ITEMID: 001-67678
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: AALMOES AND OTHERS  v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The 113 applicants, whose particulars are appended, are all Netherlands nationals and practising lawyers in the Netherlands. They were represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht.
In the course of criminal proceedings before the Rotterdam Regional Court (arrondissementsrechtbank), in which applicants nos. 34 and 100 acted as defence lawyers, the Regional Court took oral evidence on 12 and 17 October 2000 from police officer A.B. on the criminal investigation conducted and in the course of which telecommunications with a lawyer falling within the ambit of the privilege of non-disclosure (verschoningsrecht) by virtue of Article 218 of the Code of Criminal Procedure (Wetboek van Strafvordering - “CCP”) apparently had been intercepted and recorded. Mr A.B. declared that this had simply been a mistake as, at the material time, he and his colleagues had never realised that it was forbidden to transcribe such conversations into a written record. Once this had been pointed out to him in March 1995 by the public prosecutor, it was too late as copies had already been distributed. It had then been agreed to record such conversations but not to transcribe them. He further declared that it was technically not possible to prevent such conversations from being intercepted. As to two conversations held in June 1996 which had nevertheless been transcribed, Mr A.B. declared that, unlike many others, these two conversations had accidentally slipped through the control system.
On 19 October and 2 November 2000, further hearings were held before the Rotterdam Regional Court in the course of which oral evidence was taken from police detective H.H., who stated that it was his understanding that it was not allowed to transcribe intercepted conversations falling within the ambit of the privilege of non-disclosure, but that use could be made of the information contained therein.
No further information about these proceedings has been submitted by the applicants.
In the summer of 2001, it appeared in separate but interrelated sets of criminal proceedings pending before the Almelo Regional Court – in which applicants nos. 39, 81 and 104 acted as defence lawyers – that the obligation under the CCP to destroy evidence falling within the ambit of the privilege of non-disclosure enjoyed by lawyers under Article 218 of the CCP had not been complied with. The three applicants detected this when listening to copies of optical disks that had been added to the case file and on which telephone conversations were stored that had been tapped in the course of the criminal investigations, known under the codenames “T14-1” and “Choco”. They had been made between January 2000 and April 2001.
The three applicants subsequently requested the responsible public prosecutor to provide them with a copy of the written records of the destruction (proces-verbaal van vernietiging) of the conversations with persons enjoying the privilege of nondisclosure (geheimhouders; hereinafter referred to as “privileged persons”), that must be drawn up pursuant to Article 4 § 2 of the Decision on the storage and destruction of items not added to the case file (Besluit bewaren en vernietigen nietgevoegde stukken – “the Decision”; see below under “Relevant domestic law”).
A written record, dated 1 August 2001 and drawn up by police officer B. reads, insofar as relevant, as follows:
“Both the Choco [investigation] team (Enschede) and the T14 team (Nijmegen) used the “Comverse” interception system. This system stored the intercepted telephone conversations on a so-called Optical Disk. Once stored it was no longer possible to manipulate these recorded conversations. That means that they could no longer be deleted. Given the fact that the system was saved regularly (24 hour), conversations with privileged persons were also stored on the Optical Disk.
The so-called “privileged persons” conversations were recorded by the Choco team in the criminal investigation system used. The telephone conversations were recorded in the processing system concerned as “privileged person” or “confidential”. The conversations were thus not transcribed or summarised.”
In the course of a hearing held in camera before the Almelo Regional Court on 8 August 2001, the public prosecutor stated that no formal records of destruction had been drawn up as it was technically impossibly to delete specific conversations stored on an optical disk, and that in about nine regional police telecommunication tapping rooms (tapkamers) not a single recorded conversation had been deleted since 1994. The public prosecutor explained that, since 1994, a number of police tapping rooms were working with the “Comverse” system for recording intercepted telephone conversations. Such conversations were stored on optical disks. Since the system had to comply with predefined security norms, in which the impossibility to manipulate stored data was an important factor, the system had been set up so that nothing could be added or altered to that data. For this reason it was not possible to delete conversations with privileged persons that had been saved on an optical disk.
On 9 August 2001, the Almelo Regional Court examined a request by applicant no. 81 to extend the time-limit of 10 August 2001 fixed to review the optical disks, and to be provided with the written records of the destruction of conversations with privileged persons and with the indexes of each of the optical disks in the form of an Excell or Excess computer programme file. After having deliberated, the Regional Court granted the first request and rejected the remainder, holding:
“Noting the high number of intercepted conversations and that listening to the optical disks, owing to the absence of a search function ..., is a time consuming exercise, the Regional Court accepts that the defence needs more time ... to listen to the disks. [This] request is ... [therefore] ... reasonable. Since the optical disks, for the purposes of control, must thus be made available again, the Regional Court will fix the delay at a maximum of three months as from the date of this decision.
The public prosecutor has declared in court that no written records of destruction have been drawn up, as the deletion of specific conversations stored on optical disks is technically not possible. In any event, according to the public prosecutor, the conversations with privileged persons will not be transcribed nor added to the case file. Noting this and in the absence of any reason to doubt the statement of the public prosecutor, the request [to be provided with] the written records of destruction is rejected.
The public prosecutor has further declared that no indexes exist of the different optical disks in the form of an Excell, Excess or other computer programme file and that, owing to the great number of intercepted and recorded conversations, it is not possible to create an index at short notice. Considering this to be plausible, noting again the great number of recordings, the Regional Court rejects the request to be provided with the indexes asked for, the more so as [the defence] will now be given [ample time] to listen to the audio data carriers.”
By letter of 26 September 2001, in reply to a letter sent by applicant no. 81 on 26 September 2001, the public prosecutor stated that he had instructed the police to delete those conversations falling within the ambit of the privilege of non-disclosure that had been stored on optical disks and which had been added to the case file. The public prosecutor indicated that he assumed that the destruction would take place within a week.
According to a written record dated 3 October 2001, drawn up by police officer G.B., the public prosecutor had instructed him on 26 September 2001 to select and delete from the optical disks all intercepted conversations in which privileged persons had participated. In the Choco investigation a total of 556 contacts of that nature had been selected and a total of 75 contacts in the T14-1 investigation. The audio data of all of these conversations had been deleted without making a distinction as to the contents or relevance of these conversations. The written record also contains a remark that the investigation team had not in any manner made use of the contents of stored conversations with privileged persons. An overview of the selected conversations was appended to the written record.
On 3 October 2001, in the context of the criminal proceedings pending before the Regional Court, the investigating judge (rechter-commissaris) at the Almelo Regional Court took evidence from the expert-witness Mr B.P., who was working for the company Comverse Infosys B.V. According to Mr B.P. it was in fact technically possible not to store selected data on an optical disk and to delete data from it, but most Systems Managers stored all data as selection was a labour intensive exercise. Mr B.P. further stated that only Systems Managers could delete data but not a user, although the system could be set up so that users could also be authorised to delete data. Furthermore, searches for telephone numbers, keywords or remarks could be carried out in the main system. According to his evidence, the “Comverse” system was used by the police in ten regions. The applicants nos. 39, 81 and 104 attended this hearing and were given the opportunity to put questions to Mr B.P.
At a hearing held on 16 November 2001, the Almelo Regional Court granted the request made by applicant no. 81 to take evidence from police officers H.K. and C.T on recorded conversations with privileged persons and the destruction of those recordings.
Mr H.K. declared before the Regional Court that, on the basis of tapping logs, he had made a selection of conversations with privileged persons, i.e. the conversations between the suspect and his lawyer, doctor or counsellor (vertrouwenspersonen). The scope of his selection had been as broad as possible, but he could not certify that his selection had in fact covered every conversation of that kind. He himself had only deleted the data in the tapping logs (i.e. the record containing the references to the conversations concerned), but not the actual conversations themselves. He had done so after 30 October 2001. He had drawn up a written record of the selected conversations and he had given the list of the conversations to be deleted to his colleague Mr C.T.
Mr C.T. testified before the Regional Court that his commanding officer, Mr G.B., had ordered him to delete the conversations with privileged persons. Together with his colleague Mr H.K., he had selected the conversations with privileged persons and a written record of that selection had been made. He further stated that, after having obtained authorisation from the Systems Manager of the Nijmegen tapping room, he had deleted some 550-560 conversations from the optical disks. He had started with this on 26 September 2001 and it had taken him in total 36 hours. He had not reformatted or demagnetised the disks as this would have deleted all of the recorded conversations. Lastly, he stated that, apart from those held by the defence, no copies of the disks had been made.
