CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2004

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s3CA6E042 { width:12.35pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s9922FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt } .sA845BF37 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .s99668499 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sAF0B4C7 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s7A3B44D7 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sB1215D1B { margin-top:0pt; margin-left:36.7pt; margin-bottom:0pt; text-indent:-22.5pt } .s549374C2 { width:18.5pt; font:7pt 'Times New Roman'; display:inline-block } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s97B7A20 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .s70114485 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .s21DA24D5 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt } .s7BB60D65 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sFB6A3272 { margin-top:12pt; margin-bottom:18pt; text-indent:8.8pt } .sA6C9A394 { margin-top:12pt; margin-left:35.45pt; margin-bottom:12pt; text-indent:-7.1pt; font-size:10pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s5AF2DFE5 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-after:avoid } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sA4D863B4 { margin-top:12pt; margin-left:14.2pt; margin-bottom:6pt } .s7365FAED { margin-top:6pt; margin-bottom:6pt; text-align:left } .sA6FC3A4B { margin-top:6pt; margin-bottom:36pt; text-align:left } .sEF8F76C5 { width:20.87pt; display:inline-block } .sE48472C3 { width:197.46pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .s8934192D { margin-top:36pt; margin-bottom:0pt; text-align:center } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6FEA0F0 { width:0.66pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sEFB0CE36 { width:9.3pt; display:inline-block } .sDDB5966F { width:25.97pt; display:inline-block } .s8ADF7EA2 { width:10.65pt; display:inline-block } .sBA7929E7 { width:23.31pt; display:inline-block } .s90ED8920 { width:5.95pt; display:inline-block } .s98D3FEFD { width:34.61pt; display:inline-block } .s79E19A89 { width:6.63pt; display:inline-block } .sCF266231 { width:32.64pt; display:inline-block } .s6900FBE2 { width:7.95pt; display:inline-block } .s70DF58E9 { width:3.3pt; display:inline-block } .sFB10B0B3 { width:3.98pt; display:inline-block } .sAB0B08C6 { width:32.62pt; display:inline-block } .s76F7C853 { width:33.94pt; display:inline-block } .s8338573E { width:11.31pt; display:inline-block } .s908FE487 { width:3.32pt; display:inline-block } .s3D66DD5D { width:15.98pt; display:inline-block } .sE9B312F6 { width:5.29pt; display:inline-block } .sC3153434 { width:19.96pt; display:inline-block } .s8C246132 { width:11.3pt; display:inline-block } .s9EAB97BC { width:11.94pt; display:inline-block } .s2B328206 { width:22.63pt; display:inline-block } .sE32B62BB { width:25.96pt; display:inline-block } .sBE975F9 { width:33.32pt; display:inline-block } .sFE4ECC35 { width:33.26pt; display:inline-block } .s219C16BB { width:14.33pt; display:inline-block } .sC9FA01B0 { width:29.98pt; display:inline-block } .s3E7AC243 { width:25.3pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s1DE0B56D { width:13.31pt; display:inline-block } .s4B8D41EE { font-family:Arial; font-size:10pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .s70FB01C0 { width:35.98pt; display:inline-block } .sEA7DAF3 { width:30.64pt; display:inline-block } .s3A303164 { width:1.32pt; display:inline-block } .sCAB64D1 { width:19.31pt; display:inline-block } .s241DC2BC { width:18.64pt; display:inline-block } .sC2509659 { width:13.32pt; display:inline-block } .sC3924B7E { width:24.65pt; display:inline-block } .sDB40209C { width:19.98pt; display:inline-block } .s6655D9E9 { width:14.67pt; display:inline-block } .sA1981C75 { width:4.63pt; display:inline-block } .sA943D94B { width:29.31pt; display:inline-block } .sC86ACF07 { width:15.97pt; display:inline-block } .s777962E2 { width:13.97pt; display:inline-block } .s979476F0 { width:24.64pt; display:inline-block } .sECFD4873 { width:2.65pt; display:inline-block } .s10BA16DF { width:8.64pt; display:inline-block } .s33D75D3F { width:10pt; display:inline-block } .sB6EA1425 { width:33.29pt; display:inline-block } .s1DA17C1C { width:26.65pt; display:inline-block } .s73432144 { width:24.62pt; display:inline-block } .s8561376C { width:31.98pt; display:inline-block } .sF25BC12B { width:12.63pt; display:inline-block } .s9026445E { width:20.61pt; display:inline-block } .s706144FB { width:17.96pt; display:inline-block } .sEB2B1FC3 { width:27.32pt; display:inline-block } .sBE6FE86E { width:20.65pt; display:inline-block } .s894696E7 { width:4pt; display:inline-block } .sBA95C7CD { width:17.95pt; display:inline-block } .s91F6AE57 { font-family:Arial; font-size:10pt; font-weight:bold } .s7FA06DFD { width:25.15pt; display:inline-block } .sDD90F4AF { width:16.62pt; display:inline-block } .sEA111250 { width:16.65pt; display:inline-block } .sFE846327 { width:27.29pt; display:inline-block } .s66441246 { width:19.97pt; display:inline-block } .s626DA2FC { width:23.29pt; display:inline-block } .s8205D031 { width:5.31pt; display:inline-block } .sB950576A { width:33.3pt; display:inline-block } .s1FD0CBB8 { width:21.31pt; display:inline-block } .sEC10D7D4 { width:18.62pt; display:inline-block } .s39A226A1 { width:11.96pt; display:inline-block } .s6FD65DD8 { width:24.63pt; display:inline-block } .sB35F0F21 { width:25.29pt; display:inline-block } .s3DDF0EFC { width:29.32pt; display:inline-block } .s78B11E5E { width:25.95pt; display:inline-block } .s5DF109A7 { width:31.95pt; display:inline-block } .s253BF0F5 { width:15.96pt; display:inline-block } .s1E7F07A2 { width:13.95pt; display:inline-block } .s5CDAE21E { width:35.32pt; display:inline-block } .sD206BAD8 { width:6.64pt; display:inline-block } .sC9E58E76 { width:26.63pt; display:inline-block } .s8104A5FA { width:29.96pt; display:inline-block } .s71E79153 { width:0.63pt; display:inline-block } .s2D7AB53A { width:10.61pt; display:inline-block } .sEA8C8188 { width:30.62pt; display:inline-block } .s3D58A82D { width:23.3pt; display:inline-block } .s498AD3FB { width:35.95pt; display:inline-block } .s1390230D { width:17.97pt; display:inline-block } .s4B5E05E0 { width:12.65pt; display:inline-block } .s4A7B4D13 { width:15.26pt; display:inline-block } .sB030A904 { width:9.99pt; display:inline-block } .s71794E85 { width:20pt; display:inline-block } .s69DD5DA7 { width:5.32pt; display:inline-block } .s31DD39ED { width:10.63pt; display:inline-block } .sF5D6692F { width:4.58pt; display:inline-block } .sCD5251E2 { width:26.62pt; display:inline-block } .sF21BCC1B { width:21.97pt; display:inline-block } .sE1871A4B { width:4.62pt; display:inline-block } .s21EFA5EA { width:7.28pt; display:inline-block } .s2D8A4020 { width:32.63pt; display:inline-block } .sF9C8D1AB { width:31.93pt; display:inline-block } .sF4D9B55C { width:4.64pt; display:inline-block } .sCB2C89B { width:19.29pt; display:inline-block } .s6F7073C7 { width:15.95pt; display:inline-block } .sD33AE1D1 { width:3.28pt; display:inline-block } .sCDCD3CFB { width:9.94pt; display:inline-block } .s1DE81937 { width:13.29pt; display:inline-block } .s6C11137 { width:7.97pt; display:inline-block } .s7DB804A { width:35.29pt; display:inline-block } .s2074421C { width:31.96pt; display:inline-block } .sDCD104B3 { width:11.97pt; display:inline-block } .sF2F84BD3 { width:11.99pt; display:inline-block } .s833FBB08 { width:11.29pt; display:inline-block } .s52F09B1E { width:22.64pt; display:inline-block } .s36FF9CFD { width:14.63pt; display:inline-block } .s514FD034 { width:5.3pt; display:inline-block } .sE2058437 { width:31.3pt; display:inline-block } .sE2A94D39 { width:0.6pt; display:inline-block } .s49DB4D73 { width:13.28pt; display:inline-block } .s125C2327 { width:35.97pt; display:inline-block } .s83D6A973 { width:11.95pt; display:inline-block } .s9C8A37BB { width:19.27pt; display:inline-block } .sC16AB702 { width:33.97pt; display:inline-block } .s885ADA22 { width:9.29pt; display:inline-block } .s9A1B738E { width:7.31pt; display:inline-block } .s8327A95A { width:32.65pt; display:inline-block } .s441493A4 { width:30.6pt; display:inline-block } .s40490A92 { width:3.97pt; display:inline-block } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s70EB9942 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; page-break-after:avoid; font-size:10pt } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 16269/02 by Manon Harriët AALMOES and 112 Others against the Netherlands The European Court of Human Rights (Third Section), sitting on 25   November   2004 as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   L. Caflisch ,   Mrs   M. Tsatsa-Nikolovska ,   Ms   R. Jaeger ,   Mr   E. Myjer ,   Mr   David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 27 March 2002, Having deliberated, decides as follows: THE FACTS The 113 applicants, whose particulars are appended, are all Netherlands nationals and practising lawyers in the Netherlands. They were represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background a.     Events having occurred in the course of criminal proceedings before the Rotterdam Regional Court In the course of criminal proceedings before the Rotterdam Regional Court ( arrondissementsrechtbank ), in which applicants nos. 34 and   100 acted as defence lawyers, the Regional Court took oral evidence on 12 and 17   October 2000 from police officer A.B. on the criminal investigation conducted and in the course of which telecommunications with a lawyer ‑   falling within the ambit of the privilege of non-disclosure ( verschoningsrecht ) by virtue of Article 218 of the Code of Criminal Procedure ( Wetboek van Strafvordering - “CCP”) ‑ apparently had been intercepted and recorded. Mr A.B. declared that this had simply been a mistake as, at the material time, he and his colleagues had never realised that it was forbidden to transcribe such conversations into a written record. Once this had been pointed out to him in March 1995 by the public prosecutor, it was too late as copies had already been distributed. It had then been agreed to record such conversations but not to transcribe them. He further declared that it was technically not possible to prevent such conversations from being intercepted. As to two conversations held in June 1996 which had nevertheless been transcribed, Mr A.B. declared that, unlike many others, these two conversations had accidentally slipped through the control system. On 19 October and 2 November 2000, further hearings were held before the Rotterdam Regional Court in the course of which oral evidence was taken from police detective H.H., who stated that it was his understanding that it was not allowed to transcribe intercepted conversations falling within the ambit of the privilege of non-disclosure, but that use could be made of the information contained therein. No further information about these proceedings has been submitted by the applicants. b.     