The Netherlands is on the frontpage of the latest newsletter of  the Council of Bars and Law Societies of Europe (CCBE), with the title “Dutch court upholds lower court ruling banning surveillance of lawyers’ communications after successful CCBE intervention“. It regards the Prakken d’Oliveira case.

It is to be hoped that the Netherlands will be the subject of more positive articles in the future…

In the same newsletter CCBE writes on the resolutions of the LIBE Committee and the EU Parliament for the protection of lawyer-client  communications.

CCBE article on Prakken d’Oliveira case

Dutch court upholds lower court ruling banning surveillance of lawyers’ communications after successful CCBE intervention

On 27 October 2015, a Dutch Court of Appeal upheld The  Hague District court’s ruling in the Prakken d’Oliveira case  which ordered the Dutch State to stop all surveillance of  lawyers’ communications until it provided for independent  oversight.

In its ruling, the Dutch Court of Appeal dismissed all the  grounds of appeal alleged by the Dutch State, indicating  that according to case law of the European Court of Human  Rights surveillance activities must be subject to review  by an independent body with the power to prevent  or terminate potential infringements of professional  secrecy. The current Dutch surveillance regime does not  meet the requirements for such independent control and,  therefore, conflicts with the right to privacy and the right  to a fair trial. The Court stressed that information obtained  from tapping lawyers may not be shared with prosecutors until an independent review has taken place regarding  the legality of that information and the way it was  obtained. Even the possibility that information is shared  with the public prosecutor can result to people refraining  from contacting a lawyer. According to the court, this is  a violation of the right to a fair trial and undermines the  rationale behind professional secrecy. The Court also ruled  that the protection of client confidentiality is not limited  to communications with Dutch lawyers but extends to  communications with all European lawyers rendering  services in The Netherlands.

As a result of these findings the Court of Appeal confirmed  the lower court’s ruling.

The transcript of the judgement (in Dutch) can  be found here: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2015:2881

CCBE on  the protection of lawyer-client  communications

EU Parliament calls for the protection of lawyer-client  communications

On 13 October 2015, the LIBE  Committee (Committee of Civil  Liberties, Justice and Home Affairs)  adopted the Follow-up Resolution  of 12 March 2014 on the electronic  mass surveillance of EU citizens which  includes recommendations made by  the CCBE.

These recommendations were made  to protect the confidentiality of  lawyer-client communications as a key  element of the rule of law. The draft  resolution “underlines in particular  that the rights of EU citizens be protected against any surveillance  of confidential communications  with their lawyers,” and “calls  upon the Commission to present a  Communication on the protection  of confidential communications in  professions with legal professional  privilege by the end of 2016 at the  latest”.

This draft resolution takes stock of  the action (or lack of action) by the  European Commission, other EU  institutions and member states to  follow up the recommendations set out by Parliament in its resolution  of 12 March 2014 on the electronic  mass surveillance of EU citizens,  which also called for protection of  the confidentiality of lawyer-client  communications in the context of  surveillance.

The draft resolution was approved  by the Plenary of the European  Parliament on 29 October 2015. It  was also stressed that a common  definition of “national security” was  needed to ensure legal certainty.