After having taken evidence from these witnesses and after having given applicant no. 81 the opportunity to question them, the Regional Court ordered, at the request of applicant no. 81, and sharing the parties' concern about the recording of conversations with privileged persons, that the optical disks containing such conversations were to be handed over to, and held by, the investigating judge at the Regional Court.
On an unspecified date, at the request of the defence lawyers and in consultation with the public prosecutor, the investigating judge at the Almelo Regional Court decided to carry out an on-site inspection (schouw) of the police tapping room at the Nijmegen police headquarters.
The inspection took place on 5 June 2002 in the presence of, amongst others, applicants nos. 39, 81 and 104 and the public prosecutor. A check of conversations with lawyers that should have been deleted disclosed that the contents of one conversation, selected at random, had been deleted, but that the “conversation-related” data were still on record, and that another conversation, selected by applicant no. 104, had erroneously only been deleted from the list instead of from the disk, and that the record of the contents of that conversation was still in existence and could be listened to. Consequently, the investigating judge decided to take the audio data carriers with him and that they were to be held by him pending a (further) decision by the Regional Court.
No further information has been submitted as regards these proceedings by the applicants.
In view of the above incidents, the Netherlands Association of Defence Counsel (Nederlandse Vereniging van Strafrechtadvocaten – “NVS”) expressed, in its letter of 10 October 2001 to the Minister of Justice, its serious concerns about the manner in which the judicial authorities were dealing with their obligation to destroy privileged data. It summoned the Minister of Justice to clarify within two weeks where, in the police regions, the “Comverse” system was not being used, and where systems were used in which tapped telephone conversations falling within the privilege of nondisclosure were not removed and destroyed. It further requested the Minister to indicate in what manner and within what delay it was intended to ensure that the privileged data stored since 1994 under the “Comverse” system would be erased, and what measures the Minister intended to take in order to prevent breaches of Article 126aa of the CCP in the future.
As the Minister did not provide the NVS with the clarification requested within two weeks, the NVS, the Netherlands Bar Association (Nederlandse Orde van Advocaten), and applicants nos. 39, 67, 81, 99 and 104 took summary injunction proceedings (kort geding) against the Netherlands State (the Minister of Justice) before the Regional Court of The Hague, seeking an injunction against the Netherlands State for the destruction of all stored information having been conveyed by or to lawyers enjoying the privilege of non-disclosure – at least to applicants nos. 39, 67, 81, 99 and 104 – and which should have been destroyed, pursuant to former Article 125h of the CCP, or which had to be destroyed pursuant to Article 126aa of the CCP. They further requested the Regional Court to order the Netherlands State to transmit to all lawyers concerned, at least the above five applicants, a notification within the meaning of Article 126bb of the CCP, as well as a copy of the written record of destruction. They lastly requested the Regional Court to order the Netherlands State to state publicly in what manner, and in accordance with what procedure, the provisions of Article 126aa of the CCP and the Decision would be complied with in respect of lawyers enjoying the privilege of nondisclosure.
In its judgment of 19 December 2001, following a hearing held on 10 December 2001, the President of the Regional Court of The Hague rejected the plaintiffs' first two requests and granted their third request. The President further decided that this ruling was immediately enforceable (uitvoerbaar bij voorraad). Insofar as relevant, the President held:
“4.1. For the determination of the question whether it concerns – according to the plaintiffs – a structural, or – according to the defendant – an isolated problem, a thorough investigation is required. There is no room for this in the framework of summary injunction proceedings.
4.2. Furthermore the defendant cannot be ordered in summary injunction proceedings to destroy what the investigating judge should have destroyed on grounds of (former) Article 125h of the CCP. It is clear that, until 1 February 2000, it was the investigating judge, exclusively, who had been assigned the obligation to destroy. In addition, the investigating judge remains competent as regards taps that had already been ordered on 1 February 2000. In this respect reference is made to the transitory rules [according to which Articles 125f-h of the CCP remained applicable in those cases in which tapping orders had been issued before 1 February 2000] and to the letter of the President of [the coordinating and the national consultative platforms for investigating judges] addressed to the investigating judges in the Netherlands on 31 January 2000, in which the President has taken note ex officio, and in which the following position as regards the transitory legal situation has been given:
The key-notion is the preliminary judicial investigation against a concrete suspect. Within that preliminary judicial investigation specific legal rules (either formerly or currently in force) are applicable. The former legal rules remain applicable to preliminary judicial investigations opened before 1 February 2000. Moreover, the management (beheer) of taps remains with the investigating judge. When a preliminary judicial investigation has been opened on or after 1 February 2000, the new legal rules apply in their entirety.
4.3. The above [considerations] result in the rejection of the claims set out under 2.1. and 2.2.
4.4. In the future, the defendant must ensure in any event that the implementation of the legal rules is tightened. This would be necessary even if, as claimed by the defendant, this was an isolated problem. The defendant has stated ... that, to this end, measures have already been taken and [that further measures] will be taken in the near future.
4.5. Having noted this and the established fact that mistakes have been made, and as it appears from the cases cited by the plaintiffs, in particular the Almelo criminal case (the Choco-investigation) and the Arnhem criminal case, that not every public prosecutor is, or was, aware of the correct way of proceeding as regards the obligation to destroy recordings of conversations with privileged persons, the claim cited above under 2.3. is eligible for an award in the manner set out below. ...
The President orders the defendant to inform the plaintiffs by Friday 11 January 2002 at the latest in what manner and according to what procedure the provisions of Article 126aa of the CCP, and the Decision in relation to the investigation of telecommunications in respect of lawyers enjoying the privilege of non-disclosure, will be complied with.”
Neither party filed an appeal against the ruling of 19 December 2001.
By letter of 10 January 2002, the Minister of Justice informed the plaintiffs in the above summary injunction proceedings that, in February 2002 at the latest, a description of the procedure for compliance with Article 126aa of the CCP would be laid down in a formal instruction of the Board of Procurators General (College van procureurs-generaal) and that, in anticipation thereof, this Board had transmitted on 21 December 2001 to the chief public prosecutors (hoofdofficieren van justitie) at the Regional Courts, the chief advocates-general (hoofdadvocaten-generaal) at the Courts of Appeal and the heads of the service departments of the Public Prosecution Service (Openbaar Ministerie), an overview of the pertinent legal rules and a schematic description of the procedure. The Board of Procurators General had requested the addressees to ensure that wide attention be given to these documents within the public prosecution and police services concerned. The overview and schematic description were appended to the Minister's letter.
On 12 March 2002, the Board of Procurators General issued a formal instruction on the “Destruction of intercepted conversations with persons enjoying the privilege of non-disclosure” (Instructie vernietiging geïntercepteerde gesprekken met geheimhouders – “the Instruction”; see below under “Relevant domestic law”), which entered into force on 1 April 2002.
On 4 March 2002, the NVS and applicants nos. 39, 67, 81, 99 and 104 requested the Personal Data Protection Authority (College Bescherming Persoonsgegevens - DPA), under Article 60 § 1 of the Personal Data Protection Act (Wet bescherming persoonsgegevens), to conduct an enquiry into
the manner in which data obtained by using digital tapping systems is processed;
compliance with the obligation of destruction under (former) Article 125h of the CCP and Article 126aa of the CCP in general; and
compliance with these provisions in relation to the collection, storage, removal and destruction of data pursuant to the Police Files Act (Wet op de politieregisters), and the Personal Data Protection Act in particular.
The DPA agreed to conduct the enquiry. It considered itself competent to do so under the Police Files Act and the Personal Data Protection Act, irrespective of the competence of the judge in criminal proceedings. It further accepted that the NVS had an interest in the matter. As regards the scope of its enquiry, the DPA decided to concentrate on the current practice of recording telecommunications with lawyers and, as to the destruction of recorded conversations, on compliance with the Instruction of 12 March 2002. For the time being it decided not to deal with the question of compliance with the obligation of destruction since 1994 when digital tapping systems came into use.
The DPA published its report on this enquiry on 16 July 2003. On the basis of information provided by the Minister of Justice, the Board of Procurators General, the National Organised Crime Prosecution Service (Landelijk Parket) and the petitioners, as well as the comments submitted in response thereto, the DPA noted the following:
“An order for the interception of telecommunications contains a telephone number. The telecom provider transmits digital conversation data being passed by that telephone number to a police tapping room. Five different digital interception systems are used in the police tapping rooms. The manner in which the different interception systems function is comparable.
