In September 2008, at the annual convention of the Netherlands Bar Association (Nederlandse Orde van Advocaten), the chairman of the Board of Procurators General discussed the relationship between the Public Prosecution Service and the Bar in relation to the tapping of telephone conversations between lawyers and their clients.
Tapping telecommunications is a special investigative power enshrined in the Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden). The present procedure prescribes that when authorised, investigating officers may listen to the recorded telephone conversations in criminal investigations. If they suspect that a conversation has been held with a professional entitled to privilege (i.e. a lawyer), they must inform the public prosecutor in such a way that the public prosecutor can assess whether or not the conversation may be disclosed. If this is not the case, the public prosecutor must issue an order to promptly destroy the recordings of the conversation. This duty is applicable to all types of storage. If a conversation does not qualify as a conversation that is subject to the privilege of nondisclosure, the recording can be added to the documents of the case.
The current issue of concern is that the existing procedure fails to safeguard the attorney-client privilege in practice. In a number of cases conversations held with a lawyer became public. The low point was the Hells Angels case, where the District Court of Amsterdam decided to block the prosecution, since the Public Prosecution Service had severely and repeatedly infringed the rules on safeguarding the attorney-client privilege.
This decision of the District Court of Amsterdam led to a critical examination by the Public Prosecution Service. The examination focused on the question of whether the existing system of destroying recorded conversations offers sufficient safeguards. After consulting the Netherlands Bar Association and the Dutch Association of Defence Counsel (Nederlandse Vereniging van Strafrechtadvocaten), the Board of Procurators General delivered their opinion to the Minister of Justice. They concluded that a system of number recognition should be introduced for the Bar. The Minister of Justice presented the recommendations to the Dutch Parliament.
In short, the proposed system of number recognition for the Bar entails that all lawyers may submit a maximum of five telephone numbers, which will in principle not be tapped by judicial authorities and the police. The idea is that the system for interception of telephone conversations will automatically recognise and filter out the telephone numbers submitted. The recordings of these intercepted conversations will be stored in a separate digital depot for 30 days, after which these recordings will automatically be deleted. The reason for storing the conversations is to prove possible abuse of the system by a client or lawyer.
The majority of Parliament agrees with the proposed new system by the Minister of Justice, but not without expressing some concerns. The Minister of Justice will discuss these concerns with the Public Prosecution Service and the Netherlands Bar Association and has requested the Board of Procurators General to further investigate other forms of communication with lawyers in relation to the attorney-client privilege. The new system is expected to enter into force next year.