UPDATE 2015-07-01: the court of The Hague has ruled today that the Dutch government must, in the next six months, change its current policy for interception of privileged communications: ruling (in Dutch) and press release (in Dutch). If the government fails to comply, it has to seize any such interception.

UPDATE 2015-06-26: the Minister of Defense sent a letter (in Dutch) to parliament to explain the relation between privileged (lawyer/client) communications and national security. Here’s a translation of the essence:

(…) First I want to point out that the position a lawyer holds in criminal law is different from the one in context of an investigation by the intelligence & security service, in the course of carrying out their legal tasks on the basis of the Dutch Intelligence & Security Act of 2002. The rules that apply to a lawyer in criminal (procedure) law as holding a privileged position, do not apply one-on-one to in the latter context. Situations can exist in which the interest of national security prevails over the interest of privileged persons (in this case, being able to talk freely with clientele). As I stated during the parliamentary question time of April 21st 2015, the intelligence services can only under strict conditions proceed to use special powers against lawyers. In addition to the safeguards that apply to every use of a special power (necessity, subsidiarity and proportionality), extra criteria apply, including a shorter period of use of the power (one month instead of the normal three months). (…)

UPDATE 2015-03-10: in response (in Dutch) to parliamentary questions following a plead (in Dutch) from the National Bar Council, the Dutch Minister of the Interior stated that he does not believe it is necessary to introduce ex ante court approval for intercepting communications of lawyers.

UPDATE 2014-12-22: NRC Handelsblad published a piece (in Dutch) by Ot van Daalen (@digidefence) in which Ot, citing the case described below, recommends lawyers to encrypt communication with clients.

Today, Dutch newspaper NRC Handelsblad reports (in Dutch) that the Dutch intelligence & security agency AIVD spied on the Amsterdam-based lawyer office Prakken d’Oliveira, that defends terror suspects, among others. Here is a translation of NRC’s report:

AIVD admits eavesdropping on law firm that defends terror suspects

The secret service AIVD admits it eavesdropped on lawyers of the Amsterdam-based law firm Prakken d’Oliveira. The office states so on its own website, revealing a letter [.pdf, in Dutch] from Minister of the Interior, Ronald Plasterk.

The firm had filed a complaints because lawyers had been suspecting for years that they are eavesdropped on by the AIVD. Prakken d’Oliveira defends many terror suspects, among others. In the written answer from the Minister, the Dutch Review Committee on the Intelligence and Security Services (CTIVD) partially confirms the complaint. The Minister states he will follow the CTIVD’s recommendation and says that the AIVD acted “inappropriately” in transcribing the phone conversations, text messages, and emails.

Wiretapped despite policy

The AIVD thereby admits that between January 1st 2003 and July 1st 2014, conversations have been eavesdropped, and text messages and emails from the lawyers where read and transcribed. The CTIVD says it has doubts about the necessity of transcribing communication of the law firm prior to 2007. In that year, the AIVD established a policy concerning wiretapping of phones, among others. But according to the CTIVD, messages have been transcribed unlawfully after that.

The eavesdropping of contact between lawyers and suspects is, in principle, prohibited by the attorney–client privilege [in Dutch: “verschoningsrecht”]. That privilege ensures free consultation between both parties, such that a proper defense can be prepared. Exceptions can only be made in case of imminent threats.

In a statement on its website, Prakken d’Oliveira states that the regulation concerning eavesdropping is “seriously inadequate”. The law firm wants the law to be changed such that wiretapping of communication means is only allowed after prior approval of a court. Currently, the AIVD can eavesdrop if the Minister consents that doing so is necessary.

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