The digital data transmitted by the telecom provider are stored on a hard disk in the interception system. During the storing on the hard disk, the conversations can be listened to on line. This direct listening is exceptional. The data are copied from the hard disk to an optical disk. This copying is also called archiving. Both before and after archiving, conversations having been stored on a hard disk can be listened to. When the hard disk is full, the conversations stored on the hard disk are overwritten by newly entered conversations. The listening to recorded conversations takes place, as a rule, by playing an optical disk with the aid of a special technical listening device (uitluisterunit). The data obtained through recording telephone conversations are stored in a (special) police register.
The listening to recorded conversations is firstly made by a member of the investigation team that has been entrusted with the investigation in which context the interception order has been given. If, in listening to a recorded conversation, the suspicion arises, or it appears, that it concerns a conversation with a lawyer, a transcript of the recorded telephone conversation is submitted to the public prosecutor in charge of the criminal investigation concerned. The public prosecutor assesses whether the conversation contains information that falls within the ambit of the privilege of non-disclosure. If, according to the public prosecutor, that is the case, the public prosecutor will then order the destruction of the recorded telephone conversation to the extent that it contains privileged information.
According to the explanation attached to the Instruction [of 12 March 2002], a generic order for destruction may be given as regards recorded conversations with a specific lawyer. ... To date, no use is made in practice of the possibility to give such an order.
It has been established that there has been a lack of clarity between the public prosecution service and the petitioners about the manner in which an order for destruction must be carried out. It has also been established that deleting [digital data] can be effected in various manners and that not all manners are effective, as has appeared in the [criminal proceedings before the Almelo Regional Court]. The instruction does not prescribe in what manner the destruction must take place. In the explanation to the Instruction a reference is made to the explanation attached to the Decision [on the storage and destruction of items not added to the case file], where it is stated that simply deleting [digital] files is not sufficient, but that the data carrier must be processed in such a manner that the destroyed data can no longer be recuperated.
The Netherlands Forensic Institute (Nederlands Forensisch Instituut) has, upon the instruction of the public prosecution service, carried out a further investigation. One of the results was that, as regards the Kislev [interception system], it appeared to be possible – through the efforts of an academic scientific researcher and a research assistant having four and one years' experience respectively – to recuperate deleted conversations within a time span of 56 hours.”
The conclusions of the DPA read as follows:
“As to the current practice in respect of intercepting and recording confidential telecommunications with a lawyer or other provider of legal assistance, the DPA has reached the opinion that this is unlawful. It follows from the recent legislative history, in line with the case-law on this issue, that the interests in the protection of these confidential communications prevails over the interests in finding the truth in criminal cases, also when it concerns the exercise of special powers of investigation. The systematic interception, recording and becoming acquainted with these confidential communications by the police and the public prosecution department is a breach of that. This also leads to a violation of the provisions of Article 14 of the Police Files Act and of Articles 6, 8 and 13 of the Personal Data Protection Act.
The DPA's understanding of Article 4 of the Decision is that the interception and recording of communications, which in the lawyer-client relation must be regarded as confidential, can only take place with the utmost restraint. Only such an interpretation is compatible with the above norm on the need to respect these confidential communications. Therefore Article 4 of the Decision offers a basis for the public prosecutor to take note of recorded telecommunications with a person who presumably, or certainly, is a person enjoying the privilege of nondisclosure, within the meaning of Article 126aa § 2 of the CCP, if and insofar as it is not possible otherwise to do justice to respect confidentiality.
Should this interpretation be incorrect, the question then arises whether, on this point, Article 4 of the Decision is compatible with the special position, recognised by law and treaty, held by persons, who on grounds of their profession, enjoy the privilege of non-disclosure. However, so far the DPA has not drawn this conclusion and, instead, furthers a norm-conforming working method in the interception and recording of conversations with lawyers and other providers of legal assistance. The public prosecution department is to amend the Instruction in conformity with this restrained working method.
As to the obligation of destruction, the DPA is of the opinion that Article 126aa § 2 of the CCP is not respected in the cases that have arisen. The public prosecution department is to take those measures within their powers to ensure as far as possible that, after the destruction of privileged data, it will not be possible in the context of criminal proceedings to become acquainted, via relatively simple means, with destroyed data.”
The DPA formulated the following four recommendations:
“1. Lawyers and other providers of legal assistance are to ensure that there is clarity about their capacity when participating in telecommunications. To this end the lawyer can make it unambiguously clear at the beginning of a telecommunication that he participates in his capacity as a lawyer, where it concerns a confidential communication with his client.
2. The public prosecution department is to prescribe a number recognition system to select conversations in which lawyers participate exclusively in their professional capacity. As regards an unrecognised number, only the first conversation has to be listened to. A separation of functions ... in listening to and assessing conversations could offer a final safeguard...
3. The public prosecution department is to give concrete substance to the norm that destroyed conversations should no longer be accessible, specifically in the context of criminal proceedings, by including in the Instruction a sufficiently specific norm on which the actual implementation of the obligation of destruction in respect of the different tapping systems can be based.
4. The public prosecution department is to give effect to its responsibility for compliance with the obligation of destruction by making further agreements with the police force managers (korpsbeheerders) who are responsible for the actual implementation of the obligation of destruction. The public prosecution department is to verify that adequate implementation be given to the obligation of destruction and will ensure that, on this point, it will be informed half a year after the introduction of a new Instruction.”
On 25 March 2003, in response to the negative publicity the matter had attracted in the media, the Minister of Justice and the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) informed the Lower House of Parliament (Tweede Kamer) that they intended to commission a vulnerability risk assessment of the telecommunication interception systems. On 5 December 2003, these Ministers transmitted to the Lower House an accountants' report on the five different systems used in the Netherlands. The main conclusion of this report (dated 25 August 2003) reads, insofar as relevant:
“During our investigation we have found, in all of the five interception organisations examined, important lacunas in both the management of the interception system and the technical security of the interception systems themselves. This means that there exist, in all the interception organisations examined, risks that may lead directly to accessing, altering or (non)deletion of intercepted information or therewith connected metainformation (such as traffic data) ... by unauthorised third persons. In our opinion, such risks are to be addressed without delay.
How far such risks have also in fact led to abuse has, given the aim of the assessment, has not been examined. A mitigating circumstance in the insufficiency of the technical security is that the interception systems are used within the compartmented surroundings of the police so that the hereto related risks are primarily of an internal police nature.”
The Ministers stated, in their accompanying letter to the Lower House, that although no cases of abuse had been reported, the management and data security in the interception centres assessed had been found to be insufficiently formalised. They informed the Lower House of the measures already taken and the measures planned for the future to remedy the shortcomings as soon as possible.
By letter of 29 September 2003, the Minister of Justice informed the DPA that he did not subscribe to the findings of the DPA made in its report of 16 July 2003. The Minister considered that the practice of intercepting all conversations conducted via a tapped telephone number, including telephone conversations with a lawyer, with a subsequent control by the public prosecutor whether any of these conversations fell with the scope of the privilege of non-disclosure enjoyed by lawyers was in accordance with Article 126aa of the Code of Criminal Procedure and Article 4 of the Decision. Consequently, the Minister would not follow the DPA recommendations.
On 25 October 2004, the DPA informed the Minister of Justice that, given the difference of opinion about the meaning of the applicable domestic legal rules, it now advised the Minister to amend these legal rules, by setting rules aimed at preventing that information conveyed to or by a person enjoying the privilege of non-disclosure be rendered public. The DPA further advised the Minister to entrust to the investigating judge the task of selecting what information should be classified as privileged.
It is open to the public prosecutor, under Section 181 of the Code of Criminal Procedure (CCP), to request the investigating judge to open what is called – in order to distinguish it from the subsequent investigation at the trial – a preliminary judicial investigation (gerechtelijk vooronderzoek). It is the task of the investigating judge to conduct such an investigation in which he/she is to ensure that evidence is obtained in accordance with the law. The judge must also act impartially by collecting evidence which might exculpate the suspect. It is on the basis of the judge's investigation that the prosecution decides whether to take the matter further, by committal for trial, or whether to close it.
Article 33 of the CCP, as amended on 1 February 2000, reads as follows:
“Access to all documents in the case file, either the originals or copies thereof, may not be denied to the suspect as soon as the preliminary judicial investigation has been closed or has ended, or, where there has been no preliminary judicial investigation, as soon as the notification of further prosecution or the summons for appearance at the trial in first instance has been served [on the suspect].”
