The Dutch State is no longer allowed to tap lawyers as long as there is no independent oversight guarding the use of special powers by the Dutch (military) intelligence agencies (‘AIVD’ and ‘MIVD’). As long as this check is not in place, the State is also not allowed to provide the Public Prosecutor’s Office with information that has been collected based on communications between lawyers and their clients.
On 27 October 2015, the Appeals Court in The Hague confirmed the verdict rendered by the judge in interlocutory (summary) proceedings in The Hague on 1 July 2015 in the case Prakken d’Oliveria c.s. vs. The Netherlands. The Appeals Court rejected the State’s appeal against that verdict on all counts. This means that, as of 2 January 2016, the Dutch State must cease all forms of tapping, unless an independent check is in place. The bar on providing the Public Prosecutor’s Office with information has been in place since 1 July 2015.
The Dutch tapping-practices are clearly inconsistent with the criteria that have been developed by the European Court of Human Rights. Particularly with regard to lawyers, the use of special powers by the intelligence agencies must be accompanied by safeguards. Following the District Court of the Hague, the Appeals Court has now also recognized this, and drawn the conclusion that the State must cease its unlawful tapping.
The Appeals Court leaves no doubt that the tapping of lawyers by the intelligence agencies is unlawful as long as there is no independent oversight in place. According to the Appeals Court, it is ‘of great importance that those who turn to a lawyer or are considering doing so, can rely on the fact that, in principle, the confidentiality of their communication with that lawyer is guaranteed, and that infringements will only take place in exceptional circumstances and under the supervision of an independent body.’
The State had also argued that new legislation needed to be drafted and that the 6-month deadline imposed by the judge in first instance provided insufficient time in which to do so. The Appeals Court disagreed. Moreover, it held that the State has had ample opportunity to adjust its policy because it should have been clear long ago that the current system is inadequate.