Council of State cracks Chamber’s plan to listen in on lawyer-client conversations

NOS News•today, 3:11 PM

The Council of State is criticizing the legislative changes that the House of Representatives has adopted to make the regime in the most heavily guarded prisons even stricter. The Council calls proposals by the VVD and BBB to record confidential conversations between lawyers and detainees “incompatible with the Constitution and European treaties”.

The most serious criminals are housed in the Extra Secure Institution (EBI) and the Intensive Supervision Department (AIT). Outgoing Minister Weerwind (Legal Protection) wants to tighten the rules in those prisons. He wants to monitor contacts between detainees and their lawyers with cameras, but without sound.

In this way he wants to prevent information being secretly exchanged, as Ridouan Taghi did with his cousin, who was also a lawyer.

But the House of Representatives felt that this did not go far enough, as became clear last month when the bill was discussed. BBB MP Helder submitted an amendment to record all contacts with lawyers audiovisually, i.e. with sound. The recordings must be kept for five years and can be retrieved after permission from a judge.

VVD member Ellian also wants to go further than Weerwind. He wants the minister to be able to order conversations of a specific detainee to be recorded. These are then immediately listened to by an independent committee, which then informs the minister whether further investigation into the lawyer is necessary.

Despite major objections from Minister Weerwind and opponents in the House of Representatives, the amendment proposals were adopted. The minister then asked the Council of State for urgent advice.

He now writes that the right to confidential communication between suspects and their lawyer “belongs to the core of the right to a fair trial. It is of great importance in a democratic constitutional state.” This right can only be deviated from in exceptional cases, but according to the Council of State this can only be the case in individual cases.

Moreover, there must be clear indications that the confidential communication is being misused. “General preventive measures are therefore not permitted.” According to the Council of State, these are contrary to the Constitution, the European Convention on Human Rights (ECHR) and Union law.

The lawyers point out that there are already possibilities to listen in on confidential conversations of detainees. “We think it is very questionable whether there is still room for expansion in addition to these existing options.”

It rarely happens that the Council of State passes such a harsh judgment on legislative changes that have already been adopted by the House of Representatives. It is still unclear what will happen next. The Ministry of Justice and Security has stated that it is studying the advice.

BBB MP Helder places the blame for the situation on the minister. According to her, he has defended himself “far too poorly” against her and Ellian’s proposals. “As a result, the majority in the House voted in favor.”

At the same time, she still believes her plans are defensible. “There is no eavesdropping. The conversations are kept at the Bar Association without anyone listening to them. This is only allowed in case of serious suspicion and after permission from the examining magistrate.”

According to VVD member Ellian, the risk remains high that lawyers are used or abused by serious criminals to have uncontrolled contact with the outside world from prison. “The conclusion of the Council of State essentially means that there is little that can be done about this. That is a disappointing conclusion.”

The vote on Weerwind’s original bill has been postponed for the time being. He can choose to withdraw the entire law, so that the controversial amendment proposals from BBB and VVD will not go ahead. It could also be that he ultimately leaves it to the Senate to make a final judgment.