It is unlawful that the communication of and with lawyers is tapped without independent control. The State of the Netherlands has six months to introduce such a system, or else it must stop all tapping, monitoring, registering etc. of communication with clients.
That is the verdict rendered today by the judge in interlocutory (summary) proceedings at the district court of The Hague, in the case of law firm Prakken d’Oliveira et al vs. the State of the Netherlands. Previously, it had been revealed that the General Intelligence and Security Service of the Netherlands (in Dutch: Algemene Inlichtingen- en Veiligheidsdienst, or ‘AIVD’) monitors communications by and with lawyers at Prakken d’Oliveira. Two weeks ago, the law firm requested the judge in interlocutory proceedings in The Hague for an injunction ordering the AIVD to stop doing so. It argued that lawyers and clients must be able to communicate with each other in confidence; the so-called attorney-client privilege is an essential aspect of the rule of law.
The judge agrees with Prakken d’Oliveira et al. In his verdict, the judge held that:
‘The mere possibility of a breach of attorney-client privilege touches on the confidentiality of the communication between lawyers and their clients, and thereby touches on the right to an effective defense and the accessibility of lawyers. As such, this infringement is irreversible in that sense. […] The summary injunction judge finds that the current system offers insufficient […] guarantees.’ [unofficial translation]
According to the judge, the State is thus acting unlawfully when it monitors lawyers. This applies to all lawyers working in the Netherlands, not just lawyers affiliated with Prakken d’Oliveira.
Prakken d’Oliveira is extremely pleased with the verdict, a verdict that leaves nothing to the imagination in terms of clarity. This is a big step forward. Lawyers Michiel Pestman, Channa Samkalden en Tomasz Kodrzycki:
“The verdict reaffirms our confidence in the rule of law. Our clients too are very relieved. The privilege of lawyers cannot simply be put aside, not even by the AIVD; no one in the Netherlands remains outside of the law. Surely countries where an adequate framework is in place are not less safe. This is good news for everyone; not just any lawyer, but also anyone who might ever need one.”
You can find the text of the verdict here [only available in Dutch].
- Prakken d'Oliveira files complaint against Dutch Intelligence Service ('AIVD')
- Dutch Intelligence Service (AIVD) taps Prakken d'Oliveira lawyers
- Prakken d'Oliveira and NVSA file for injunction: Dutch Intelligence Service must stop tapping phone calls with lawyers
- CCBE to join the summary proceedings about the tapping of lawyers