Events having occurred in the course of criminal proceedings before the Almelo Regional Court In the summer of 2001, it appeared in separate but interrelated sets of criminal proceedings pending before the Almelo Regional Court – in which applicants nos. 39, 81 and 104 acted as defence lawyers – that the obligation under the CCP to destroy evidence falling within the ambit of the privilege of non-disclosure enjoyed by lawyers under Article 218 of the CCP had not been complied with. The three applicants detected this when listening to copies of optical disks that had been added to the case file and on which telephone conversations were stored that had been tapped in the course of the criminal investigations, known under the codenames “T14-1” and “Choco”. They had been made between January 2000 and April 2001. The three applicants subsequently requested the responsible public prosecutor to provide them with a copy of the written records of the destruction ( proces-verbaal van vernietiging ) of the conversations with persons enjoying the privilege of non ‑ disclosure ( geheimhouders ; hereinafter referred to as “privileged persons”), that must be drawn up pursuant to Article 4 § 2 of the Decision on the storage and destruction of items not added to the case file ( Besluit bewaren en vernietigen niet ‑ gevoegde stukken – “the Decision”; see below under “Relevant domestic law”). A written record, dated 1 August 2001 and drawn up by police officer B. reads, insofar as relevant, as follows: “Both the Choco [investigation] team (Enschede) and the T14 team (Nijmegen) used the “Comverse” interception system. This system stored the intercepted telephone conversations on a so-called Optical Disk. Once stored it was no longer possible to manipulate these recorded conversations. That means that they could no longer be deleted. Given the fact that the system was saved regularly (24 hour), conversations with privileged persons were also stored on the Optical Disk. The so-called “privileged persons” conversations were recorded by the Choco team in the criminal investigation system used. The telephone conversations were recorded in the processing system concerned as “privileged person” or “confidential”. The conversations were thus not transcribed or summarised.” In the course of a hearing held in camera before the Almelo Regional Court on 8 August 2001, the public prosecutor stated that no formal records of destruction had been drawn up as it was technically impossibly to delete specific conversations stored on an optical disk, and that in about nine regional police telecommunication tapping rooms ( tapkamers ) not a single recorded conversation had been deleted since 1994. The public prosecutor explained that, since 1994, a number of police tapping rooms were working with the “Comverse” system for recording intercepted telephone conversations. Such conversations were stored on optical disks. Since the system had to comply with predefined security norms, in which the impossibility to manipulate stored data was an important factor, the system had been set up so that nothing could be added or altered to that data. For this reason it was not possible to delete conversations with privileged persons that had been saved on an optical disk. On 9 August 2001, the Almelo Regional Court examined a request by applicant no. 81 to extend the time-limit of 10 August 2001 fixed to review the optical disks, and to be provided with the written records of the destruction of conversations with privileged persons and with the indexes of each of the optical disks in the form of an Excell or Excess computer programme file. After having deliberated, the Regional Court granted the first request and rejected the remainder, holding: “Noting the high number of intercepted conversations and that listening to the optical disks, owing to the absence of a search function ..., is a time consuming exercise, the Regional Court accepts that the defence needs more time ... to listen to the disks. [This] request is ... [therefore] ... reasonable. Since the optical disks, for the purposes of control, must thus be made available again, the Regional Court will fix the delay at a maximum of three months as from the date of this decision. The public prosecutor has declared in court that no written records of destruction have been drawn up, as the deletion of specific conversations stored on optical disks is technically not possible. In any event, according to the public prosecutor, the conversations with privileged persons will not be transcribed nor added to the case file. Noting this and in the absence of any reason to doubt the statement of the public prosecutor, the request [to be provided with] the written records of destruction is rejected. The public prosecutor has further declared that no indexes exist of the different optical disks in the form of an Excell, Excess or other computer programme file and that, owing to the great number of intercepted and recorded conversations, it is not possible to create an index at short notice. Considering this to be plausible, noting again the great number of recordings, the Regional Court rejects the request to be provided with the indexes asked for, the more so as [the defence] will now be given [ample time] to listen to the audio data carriers.”   By letter of 26 September 2001, in reply to a letter sent by applicant no.   81 on 26 September 2001, the public prosecutor stated that he had instructed the police to delete those conversations falling within the ambit of the privilege of non-disclosure that had been stored on optical disks and which had been added to the case file. The public prosecutor indicated that he assumed that the destruction would take place within a week. According to a written record dated 3 October 2001, drawn up by police officer G.B., the public prosecutor had instructed him on 26 September 2001 to select and delete from the optical disks all intercepted conversations in which privileged persons had participated. In the Choco investigation a total of 556 contacts of that nature had been selected and a total of 75 contacts in the T14-1 investigation. The audio data of all of these conversations had been deleted without making a distinction as to the contents or relevance of these conversations. The written record also contains a remark that the investigation team had not in any manner made use of the contents of stored conversations with privileged persons. An overview of the selected conversations was appended to the written record.     