The trial court may suspend proceedings for further inquiries by the investigating judge (Article 316 of the CCP).
Until 1 February 2000, the rules about the interception of communications made through public telecommunication networks or services were set out in Articles 125f-h of the CCP. Further rules on the practical exercise of the power to intercept communications were set out in the Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person. The text of these Guidelines had further been published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989. These Guidelines, which did not have the formal character of law, had been issued as a model letter from the senior public prosecutors to the police. The above rules initially covered only communications by telephone. As from 1 March 1993, when the Act on Computer Criminality (Wet op de Computercriminaliteit) entered into force, they also covered communications by fax and e-mail.
Pursuant to Article 125g of the CCP, the tapping of telecommunications could only be ordered in relation to offences for which detention on remand (voorlopige hechtenis) could be imposed, i.e. offences of a certain gravity carrying a punishment of imprisonment of four years or more (Article 67 of the CCP). The tapping could only concern communications in which a suspect was likely to participate, and it could only be ordered where the investigation urgently required it. It was subject to the prior authorisation of the investigating judge, and a written record (procesverbaal) of the tapping had to drawn up within 24 hours.
Under Article 125h of the CCP, records without importance for the investigation had to be destroyed as soon as possible by order of the investigating judge and a written record of destruction should be drawn up without delay. As to the destruction of information obtained through the interception of telephone conversations, the standard practice in fact differed from the Guidelines. On the basis of, inter alia, the Court's findings in the cases of Kruslin and Huvig v. France (judgments of 24 April 1990, Series A no. 176-A and B) as regards the possibility of inspection by the judge and by the defence, the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case. Anyone requesting access to such material was required to give reasons for such a request.
Where no suspect could be identified immediately and in order to obtain a tapping authorisation from the investigating judge, a preliminary judicial investigation against a person or persons unknown (“NN”) could be opened. As soon as the name(s) of the suspected perpetrator(s) could be established, the preliminary judicial investigation was to be put in the name of the suspect(s) concerned (Article 181 § 3 of the CCP). By subsequently availing him or herself of the right to be granted access to the case file (Article 30 § 1 and Article 33 of the CCP), a suspect could become aware of the fact that communications had been tapped during the investigation.
On 1 February 2000, the Preliminary Judicial Investigations (Review) Act (Wet herziening gerechtelijk vooronderzoek) and the Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden) entered into force, amending the legal rules on criminal investigative powers and coercive measures in criminal investigations, including the rules on intercepting and recording telecommunications, including telephone conversations.
The provisions of Article 125f-h of the CCP were replaced by Articles 126m (recording of telecommunications) and 126n (metering of telecommunications) of the CCP. Under the transitory rules, Articles 125f-h of the CCP remained applicable to those cases in which orders for intercepting and recording telecommunications had been issued before 1 February 2000.
Article 126m of the CCP provides as follows:
“1. In case of suspicion of an offence referred to in Article 67 § 1 [of the CCP, i.e. an offence in respect of which detention on remand is permitted] which – in view of its nature or its connection with other offences committed by the suspect – constitutes a serious breach of the legal order, the public prosecutor may, if the investigation urgently so requires, order an officer with powers of investigation (opsporingsambtenaar) to record telecommunications with a technical device.
2. Telecommunication is, under this provision, to be understood as a communication not intended for the general public, taking place via a public communication network or by use of public telecommunication services.
3. The order for recording telecommunications shall be in writing and contain:
a. the offence and, if known, the name or otherwise a precise as possible indication of the suspect;
b. the facts or circumstances from which it appears that the conditions set out in the first paragraph are fulfilled;
c. the number with which the individual user of telecommunication [services] is identified as well as, insofar as known, the name and address of the user;
d. the term of validity of the order.
4. Article 126l §§ 4-8 [of the CCP] shall apply by analogy.”
Article 126l of the CCP, in its relevant part, reads as follows:
“1. In case of suspicion of an offence referred to in Article 67 § 1 [of the CCP] which – in view of its nature or its connection with other offences committed by the suspect – constitutes a serious breach of the legal order, the public prosecutor may, if the investigation urgently so requires, order an officer with powers of investigation ... to record private [conversations] with a technical device.
2. ... For the purposes of executing the order [the public prosecutor] can order that a home will be entered without the permission of the person entitled [to use the premises], if the investigation so requires urgently and the suspicion concerns an offence attracting by law a prison sentence of eight years or more. ...“
4. The order can only be issued after written authorisation has been given by the investigation judge on the request of the public prosecutor. The authorisation concerns all elements of the order. ...
5. The order can only be given for a maximum period of four weeks. It may be prolonged for a period of four weeks each time.
6. Article 126g §§ 6-8 [of the CCP] shall apply by analogy, on the understanding that the public prosecutor – for changing, broadening or prolonging [the order] – must have the authorisation of the investigation judge. .... As soon as the conditions set out in the second sentence of the second paragraph [of this Article] are no longer fulfilled, the public prosecutor shall direct that the execution of the order be ended.
7. In case of urgent necessity, the authorisation of the investigating judge, referred to in the fourth and sixth paragraph [of this Article], may be given orally, unless the second sentence of the second paragraph is applied. In that case the investigating judge shall draw up an authorisation in writing within three days.
8. A written record (proces-verbaal) of the recording [of private conversations] shall be drawn up within three days.”
Article 126g of the CCP, insofar as relevant, provides:
“1. In case of suspicion of an offence, the public prosecutor may, in the interests of the investigation, order that an officer with powers of investigation systematically follows a person or systematically observes the latter's presence or conduct. ...
6. In case of urgent necessity, the order may be given orally. In that case the public prosecutor shall draw up an order in writing within three days.
7. As soon as the conditions set out in the first paragraph [of this Article] cease, the public prosecutor shall direct that the execution of the order be ended.
8. The order can be amended, broadened or terminated in writing, with an indication of the reasons. In case of urgent necessity, the decision may be given orally. In that case the public prosecutor shall put that in writing within three days.”
Article 126aa of the CCP, insofar as relevant, provides:
“1. The public prosecutor adds to the case file the written records and other objects from which information can be derived that have been obtained in application of one of the powers set out in Titles IVa to Va [e.g. systematic observation, infiltration, recording private conversations with a technical device, and intercepting and recording telecommunications] or [objects seized] in application of Article 126ff [of the CCP].
2. To the extent that the written records or other objects contain information conveyed by or to a person entitled to rely on the privilege of nondisclosure by virtue of Article 218 [of the CCP] if he or she were to be questioned as a witness about the contents of that information, these written records and other objects shall be destroyed. Rules for this shall be given by Order in Council (Algemene Maatregel van Bestuur). Insofar as the written records and other objects contain information other than that meant in the first sentence hereof and has been conveyed by or to a person referred to above, [that material] shall only be added to the case file after an authorisation by the investigating judge. ...”
Pursuant to Article 126bb of the CCP, the public prosecutor shall, as soon as the interests of the investigation so allow, notify in writing to the person concerned (i.e. the suspect or user of the telecommunication or technical devices with which intercepted telecommunications have taken place) that his or her communications have been monitored and/or recorded in application of the investigative powers under the CCP. Such notification is not required if it is not reasonably possible. If the person concerned is the suspect, notification is not required if he or she has already become aware of the interceptions, for instance by having obtained access to the case file (Article 30 § 1 and Article 33 of the CCP).
Article 126cc of the CCP provides as follows:
“1 As long as the case has not ended, the public prosecutor shall keep the written records and other objects from which information can be derived which have been obtained by observation with the aid of a technical device that records signals, the recording of private conversations, or the investigation of telecommunications – insofar as these have not been added to the case file – and keeps them for the investigation.
2. Two months after the case has ended and the last notification referred to in Article 126bb [of the CCP] has been made, the public prosecutor shall have destroyed the written records and other objects referred to in the first paragraph. A written record of the destruction shall be drawn up.
3. A preparatory investigation (voorbereidend onderzoek) that, according to reasonable expectations, will not result in [further criminal proceedings] is to be equated with the end of a case and the application of the [second] paragraph.
4. Rules will be given by Order in Council on the manner in which the written records and other objects referred to in the first paragraph shall be stored and destroyed.”
Article 218 of the CCP, which provision was referred to in Articles 125fh of the CCP and is still in force, provides as follows:
“Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.”
Article 125h § 2 of the Code of Criminal Procedure required the investigating judge to order the destruction without delay of official records and other objects from which information can be derived insofar as they concerned statements made by or to a person who, on the basis of Article 218 of the CCP, enjoyed the privilege of non-disclosure.
