The Dutch association of criminal defence lawyers (NVSA) has lost a court case (preliminary proceedings) demanding an immediate stop to the practice of wiretapping their confidential telephone conversations with clients. On 15 March 2005 the administrative Court of the Hague ruled that these conversations do not per definition fall under the professional secrecy. There is a specific decree in the Netherlands that allows for the wiretapping of lawyers. First a full report of the wiretap on a suspect is made and read by the specific prosecutor responsible for the case. If the prosecutor concludes that the report contains confidential conversations with a lawyer, he can decide to have those parts deleted en removed from the file.

The lawyers association, supported by a destructive report by the Dutch Data Protection Authority from 2003, claimed in practice these conversations are often not deleted and used by the prosecutor to help build a case. In their view, the police should immediately stop a wiretap as soon as it becomes clear that it is a confidential conversation, for example with the help of telephone number recognition.

The lawyers association is furious about the ongoing practice of wiretapping. "The essence of the pledge of professional secrecy is that a citizen should be able to freely consult a lawyer and communicate with him without any interference from the government." The fact that the State does not respect this, leads to a 'back room' atmosphere, where lawyers have to secretly make appointments with their clients, possibly even at secret locations. "This marginalises the contact between citizen and legal council, as if there were something wrong about it," said council Taru Spronken in her plea at the court.

The Dutch minister of Justice refuses to take any steps to protect the lawyers. He claims the telephone numbers of lawyers cannot be excepted, as they might become criminal refuges, or can be hacked via the Internet for use by criminals. The Court of the Hague doesn't address any of these objections, but finds the current practice in the Netherlands to be in line with the European Convention of Human Rights.

The NVSA will appeal and is also considering to start full civil proceedings to get a more balanced, in depth analysis. They have already shown their tenacity in 2001, when they first started preliminary proceedings against the State with the same demand; to have confidential conversations deleted from the files. In response, the State created an instruction for prosecutors. But the lawyers did not find these guidelines acceptable and 113 of them joined forces in a case at the European Court of Human Rights. The ECHR did not accept the case, roughly summarised because a wiretap can only be ordered by an investigating judge. For a practical and detailed examination of the practice, the ECHR referred the lawyers back to a Dutch court.

Verdict preliminary proceedings (in Dutch, 15.03.2005)
http://zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp?searchtype=ljn&am...

Decision ECHR in Aalmoes and others v. The Netherlands (25.11.2004)
http://echr.coe.int

(no direct link possible, please search HUDOC for Aalmoes)