On 3 October 2001, in the context of the criminal proceedings pending before the Regional Court, the investigating judge ( rechter-commissaris ) at the Almelo Regional Court took evidence from the expert-witness Mr B.P., who was working for the company Comverse Infosys B.V. According to Mr   B.P. it was in fact technically possible not to store selected data on an optical disk and to delete data from it, but most Systems Managers stored all data as selection was a labour intensive exercise. Mr B.P. further stated that only Systems Managers could delete data but not a user, although the system could be set up so that users could also be authorised to delete data. Furthermore, searches for telephone numbers, keywords or remarks could be carried out in the main system. According to his evidence, the “Comverse” system was used by the police in ten regions. The applicants nos.   39, 81 and 104 attended this hearing and were given the opportunity to put questions to Mr B.P. At a hearing held on 16 November 2001, the Almelo Regional Court granted the request made by applicant no. 81 to take evidence from police officers H.K. and C.T on recorded conversations with privileged persons and the destruction of those recordings. Mr H.K. declared before the Regional Court that, on the basis of tapping logs, he had made a selection of conversations with privileged persons, i.e. the conversations between the suspect and his lawyer, doctor or counsellor ( vertrouwenspersonen ). The scope of his selection had been as broad as possible, but he could not certify that his selection had in fact covered every conversation of that kind. He himself had only deleted the data in the tapping logs (i.e. the record containing the references to the conversations concerned), but not the actual conversations themselves. He had done so after 30 October 2001. He had drawn up a written record of the selected conversations and he had given the list of the conversations to be deleted to his colleague Mr C.T. Mr C.T. testified before the Regional Court that his commanding officer, Mr G.B., had ordered him to delete the conversations with privileged persons. Together with his colleague Mr H.K., he had selected the conversations with privileged persons and a written record of that selection had been made. He further stated that, after having obtained authorisation from the Systems Manager of the Nijmegen tapping room, he had deleted some 550-560 conversations from the optical disks. He had started with this on 26 September 2001 and it had taken him in total 36 hours. He had not reformatted or demagnetised the disks as this would have deleted all of the recorded conversations. Lastly, he stated that, apart from those held by the defence, no copies of the disks had been made. After having taken evidence from these witnesses and after having given applicant no. 81 the opportunity to question them, the Regional Court ordered, at the request of applicant no. 81, and sharing the parties' concern about the recording of conversations with privileged persons, that the optical disks containing such conversations were to be handed over to, and held by, the investigating judge at the Regional Court. On an unspecified date, at the request of the defence lawyers and in consultation with the public prosecutor, the investigating judge at the Almelo Regional Court decided to carry out an on-site inspection ( schouw ) of the police tapping room at the Nijmegen police headquarters. The inspection took place on 5 June 2002 in the presence of, amongst others, applicants nos. 39, 81 and 104 and the public prosecutor. A check of conversations with lawyers that should have been deleted disclosed that the contents of one conversation, selected at random, had been deleted, but that the “conversation-related” data were still on record, and that another conversation, selected by applicant no. 104, had erroneously only been deleted from the list instead of from the disk, and that the record of the contents of that conversation was still in existence and could be listened to. Consequently, the investigating judge decided to take the audio data carriers with him and that they were to be held by him pending a (further) decision by the Regional Court. No further information has been submitted as regards these proceedings by the applicants. 2.     Proceedings taken by the NVS and individual lawyers a.     Request for clarification to the Minister of Justice In view of the above incidents, the Netherlands Association of Defence Counsel ( Nederlandse Vereniging van Strafrechtadvocaten – “NVS”) expressed, in its letter of 10 October 2001 to the Minister of Justice, its serious concerns about the manner in which the judicial authorities were dealing with their obligation to destroy privileged data. It summoned the Minister of Justice to clarify within two weeks where, in the police regions, the “Comverse” system was not being used, and where systems were used in which tapped telephone conversations falling within the privilege of non ‑ disclosure were not removed and destroyed. It further requested the Minister to indicate in what manner and within what delay it was intended to ensure that the privileged data stored since 1994 under the “Comverse” system would be erased, and what measures the Minister intended to take in order to prevent breaches of Article 126aa of the CCP in the future. b. Summary injunction proceedings before the Regional Court of The Hague As the Minister did not provide the NVS