In a letter to The Hague District Court, the Netherlands Committee of Jurists for Human Rights (NJCM) and the Public Interest Litigation Project (PILP) argue that the Dutch government should stop systemically violating the evidentiary privilege of lawyers. On June 17, the court dealt with interim injunction proceedings of lawyers that were eavesdropped on by the Dutch state.
Last year it became known that the Dutch General Intelligence and Security Service (AIVD) is eavesdropping on a large scale on phone calls between lawyers of the Amsterdam based law firm Prakken d’Oliveria and third parties. The lawyers reacted to this by lodging a complaint with the Ministry of the Interior and Kingdom Relations.
The minister of the interior, Ronald Plasterk, judged that there had been adequate safeguards for tapping lawyers directly because the AIVD has an internal policy and guidelines with regard to this special power. However, no policy had been defined for indirectly tapping confidential communications between lawyers and third parties, as a result of which the complaint by Prakken d’Oliveira was considered well founded.
Nevertheless, Mr. Plasterk refuses to take measures to stop indirect tapping. That’s why the lawyers have demanded in interim injunction proceedings that the intelligence services stop tapping and recording communications of lawyers as long as their procedures do not live up to the requirements of the European Convention on Human Rights.
The NJCM and PILP endorse this demand and in an amicus curiae brief they call on the judge to order the government to enforce adjustments to the current procedures.
By eavesdropping on lawyers, the state is violating their right to refuse to give evidence. This right falls within the scope of protection of the European Court of Human Rights. An infringement of this right is only permitted if the intrusion is in accordance with the law and is necessary in a democratic society in the interest of national security.
Moreover, the state violated the right to a fair trial: a well-functioning and independent legal profession is an essential part of a fair legal system. Clients should be assured that the confidential conversations they have with their lawyers will never be used against them.