According to a press release of the international lawyers’ organisation CCBE not only in the Netherlands the government is spying on lawyers. It is also common practice in France, the United Kingdom and some other European countries. It looks as if “the rule of law” is not taken seriously by these countries.
CCBE writes in the most recent newsletter:
European Parliament takes a stance on surveillance of lawyers in the EU
MEPs raised concerns about interception of phone calls between lawyers and their clients by intelligence services across Europe during the plenary session on 13 January.
The issue came up following the recent admission by the Minister of the Interior of the Netherlands that the Dutch Intelligence and Security Agency (AIVD) had been spying for years on Amsterdam- based law-firm Prakken d’Oliveira. According to data collected by the CCBE, communications between lawyers and their clients have been monitored recently by police or intelligence services in similar cases in France, the United Kingdom, Ireland, the Czech Republic and Latvia.
MEPs from across the political spectrum took turns in denouncing this unacceptable form of espionage and called for action to be taken by the EU, through investigations, sanctions and the adoption of legislation.
The newsletter refers to the press release of CCBE:
Members of the European Parliament denounce surveillance of lawyer-client communications
MEPs raised concerns about interception of phone calls between lawyers and their clients by intelligence services across Europe in a plenary debate with the Presidency of the EU and the Commissioner for Justice on Tuesday evening.
The issue had been put on the agenda of the plenary session of the European Parliament following the recent admission by the Minister of the Interior of the Netherlands that the Dutch intelligence and security agency (AIVD) had been spying for years on Amsterdam-based law-firm Prakken d’Oliveira. According to data collected by the Council of Bars and Law Societies of Europe (CCBE), communications between lawyers and their clients have been monitored over the last few years by police or intelligence services in similar cases in France, the United Kingdom, Ireland, the Czech Republic and Latvia.
MEPs from across the political spectrum took turns in denouncing an unacceptable form of espionage that goes against the right to a fair trial, the rule of law and democracy. In her response on behalf of the Council of Ministers, Latvian Secretary of State for European Affairs, Zanda Kalniņa-Lukaševica, refused to take a stand and only stated that collection and processing of personal data for the purpose of national security is not regulated currently by EU law, as the Lisbon Treaty explicitly gives this competence to the Member States.
“The extent and occurrence of this type of wiretapping shows that it is a widespread problem in need of a solution” says CCBE President Maria Ślązak. “National security cannot serve as an excuse to ignore the principle of lawyer-client confidentiality and deprive citizens of the right to legal counsel and to a fair trial. We hope that in time the European Court of Justice will be asked by a national court to define the meaning and extent of national security in this context, and whether it can ever provide a justification for the surveillance of the activities of lawyers.”
Justice Commissioner Vĕra Jourová expressed her ‘concern’ and vowed to follow closely developments on this issue as well as the implementation of the 2013 Directive on the right of access to a lawyer1, which guarantees the confidentiality of communications between an accused person and their lawyer.
MEPs asked for action to be taken by the EU, through investigations, sanctions and the adoption of legislation. The CCBE supports their initiative, and calls for a minimum level of legal protection afforded to professional secrecy from government electronic surveillance, which could be included in the European Parliament project to establish ‘A European Digital Habeas Corpus – protecting fundamental rights in a digital age’.
CCBE refers to:
- The debate on video 13 January 2015
- The full text of the parliamentary question 19 December 2014
- Information on the site of Prakken d’Oliveira lawyers of 18 October 2014
- Statement of the CCBE on mass electronic surveillance of 14 oktober 2013
Addition of 11 March 2015
In the latest newsletter of CFE (Confédération Fiscale Européenne) the following is mentioned:
ECtHR: Eavesdropping of conversation with a client infringed lawyer´s right to privacy
On 3 February 2015, the European Court of Human Rights ruled that eavesdropping of telephone conversations between a lawyer and his client violated the lawyer´s right to privacy, guaranteed under the EU Charter of Fundamental Rights. The measure was carried out in the context of criminal investigations against the client. However, the judicial order allowing the measure failed to take account of the rights of third parties, i.e. the lawyer, and therefore lacked proportionality. The lawyer who was not the client´s representative in the same matter in which the investigation took place did not have a judicial means against the measure and could not obtain the deletion of the evidence collected.
ECHR sentence in French, Affaire Pruteanu c. Roumanie: look here.
Addition of 13 March 2015
According to Dutch minister it is not necessary that spying on lawyers only takes place after court approval: ‘Rechterlijke toets vóór afluisteren “niet nodig”’, Advocatenblad 9 March 2015. Full text of the answers the minister gave: click here.
Addition of 24 Juni 2015
The Dutch Section of the International Commission of Jurists (NJCM) published a message regarding the procedure against the Dutch state regarding eavesdropping of telephone conversations between Dutch lawyers and their clients.