In a judgment of 29 June 1993, the Supreme Court held that lawyers fall within the category of persons having a professional obligation to secrecy, and thus enjoy the privilege of non-disclosure under Article 218, unless they themselves are suspects (Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1993, no. 692).
Already in a judgment of 10 April 1979, the Supreme Court had ruled that Article 125g of the CCP did not allow the investigating judge to authorise the tapping of telephone conversations made to or from a telephone used by a lawyer, who him or herself was not a suspect, in the exercise of his profession (NJ 1979, nr. 374). In its judgments of 17 May 1988 (NJ 1989, no. 439) and 9 June 1992 (NJ 1992, no. 776), the Supreme Court further ruled that the tapping of telephone conversations made to or from a telephone of a person with a professional obligation to secrecy was allowed when the telephone line was used primarily for private calls.
In a judgment given on 12 January 1999, the Supreme Court ruled that, pursuant to Article 125h § 2 of the CCP, information obtained by tapping telecommunications that falls within the ambit of the privilege of nondisclosure under Article 218 of the CCP cannot be used in criminal proceedings and that, in the case at issue, the trial court had unjustly used in evidence the contents of telephone conversations between a co-accused and his lawyer. The Supreme Court considered that Article 125h § 2 was aimed at protecting the interests of everyone in having the possibility to consult a lawyer in all liberty, and without fear of something becoming public which had been entrusted to a lawyer in the latter's professional capacity. According to the Supreme Court this principle would be impaired if a third person had to take account of the possibility that information entrusted to a lawyer might become known to others, even if this would occur in a procedure to which he or she was not be a party (NJ 1999, no. 290).
In a further judgment of 30 November 1999 (Jurisprudentie OnLine 1999, 270) in a case concerning criminal proceedings taken against a lawyer on charges of participation in certain activities of a criminal organisation, the Supreme Court held that it was for the investigating judge, preferably in joint consultation with the President of the local Bar Association or the latter's deputy, to determine what information did or did not fall within the ambit of the privilege of non-disclosure. It further took into consideration the fact that the decision of the investigating judge could subsequently be challenged before the court in a complaints procedure under Article 552a of the CCP. Under this provision, interested parties including the suspect may file an objection against, inter alia, a seizure, the use of seized objects and the failure to order their return. If the competent court finds the objection well-founded, it will issue the corresponding order. The Supreme Court confirmed this ruling in a later judgment of 18 June 2002 (NJ 2003, no. 621) involving other criminal proceedings against a lawyer.
The further implementation rules referred to in the above-cited Articles 126aa and 126cc of the CCP are set out in the Decision on the storage and destruction of items not added to the case file (Besluit bewaren en vernietigen niet-gevoegde stukken) which was published in the Bulletin of Acts and Decrees (Staatsblad) 1999 no. 548. The Decision entered into force on 1 February 2000.
Article 4 of the Decision provides as follows:
“1. The officer with powers of investigation who, by the exercise of one of the powers set out in Titles IVa to Va of the CCP, becomes acquainted with information of which he knows, or reasonably can know, that it has been conveyed to or by a person enjoying the privilege of non-disclosure, shall inform the public prosecutor of this without delay.
2. In case the public prosecutor determines that it concerns information referred to in the first sentence of Article 126aa § 2 [of the CCP], he shall immediately order the destruction of the written records and other objects, insofar as they contain such information. A written record of the destruction shall be drawn up and shall be sent to the public prosecutor.
3. Insofar as the information referred to in the first paragraph has been conveyed by or to a person enjoying the privilege of non-disclosure but who is being considered as a suspect, the public prosecutor shall seek the opinion of an authoritative member of the professional group to which the privileged person belongs on the question whether the information is to be regarded as information within the meaning of Article 126aa § 2, second sentence, of the CCP. If the public prosecutor decides to deviate from the opinion of the authoritative member of the professional group, reasons for this decision shall be given.”
Article 5 of the Decision reads as follows:
“1. If the written record is stored on a separate data-carrier, it is equated with the destruction of written records when the date-carrier is processed in such a manner that the data that could be derived from it prior to processing cannot, after such processing, be recuperated.
2. To be equated to the destruction of an object is its processing in such a manner that the data which could be derived from it prior to processing cannot be recuperated thereafter.”
The Explanatory Memorandum to the Decision, insofar as relevant, is set out as an Annex I to this decision.
A formal step-by-step instruction to investigating officers is contained in the “Destruction of intercepted conversations with persons enjoying the privilege of non-disclosure” issued by the Board of Procurators General on 12 March 2002. Its relevant part is set out at Annex II to this decision.
It has been accepted in the Supreme Court's case-law that unlawful acts by the criminal investigation and prosecution authorities can, in certain circumstances, result in such a serious breach of the principles of proper proceedings that this should lead to one of the consequences set out above, including the inadmissibility of the prosecution. This sanction may follow if the acts at issue concern serious breaches of those principles by which, deliberately or with gross negligence, the accused's right to a fair hearing has been disrespected (Supreme Court, 19 December 1995, NJ 1996, no. 249, and 3 July 2001, NJ 2002, no. 8).
Article 359a of the CCP reads, insofar as relevant, as follows:
“1. The [trial court] can, if it appears that in the preliminary investigation procedures have been disrespected that can no longer be repaired and the legal consequences thereof do not appear from the law, determine that:
a. the gravity of the sentence be mitigated in relation to the seriousness of the defect, if the disadvantage caused by the fault can be compensated in this way;
b. the results of the investigation having been obtained by the defect may not be used in evidence;
c. the prosecution is inadmissible, if owing to the defect there cannot be an examination of the case in compliance with the principles of proper proceedings.
2. In applying the first paragraph, the [trial court] takes into account the interests served by the infringed rule, the seriousness of the defect and the disadvantage caused by it.”
In cases where no remedy is available against acts or decisions of public authorities, Netherlands law has traditionally recognised the competence of the civil courts to grant relief against public authorities. In such circumstances, civil proceedings against the State can be instituted, claiming that the contested decision or act constitutes a wrongful act (onrechtmatige daad) within the meaning of Article 6:162 of the Civil Code (Burgerlijk Wetboek). The civil court can award damages for torts committed and can grant injunctions against public authorities.
In civil cases where urgency is required, summary injunction proceedings (kort geding) before the President of the Regional Court may be taken in order to obtain an immediate or interim measure. Such proceedings may be initiated where the parties cannot wait for a decision on the merits (bodemprocedure). Summary injunction proceedings are governed by Articles 289-297 of the CCP (Wetboek van Burgerlijke Rechtsvordering).
They are concluded speedily and focus on the oral submissions at the hearing. As these proceedings are characterised by speed, the issues raised are only examined summarily. Decisions taken in summary injunction proceedings are usually handed down within a week after the hearing and are immediately enforceable. Such decisions may be appealed before the Court of Appeal (gerechtshof) and may subsequently form the object of an appeal in cassation to the Supreme Court. Decisions given in summary injunction proceedings may not be detrimental to the outcome of the proceedings on the merits (“beslissingen bij voorraad brengen geen nadeel toe aan de zaak ten principale”). The court determining the merits of the case is not bound by the decision handed down by the President of the Regional Court in summary injunction proceedings.
The Personal Data Protection Authority (DPA) – a body set up in implementation of Article 28 of the European Union Privacy Directive 95/46/EC – supervises compliance with and the application of the legal rules governing the use of personal data as contained in, inter alia, the Personal Data Protection Act (Article 51 § 1), the Police Files Act (Article 26 § 1) and the Municipal Database (Personal Files) Act (Wet Gemeentelijke Basisadministratie Persoonsgegevens) (Article 120 § 1). Furthermore, pursuant to Articles 151a § 6 and 195a § 4 of the CCP, the DPA must be heard in the determination of the rules, to be set out in an Order in Council, on the processing, storing and destruction of DNA profiles.
In the exercise of its various functions, the DPA advises the Government on legislation, assesses codes of conduct, studies technological developments, gives information, mediates and handles complaints, evaluates the processing of personal data and, if necessary and subject to the provisions of the General Administrative Law Act (Algemene Wet Bestuursrecht), may issue decisions and take enforcement action in respect of non-compliance with the legal rules on processing personal data.
Under Article 60 § 1 of the Personal Data Protection Act, the DPA has a discretionary power to initiate, either acting ex officio or at the request of an interested party, an enquiry into the manner in which the provisions under or based on this Act are applied as regards data processing.


