility of providing these records to other (investigating) authorities. According to Article III of the Regulation (amending the Prison Rules and inserting a new Article (23a), recordings of telephone calls shall be kept for a period not exceeding eight months and shall be erased after the expiry of this period. Inmates will be informed that telephone calls are recorded. Recordings of telephone calls will be given only to third parties who are entitled to hear them in the performance of duties pursuant to law. A recording may be given to third parties only in connection with the maintenance of order or security, the protection of public order or national security, the prevention or investigation of criminal offences or the protection of victims of indictable offences or others involved.

III. Conclusions of the respondent state

The government considers that the measures adopted 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 has thus complied with its obligations under Article 46, paragraph 1, of the Convention.