Council of State: recording of conversation between lawyer and detainee is not allowed

The preventive recording of conversations between detainees and their lawyer, as proposed through amendments by VVD and BBB to a bill by Weerwind, is ‘a far-reaching restriction’ of the right to confidential communication with a lawyer, according to the Council of State. ‘That right belongs to the core of the right to a fair trial and is of great importance in a democratic constitutional state.’

This is reason for the Council to conclude ‘that the amendments are incompatible with the Constitution, the European Convention on Human Rights and (European) Union law’.

Last month, the House of Representatives debated an amendment to the Penitentiary Principles Act. Weerwind wants to enable camera surveillance of contacts between lawyers and detainees in the Extra Secure Institution (EBI) and the Intensive Supervision Department (AIT). In this way he hopes to make continued criminal activity from prison more difficult.

The Marengo trial revealed that Ridouan Taghi communicated with the outside world through his cousin and lawyer Youssef T. The Public Prosecution Service has a similar suspicion towards lawyer Inez Weski, who denies the allegation. Her case has yet to go to trial.

Tightened supervision

During the debate, the left part of the House wondered why Weerwind opted for a generic measure, instead of making an individual assessment on a case-by-case basis. The right part of the House thought Weerwind’s bill did not go far enough. MPs Ulysse Ellian (VVD) and Lilian Helder (BBB) ​​submitted amendments to tighten supervision even further.

Ellian proposed an expansion of the minister’s powers of command over a specific group of detainees. This should make ‘auditory supervision during conversations between the legal assistance provider and the detainee’ possible. A special committee would be allowed to listen to these recordings and advise the minister whether further investigation into the lawyer is necessary.

In Helder’s amendment proposal, audiovisual recordings are given to the Dutch Bar Association, which destroys them after five years. If in the meantime the suspicion arises that a lawyer is part of the detainee’s criminal organization, the public prosecutor can ask the judge to have access to the recordings. The bar association must then hand them over.

Minister Weerwind advised against both amendments, but they were nevertheless adopted. VVD, SGP, CDA, BBB, JA21 and PVV voted in favor, with a total of 77 seats, making them part of the bill. The law itself has not yet been voted on, because Weerwind requested urgent advice from the advisory department of the Council of State.

Legally untenable

Robert Crince le Roy, dean of the Dutch Bar Association, says in a response that the Council’s advice is ‘in line with the position of the Bar Association that the bill as it currently stands is legally untenable’.

BBB and VVD agreed to postpone the vote on Weerwind’s bill, but imposed a condition. “There are two flavors: withdraw or go to the Senate,” Helder said. Ellian supported that comment, although progress is uncertain: Weerwind is now faced with a law that he does not want. The minister said that he is studying the advice of the Council of State and will respond later.

D66 MP Sneller calls the Council of State’s judgment ‘devastating’. He calls on the parties not to drive through ‘red lights under the rule of law’. Sneller: ‘This is the opportunity to show that the new coalition’s promise to respect fundamental rights was a serious attempt and does not appear to be worthless in advance.’