ITEMID: 001-85411
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FÄGERSKIÖLD v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: The applicants, Mr Lars Fägerskiöld and Mrs Astrid Fägerskjöld, are Swedish nationals who were born in 1942 and live in Jönköping. They were represented before the Court by Mr H. Sundström, a lawyer practising in Ljungskile.
The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the mid-1980s the applicants bought a property, Hästholmen 1:17, in the municipality of Ödeshög, in the County of Östergötland, for recreational purposes. They have their permanent residence, where they are formally registered, in Jönköping.
In 1991 and 1992 the municipality of Ödeshög granted building permits to erect two wind turbines on a property, Hästholmen 10:1, neighbouring the applicants’ property. These wind turbines measured 31.5 metres to the hub of the rotor blades, which had a diameter of 27 metres. The first wind turbine had a delivery of 225 kW (kilowatts) and was built approximately 430 metres from the applicants’ property while the second wind turbine had a delivery of 150 kW and was situated at a distance of roughly 620 metres from the applicants’ property. Apparently, these two wind turbines did not cause any nuisance to the applicants.
In April 1998 a third wind turbine was erected on Hästholmen 10:1, at a distance of 371 metres from the applicants’ property. This wind turbine measured 45 metres to the hub of the rotor blades, which had a diameter of 44 metres. Moreover, it had a delivery of 600 kW and was capable of producing approximately 1,100,000 kWh per year (which roughly corresponds to the energy needed to heat between 40 and 50 private households over a one-year period). The wind turbine was owned by the “Hästholmen Joint Wind Association” (Hästholmens Vindsamfällighets-föreningen), which consisted of 1,261 shares, of which the municipality owned 100 shares and several property owners in the area also owned some of the shares.
According to the applicants, the wind turbine emitted a constant, pulsating noise and, sometimes, light effects which they found very disturbing and intrusive. For these reasons and because they considered that the new wind turbine had been erected much too close to their property, and without them having been consulted in advance, they complained about it in a letter to the municipality.
It turned out that the municipality’s Environment Committee (miljötekniska nämnd) had already granted a building permit for the wind turbine, in November 1997. Before that decision, a geotechnical evaluation of the ground had been carried out and the Swedish Civil Aviation Administration (Luftfartsverket), the Swedish Armed Forces (Försvarsmakten) and the County Administrative Board (länsstyrelsen; hereinafter referred to as “the Board”) of Östergötland had been heard, as well as the owners of the two closest neighbouring properties (situated within 250 metres of the planned location of the wind turbine). None of those consulted had had any objections to a wind turbine being constructed on the property of Hästholmen 10:1. However, in its decision, the Environment Committee had stipulated that the exact location of the wind turbine should be agreed upon in consultation with the municipality’s building unit and the Board before construction began.
On 4 May 1998 the Environment Committee received a leasehold contract between the property owners of Hästholmen 10:1 and the Joint Wind Association from which it appeared that the wind turbine had been constructed about 65 metres north-west of the location which had been agreed upon and thus also closer to the inhabited area.
On 20 May 1998 the Environment Committee held a meeting, attended by the chairman of the Joint Wind Association, to discuss the situation relating to the wind turbine. It was agreed that the Joint Wind Association should submit a request to the Environment Committee for a change to the building permit so that it was valid for the wind turbine in its present location. The Committee would have to make a completely new assessment, where all property owners within a radius of 500 metres of the wind turbine should be heard, as should, again, the Swedish Civil Aviation Administration, the Swedish Armed Forces and the Board.
Consequently, the applicants and all other property owners, tenants and residents within a 500 metres radius of the wind turbine were invited to submit their comments on it.
Moreover, on 20 May 1998, the Vestasvind Svenska AB company (the builder of the wind turbine) carried out noise tests of the three wind turbines, together and separately, which were submitted to the Environment Committee but also presented to those, including the applicants, who attended a general meeting on 4 June 1998. According to the results of these tests, the noise levels in respect of the applicants’ property were calculated at 37.7 dB (decibels) from the new wind turbine alone and at 39.4 dB from all three wind turbines together. The tests were carried out in the evening when the wind speed was measured at eight metres per second.
On 23 June 1998 the Environment Committee granted a change to the building permit for the wind turbine so that it applied to the present location of the wind turbine. The Committee had observed that several of those heard on the matter had complained about the noise made by the wind turbine. However, it had also noted that, according to the noise tests carried out by the builder of the wind turbine, the noise levels did not exceed 40 dB, which was the recommended maximum level, at any house, except the two closest, where the owners had stated that they were not disturbed by the noise. Still, in order to try to minimise the nuisance perceived by a number of neighbours of the wind turbine, the Committee ordered that certain temporary measures be taken. Hence, the wind turbine should automatically stop if the wind did not exceed a speed of four metres per second and, during the summer months (June, July and August), the wind turbine’s rotor blades should be adjusted to a “less aggressive” angle to reduce the sound level. Moreover, all mechanical sound created by the wind turbine should be eliminated completely and an evaluation of these measures should be carried out no later than 31 October 1998 by the Environment Committee together with the neighbours concerned. Following this evaluation, which might include an impartial noise investigation of, inter alia, the applicants’ property, final advice and measures to be taken would be decided.
In its protocol from the deliberation, the Environment Committee noted that the final assessment of protective and precautionary measures and advice, according to environmental protection legislation, in relation to the wind turbine would be decided upon when the matter had been sufficiently examined. This decision could then be appealed against by any of the persons concerned.
On 28 October 1998 the evaluation meeting took place. The applicants were present as were several other neighbours and representatives for the Joint Wind Association and the Environment Committee. It turned out that the “mechanical noise” that some had complained of came from one of the smaller wind turbines, which had since been repaired so that such noise was no longer emitted. Moreover, the other measures had been implemented during the summer months but the neighbours, including the applicants, claimed that this had had no effect on the noise level.
The applicants appealed against the decision of 23 June 1998 to the Board and demanded that “all the building permits” be revoked and that the wind turbine be dismantled. They claimed that the wind turbine caused serious nuisance to them and that no real noise investigation had been carried out to establish the true level of the noise. They further submitted that they had not been given the opportunity to voice their opinion about the wind turbine before it had been constructed and that the municipality had not dealt with the case impartially since it owned a part of the wind turbine.
The Environment Committee submitted in reply that the Municipal Executive Board had some shares in the wind turbine but that those who were members of both the Executive Board and the Environment Committee had not participated in the Committee’s decision of 23 June 1998. It further stated that the decision had been taken in accordance with relevant legislation.
The Joint Wind Association, for its part, stated that it had kept the general public in the municipality informed about the planned construction of the wind turbine through brochures and advertisements in the local press. It further claimed that it was prepared to continue with the measures imposed the following summer too.
On 14 April 1999, after having visited the applicants’ property, the County Administrative Board rejected their appeal. It first noted that the Environment Committee’s decision of 23 June 1998 had replaced that of 4 November 1997. Thus, in so far as the applicants’ appeal could be interpreted as being directed also against the decision of 4 November 1997, it had ceased to exist and therefore did not require further measures from the Board. Turning to the substance of the applicants’ appeal, it found from its visit to the applicants’ property that the wind turbine created certain sound effects which could be considered disturbing but which were not serious enough to justify dismantling the turbine. In this respect, it noted that the measured noise levels did not reach the maximum recommended level of 40 dB. Moreover, the Board observed that the running of the wind turbine was subject to the regulations in the Environmental Code (Miljöbalken; 1998:808). Thus, if the applicants, or others, considered that the measures in force to minimise the noise from the wind turbine were insufficient, they could request that the Environment Committee impose further measures. Were the Committee to reject such a request, those who had made the demand could appeal against it to the environmental courts. In these circumstances, the Board found that there were no legal impediments to the wind turbine.
The applicants appealed to the County Administrative Court (länsrätten) of the County of Östergötland, maintaining their claims. In particular, they emphasised that the wind turbine was a serious nuisance and that the Environmental Committee had made an incorrect evaluation of the matter and several formal errors in its handling of the case. Moreover, they stated that the municipality had refused to carry out an impartial noise investigation despite requests from several of the concerned parties.
The Environment Committee disputed the applicants’ claims and insisted that its decision had been made in due order and was correct. It further observed that it still kept the question regarding a noise investigation open but that the concerned parties so far had agreed on certain specific measures to reduce the noise (such as stopping the wind turbine at low wind speed), which were re-evaluated regularly. Thus, at the moment it considered that a noise investigation was not necessary.
