CASE OF DOERGA v. THE NETHERLANDS
Violation of Art. 8;Costs and expenses partial award - Convention proceedings
7. The applicant was born in 1953. At the time of the introduction of his application, the applicant was serving a prison sentence in the Netherlands. 8. On or around 26 January 1995 suspicions arose that the applicant, who at that time was serving a prison sentence in the Marwei penitentiary in Leeuwarden, had been involved in giving a false tip-off by telephone to the Leeuwarden police to the effect that three named detainees were planning to escape from prison by taking hostages. Thereafter, and in order to secure order, peace and safety in the penitentiary, the applicant’s telephone conversations were tapped and recorded on tape. These taped conversations were kept so as to allow the authorities to establish – if such a situation were to arise again – whether the applicant had been involved in giving any further false telephone tip-offs. 9. On 3 October 1995, as a result of the detonation of an explosive device placed in her car, Ms X – the applicant’s former partner – suffered slight injuries. Her son, Mr Y, suffered serious injuries necessitating the amputation of the lower part of his left leg. 10. At the time of the explosion, the applicant was still in prison. As it was suspected that he was involved in the bomb attack, the national public prosecutor (landelijk officier van justitie) ordered that the applicant’s recorded telephone conversations be made available to the criminal investigation into the bomb attack. 11. On 16 May 1998 the applicant was summoned to appear before the Haarlem Regional Court (arrondissementsrechtbank) to stand trial on charges of, inter alia, (attempted) premeditated grievous bodily harm, causing an explosion endangering property and life, making a threat to kill and various counts of fraud. 12. On 22 August 1996 the Haarlem Regional Court convicted the applicant of making a threat to kill and one count of fraud, acquitted him on the remaining charges and sentenced him to two years’ imprisonment. Both the applicant and the public prosecutor filed an appeal with the Amsterdam Court of Appeal (gerechtshof). 13. In its judgment of 4 November 1997, following hearings held on 20 May and 21 October 1997, the Amsterdam Court of Appeal quashed the judgment of 22 August 1996, convicted the applicant of complicity in (attempted) premeditated grievous bodily harm, causing an explosion endangering property and life, and making a threat to kill or, in any event, to inflict grievous bodily harm. He was also convicted of several counts of fraud. The applicant was sentenced to nine years’ imprisonment. As regards the determination of the applicant’s sentence, the Court of Appeal held, inter alia, that the applicant, over a period of several months, had continuously threatened Ms X by telephone and had eventually carried out his threats by organising – from his place of detention – the placing of a bomb under her car. The detonation of this bomb had caused injuries to Ms X and Mr Y, necessitating the amputation of the lower part of the latter’s leg. The court noted that it was only as a result of the administration of rapid and adequate first aid that Mr Y had not bled to death. In addition, the explosion had caused collateral damage to another car as well as to windows of nearby houses and there had been a real danger that the explosion could also have (fatally) injured bystanders. The court further noted that the applicant had already been convicted in the past of having deliberately shot Ms X in the leg. 14. The Court of Appeal based the applicant’s conviction on, inter alia, statements given by the applicant, a co-detainee, Mr Y, Ms X and her neighbours, several telephone conversations between the applicant and Ms X that had been tape-recorded by the latter, and one of the applicant’s telephone conversations that had been tapped and recorded prior to 3 October 1995 by the authorities of the penitentiary where the applicant was detained, namely a conversation between the applicant and his sister in which he warned his sister never to approach or get into Ms X’s car. 15. The Court of Appeal rejected the defence’s argument that the telephone conversations which had been tapped and recorded by the prison authorities before 3 October 1995 should be disregarded as unlawfully obtained evidence. Noting the reasons for which the prison authorities had decided to tap and record the applicant’s telephone conversations, the court held that the impugned measures served a lawful purpose, namely the preservation of order, peace and security within the penitentiary. Furthermore, the measures also complied with the requirements of proportionality. It further held that, although the internal penitentiary regulations prescribed the immediate erasure of recorded telephone conversations, a reasonable interpretation of the applicable rules in relation to the aims pursued implied that the recorded conversations could be kept, since there were concrete indications of an ongoing escape plan. When fresh suspicion arose that the applicant was involved in another criminal offence, the information lawfully obtained on the basis of internal prison rules could be made available to the police for the purposes of the criminal investigation into that offence. The Court of Appeal referred in this connection to the general obligation contained in Article 160 of the Code of Criminal Procedure (Wetboek van Strafvordering) to report, inter alia, criminal offences involving a danger to life, and to the very serious nature of the offence at issue. 16. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 2 March 1999. 17. As regards the applicant’s complaint that his telephone conversations had been unlawfully tapped, recorded and kept by the penitentiary authorities, the Supreme Court held: “3.2. The complaint has to be considered in the following framework of legal rules. Article 15 § 4 of the Constitution (Grondwet) ... Article 8 [of the Convention] ... Article 92a of the ... applicable [1953] Prison Rules (Gevangenismaatregel) ... Article 4 § 1 of the [1953] Prison Rules ... [the] circular no. 1183/379 of the Deputy Minister of Justice (Staatssecretaris van Justitie) of 1 April 1980 ... [and] an internal regulation issued by the Governor of the Marwei penitentiary under Article 23 of the [1951] Prison Act (Beginselenwet Gevangeniswezen) ... 3.3. Under the heading ‘The lawfulness of the evidence obtained’ ... the Court of Appeal found that the recording of the applicant’s telephone conversations conducted in the Marwei penitentiary served a lawful purpose, namely maintaining order, peace and security in the penitentiary, and further complied with the requirements of proportionality. This finding does not reveal any incorrect interpretation of the law. In the first place, this finding recognises that the recording can be justified in view of the aims set out in Article 8 § 2 of [the Convention], in particular the prevention of disorder. In the second place, it recognises that the Court of Appeal has also examined whether in a democratic society the interference at issue with the right set out in Article 8 § 1 of [the Convention] was necessary for attaining the stated aim. In so far as that finding further established that the tape recording pursued this aim and that the interference was also necessary, these matters are factual and are readily understandable. 3.4. This recording is further provided for by law as required by Article 8 § 2 of [the Convention]. Indeed, the system of legal rules set out under 3.2 complies with the requirements of accessibility and foreseeability. The system comprises regulations of which the most important features have been published in generally accessible sources or have been deposited in places accessible to detainees. They provide a sufficiently clear indication to detainees about the fact that telephone conversations can be tapped and recorded and the reasons for this. 3.5. The above considerations lead to the conclusion that the finding of the Court of Appeal as to the lawfulness of the tape recording can be upheld. Questions still remain about the finding of the Court of Appeal as regards the keeping of the recordings and the failure to erase them immediately, the ... making available to the criminal investigation authorities of these tape recordings, ... their being listened to by the latter for the purposes of the investigation into ... [the car bomb attack] and the subsequent use in evidence of a document containing a transcript of one of the recorded telephone conversations (evidence item 23). It must first be noted that the cassation complaint apparently only seeks to challenge the finding of the Court of Appeal as to the use in evidence of the formal record (proces-verbaal) containing the transcript of a telephone conversation between the [applicant] and his sister (evidence item 23). 3.6. The internal regulation set out under 3.2 provides that tape recordings are not to be kept and will be immediately erased. Against the background of a reasonable interpretation, it is difficult to explain that provision otherwise than to mean that the tape recordings must no longer be kept and the tapes must be erased as soon as the danger giving rise to the recording has ceased to exist. Under the heading ‘The lawfulness of the evidence obtained’ ... the Court of Appeal found that the telephone conversation used in evidence had been recorded, inter alia, after suspicions had arisen that the [applicant] was involved in giving a false telephone tip-off about an intended hostage-taking and that this tape recording had been kept in order to be able to establish – if such a situation were to arise – whether the [applicant] was again involved in giving false telephone tip-offs affecting the order, peace and security of the penitentiary. It follows from this that, according to the Court of Appeal – and quite apart from the existence of any concrete indication about an escape plan ... – the keeping of and failure to erase the recordings occurred against the background of the danger which gave rise to the decision to tap the conversations. The Court of Appeal thus found that there was no violation of the relevant internal regulation. Without stating further reasons, this finding can be readily understood. 3.7. Taking into account the above considerations, the handing over of the tapes to the national public prosecutor for the purpose of the criminal investigation was not unlawful. Suspicions against the [applicant] had arisen that from his place of detention he was involved in a bomb attack. When this official had become aware of the existence of those tapes, it was not unlawful to hand them over, bearing in mind the provisions of Article 162 § 2 of the Code of Criminal Procedure and the fact that, failing a voluntary surrender [of the tapes], the judicial authorities could have had recourse to seizure (inbeslagname). 3.8. The complaint has therefore no merit.” 18. Article 15 § 4 of the Constitution (Grondwet) provides: “A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is not compatible with the deprivation of liberty.” 