The Court was questioned on the legality of eavesdropping on lawyers’ calls and communications by domestic intelligence agencies in a challenge brought against the Dutch State by the law firm Prakken d'Oliveira, the Dutch Association of Criminal Defence Lawyers (NVSA), and the Council of Bars and Law Societies of Europe (CCBE). In its verdict, the Court recognised that the ability to communicate confidentially with a lawyer is a fundamental right which is currently being breached by Dutch surveillance policy.

Interception must be stopped

The Court ordered the Dutch government to stop all interception of communications between clients and their lawyers under the current regime within six months. The Dutch State has six months to adjust the policy of its security agencies regarding the surveillance of lawyers and ensure that an independent body exercises effective prior control in order to prevent or stop tapping of lawyer-client conversations. Under the existing policy, only a government minister may give the authorisation to conduct surveillance, while monitoring by a Supervisory Committee (CTIVD) only takes place after the fact. This is judged insufficient by the court.

Safeguards inadequate

The Court also ruled that information obtained from surveillance of lawyers may only be released to the public prosecutor if an independent body has examined if and under what conditions security agencies were allowed to conduct surveillance. Current national policy allows Dutch security services to transmit information obtained from the interception of lawyer-client communications to the public prosecutor. The court finds this practice unlawful and holds that the current safeguards are inadequate in view of the case law of the European Court of Human Rights. 

Threatened

In welcoming the decision, CCBE President Maria Slazak commented: 'The essential principle of lawyer-client confidentiality is increasingly threatened for reasons that are not always made clear to the public. Our goal is to put a stop to arbitrary surveillance and to put clear limits on the monitoring of private communications. 'The State may appeal the ruling within four weeks.