The Netherlands is on the frontpage of the latest newsletter of the Council of Bars and Law Societies of Europe (CCBE), with the title “Dutch court upholds lower court ruling banning surveillance of lawyers’ communications after successful CCBE intervention“. It regards the Prakken d’Oliveira case.
It is to be hoped that the Netherlands will be the subject of more positive articles in the future…
In the same newsletter CCBE writes on the resolutions of the LIBE Committee and the EU Parliament for the protection of lawyer-client communications.
CCBE article on Prakken d’Oliveira case
Dutch court upholds lower court ruling banning surveillance of lawyers’ communications after successful CCBE intervention
On 27 October 2015, a Dutch Court of Appeal upheld The Hague District court’s ruling in the Prakken d’Oliveira case which ordered the Dutch State to stop all surveillance of lawyers’ communications until it provided for independent oversight.
In its ruling, the Dutch Court of Appeal dismissed all the grounds of appeal alleged by the Dutch State, indicating that according to case law of the European Court of Human Rights surveillance activities must be subject to review by an independent body with the power to prevent or terminate potential infringements of professional secrecy. The current Dutch surveillance regime does not meet the requirements for such independent control and, therefore, conflicts with the right to privacy and the right to a fair trial. The Court stressed that information obtained from tapping lawyers may not be shared with prosecutors until an independent review has taken place regarding the legality of that information and the way it was obtained. Even the possibility that information is shared with the public prosecutor can result to people refraining from contacting a lawyer. According to the court, this is a violation of the right to a fair trial and undermines the rationale behind professional secrecy. The Court also ruled that the protection of client confidentiality is not limited to communications with Dutch lawyers but extends to communications with all European lawyers rendering services in The Netherlands.
As a result of these findings the Court of Appeal confirmed the lower court’s ruling.
The transcript of the judgement (in Dutch) can be found here: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2015:2881
CCBE on the protection of lawyer-client communications
EU Parliament calls for the protection of lawyer-client communications
On 13 October 2015, the LIBE Committee (Committee of Civil Liberties, Justice and Home Affairs) adopted the Follow-up Resolution of 12 March 2014 on the electronic mass surveillance of EU citizens which includes recommendations made by the CCBE.
These recommendations were made to protect the confidentiality of lawyer-client communications as a key element of the rule of law. The draft resolution “underlines in particular that the rights of EU citizens be protected against any surveillance of confidential communications with their lawyers,” and “calls upon the Commission to present a Communication on the protection of confidential communications in professions with legal professional privilege by the end of 2016 at the latest”.
This draft resolution takes stock of the action (or lack of action) by the European Commission, other EU institutions and member states to follow up the recommendations set out by Parliament in its resolution of 12 March 2014 on the electronic mass surveillance of EU citizens, which also called for protection of the confidentiality of lawyer-client communications in the context of surveillance.
The draft resolution was approved by the Plenary of the European Parliament on 29 October 2015. It was also stressed that a common definition of “national security” was needed to ensure legal certainty.