with the clarification requested within two weeks, the NVS, the Netherlands Bar Association ( Nederlandse Orde van Advocaten ), and applicants nos. 39, 67, 81, 99 and 104 took summary injunction proceedings ( kort geding ) against the Netherlands State (the Minister of Justice) before the Regional Court of The Hague, seeking an injunction against the Netherlands State for the destruction of all stored information having been conveyed by or to lawyers enjoying the privilege of non-disclosure – at least to applicants nos. 39, 67, 81, 99 and 104 – and which should have been destroyed, pursuant to former Article 125h of the CCP, or which had to be destroyed pursuant to Article 126aa of the CCP. They further requested the Regional Court to order the Netherlands State to transmit to all lawyers concerned, at least the above five applicants, a notification within the meaning of Article 126bb of the CCP, as well as a copy of the written record of destruction. They lastly requested the Regional Court to order the Netherlands State to state publicly in what manner, and in accordance with what procedure, the provisions of Article 126aa of the CCP and the Decision would be complied with in respect of lawyers enjoying the privilege of non ‑ disclosure. In its judgment of 19 December 2001, following a hearing held on 10   December 2001, the President of the Regional Court of The Hague rejected the plaintiffs' first two requests and granted their third request. The President further decided that this ruling was immediately enforceable ( uitvoerbaar bij voorraad ). Insofar as relevant, the President held: “4.1. For the determination of the question whether it concerns – according to the plaintiffs – a structural, or – according to the defendant – an isolated problem, a thorough investigation is required. There is no room for this in the framework of summary injunction proceedings. 4.2. Furthermore the defendant cannot be ordered in summary injunction proceedings to destroy what the investigating judge should have destroyed on grounds of (former) Article 125h of the CCP. It is clear that, until 1 February 2000, it was the investigating judge, exclusively, who had been assigned the obligation to destroy. In addition, the investigating judge remains competent as regards taps that had already been ordered on 1 February 2000. In this respect reference is made to the transitory rules [according to which Articles 125f-h of the CCP remained applicable in those cases in which tapping orders had been issued before 1 February 2000] and to the letter of the President of [the coordinating and the national consultative platforms for investigating judges] addressed to the investigating judges in the Netherlands on 31   January 2000, in which the President has taken note ex officio, and in which the following position as regards the transitory legal situation has been given: The key-notion is the preliminary judicial investigation against a concrete suspect. Within that preliminary judicial investigation specific legal rules (either formerly or currently in force) are applicable. The former legal rules remain applicable to preliminary judicial investigations opened before 1 February 2000. Moreover, the management ( beheer ) of taps remains with the investigating judge. When a preliminary judicial investigation has been opened on or after 1 February 2000, the new legal rules apply in their entirety. 4.3. The above [considerations] result in the rejection of the claims set out under 2.1. and 2.2. 4.4. In the future, the defendant must ensure in any event that the implementation of the legal rules is tightened. This would be necessary even if, as claimed by the defendant, this was an isolated problem. The defendant has stated ... that, to this end, measures have already been taken and [that further measures] will be taken in the near future. 4.5. Having noted this and the established fact that mistakes have been made, and as it appears from the cases cited by the plaintiffs, in particular the Almelo criminal case (the Choco-investigation) and the Arnhem criminal case, that not every public prosecutor is, or was, aware of the correct way of proceeding as regards the obligation to destroy recordings of conversations with privileged persons, the claim cited above under 2.3. is eligible for an award in the manner set out below. ... The President orders the defendant to inform the plaintiffs by Friday 11   January   2002 at the latest in what manner and according to what procedure the provisions of Article 126aa of the CCP, and the Decision in relation to the investigation of telecommunications in respect of lawyers enjoying the privilege of non-disclosure, will be complied with.” Neither party filed an appeal against the ruling of 19 December 2001. c.     Follow-up to the summary injunction proceedings By letter of 10 January 2002, the Minister of Justice informed the plaintiffs in the above summary injunction proceedings that, in February   2002 at the latest, a description of the procedure for compliance with Article 126aa of the CCP would be laid down in a formal instruction of the Board of Procurators General ( College van procureurs-generaal ) and that, in anticipation thereof, this Board had transmitted on 21   December   2001 to the chief public prosecutors ( hoofdofficieren van justitie ) at the Regional Courts, the chief advocates-general ( hoofdadvocaten-generaal ) at the Courts of Appeal and the heads of the service departments of the Public Prosecution Service ( Openbaar Ministerie ), an overview of the pertinent legal rules and a schematic description of the procedure. The Board of Procurators General had requested the addressees to ensure that wide attention be given to these documents within the public prosecution and police services concerned. The overview and schematic description were appended to the Minister's letter. On 12 March 2002, the Board of Procurators General issued a formal instruction on the “Destruction of intercepted conversations with persons enjoying the privilege of non-disclosure” ( Instructie vernietiging geïntercepteerde gesprekken met geheimhouders – “the Instruction”; see below under “Relevant domestic law”), which entered into force on 1   April   2002. 