The Dutch intelligence service must immediately stop intercepting priviliged communication by Prakken d’Oliveira's lawyers. Praken d'Oliveira and the Dutch Association of Criminal Defense Lawyers (Nederlandse Vereniging voor Strafrechtadvocaten, NVSA) are seeking an injunction to that effect in summary proceedings before the district court of The Hague. Last year, the Minister of Interior Plasterk sustained a complaint filed by Prakken d'Oliveira with regard to this matter. However, he continues to refuse to take action to protect the right that Prakken d'Oliveira's clients have to priviliged communication with their lawyers.
The right to privileged communication with a lawyer entails that one should be able to communicate with a lawyer in confidence, with no risk that the information will be disclosed to others. Lawyers are only able to fulfil their key role in the proper administration of justice if that right is guaranteed. The European Court of Human Rights (ECHR) has ruled that the professional privilege of lawyers is closely linked to the principle of a fair trial and that it is part of the right that lawyers have to a (professional) "private life". ECHR case law shows that intercepting privileged communication, e.g. with lawyers, is only permissible in exceptional circumstances and after prior leave from an indedepent judge.
The Minister's decision on Prakken d'Oliveira's complaint shows that Prakken d’Oliveira's communication has indeed been intercepted by the Dutch Intelligence Service.
Yesterday, Dutch Minister of Defense Hennis Plasschaert confirmed in writing that the Dutch Military Intelligence Service (Militaire Inlichtingen- en Veiligheidsdienst, MIVD) , a specialised agency, also listens in on lawyers' priviliged communications. This too takes place without prior judicial leave and on the basis of confidential internal policy. The only check in place is the review carried out by the minister involved. According to lawyer Michiel Pestman, ’that, of course, is not an independent review but an example of being judge and jury in one's own case'.
Prakken d'Oliveira's lawyers are asking for an injunction ordering the Dutch State to cease intercepting their priviliged communication as long as the procedure does not meet the requirements of the European Convention on Human Rights. The court hearing is expected to take place in June.
- Dutch Intelligence Service (AIVD) taps Prakken d'Oliveira lawyers
- Prakken d'Oliveira files complaint against Dutch Intelligence Service ('AIVD')
Zie also (in Dutch)
- NRC Handelsblad: 'AIVD ging te ver in afluisteren advocaten' (interview with Michiel Pestman) (19 December 2014)
- De Volkskrant: 'AIVD luistert advocaten al jaren af' (19 December 2014)
- NRC Handelsblad: 'Advocaten dagen staat om afluisterpraktijken AIVD' (22 April 2014)