19. Article 92a of the [1953] Prison Rules (Gevangenismaatregel), in so far as relevant, provides: “The Governor may permit detainees to speak by telephone to persons outside the penitentiary.” 20. Article 4 § 1 of the [1953] Prison Rules reads: “The Governor is responsible for the proper running of the penitentiary. In the exercise of his duties he is bound by the restrictions imposed on him by Our Minister, whether laid down in the Internal Regulations (huishoudelijk reglement) or otherwise.” 21. Circular no. 1183/379 of the Deputy Minister of Justice (Staatssecretaris van Justitie) of 1 April 1980 provides: “Every closed institution must have telephone rules, which must be tailored to the penitentiary’s regime and to its staff capacity and facilities and must be submitted to me for approval. These rules should include the following: ... - the way in which the content of the calls is monitored (it must be possible to listen to the calls by way of retrospective check); the rules must specify whether all calls are monitored on the Governor’s instructions; ...” 22. An internal regulation issued by the governor of the Marwei penitentiary under Article 23 of the [1951] Prison Act (Beginselenwet Gevangeniswezen) provides: “It is possible that an instruction may be given by the Governor or on his behalf, by way of a spot check and/or if there are grounds for doing so, to record your telephone conversation. Partly to protect your privacy, only the head of security or his deputy will listen to such tape recordings. They are responsible for ensuring that the tapes are not retained and that they are erased immediately.” 23. On 12 December 1994, on the basis of Article 22 of the 1951 Prison Act, the Minister of Justice issued Internal Regulations for Prisons (Huishoudelijk Reglement voor de gevangenissen). These regulations entered into force on 15 January 1995. 24. According to Article 116 of the Internal Regulations for Prisons, detainees have the right – for ten minutes and at least once per week, at times fixed by the governor – to speak by telephone to persons outside the penitentiary. In accordance with Article 127 § 4 of the Internal Regulations, the governor may restrict – where this is found necessary for the maintenance of order in the penitentiary, for the prevention or investigation of crimes, or for thwarting escape plans – a particular detainee’s right to have visits, to correspond or to have telephone conversations. Pursuant to Article 91 §§ 5, 6 and 7 of the 1953 Prison Rules, a reasoned decision to this effect must be communicated within twenty-four hours to the detainee, who may challenge it before the penitentiary’s Supervisory Board (Commissie van Toezicht). A further appeal lies to the Appeals Board of the Central Council for the Application of Criminal Law (Beroepscommissie van de Centrale Raad voor Strafrechttoepassing). 25. Although the Internal Regulations for Prisons contain specific provisions concerning the monitoring of detainees’ visits and correspondence, they make no specific provision for monitoring detainees’ telephone conversations with persons in the outside world. 26. On 1 January 1999 the 1953 Prison Rules (Gevangenismaatregel) were replaced by new Prison Rules (Penitentiaire Maatregel). The new Prison Rules make no specific provision for the right of detainees to have contacts with the outside world. 27. On the same day, the 1951 Prison Act (Beginselenwet gevangeniswezen) was replaced by a new Prison Act (Penitentiaire Beginselenwet). Article 39 of the new Prison Act, in so far as relevant, reads: “1. The detainee shall have the right, with the exception of the restrictions provided for in paragraphs two to four inclusive, to conduct – at least once per week, at a time and place determined in the internal regulations and by means of a designated telephone, and for ten minutes – one or more telephone conversations with persons outside the penitentiary. Unless the Governor provides otherwise, the costs thereof shall be borne by the detainee. 2. The Governor may order that telephone conversations of a detainee be monitored where this is necessary to determine the identity of the person with whom a detainee is having a conversation or in the light of an interest referred to in Article 36 § 4 [of the Prison Act]. This monitoring can comprise listening to or recording telephone conversations. The person concerned shall be informed beforehand of the nature of and the reason for monitoring.” 28. Article 36 § 4 of the new Prison Act provides: “The Governor may refuse to send or deliver certain letters or other items sent by mail if this is necessary in the light of one of the following interests: a. the maintenance of order or security in the institution; b. the prevention or investigation of criminal offences; c. the protection of victims of crimes or persons otherwise involved in crimes.” 29. Article 160 § 1 of the Code of Criminal Procedure, in so far as relevant, reads as follows: “Any person who has knowledge of one of the offences defined in Articles 92110 of the Criminal Code, in Book II, Title VII of the Criminal Code, in so far as this has caused a danger to life ... is obliged to report this matter immediately to an investigating officer.” 30. Article 162 § 2 of the Code of Criminal Procedure, in so far as relevant, provides: “They [public bodies and officials] shall upon request provide the public prosecutor ... with all information which has come to their attention in the course of their duties about criminal offences the investigation of which has not been entrusted to them.”