3.     The enquiry of the Personal Data Protection Authority On 4 March 2002, the NVS and applicants nos. 39, 67, 81, 99 and 104 requested the Personal Data Protection Authority ( College Bescherming Persoonsgegevens - DPA), under Article 60 § 1 of the Personal Data Protection Act ( Wet bescherming persoonsgegevens ), to conduct an enquiry into -              the manner in which data obtained by using digital tapping systems is processed; -              compliance with the obligation of destruction under (former) Article 125h of the CCP and Article 126aa of the CCP in general; and -              compliance with these provisions in relation to the collection, storage, removal and destruction of data pursuant to the Police Files Act ( Wet op de politieregisters ), and the Personal Data Protection Act in particular. The DPA agreed to conduct the enquiry. It considered itself competent to do so under the Police Files Act and the Personal Data Protection Act, irrespective of the competence of the judge in criminal proceedings. It further accepted that the NVS had an interest in the matter. As regards the scope of its enquiry, the DPA decided to concentrate on the current practice of recording telecommunications with lawyers and, as to the destruction of recorded conversations, on compliance with the Instruction of 12   March   2002. For the time being it decided not to deal with the question of compliance with the obligation of destruction since 1994 when digital tapping systems came into use. The DPA published its report on this enquiry on 16 July 2003. On the basis of information provided by the Minister of Justice, the Board of Procurators General, the National Organised Crime Prosecution Service ( Landelijk Parket ) and the petitioners, as well as the comments submitted in response thereto, the DPA noted the following: “An order for the interception of telecommunications contains a telephone number. The telecom provider transmits digital conversation data being passed by that telephone number to a police tapping room. Five different digital interception systems are used in the police tapping rooms. The manner in which the different interception systems function is comparable. The digital data transmitted by the telecom provider are stored on a hard disk in the interception system. During the storing on the hard disk, the conversations can be listened to on line. This direct listening is exceptional. The data are copied from the hard disk to an optical disk. This copying is also called archiving. Both before and after archiving, conversations having been stored on a hard disk can be listened to. When the hard disk is full, the conversations stored on the hard disk are overwritten by newly entered conversations. The listening to recorded conversations takes place, as a rule, by playing an optical disk with the aid of a special technical listening device ( uitluisterunit ). The data obtained through recording telephone conversations are stored in a (special) police register. The listening to recorded conversations is firstly made by a member of the investigation team that has been entrusted with the investigation in which context the interception order has been given. If, in listening to a recorded conversation, the suspicion arises, or it appears, that it concerns a conversation with a lawyer, a transcript of the recorded telephone conversation is submitted to the public prosecutor in charge of the criminal investigation concerned. The public prosecutor assesses whether the conversation contains information that falls within the ambit of the privilege of non-disclosure. If, according to the public prosecutor, that is the case, the public prosecutor will then order the destruction of the recorded telephone conversation to the extent that it contains privileged information. According to the explanation attached to the Instruction [of 12 March 2002], a generic order for destruction may be given as regards recorded conversations with a specific lawyer. ... To date, no use is made in practice of the possibility to give such an order. It has been established that there has been a lack of clarity between the public prosecution service and the petitioners about the manner in which an order for destruction must be carried out. It has also been established that deleting [digital data] can be effected in various manners and that not all manners are effective, as has appeared in the [criminal proceedings before the Almelo Regional Court]. The instruction does not prescribe in what manner the destruction must take place. In the explanation to the Instruction a reference is made to the explanation attached to the Decision [on the storage and destruction of items not added to the case file], where it is stated that simply deleting [digital] files is not sufficient, but that the data carrier must be processed in such a manner that the destroyed data can no longer be recuperated. The Netherlands Forensic Institute ( Nederlands Forensisch Instituut ) has, upon the instruction of the public prosecution service, carried out a further investigation. One of the results was that, as regards the Kislev [interception system], it appeared to be possible – through the efforts of an academic scientific researcher and a research assistant having four