European courts issue two rulings over surveillance of lawyers

The Dutch Court of Appeal upheld a decision by a district judge which limited the scope of surveillance of confidential communications between lawyers and clients.

And the European Court of Human Rights has found in favour of a man who complained about the regime for covert surveillance of consultations between police detainees and their lawyers.

In the Dutch case, Prakkend’Oliveira, an Amsterdam law firm, and the Dutch Association of Defence Counsel were supported by the Council of Bars and Law Societies of Europe (CCBE), of which the Faculty of Advocates is a member.

Under existing arrangements in the Netherlands, lawyers’ communications can be intercepted by the security services if a government minister gives prior consent, with the matter being considered after the event by a supervisory commission.

Earlier this year, a judge in the District Court in The Hague ruled that the safeguards were insufficient, and said the Dutch authorities should, within six months, adjust their policy for intercepting lawyers’ communications.

The Court of Appeal in The Hague has upheld the ruling, concluding that a form of control by an independent authority was required. The judges said it was not for the Court to decide how the control was organised, but added that it would not require a change in the law and that six months would be sufficient time to institute the control.

An English translation of the judgment is available here.

The ECtHR case concerned a man, RE, who was detained in Northern Ireland in connection with the murder of a police officer. He complained about the regime for covert surveillance of consultations between detainees and their lawyers.

In a Chamber judgement, which remains open to challenge, the judges noted that guidelines introduced in June 2010 about storing and destroying material obtained through such covert surveillance had not yet been implemented at the time of RE’s detention, in May 2010.

The Court was not therefore satisfied that domestic law provisions in place at the time had provided sufficient safeguards for the protection of material obtained by covert surveillance.

It considered that the surveillance of a legal consultation constituted “an extremely high degree of intrusion into a person’s right to respect for his or her private life…”

The judgment is available here and a detailed case report is available on the Scottish Legal News website.