On 14 July 2000, after having visited the applicants’ property and held an oral hearing, the County Administrative Court rejected the appeal. It found that the Environment Committee’s decision had been lawful and that, although some sound effects from the wind turbine could be observed on the applicants’ property, the disturbance had to be considered tolerable.
Upon further appeal by the applicants both the Administrative Court of Appeal (kammarrätten) in Jönköping and the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 15 March 2002 and 7 June 2004 respectively.
Domestic provisions of relevance to the present case are to be found, primarily, in the Planning and Building Act (Plan- och bygglagen, 1987:10 - hereafter “the Act”) and in the Environmental Code (Miljöbalken, 1998:808 - hereafter “the Code”).
Thus, according to Chapter 1, section 5 of the Act consideration shall be given to both public and private interests when questions under the Act are examined, unless otherwise prescribed. It is the responsibility of each municipality to plan the use of land and water areas within their territory (Chapter 1, section 2). The County Administrative Board is the supervisory body of planning and building activities within its county and cooperates with the municipalities in their planning. Moreover, the National Board of Housing, Building and Planning (Boverket, hereafter referred to as “the NBHBP”) has general responsibility for the supervision of planning and building activities throughout Sweden (Chapter 1, section 8).
Furthermore, buildings shall be located and designed in a suitable manner with regard to the townscape or the landscape and the natural and cultural values at the site (Chapter 3, section 1 of the Act) and so that neither the buildings themselves nor their intended use will cause any danger or significant impact (betydande olägenhet) to the surroundings (Chapter 3, section 2). According to Chapter 3, section 14, these requirements also apply to constructions other than buildings, such as wind power stations.
It follows from Chapter 1, section 4 and Chapter 8, section 2 of the Act that building permits are required for the construction of new buildings, including wind power stations, inter alia, if the wind turbine is more than two metres in diameter. Moreover, Chapter 10, section 1, paragraph 2, states that when a measure which requires a building permit has been taken without permission, the municipal committee responsible for deciding on building permits shall ensure that such a construction is removed or otherwise rectified, unless a building permit is granted retrospectively.
Before an application for a building permit is decided upon, all known parties as well as known affected cooperative owners, tenants and residents, shall be informed and given the opportunity to state their opinions on the application (Chapter 8, section 22 of the Act). Also, decisions concerning building permits may be appealed against to the competent county administrative board (Chapter 13, section 2) and subsequently to the administrative courts (Chapter 13, section 4).
As concerns the Code, Chapter 1, Article 1 states, inter alia, that its purpose is to promote sustainable development which will ensure a healthy and sound environment for present and future generations. It shall ensure that human health and the environment are protected against damage and inconvenience, whether caused by pollutants or other sources, and that the use of land, water and the physical environment in general is such as to secure long-term good management in ecological, social, cultural and economic terms. It shall also encourage reuse and recycling as well as other management of materials, raw materials and energy with a view to establishing and maintaining natural cycles.
According to Chapter 2, Article 3 of the Code, those who pursue an activity or take a measure shall implement protective measures, comply with restrictions and take other precautions that are necessary in order to prevent, hinder or combat damage or detriment to human health or the environment as a result of the activity or measure. They are also obliged to plan and monitor the activity continuously in order to combat or prevent such effects (Chapter 26, Article 19). To ensure that these regulations are adhered to, the Environmental Protection Agency (Naturvårdsverket) and the county administrative boards exercise general supervision and a committee appointed by the municipal council is responsible for local supervision (Chapter 26, Article 3).
Appeals against decisions by municipal committees concerning the Code, including decisions to refuse a request for noise abatement measures or a noise investigation, may be lodged with the competent county administrative board unless otherwise provided (Chapter 19, Article 1), and further appeal lies to the Environmental Court and the Environmental Court of Appeal (Chapter 20, Article 2, and Chapter 23, Article 1). Anyone who is adversely affected by a judgment or decision may appeal against it, provided that it is appealable (Chapter 16, Article12). Thus, in a case from the Environmental Court of Appeal (MÖD 2004:31, judgment of 15 June 2004), the court set aside a judgment of the lower court and the County Administrative Board’s decision and referred the case back to the Board for a new examination because the municipal committee had turned down a request, put forward by some people living close to a wind power station, that the committee should, inter alia, make arrangements for a noise investigation of the wind power station, whereupon the Board had dismissed their appeal.
Chapter 32 of the Code contains provisions concerning compensation for certain kinds of environmental damage, inter alia, from noise. Hence, in accordance with Article 1, it is possible to get compensation for pecuniary loss that is not caused by a criminal offence, where the loss is of some importance and even if it is not caused deliberately or through negligence. However, the disturbance that causes the damage must not be tolerable in view of local conditions or with regard to the extent to which such disturbance normally occurs in similar conditions. Among those liable to pay compensation are, inter alia, those who pursue a harmful activity or who cause it to be pursued in their capacity as property owners or land leaseholders, including those who use the property for business or public activities (Article 6).
Anyone who wishes to claim compensation in accordance with Chapter 32 of the Code shall institute proceedings before an environmental court (Chapter 20, Article 2, paragraph 6 and Chapter 21, Article 2). Judgments and decisions by the Environmental Court may be appealed against to the Environmental Court of Appeal and further to the Supreme Court (Chapter 23, Articles 1 and 9). In one case, the Supreme Court granted some property owners compensation from the municipality for a decrease in the value of their properties caused by environmental disturbance from traffic noise and “aesthetic nuisance” from a newly built road (NJA 1999 p. 385, judgment of 14 June 1999).
In Sweden there are no binding rules regarding maximum noise levels in respect of wind turbines. However, according to the NBHBP’s general recommendations 1995:1 (“The Establishment of Wind Power Stations on Land” (Boverkets allmänna råd 1995:1, Etablering av vindkraft på land, 1995), the recommended levels set by the Environmental Protection Agency are applicable to wind turbines on land. Thus, the recommended levels that should normally not be exceeded when the turbine is in operation are, at night, 40 dB for housing areas and 35 dB for areas planned for recreational houses and active outdoor life. In one case concerning the establishment of a wind power plant (MÖD 2003:106, judgment of 7 November 2003), the Environmental Court of Appeal found in its judgment that the recommended maximum level of 40 dB for housing areas should apply both during the daytime and at night. In another case (MÖD 2006:8, judgment of 3 February 2006), the Environmental Court of Appeal held that the fact that an area was used for recreational houses did not suffice to characterise it as an area with “special qualities” and that, therefore, a maximum noise level of 40 dB was sufficiently far-reaching and there was no need to lower it to 35 dB as the complainants had requested.
The general recommendations of the NBHBP further state that noise calculations should be performed in connection with an examination under the Act. Such a noise test should be carried out according to a set method where the calculations should relate to a wind speed of eight metres per second, with a following wind, and at a height of ten metres from the ground. The levels of noise calculated should be drawn on a map of the area and marking the distances where the noise level is at 35, 40, 45 and 50 dB.
A new handbook “Planning and Processing of Permits for Wind Power Stations” (Planering och prövning av vindkraftsanläggningar) was published in 2003 by the NBHBP and replaced the recommendations from 1995. However, the recommendations concerning noise from wind turbines have not been altered.
In June 2006 the Swedish Parliament adopted the first Government Bill relating to wind power (Government Bill 2005/06:143, Miljövänlig el med vindkraft – åtgärder för ett livskraftigt vindbruk (“Environmentally friendly electricity using wind power – measures for a viable use of wind”)) in which it was stated that wind power should be given greater priority and various specific measures should be taken to promote and increase the use of wind power. It was further stressed that energy production in a sustainable society should have the smallest possible impact on the environment and the climate.
Most environmental noises can be approximately described by one of several simple measures. The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA) whereas, if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise.
The World Health Organization (WHO) has published “Guidelines for Community Noise” (1999) and “Fact Sheet No. 258, on Occupational and Community Noise” (revised February 2001) which give guideline values for various environments and situations. These guideline values are set at the level of the lowest adverse health effect, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment.
The guideline levels for annoyance have been set at 50 or 55 dB LAeq (measured for a period of sixteen hours in the daytime and eight hours at night), representing daytime levels below which a majority of the adult population will be protected from becoming moderately or seriously annoyed. It can be noted here that, according to the guidelines, a casual voice level in both men and women at a distance of one metre corresponds on average to 50 dB. Moreover, for most people, a lifetime’s continuous exposure to an average environmental noise of 70 dB will not cause hearing impairment, whereas exposure for more than eight hours a day to sound in excess of 85 dB is potentially hazardous. Thus, in relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments.