and one years' experience respectively   – to recuperate deleted conversations within a time span of 56 hours.” The conclusions of the DPA read as follows: “As to the current practice in respect of intercepting and recording confidential telecommunications with a lawyer or other provider of legal assistance, the DPA has reached the opinion that this is unlawful. It follows from the recent legislative history, in line with the case-law on this issue, that the interests in the protection of these confidential communications prevails over the interests in finding the truth in criminal cases, also when it concerns the exercise of special powers of investigation. The systematic interception, recording and becoming acquainted with these confidential communications by the police and the public prosecution department is a breach of that. This also leads to a violation of the provisions of Article 14 of the Police Files Act and of Articles 6, 8 and 13 of the Personal Data Protection Act. The DPA's understanding of Article 4 of the Decision is that the interception and recording of communications, which in the lawyer-client relation must be regarded as confidential, can only take place with the utmost restraint. Only such an interpretation is compatible with the above norm on the need to respect these confidential communications. Therefore Article 4 of the Decision offers a basis for the public prosecutor to take note of recorded telecommunications with a person who presumably, or certainly, is a person enjoying the privilege of non ‑ disclosure, within the meaning of Article 126aa § 2 of the CCP, if and insofar as it is not possible otherwise to do justice to respect confidentiality. Should this interpretation be incorrect, the question then arises whether, on this point, Article 4 of the Decision is compatible with the special position, recognised by law and treaty, held by persons, who on grounds of their profession, enjoy the privilege of non-disclosure. However, so far the DPA has not drawn this conclusion and, instead, furthers a norm-conforming working method in the interception and recording of conversations with lawyers and other providers of legal assistance. The public prosecution department is to amend the Instruction in conformity with this restrained working method. As to the obligation of destruction, the DPA is of the opinion that Article 126aa § 2 of the CCP is not respected in the cases that have arisen. The public prosecution department is to take those measures within their powers to ensure as far as possible that, after the destruction of privileged data, it will not be possible in the context of criminal proceedings to become acquainted, via relatively simple means, with destroyed data.” The DPA formulated the following four recommendations: “1. Lawyers and other providers of legal assistance are to ensure that there is clarity about their capacity when participating in telecommunications. To this end the lawyer can make it unambiguously clear at the beginning of a telecommunication that he participates in his capacity as a lawyer, where it concerns a confidential communication with his client. 2. The public prosecution department is to prescribe a number recognition system to select conversations in which lawyers participate exclusively in their professional capacity. As regards an unrecognised number, only the first conversation has to be listened to. A separation of functions ... in listening to and assessing conversations could offer a final safeguard... 3. The public prosecution department is to give concrete substance to the norm that destroyed conversations should no longer be accessible, specifically in the context of criminal proceedings, by including in the Instruction a sufficiently specific norm on which the actual implementation of the obligation of destruction in respect of the different tapping systems can be based. 4. The public prosecution department is to give effect to its responsibility for compliance with the obligation of destruction by making further agreements with the police force managers ( korpsbeheerders ) who are responsible for the actual implementation of the obligation of destruction. The public prosecution department is to verify that adequate implementation be given to the obligation of destruction and will ensure that, on this point, it will be informed half a year after the introduction of a new Instruction.” 4.     Initiatives taken by the Government On 25 March 2003, in response to the negative publicity the matter had attracted in the media, the Minister of Justice and the Minister of the Interior and Kingdom Relations ( Minister van Binnenlandse Zaken en Koninkrijksrelaties ) informed the Lower House of Parliament ( Tweede Kamer ) that they intended to commission a vulnerability risk assessment of the telecommunication interception systems. On 5 December 2003, these Ministers transmitted to the Lower House an accountants' report on the five different systems used in the Netherlands. The main conclusion of this report (dated 25 August 2003) reads, insofar as relevant: “During our investigation we have found, in all of the five interception organisations examined, important lacunas in both the management of the interception system and the technical security of the interception systems themselves. This means that there exist, in all the interception organisations examined, risks that may lead directly to accessing, altering or (non ‑ )deletion of intercepted information or therewith connected meta ‑ information (such as traffic data) ... by unauthorised third persons. In our opinion, such risks are to be addressed without delay. How far such risks have also in fact led to abuse has, given the aim of the assessment, has not been examined. A mitigating circumstance in the insufficiency of the technical security is that the interception systems are used within the compartmented surroundings of the police so that the hereto related risks are primarily of an internal police nature.” The Ministers stated, in their accompanying letter to the Lower House, that although no cases of abuse had been reported, the management and data security in the interception centres assessed had been found to be insufficiently formalised. They informed the Lower House of the measures already taken and the measures planned for the future to remedy the shortcomings as soon as possible. 