CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                       Application No. 22788/93                     by S.B.V.M.                     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 14 June 1993 by S.B.V.M. against the Netherlands and registered on 19 October 1993 under file No. 22788/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows: THE FACTS   1.    Particular circumstances of the case        The applicant is a Chilean citizen, born in 1954 and at present serving a prison sentence in the Netherlands.   Before the Commission he is represented by Ms. E. Prakken, a lawyer practising in Amsterdam.        The facts as presented by the applicant may be summarised as follows.        On 1 August 1990 the applicant was arrested in Amsterdam as suspected of having traded in narcotic drugs.   At the time of his arrest he was carrying a bag containing about two kilogrammes of cocaine.        On 13 March 1991 the Regional Court (Arrondissementsrechtbank) of Amsterdam convicted him of narcotics offences and sentenced him to five years' imprisonment. The applicant filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of Amsterdam.   On 8 July 1991, after having quashed the judgment of 13 March 1991, the Court of Appeal found the applicant guilty of narcotics offences and increased the sentence to seven years' imprisonment.   The applicant's appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 15 December 1992.        The evidence against the applicant consisted, inter alia, of intercepted telephone conversations.   Following a request by the public prosecutor, the investigating judge (rechter- commissaris) had authorised the telephone tapping as from 22 May 1990 by decisions valid for one month, which had been successively prolonged.   The telephone tapping had been going on until the applicant was arrested on 1 August 1990.        The basis for the authorisation of the telephone tapping was a note signed by the police inspector T. Schmidt, dated 18 May 1990, in which three persons, including the applicant, are mentioned as being involved in drugs trade and four telephone numbers are indicated as being of interest for interception.   In the course of the criminal proceedings against the applicant Mr. Schmidt was examined as a witness before the Regional Court and the Court of Appeal.        The applicant argued before the Dutch courts that police inspector Schmidt's note contained incorrect information as well as information of doubtful origin.   In particular, he stated that his own secret telephone number could not have been obtained in a lawful manner.   For these reasons, the telephone tapping was unlawful and the prosecution, which was based on its results, should be considered inadmissible.   Moreover he argued that Dutch rules on telephone tapping did not satisfy the requirements of Articles 8 and 13 of the Convention and that he had not been able to become acquainted with the recorded telephone conversations in which he participated and could not verify the information on the basis of which the tapping of his telephone had been ordered.        The applicant further stated before the Dutch courts that in any case the evidence invoked against him had been obtained in an unlawful manner and should therefore not be admitted.        All these arguments were rejected by the Dutch courts at all levels.   The Supreme Court accepted the Court of Appeal's finding that the police had lawfully obtained the applicant's address and telephone number and that there was no indication that the evidence against the applicant had been unlawfully obtained.   The Supreme Court further considered that the Court of Appeal had correctly held that a general complaint about the incompatibility of the Dutch rules on telephone tapping with the Convention without any specific complaint about the factual application of these rules cannot result in the inadmissibility of the prosecution.   As regards the applicant's complaint that he had not been able to become acquainted with the recorded telephone conversations in which he participated, the Supreme Court noted that the applicant had never requested the Court of Appeal to be allowed to listen to the recorded conversations and that a verification of the information forming the basis for an interception of telephone conversations can be adequately made by examining the responsible police officer as a witness before the court.   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.        Section 125 g of the Code of Criminal Procedure provides as follows:   (Translation)      "During the preliminary judicial investigation the      investigating judge may, if the investigation urgently so      requires and if it concerns an offence which allows for      detention on remand, authorise the investigating official      to tap or record telephone conversations where there is a      suspicion that the suspect participates in them.   A procès-      verbal of the tapping or recording shall be drawn up within      forty-eight hours."        Pursuant to Section 125 h of the Code of Criminal Procedure records of tapped conversations 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.     COMPLAINTS   1.    The applicant alleges a violation of Article 6 of the Convention on the ground that the note of 18 May 1990, which was the basis of the decision to permit telephone tapping, contained incorrect information or information derived from unknown sources, which could not be verified.   He suggests that the information had been obtained through unlawful police investigations but that he is unable to have this confirmed, since the case was not referred back to the Investigating Judge. However, where a criminal charge is based on unlawful investigations, the prosecution may be inadmissible under Dutch law, and in any case unlawfully obtained evidence is inadmissible under Dutch law.   