At night, sound pressure levels at the outside façades of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with the window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided.
According to the American Speech-Language-Hearing Association, noise levels above 80 dB are potentially hazardous. To illustrate various noise levels, it gives the following examples: 80 dB = alarm clock, busy street, 70 dB = busy traffic, vacuum cleaner, 60 dB = conversation, dishwasher, 50 dB = moderate rainfall, 40 dB = quiet room, 30 dB = whisper, quiet library.


ITEMID: 001-22634
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: PAPON v. FRANCE (No. 1)
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Maurice Papon] is a French national, born in 1910 and currently in custody in the Santé Prison in Paris. He was represented before the Court by Mr Francis Vuillemin and Mr Jean-Marc Varaut, both of the Paris Bar. The respondent Government were represented by their Agent, Mr Ronny Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 April 1998 the Gironde Assize Court found the applicant guilty of aiding and abetting crimes against humanity and sentenced him to ten years’ imprisonment. On 21 October 1999 the Court of Cassation ruled that he had forfeited his right to appeal on points of law because he had failed to surrender to custody. Those proceedings gave rise to application no. 54210/00.
From 22 October 1999 to 13 November 1999 the applicant was held in Fresnes Prison, initially in the prison hospital and then under normal conditions in a cell in the prison’s solitary-confinement wing. On 13 November 1999, on an application by his lawyer, who considered the conditions in which the applicant was being held unacceptable (particularly the very low temperature in his cell), the prison authorities decided to transfer him to the Santé Prison in Paris on the ground that he could be provided there with conditions of detention that were more suitable. Since then the applicant has been serving his sentence at the Santé Prison.
The applicant is currently 90 years old and had a triple heart bypass operation in 1996. During the investigation of his first application for a pardon on medical grounds (see below), it was noted in a preliminary expert report of 4 January 2000 prepared for the Principal Public Prosecutor at the Paris Court of Appeal, that the applicant’s heart condition had deteriorated and the recommendation was made that he be immediately transferred to a specialist cardiology unit where it could be decided whether he was in urgent need of a pacemaker. He was fitted with a pacemaker on 12 January 2000.
On 2 April 2001 Dr Sicard, the head of the Internal Medicine Department at Cochin Hospital prepared a medical certificate at the applicant’s request that read as follows:
“I, the undersigned, certify that I admitted Mr Maurice Papon to hospital in the Internal Medicine Department of which I am the head from 20 to 28 March 2001.
I will not go back over the patient’s previous heart problems, for which he was hospitalised and provided with other medical certificates in 1999 and 2000.
The patient is currently suffering from increasingly incapacitating angina. For three months now he has found it difficult to climb the stairs (two floors) leading up to the visiting room. This difficulty in getting up stairs, which amounts almost to disablement, has prompted him to stop taking walks, especially as he now has chest pains from time to time even when resting.
Clinical examination
The patient’s general condition is good; he is perfectly aware and lucid. His heart sounds are regular and his blood pressure reading is 140/80. He has some oedema of the lower limbs, probably linked to the reduced intake of diuretics, which he does not tolerate well urologically or in terms of hydration. He gets extremely tired when he is dehydrated. His pacemaker is working well and is due to be checked in a few days’ time.
Laboratory test results
None of the tests reveals any renal, haematological, or electrolyte anomalies or any biochemical evidence of inflammation. The patient’s anticoagulant treatment is well balanced.
Scanning results
X-rays of the lungs are normal. A cardiac ultrasound scan shows that the left ventricle is functioning normally without any pulmonary hypertension. A cardiac scintigram before and after injection of thallium after 24 hours shows that the two low-uptake areas in the posterior and anterior regions are myocardially viable, meaning that the strain on the myocardium remains partly reversible. Neither an exercise test (even mild) nor a coronarography were carried out because of the attendant risks.
General conclusions
It is likely that the coronary arteries, which have undergone a triple bypass, have become less permeable; this would explain the recurrence of angina during physical exertion.
Although there is no congestive heart failure, the patient’s progressive coronary disease means that there is still a worrying risk of his suffering a fatal heart attack and the possibility of sudden death in prison cannot be ruled out, even though it is entirely possible that his heart function, which is relatively well preserved in itself, may be compatible with living a good deal longer.
It appears obvious to us, however, that keeping this 90-year-old man with a vascular and coronary disease in prison is not likely to lessen the danger of his sudden death.”
According to the information provided by the Government, the applicant’s health is monitored by doctors and nurses from the prison’s Outpatient Consultation and Treatment Unit (UCSA), which was set up inside the prison under an Act of 18 January 1994 (it provides a doctor’s surgery, twice-daily nurse clinics and weekly laboratory tests and electrocardiographic check-ups), and by specialists consulted in hospitals outside the prison (cardiological consultations in Cochin Hospital, a period spent in Jean-Rostand Hospital for a cardiovascular check-up and fitting of a pacemaker, and regular checks on the pacemaker in the same hospital).
The applicant is being held in an individual cell in the prison’s “VIP” wing. His cell is 12 sq. m in area and is furnished with a bed, two tables, two cupboards, two chairs, a television and, at the medical service’s request, a medical chair and an automatic air humidifier. There is an alarm bell at the head of the applicant’s bed linked to the control centre, which is permanently manned by a warder. In one corner there is a lavatory and a washbasin; the shower is not far away and has been equipped with a seat as it does not have any grab bars. The applicant himself is responsible for cleaning and tidying his cell, with the assistance of another inmate once a week if need be.
The applicant finds it difficult to reach the exercise yard because of the steps leading to it. He has been given permission to walk along the prison landings twice a day. He has regular visits from his family and his lawyers.
On 23 December 1999 one of the applicant’s lawyers applied to the French President for a pardon on medical grounds. The application was refused on 7 March 2000 after an expert medical report had been obtained.
On 20 June 2000 the lawyer submitted a further application for a pardon on medical and humanitarian grounds, which was refused on 24 October 2000 after a medical examination by two experts on 21 July 2000. Neither of these expert reports was communicated to the applicant.
On 19 March, 21 April and 1 July 2000 the applicant sent letters to the governor of the Santé Prison, in which he complained that the light was turned on several times a night at around 4 a.m. or 5 a.m. (letters of 19 March and 21 April) and that a warder had refused to allow him to take a walk on the landings (letter of 1 July).
French law does not set an upper age-limit for pre-trial detention or the serving of prison sentences.
However, an offender’s state of health (in which age may be an aggravating factor) may be taken into account when an application for a pardon from the French President is being considered (Articles 17 and 19 of the Constitution) or when it is being decided whether to grant parole under Article 729 of the Code of Criminal Procedure, which provides:
“Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities or regularly attended an education or vocational training course or have taken part in a work experience scheme or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment or that they have made efforts to compensate their victims.
Subject to Article 132-23 of the Criminal Code, parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served. However, recidivists covered by Articles 132-8, 132-9 and 132-10 of the Criminal Code may only be granted parole if the length of the sentence already served is at least double that remaining to be served. In the cases provided for in this paragraph, the qualifying period may not exceed fifteen years...”
In criminal law, advanced age is not a bar to prosecution, pre-trial detention or a prison sentence in the Council of Europe’s member States.
Age may, however, be taken into account, together with other factors such as state of physical or mental health, when sentences are being determined. In Andorra, in particular, the courts may, in respect of offences punishable with a prison sentence of less than three years, substitute another penalty for the custodial penalty in view of the character and the general circumstances of the accused. In three countries a sentence of life imprisonment cannot be imposed on a person above a certain age: 60 in Romania and Russia and 65 in Ukraine; in Greece life imprisonment is reduced to 16 years for people over 70.
As far as the execution of sentences is concerned, age is rarely taken into account per se but in conjunction with state of health. In Luxembourg, however, prison sentences for minor offences are not executed if the convict is over 70 (in the case of serious offences, sentences are served in a semi-open prison). Two countries (Italy and San Marino) make provision for courts to substitute house arrest for a prison sentence where the convicted person is partially disabled and over 60 (in Italy) or 65 (in San Marino). German law also provides for the enforcement of a sentence to be deferred or suspended in the event of illness.
In a number of countries age is taken into account for parole – which is generally granted sooner once the prisoner has reached a given age, namely 70 in Spain and Greece, and 60 for men and 55 for women in Romania – and for pardons.
There are also several countries in which prisoners are not required to work beyond a certain age.