5.     Subsequent developments By letter of 29 September 2003, the Minister of Justice informed the DPA that he did not subscribe to the findings of the DPA made in its report of 16 July 2003. The Minister considered that the practice of intercepting all conversations conducted via a tapped telephone number, including telephone conversations with a lawyer, with a subsequent control by the public prosecutor whether any of these conversations fell with the scope of the privilege of non-disclosure enjoyed by lawyers was in accordance with Article 126aa of the Code of Criminal Procedure and Article 4 of the Decision. Consequently, the Minister would not follow the DPA recommendations. On 25 October 2004, the DPA informed the Minister of Justice that, given the difference of opinion about the meaning of the applicable domestic legal rules, it now advised the Minister to amend these legal rules, by setting rules aimed at preventing that information conveyed to or by a person enjoying the privilege of non-disclosure be rendered public. The DPA further advised the Minister to entrust to the investigating judge the task of selecting what information should be classified as privileged. B.     Relevant domestic law and practice 1. Preliminary judicial investigation It is open to the public prosecutor, under Section 181 of the Code of Criminal Procedure (CCP), to request the investigating judge to open what is called – in order to distinguish it from the subsequent investigation at the trial – a preliminary judicial investigation ( gerechtelijk vooronderzoek ). It is the task of the investigating judge to conduct such an investigation in which he/she is to ensure that evidence is obtained in accordance with the law. The judge must also act impartially by collecting evidence which might exculpate the suspect. It is on the basis of the judge's investigation that the prosecution decides whether to take the matter further, by committal for trial, or whether to close it. Article 33 of the CCP, as amended on 1 February 2000, reads as follows: “Access to all documents in the case file, either the originals or copies thereof, may not be denied to the suspect as soon as the preliminary judicial investigation has been closed or has ended, or, where there has been no preliminary judicial investigation, as soon as the notification of further prosecution or the summons for appearance at the trial in first instance has been served [on the suspect].” The trial court may suspend proceedings for further inquiries by the investigating judge (Article 316 of the CCP). 2. Situation before 1 February 2000 as regards the interception of telecommunications in criminal investigations Until 1 February 2000, the rules about the interception of communications made through public telecommunication networks or services were set out in Articles 125f-h of the CCP. Further rules on the practical exercise of the power to intercept communications were set out in the Guidelines for the Interception of Telephone Conversations ( Richtlijnen Onderzoek van Telefoongesprekken ) of 2 July 1984, a copy of which could be obtained by any interested person. The text of these Guidelines had further been published in, inter alia , the Netherlands Journal for Human Rights ( Nederlands Tijdschrift voor de Mensenrechten ) of July/August 1989. These Guidelines, which did not have the formal character of law, had been issued as a model letter from the senior public prosecutors to the police. The above rules initially covered only communications by telephone. As from 1 March 1993, when the Act on Computer Criminality ( Wet op de Computercriminaliteit ) entered into force, they also covered communications by fax and e-mail. Pursuant to Article 125g of the CCP, the tapping of telecommunications could only be ordered in relation to offences for which detention on remand ( voorlopige hechtenis ) could be imposed, i.e. offences of a certain gravity carrying a punishment of imprisonment of four years or more (Article 67 of the CCP). The tapping could only concern communications in which a suspect was likely to participate, and it could only be ordered where the investigation urgently required it. It was subject to the prior authorisation of the investigating judge, and a written record ( proces ‑ verbaal ) of the tapping had to drawn up within 24 hours. Under Article 125h of the CCP, records without importance for the investigation had to be destroyed as soon as possible by order of the investigating judge and a written record of destruction should be drawn up without delay. As to the destruction of information obtained through the interception of telephone conversations, the standard practice in fact differed from the Guidelines. On the basis of, inter alia , the Court's findings in the cases of Kruslin and Huvig v. France (judgments of 24 April 1990, Series A no. 176-A and B) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case. Anyone requesting access to such material was required to give reasons for such a request. Where no suspect could be identified immediately and in order to obtain a tapping authorisation from the investigating