On this basis, he considers that the criminal proceedings against him were unfair and contrary to Article 6.     2.    The applicant further alleges a violation of Article 8 of the Convention, on the one hand because the Dutch rules on telephone tapping are not sufficiently precise to be accepted as "law" within the meaning of Article 8 para. 2 and on the other hand because in the present case the decision to undertake telephone tapping was based on the note of 18 May 1990 which contained incorrect information or information of uncertain origin.   Consequently, it has not been established that the conditions of Section 125 g of the Code of Criminal Procedure were satisfied in the present case, in particular as to whether telephone tapping was urgently needed or whether there was a real suspicion that the applicant would participate in telephone conversations on the telephone lines in question.   3.    The applicant finally complains of a violation of Article 13 of the Convention in that there is no effective control of the telephone tapping as a result of the practice to collect and store the data obtained from tapped telephone conversations without indicating their origin.     THE LAW   1.    The applicant alleges a violation of Article 6 (Art. 6) of the Convention in that the telephone tapping, which was the basis of the criminal proceedings against him, had been based on unverifiable and incorrect or dubious information.        Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar as relevant:        "In the determination of (...) any criminal charge against      him, everyone is entitled to a fair and public hearing      (...) by an independent and impartial tribunal (...)."        The Commission notes that the applicant argued before the domestic courts that the prosecution against him and the evidence upon which he was convicted were inadmissible, since the telephone tapping had been ordered on the basis of incorrect or unreliable information.   However, the applicant's argument was not accepted by the Dutch courts. The Commission finds no reason for considering that the domestic courts made an unfair assessment of the evidence in this respect.        The Commission finds no other ground for questioning the fairness of the criminal proceedings against the applicant.        Consequently, the applicant's complaint of a violation of Article 6 (Art. 6) of the Convention must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further alleges a violation of Article 8 (Art. 8) of the Convention on two grounds, namely on the one hand because the Dutch rules on telephone tapping are not sufficiently precise to be accepted as "law" and on the other hand because in the present case the telephone tapping had been authorised on the basis of incorrect or doubtful information contained in the note of 18 May 1990.          Article 8 (Art. 8) of the Convention provides as follows:        "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 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 Commission recalls that according to the case-law of the Convention organs, 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).        Consequently, the Commission finds that there was in the present case an interference with the applicant's private life and correspondence.        The question which remains to be answered is therefore whether this measure was justified under paragraph 2 of Article 8 (Art. 8-2).        The Commission has already in a previous case found that Sections 125 f-h of the Dutch Code of Criminal Procedure are sufficiently precise to be considered as "law" within the meaning of Article 8 para. 2 (Art. 8-2) (No. 18395/91 Lupker and others v. the Netherlands, Dec. 7.12.92, unpublished).   It finds no reason to take a different view in the present case.        Moreover, there is, in the Commission's view no element which would create doubts as to whether the conditions laid down in Section 125 g of the Code of Criminal Procedure were satisfied in the present case, namely that telephone tapping was urgently needed for the purposes of the investigation and that there was a suspicion that the applicant would participate in the tapped telephone conversations.        It follows that the measure complained of was "in accordance with the law".   Its purpose was "the prevention of crime", and the Commission considers that the Dutch authorities could reasonably consider the telephone tapping necessary in a democratic society for that purpose.        It follows that the conditions laid down in Article 8 para. 2 (Art. 8-2) were satisfied and that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant finally complains of a violation of Article 13 (Art. 13) of the Convention in that there is no effective control of the telephone tapping as a result of the practice to collect and store the data obtained from tapped telephone conversations without indicating their origin.            Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by persons acting in an      official capacity."        The Commission recalls that, according to the case-law of the Convention organs, the right under Article 13 (Art. 13) to an effective remedy exists only when there is an arguable claim that the Convention has been violated.        In the present case, assuming that the applicant did raise this complaint within the six months' time-limit contained in Article 26 (Art. 26) of the Convention, the Commission has found the applicant's complaints regarding violations of Articles 6 and 8 (Art. 6, 8) of the Convention to be manifestly ill-founded.   It follows that he has no arguable claim in these respects and that he can therefore not claim a remedy under Article 13 (Art. 13). His complaint based on that Article is therefore also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                           (S. TRECHSEL)